The decisions of the Lords of council & session in the most important cases debate before them with the acts of sederunt as also, an alphabetical compend of the decisions : with an index of the acts of sederunt, and the pursuers and defenders names, from June 1661 to July 1681 / Sir James Dalrymple ...
         Scotland. Court of Session.
      
       
         
           1683
        
      
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         55692
         
           
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             The decisions of the Lords of council & session in the most important cases debate before them with the acts of sederunt as also, an alphabetical compend of the decisions : with an index of the acts of sederunt, and the pursuers and defenders names, from June 1661 to July 1681 / Sir James Dalrymple ...
             Scotland. Court of Session.
             Stair, James Dalrymple, Viscount of, 1619-1695.
          
           2 v. ([12], 769, [15], 40; [4], 896, [12], 49 p.)
           
             Printed by the heir of Andrew Anderson ...,
             Edinburgh :
             1683.
          
           
             Reproduction of original in Huntington Library.
             Index at end of both parts.
          
        
      
    
     
       
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           Scotland. -- Court of Session.
           Law reports, digests, etc. -- Scotland.
           Civil procedure -- Scotland.
        
      
    
     
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           THE
           DECISIONS
           OF
           THE
           LORDS
           OF
           COUNCIL
           &
           SESSION
           ,
           In
           the
           most
           
             Important
             Cases
          
           Debate
           before
           them
           ,
           With
           the
           ACTS
           OF
           SEDERUNT
           .
        
         
           AS
           ALSO
           ,
           
             An
             Alphabetical
             Compend
             of
             the
             Decisions
          
           ;
           With
           an
           
             Index
             of
             the
             Acts
             of
             Sederunt
             ,
             and
             the
             Pursuers
             and
             Defenders
             Names
             .
             From
          
           June
           1661.
           to
           July
           1681.
           
        
         
           PART
           FIRST
           ,
           &c.
           
        
         
           OBSERVED
           BY
           Sir
           
             JAMES
             DALRYMPLE
          
           of
           Stair
           ,
           Knight
           and
           Baronet
           ,
           &c.
           
        
         
           EDINBVRGH
           ,
           Printed
           by
           the
           Heir
           of
           
             Andrew
             Anderson
          
           ,
           Printer
           to
           His
           most
           Sacred
           
             Majesty
             ,
             Anno
             DOM.
          
           1683.
           
        
      
       
         
         
         
           Unto
           the
           Right
           Honourable
           GEORGE
           EARLE
           of
           ABERDEEN
           &c.
           Lord
           High
           Chancellour
           of
           SCOTLAND
           .
        
         
           Sir
           David
           Falconer
           of
           Nevvtoun
           ,
           Lord
           President
           of
           the
           Session
           .
           
             
               Sir
               
                 George
                 Mckenzie
              
               of
               Tarbet
               ,
               Lord
               Clerk-Register
               .
            
             
               Sir
               
                 Iames
                 Foulis
              
               of
               Collingtoun
               .
            
             
               Sir
               
                 Iohn
                 Lockhart
              
               of
               Casslehill
               .
            
             
               Sir
               
                 David
                 Balfour
              
               of
               Forret
               .
            
             
               Sir
               
                 Iames
                 Foulis
              
               of
               Reidfoord
               .
            
             
               Sir
               
                 Alexr
                 .
                 Seton
              
               of
               Pitmedden
               .
            
             
               Sir
               
                 Roger
                 Hogg
              
               of
               Harcarse
               .
            
             
               Sir
               
                 Andrew
                 Birnie
              
               of
               Saline
               .
            
             
               Sir
               
                 Patrick
                 Ogilvie
              
               of
               Boyn
               .
            
             
               Sir
               
                 Iohn
                 Murray
              
               of
               Drumcairn
               .
            
             
               Sir
               
                 George
                 Nicolson
              
               of
               Kemnay
               .
            
             
               Iohn
               Wauchop
               
                 of
                 Edmistoun
              
               .
            
             
               Sir
               
                 Thomas
                 Steuart
              
               of
               Blair
               .
            
             
               Sir
               
                 Patrick
                 Lyon
              
               of
               Carse
               .
            
          
        
         
           SENATORS
           of
           the
           COLLEDGE
           of
           JUSTICE
           ,
           and
           Ordinar
           LORDS
           of
           COUNCIL
           and
           SESSION
           .
        
         
           WILLIAM
           Marquess
           of
           Queensberry
           &c.
           Lord
           high
           Thesaurer
           of
           SCOTLAND
           .
        
         
           IOHN
           Marquess
           of
           Athol
           &c.
           Lord
           Privy
           Seal
           ,
           and
           Vice-Admiral
           of
           SCOTLAND
           .
        
         
           ALEXANDER
           Earl
           of
           Murray
           &c.
           Conjunct-Secretary
           of
           State.
           
        
         
           IAMES
           Earl
           of
           Pearth
           &c.
           Lord
           Justice-General
           ,
        
         
           Extraordinar
           LORDS
           of
           the
           SESSION
           .
        
         
           
             My
             Lords
             ,
          
        
         
           MY
           Duty
           and
           Affection
           obliges
           me
           to
           Dedicate
           these
           Acts
           and
           Decisions
           to
           your
           Lordships
           ,
           because
           they
           are
           your
           own
           ;
           I
           have
           only
           been
           your
           Servant
           in
           Observing
           and
           Collecting
           them
           ,
           and
           am
           confident
           ,
           they
           will
           serve
           for
           the
           Illustration
           and
           Vindication
           of
           your
           Justice
           ,
           and
           Faithfulness
           in
           your
           Service
           to
           the
           King
           and
           Kingdom
           ,
           to
           whom
           it
           cannot
           but
           be
           highly
           acceptable
           and
           satisfying
           to
           see
           ,
           that
           in
           so
           long
           a
           tract
           
           of
           time
           ,
           you
           have
           kept
           so
           steady
           and
           equal
           a
           course
           in
           the
           Administration
           of
           Justice
           with
           〈…〉
           .
        
         
           It
           hath
           been
           looked
           upon
           as
           the
           priviledge
           of
           Judges●
           to
           bring
           in
           Causes
           to
           be
           determined
           ,
           in
           what
           order
           they
           thought
           fit
           ,
           which
           gave
           occasion
           of
           great
           Reverence
           to
           ,
           and
           dependence
           upon
           them
           ,
           and
           of
           gratifications
           to
           their
           Friends
           ,
           but
           your
           Lordships
           having
           found
           so
           much
           inconveniency
           to
           the
           Subjects
           ,
           by
           their
           tedious
           ,
           expensive
           ,
           and
           uncertain
           attendence
           ,
           unavoidable
           in
           that
           way
           ,
           you
           did
           therefore
           willingly
           ,
           and
           of
           your
           proper
           motion
           quite
           that
           Priviledge
           ,
           and
           ordered
           that
           all
           men
           should
           have
           dispatch
           in
           Justice
           ,
           as
           their
           own
           diligence
           put
           them
           in
           readiness
           to
           demand
           it
           ,
           without
           pretence
           of
           complaint
           for
           being
           postponed
           or
           delayed
           ;
           and
           you
           gave
           the
           rise
           for
           interposing
           the
           Authority
           of
           Parliament
           to
           that
           Order
           ,
           which
           could
           not
           but
           avoid
           the
           suspition
           of
           inequality
           ,
           which
           did
           occur
           ,
           while
           every
           Judge
           in
           his
           course
           ,
           did
           choise
           at
           discretion
           what
           Causes
           to
           hear
           ,
           which
           were
           readily
           supposed
           to
           be
           these
           of
           his
           Friends
           and
           Relations
           .
        
         
           As
           your
           Lordships
           have
           been
           equal
           in
           the
           Order
           ,
           so
           these
           Decisions
           will
           show
           that
           you
           have
           been
           impartial
           in
           the
           matter
           of
           Justice
           ,
           and
           it
           will
           appear
           that
           you
           have
           followed
           the
           same
           uniform
           Course
           of
           Justice
           ,
           otherwise
           it
           had
           been
           impossible
           for
           you
           to
           quadrat
           with
           your selves
           ,
           if
           you
           had
           followed
           any
           other
           Rule
           ;
           for
           if
           personal
           Interest
           had
           great
           influence
           ,
           it
           could
           not
           fail
           but
           the
           same
           case
           ,
           would
           have
           been
           diversly
           determined
           amongst
           different
           Parties
           :
           The
           way
           of
           Truth
           and
           Justice
           is
           one
           ,
           and
           never
           crosseth
           or
           just●eth
           with
           it self
           ;
           but
           the
           way
           of
           Error
           and
           Partiality
           is
           infinite
           ,
           and
           can
           never
           be
           long
           consonant
           ,
           and
           the
           pretence
           of
           varying
           upon
           differences
           in
           the
           cases
           will
           easily
           be
           perceived
           ,
           when
           these
           are
           not
           the
           true
           motives
           of
           Variation
           ,
           nor
           can
           the
           greatest
           caution
           keep
           former
           Cases
           so
           in
           memory
           ,
           as
           not
           to
           fall
           in
           flat
           contradictions
           in
           some
           length
           of
           time
           ,
           when
           Justice
           is
           not
           the
           Rule
           ;
           It
           was
           no
           wonder
           that
           inconsistencies
           did
           occur
           ,
           when
           former
           Decisions
           were
           but
           little
           known
           ,
           and
           were
           only
           Transmitted
           by
           uncertain
           Tradition
           ,
           from
           the
           memory
           of
           Judges
           or
           Advocats
           ,
           where
           a
           constant
           Custom
           was
           not
           introduced
           ;
           but
           in
           circumstantiat
           Cases
           ,
           all
           the
           points
           of
           Fact
           ,
           could
           not
           be
           so
           preserved
           ,
           but
           Pleaders
           would
           differ
           about
           them
           ,
           and
           controvert
           whether
           the
           difference
           were
           so
           material
           as
           to
           be
           the
           just
           motives
           of
           alteration
           ;
           and
           if
           they
           should
           have
           recourse
           
           to
           Records
           ,
           they
           could
           thence
           have
           little
           remedy
           ,
           seing
           many
           eminent
           Decisions
           came
           to
           be
           Transacted
           before
           any
           Act
           or
           Decreet
           thereupon
           were
           Recorded
           ,
           and
           though
           they
           were
           ,
           yet
           the
           Motives
           upon
           which
           the
           Lords
           did
           proceed
           were
           seldom
           decernable
           in
           the
           mass
           of
           Disputes
           .
           The
           contrarieties
           that
           are
           remarked
           by
           the
           judicious
           and
           industrious
           Lord
           Dury
           (
           who
           did
           serve
           and
           observe
           about
           the
           same
           length
           of
           time
           that
           I
           have
           done
           )
           are
           the
           more
           excuseable
           ,
           that
           before
           his
           time
           the
           Decisions
           of
           Session
           were
           not
           much
           marked
           ,
           and
           but
           in
           few
           hands
           ,
           yea
           it
           was
           a
           long
           time
           before
           the
           Decisions
           observed
           by
           Dury
           ,
           were
           become
           common
           ,
           and
           were
           cited
           by
           Pleaders
           ,
           or
           noticed
           by
           Judges
           .
        
         
           It
           is
           impossible
           to
           evite
           the
           clamours
           of
           Parties
           coming
           short
           of
           their
           expectation
           ,
           when
           they
           are
           in
           heat
           and
           fervency
           carrying
           on
           their
           Cause
           ,
           and
           when
           they
           have
           heard
           the
           Wit
           and
           Eloquence
           of
           their
           Advocats
           ,
           endeavouring
           to
           make
           their
           Case
           ,
           if
           not
           evidently
           just
           ,
           at
           least
           probably
           such
           ;
           but
           when
           that
           fervour
           is
           cooled
           ,
           upon
           second
           Thoughts
           ,
           re-considering
           the
           Motives
           upon
           which
           the
           Lords
           proceeded
           ,
           if
           they
           see
           that
           they
           Decided
           not
           otherwise
           upon
           the
           same
           Grounds
           ,
           they
           cannot
           be
           so
           far
           wanting
           to
           their
           own
           quiet
           ,
           as
           not
           to
           acquiesce
           and
           rest
           satisfied
           ,
           considering
           that
           their
           first
           Thoughts
           were
           in
           fervour
           ,
           and
           at
           best
           ,
           were
           but
           the
           Conceptions
           of
           Parties
           ,
           whose
           interest
           hath
           a
           secret
           influence
           to
           byass
           their
           first
           Apprehensions
           ,
           they
           could
           not
           but
           be
           convinced
           that
           the
           private
           and
           particular
           opinion
           of
           Parties
           interressed
           ,
           should
           quietly
           cede
           to
           the
           Judgment
           of
           so
           many
           learned
           and
           experienced
           Judges
           ,
           having
           no
           other
           concernment
           in
           the
           event
           of
           the
           Cause
           ,
           but
           that
           Justice
           might
           be
           inviolable
           ,
           and
           that
           no
           pernicious
           or
           dangerous
           preparative
           might
           be
           laid
           ,
           to
           the
           common
           detriment
           of
           all
           ,
           and
           who
           by
           all
           the
           obligations
           whereof
           men
           are
           capable
           ,
           towards
           God
           ,
           their
           Prince
           ,
           Countrey
           and
           Posterity
           ,
           are
           engaged
           to
           be
           careful
           and
           tender
           of
           Justice
           .
        
         
           It
           is
           the
           great
           interest
           of
           Mankind
           ,
           that
           every
           man
           should
           not
           be
           Judge
           in
           his
           own
           Cause
           ,
           but
           that
           there
           should
           be
           indifferent
           Judges
           ,
           
             of
             good
             report
             ,
             men
             of
             courage
             ,
             fearing
             God
             ,
             and
             hating
             covetousness
             ,
          
           who
           might
           hear
           and
           determine
           the
           Controversies
           of
           Parties
           ,
           which
           necessarly
           doth
           imply
           ,
           that
           either
           Party
           should
           acquiesce
           in
           the
           publick
           judgment
           of
           Authority
           .
        
         
           It
           is
           amongst
           the
           greatest
           interests
           of
           Mankind
           ,
           that
           they
           may
           securely
           enjoy
           
           their
           Rights
           and
           Possessions
           ,
           being
           free
           from
           fear
           to
           be
           over-reached
           ,
           or
           oppressed
           ,
           without
           remedy
           ;
           which
           can
           not
           be
           attained
           ,
           unless
           their
           Rights
           be
           lodged
           in
           the
           hands
           of
           just
           and
           judicious
           Judges
           ,
           wherein
           at
           first
           they
           could
           have
           little
           more
           to
           rest
           on
           ,
           but
           the
           Reputation
           that
           their
           Judges
           were
           such
           ,
           nor
           could
           the
           Judges
           then
           have
           any
           other
           Rule
           then
           
             bonum
             &
             equum
          
           ,
           according
           to
           the
           discretion
           of
           good
           men
           ,
           and
           therefor
           did
           differ
           little
           from
           Arbiters
           ,
           until
           they
           came
           to
           have
           fixed
           Customs
           and
           Statutes
           ,
           clear
           and
           known
           ,
           which
           could
           not
           come
           the
           length
           of
           a
           sufficient
           Rule
           for
           all
           Cases
           ,
           for
           there
           will
           ever
           be
           new
           Cases
           occurring
           ;
           and
           therefore
           the
           best
           expedient
           to
           give
           this
           most
           desireable
           Security
           ,
           is
           ,
           to
           show
           that
           Judges
           do
           alwayes
           proceed
           suitably
           to
           themselves
           without
           interfeiring
           ;
           and
           that
           they
           make
           not
           Law
           like
           the
           Delphick
           Sword
           ,
           bowing
           or
           bending
           to
           the
           several
           Parties
           ,
           but
           as
           a
           firm
           and
           stable
           Rule
           ,
           which
           will
           ply
           to
           no
           obliquity
           ,
           but
           whatever
           must
           be
           regulate
           by
           it
           ,
           must
           be
           applyed
           to
           it
           ,
           and
           be
           straight
           like
           it
           ,
           and
           so
           quadrat
           one
           to
           another
           ,
           which
           can
           be
           no
           way
           better
           known
           ,
           than
           by
           the
           publishing
           and
           comparing
           of
           Decisions
           ,
           whereby
           it
           may
           be
           seen
           ,
           that
           like
           Cases
           have
           like
           events
           ,
           and
           that
           there
           is
           no
           respect
           of
           persons
           in
           Judgment
           ;
           all
           men
           cannot
           be
           Lawers
           ,
           nor
           can
           the
           most
           part
           have
           discretion
           enough
           to
           understand
           
             aequum
             &
             bonum
          
           ;
           yet
           few
           will
           be
           found
           to
           want
           capacity
           to
           compare
           Decisions
           ,
           and
           so
           perceive
           if
           they
           be
           congruous
           and
           uniform
           ,
           and
           if
           they
           find
           them
           such
           ,
           they
           may
           easily
           be
           perswaded
           ,
           that
           their
           uniformity
           could
           be
           by
           no
           other
           Rule
           than
           Law
           ,
           and
           Justice
           .
        
         
           It
           is
           no
           small
           prejudice
           to
           any
           Nation
           ,
           to
           make
           them
           believe
           or
           suspect
           that
           their
           Rights
           are
           not
           secured
           in
           just
           hands
           ,
           for
           that
           overturns
           their
           quiet
           and
           security
           .
           The
           most
           part
           will
           never
           have
           a
           Pursuit
           determined
           against
           them
           ,
           and
           far
           fewer
           will
           find
           themselves
           worsted
           by
           personal
           considerations
           ,
           But
           no
           man
           can
           say
           but
           he
           may
           ,
           and
           most
           do
           fear
           that
           they
           shall
           be
           involved
           in
           Law
           Suits
           ,
           and
           if
           they
           be
           not
           perswaded
           to
           find
           a
           sure
           Remedy
           by
           just
           and
           knowing
           Iudges
           ,
           then
           all
           is
           unsecure
           and
           disquieted
           ,
           so
           that
           it
           is
           more
           the
           advantage
           of
           a
           Nation
           that
           their
           Judges
           were
           but
           reputed
           just
           ,
           though
           they
           were
           not
           ,
           then
           that
           they
           were
           just
           ,
           yet
           were
           reputed
           unjust
           ,
           for
           this
           Case
           toucheth
           and
           grieveth
           all
           ,
           whereas
           the
           former
           can
           reach
           but
           a
           few
           .
        
         
           King
           Iames
           the
           fifth
           ,
           who
           Institute
           the
           Colledge
           of
           Justice
           ,
           Ordered
           one
           of
           the
           Lords
           to
           keep
           a
           Journal
           of
           their
           Decisions
           ,
           with
           which
           
             Henry
             Sinclar
          
           Dean
           
           of
           Rastalrig
           was
           entrusted
           ,
           and
           did
           observe
           the
           same
           for
           the
           space
           of
           ten
           years
           ,
           as
           
             Maitland
             ,
             Hadingtoun
             ,
             Hope
             ,
             Balfour
             ,
             Spotswood
             ,
             Dury
             ,
          
           and
           several
           others
           since
           have
           done
           ;
           And
           after
           Our
           Sacred
           Soveraign
           who
           now
           Reigns
           ,
           did
           Restore
           the
           Colledge
           of
           Justice
           to
           it
           's
           ancient
           Constitution
           and
           Splendor
           ,
           and
           did
           make
           a
           full
           Nomination
           of
           the
           Senators
           thereof
           ;
           and
           Call
           most
           of
           the
           Eminent
           Advocats
           to
           the
           Bench
           ,
           so
           that
           after
           a
           long
           interruption
           ,
           the
           Session
           was
           almost
           wholly
           new
           ,
           therefor
           it
           was
           very
           necessary
           that
           their
           Decisions
           should
           be
           Observed
           ,
           which
           induced
           me
           (
           being
           one
           of
           that
           Nomination
           )
           to
           undertake
           that
           Task
           ,
           which
           I
           did
           constantly
           follow
           ,
           making
           up
           this
           Journal
           of
           all
           the
           Decisions
           that
           had
           any
           thing
           of
           difficulty
           or
           importance
           in
           them
           ,
           which
           I
           did
           design
           to
           leave
           behind
           me
           ,
           as
           a
           Token
           of
           my
           most
           devoted
           affection
           to
           that
           excellent
           Society
           ,
           
             The
             Colledge
             of
             Iustice
          
           ,
           in
           which
           ,
           with
           much
           satisfaction
           I
           spent
           the
           far
           greatest
           part
           of
           my
           Life
           ,
           and
           was
           very
           happy
           in
           the
           mutual
           affection
           of
           my
           Colligues
           ,
           both
           while
           I
           was
           at
           the
           Bar
           ,
           and
           on
           the
           Bench
           ,
           yet
           the
           weight
           of
           the
           Charge
           I
           did
           bear
           ,
           (
           which
           in
           a
           few
           years
           sunk
           my
           Predecessor
           Sir
           
             Iohn
             Gilmour
          
           ,
           though
           a
           man
           of
           great
           strength
           of
           Body
           and
           Spirit
           ,
           when
           he
           undertook
           that
           Office
           )
           made
           me
           consider
           ,
           that
           it
           was
           fit
           for
           me
           ,
           before
           Age
           or
           Infirmity
           should
           make
           that
           burden
           more
           uneasie
           ,
           to
           have
           some
           remnant
           of
           my
           Life
           ,
           of
           which
           I
           might
           be
           Master
           ,
           without
           Diversion
           ,
           for
           which
           some
           of
           your
           Lordships
           and
           others
           knew
           my
           Resolution
           to
           retire
           long
           agoe
           ;
           and
           therefore
           I
           did
           propose
           to
           your
           Lordships
           the
           publishing
           of
           these
           Decisions
           wherein
           I
           have
           your
           allowance
           and
           approbation
           .
        
         
           I
           shall
           need
           to
           say
           nothing
           as
           to
           these
           Decisions
           in
           behalf
           of
           your
           Lordships
           ,
           I
           hope
           the
           Matter
           will
           speak
           more
           for
           your
           Honour
           ,
           than
           to
           need
           any
           thing
           further
           from
           me
           ;
           I
           might
           say
           great
           things
           of
           that
           Judicature
           ,
           and
           of
           your selves
           particularly
           ,
           but
           I
           shall
           forbear
           ,
           least
           any
           should
           think
           it
           might
           look
           like
           flattery
           ,
           and
           therefore
           shall
           only
           add
           a
           little
           for
           my self
           .
        
         
           I
           did
           not
           pick
           out
           such
           Decisions
           as
           I
           liked
           best
           ,
           leaving
           out
           others
           which
           might
           have
           showen
           contrariety
           ;
           nor
           did
           I
           express
           my
           opinion
           when
           different
           from
           the
           plurality
           ,
           but
           I
           had
           ever
           that
           Deference
           to
           your
           Judgement
           ,
           that
           I
           did
           not
           omit
           any
           thing
           that
           was
           said
           for
           it
           ,
           much
           less
           did
           I
           magnifie
           my
           own
           opinion
           against
           it
           ,
           though
           I
           cannot
           say
           that
           I
           did
           oft
           differ
           from
           it
           .
        
         
           I
           did
           form
           this
           Breviat
           of
           these
           Decisions
           ,
           in
           fresh
           and
           recent
           Memory
           ,
           
             de
             die
             in
             diem
          
           as
           they
           were
           pronunced
           ;
           I
           seldom
           eat
           ,
           before
           I
           Observed
           the
           Interlocutors
           I
           judged
           of
           difficulty
           ,
           that
           past
           that
           day
           ,
           and
           when
           I
           was
           hindered
           by
           any
           extraordinary
           occasion
           ,
           I
           delayed
           no
           longer
           then
           that
           was
           over
           .
           It
           was
           neither
           feazable
           nor
           fit
           that
           I
           should
           set
           down
           the
           large
           Pleadings
           ,
           or
           the
           Written
           Informations
           of
           Parties
           ,
           I
           did
           peruse
           them
           throughly
           ,
           and
           pitched
           
           upon
           the
           Reasons
           which
           were
           of
           moment
           ,
           as
           to
           the
           points
           determined
           ,
           whereas
           in
           the
           same
           Informations
           ,
           there
           were
           many
           obvious
           clear
           Points
           insisted
           on
           ,
           which
           I
           omitted
           .
        
         
           I
           did
           alwayes
           relate
           the
           Case
           as
           it
           was
           proposed
           or
           resumed
           to
           the
           Lords
           ,
           and
           with
           the
           important
           Reasons
           offered
           by
           Parties
           ,
           I
           added
           these
           which
           occurred
           to
           the
           Lords
           in
           their
           Deliberations
           ;
           so
           that
           all
           the
           Reasons
           and
           Motives
           upon
           which
           the
           Lords
           proceeded
           ,
           will
           neither
           be
           found
           in
           Parties
           Informations
           ,
           nor
           Clerks
           Minuts
           ,
           for
           though
           it
           was
           not
           fit
           for
           the
           Lords
           to
           suggest
           any
           Point
           of
           Fact
           not
           alleadged
           by
           Parties
           :
           Yet
           it
           was
           most
           proper
           for
           them
           to
           supply
           the
           Points
           of
           Law
           arising
           from
           the
           Fact
           proposed
           .
           And
           in
           such
           a
           Breviat
           it
           is
           not
           to
           be
           expected
           that
           I
           should
           at
           large
           set
           down
           the
           Elegant
           and
           Eloquent
           Disputes
           of
           the
           Lawers
           ,
           but
           that
           I
           should
           express
           the
           Matter
           and
           Moment
           of
           their
           Reasons
           ,
           with
           the
           greatest
           plainness
           and
           equality
           that
           I
           could
           .
        
         
           It
           is
           like
           ,
           some
           of
           my
           Colligues
           may
           have
           observed
           other
           Cases
           than
           these
           ,
           and
           in
           these
           ,
           may
           have
           worded
           Interlocutors
           otherwise
           ,
           and
           adduced
           some
           other
           Reasons
           ,
           which
           cannot
           at
           all
           weaken
           the
           Credit
           of
           these
           ,
           for
           some
           Decisions
           were
           past
           when
           I
           kept
           my
           Course
           in
           the
           Outter-House
           ,
           and
           others
           were
           Reported
           long
           after
           the
           Informations
           were
           given
           ,
           which
           might
           escape
           me
           ,
           and
           many
           I
           thought
           of
           no
           such
           intricacy
           or
           importance
           ,
           as
           made
           them
           fit
           to
           be
           published
           ,
           but
           I
           do
           with
           all
           sincerity
           and
           confidence
           assert
           ,
           that
           I
           did
           omit
           none
           I
           found
           of
           difficulty
           ,
           upon
           any
           design
           to
           cover
           inconsistencies
           ,
           or
           any
           other
           end
           of
           that
           kind
           ,
           nor
           is
           it
           of
           import
           what
           the
           words
           were
           ,
           if
           the
           Matter
           were
           truly
           exprest
           ;
           for
           no
           Observer
           did
           ever
           look
           into
           the
           Clerks
           Minuts
           ,
           and
           different
           Observers
           will
           not
           alwayes
           have
           the
           same
           Opinion
           of
           the
           importance
           of
           Reasons
           ,
           nor
           will
           find
           themselves
           obliged
           to
           adduce
           all
           the
           Reasons
           proposed
           :
           Neither
           have
           I
           Recorded
           any
           Decisions
           but
           what
           was
           determined
           while
           I
           was
           present
           ,
           being
           resolved
           to
           take
           nothing
           at
           a
           second
           hand
           .
        
         
           These
           Decisions
           were
           Written
           with
           many
           different
           hands
           ,
           but
           all
           of
           them
           were
           then
           in
           my
           Family
           ,
           and
           some
           of
           them
           understood
           not
           the
           Matter
           ,
           by
           which
           ,
           and
           the
           haste
           I
           was
           forced
           oftimes
           to
           put
           them
           to
           ,
           there
           was
           much
           uncorrect
           ,
           but
           I
           did
           expect
           that
           I
           might
           have
           been
           present
           ,
           and
           have
           overseen
           the
           Press
           my self
           ;
           I
           began
           to
           cause
           Transcribe
           them
           with
           a
           better
           hand
           ,
           and
           did
           consider
           whether
           it
           were
           not
           fit
           to
           amplifie
           and
           embellish
           the
           Disputes
           so
           ,
           as
           might
           have
           been
           expected
           from
           so
           pregnant
           and
           eloquent
           Pleaders
           ,
           as
           our
           time
           hath
           afforded
           ,
           who
           have
           been
           nothing
           short
           of
           their
           Predecessors
           ,
           but
           I
           thought
           that
           this
           would
           look
           too
           like
           a
           new
           Frame
           from
           my
           own
           Fancy
           or
           Memory
           ,
           after
           so
           long
           a
           time
           ,
           and
           therefore
           I
           resolved
           they
           should
           be
           keept
           
           as
           they
           were
           at
           first
           Written
           ,
           and
           if
           so
           they
           prove
           uniform
           ,
           as
           it
           will
           be
           a
           great
           evidence
           of
           your
           Lordships
           Justice
           ,
           so
           it
           will
           be
           a
           strong
           proof
           that
           they
           are
           sincere
           and
           authentick
           ,
           having
           been
           Written
           on
           the
           several
           Sederunt
           dayes
           ,
           for
           more
           then
           twenty
           years
           together
           ;
           and
           therefore
           I
           do
           int●eat
           the
           favour
           ,
           that
           what
           is
           uncorrect
           may
           be
           excused
           and
           supplied
           from
           the
           Matter
           .
        
         
           I
           had
           the
           best
           opportunity
           to
           make
           these
           Observations
           ,
           being
           scarce
           a
           day
           absent
           in
           any
           of
           these
           Sessions
           wherein
           I
           have
           marked
           them
           from
           the
           first
           of
           Iune
           1661.
           until
           the
           first
           of
           August
           1681.
           
           And
           I
           was
           not
           one
           day
           absent
           from
           the
           thirteenth
           of
           Ian●ary
           1671.
           when
           it
           pleased
           His
           Majesty
           to
           appoint
           me
           to
           be
           constant
           President
           of
           the
           Session
           in
           place
           of
           my
           Lord
           Craigmiller
           ,
           who
           had
           then
           demitted
           ,
           except
           the
           Summer
           Session
           1679.
           when
           I
           attended
           His
           Majesty
           by
           His
           own
           Command
           ,
           during
           all
           which
           time
           ,
           I
           hope
           your
           Lordships
           will
           bear
           me
           Witness
           that
           I
           never
           used
           Arrogance
           or
           Insolence
           ,
           or
           the
           least
           reproachful
           or
           bitter
           expression
           against
           any
           of
           the
           number
           ;
           and
           I
           do
           with
           great
           thankfulness
           acknowledge
           that
           I
           could
           not
           have
           expected
           more
           kindness
           and
           respect
           than
           I
           found
           from
           your
           Lordships
           ,
           which
           made
           me
           in
           gratitude
           take
           this
           Opportunity
           to
           testifie
           the
           Honour
           and
           Value
           I
           have
           for
           that
           honourable
           Society
           ,
           and
           that
           I
           am
           in
           great
           sincerity
           ,
        
         
           
             LEYDEN
             
               October
               30.
               
               November
               9.
               1683.
               
            
          
           
             My
             Lords
             ,
          
           
             Your
             Lordships
             most
             humble
             Servant
             ,
             
               IA
               :
               DALRYMPLE
            
             .
          
        
      
       
         
         
           His
           Majesties
           Gift
           and
           Priviledge
           to
           Sir
           Iames
           Dalrymple
           of
           Stair
           ,
           for
           Printing
           his
           Institutions
           ,
           the
           Acts
           of
           Sederunt
           ,
           and
           Decisions
           of
           the
           Lords
           of
           Session
           .
        
         
           CHARLES
           ,
           by
           the
           grace
           of
           God
           ,
           King
           of
           
             Great-Britain
             ,
             France
          
           and
           Ireland
           ,
           Defender
           of
           the
           Faith
           ,
           To
           all
           and
           sundry
           Our
           Leidges
           and
           Subjects
           whom
           it
           effeirs
           ,
           to
           whose
           knowledge
           these
           Presents
           shall
           come
           ,
           Greeting
           :
           Forasmuch
           as
           Our
           Trustie
           and
           welbeloved
           Counsellor
           ,
           Sir
           
             James
             Dalrymple
          
           of
           Stair
           ,
           President
           of
           Our
           Session
           ,
           hath
           Observed
           and
           Written
           the
           Acts
           and
           Decisions
           of
           the
           Lords
           of
           Our
           Session
           ,
           since
           Our
           happie
           Restauration
           to
           this
           time
           :
           and
           hath
           also
           Written
           the
           Institutions
           of
           the
           Law
           of
           that
           Our
           ancient
           Kingdom
           of
           Scotland
           .
           And
           We
           being
           well
           satisfied
           with
           his
           pains
           and
           diligence
           therien
           ,
           and
           knowing
           his
           long
           experience
           and
           knowledge
           of
           the
           Laws
           and
           Customs
           of
           that
           Our
           Kingdom
           ,
           and
           his
           constant
           affection
           and
           faithfulness
           to
           Vs
           ;
           and
           being
           confident
           of
           the
           great
           benefit
           may
           arise
           to
           all
           Our
           Subjects
           of
           that
           Our
           ancient
           Kingdom
           ,
           by
           publishing
           of
           the
           saids
           Decisions
           and
           Institutions
           ;
           and
           being
           willing
           to
           give
           to
           the
           said
           Sir
           James
           all
           encouragement
           therein
           ,
           Therefore
           wit
           ye
           Vs
           to
           have
           Ratified
           and
           Approven
           .
           Likeas
           ,
           We
           by
           thir
           Our
           Letters
           ,
           Ratifie
           and
           Approve
           the
           Contract
           agreed
           upon
           betwixt
           the
           said
           Sir
           James
           and
           
             Agnes
             Campbel
          
           and
           
             Patrick
             Tailziefer
          
           Merchant
           in
           Our
           Burgh
           of
           Edinburgh
           ,
           now
           her
           Spouse
           ,
           having
           the
           Right
           to
           ,
           and
           exercing
           the
           Office
           of
           Our
           Printer
           in
           Our
           said
           ancient
           Kingdom
           of
           Scotland
           ,
           for
           Printing
           of
           the
           saids
           Books
           in
           all
           the
           Heads
           ,
           Articles
           and
           Clauses
           therein
           contained
           whatsomever
           :
           Prohibiting
           all
           others
           to
           Print
           the
           saids
           Books
           ,
           for
           the
           space
           of
           ninteen
           years
           ,
           without
           the
           special
           leave
           of
           the
           said
           Sir
           James
           ,
           his
           Heirs
           and
           Successors
           ,
           as
           the
           said
           Contract
           of
           the
           date
           the
           26.
           ●f
           March
           1681.
           year●
           ,
           at
           length
           contained
           in
           the
           said
           Gift
           and
           Ratification
           under
           Our
           Privie
           Seal
           more
           fully
           bears
           .
        
         
           
             Given
             at
             Our
             Court
             at
             Whitehall
             ,
             
               Aprile
               11.
               1681.
               
                 years
                 ,
                 and
                 of
                 Our
                 Raign●
                 the
                 33.
                 
                 Year
                 .
              
            
          
           
             Per
             Signaturam
             manu
             
               S.
               D.
               N.
            
             Regis
             supra
             scriptam
             .
          
        
      
       
         
           Act
           of
           Sederunt
           ,
           Decimo
           Iunij
           1681.
           
        
         
           THe
           
             Lord
             President
          
           did
           signifie
           to
           the
           Lords
           ,
           that
           he
           having
           these
           twenty
           years
           Observed
           the
           remarkable
           Practiques
           or
           Decisions
           that
           had
           past
           in
           this
           Court
           ,
           either
           upon
           Debate
           in
           presence
           of
           the
           whole
           Lords
           ,
           or
           upon
           Report
           from
           the
           Ordinary
           in
           the
           Outter-house
           ,
           expressing
           not
           only
           the
           sum
           of
           the
           Debate
           ,
           as
           it
           was
           considered
           ,
           and
           resumed
           by
           the
           Lords
           ,
           with
           the
           Interlocutor
           ;
           But
           also
           the
           Grounds
           whereupon
           the
           Lords
           proceeded
           :
           and
           being
           of
           intention
           to
           put
           these
           Decisions
           in
           Print
           ,
           he
           had
           acquainted
           the
           King
           therewith
           ,
           and
           had
           His
           Majesties
           allowance
           and
           approbation
           therein
           .
           And
           the
           saids
           Lords
           considering
           that
           the
           
             Lord
             President
          
           has
           been
           at
           extraordinary
           pains
           ,
           in
           Observing
           and
           Collecting
           these
           Decisions
           ,
           and
           that
           the
           publishing
           thereof
           will
           be
           of
           great
           use
           and
           advantage
           ,
           not
           only
           to
           the
           
             Colledge
             of
             Iustice
          
           ,
           but
           to
           the
           whole
           Leidges
           ;
           They
           approve
           his
           Resolution
           to
           Print
           the
           saids
           Decisions
           ,
           and
           did
           render
           him
           hearty
           Thanks
           for
           undertaking
           this
           Work
           ,
           tending
           so
           much
           to
           the
           publick
           Good.
           
        
         
           Errata
           vide
           after
           the
           first
           Index
           .
        
      
       
         
         
           INDEX
           Of
           the
           Acts
           of
           Sederunt
           .
        
         
           
             ACt
             for
             uniformity
             of
             Habite
             amongst
             the
             ordinary
             Lords
             ,
             
               Iune
               5th
            
             ,
             1661.
             
          
           
             Act
             for
             continuing
             Summons
             and
             Writing
             in
             Latine
             as
             formerly
             ,
             1661.
             
          
           
             Act
             anent
             Wakenings
             ,
             June
             11.
             1661.
             
          
           
             Act
             for
             retaining
             the
             principal
             Writs
             presented
             to
             the
             Register
             ,
             and
             giving
             forth
             only
             Extracts
             thereof
             ,
             1661.
             
          
           
             Act
             for
             Protestation
             Money
             ,
             
               July
               4th
            
             1661.
             
          
           
             Act
             for
             granting
             Commissions
             to
             Debitors
             who
             are
             sick
             ,
             or
             out
             of
             the
             Countrey
             ,
             on
             the
             Act
             Debitor
             and
             Creditor
             ,
             July
             31
             :
             1661.
             
          
           
             Act
             discharging
             Lessons
             ,
             the
             last
             Moneth
             of
             the
             Session
             ,
             November
             28.
             1661.
             
          
           
             Act
             anent
             Executors
             Creditors
             ,
             February
             28.
             1662.
             
          
           
             Act
             anent
             granting
             of
             Bonds
             by
             apparent
             Heirs
             ;
             whereupon
             Apprizings
             or
             Adjudications
             may
             follow
             ,
             in
             prejudice
             of
             the
             Defuncts
             Creditors
             .
             1662.
             
          
           
             Act
             anent
             Advocats
             and
             Expectants
             ,
             not
             paying
             their
             dues
             ,
             1662.
             
          
           
             Act
             discharging
             Confusion
             the
             last
             day
             of
             the
             Session
             ,
             February
             21.
             1663.
             
          
           
             Act
             in
             favours
             of
             the
             Keeper
             of
             the
             Minute-Book
             ,
             June
             6.
             1663.
             
          
           
             Act
             concerning
             the
             buying
             of
             the
             Citiedail
             ,
             September
             8.
             1663.
             
          
           
             Act
             anent
             the
             Seal
             of
             Court
             ,
             November
             26.
             1663.
             
          
           
             Act
             against
             general
             Letters
             ,
             June
             8.
             1665.
             
          
           
             Act
             for
             Keeping
             the
             Bar●s
             ,
             June
             22.
             1665.
             
          
           
             Act
             anent
             Pro●tutors
             ,
             June
             30.
             1665.
             
          
           
             Act
             Ordering
             no
             sight
             of
             Process
             in
             the
             Summer
             Session
             ,
             which
             were
             seen
             in
             the
             Winter
             before
             ,
             November
             8.
             1665.
             
          
           
             His
             Majesties
             Instructions
             to
             the
             Commissars
             ,
             February
             20.
             1666.
             
          
           
             Orders
             to
             be
             observed
             in
             Confirmations
             of
             all
             Testaments
             ,
             Ibid.
             
          
           
             Instructions
             to
             the
             Clerk
             ,
             Ibid.
             
          
           
             Act
             against
             Decreets
             ,
             for
             not
             Reproduction
             of
             
               Cessiones
               bonorum
               ,
               November
            
             6.
             1666.
             
          
           
             His
             Majesties
             Letter
             to
             the
             Lords
             concerning
             Prizes
             ,
             January
             3.
             1667.
             
          
           
             Warrand
             for
             general
             Letters
             ,
             for
             the
             Contribution
             due
             out
             of
             Benefices
             to
             the
             Lords
             ,
             November
             17.
             1668.
             
          
           
             Oaths
             to
             be
             taken
             for
             the
             price
             of
             Fowls
             ,
             January
             15.
             1669.
             
          
           
             Act
             anent
             Extracts
             of
             Registrate
             Writs
             ,
             bearing
             the
             Procurators
             names
             ,
             though
             not
             Subscribing
             ,
             December
             9.
             1670.
             
          
           
             Act
             anent
             Extracting
             Acts
             and
             Decreets
             ,
             Ianuary
             20.
             1671.
             
          
           
             Act
             against
             Magistrates
             of
             Burghs
             ,
             for
             letting
             Prisoners
             for
             debt
             go
             out
             of
             the
             Tolbooth
             ,
             Iune
             14.
             1671.
             
          
           
             His
             Majesties
             Order
             to
             the
             Commissioners
             of
             His
             Thesauray
             to
             free
             the
             Lords
             from
             the
             Cess
             ,
             July
             19.
             1671.
             
          
           
             Act
             for
             Keeping
             the
             Bars
             ,
             November
             3.
             1671.
             
          
           
             Act
             concerning
             priviledged
             Summons
             ,
             July
             21.
             1672.
             
          
           
             Act
             anent
             payment
             of
             Dues
             for
             Summons
             ,
             containing
             two
             Diets
             ,
             July
             11.
             1672.
             
          
           
             Act
             concerning
             Bankrupts
             ,
             January
             23.
             1673.
             
          
           
             Act
             Ordaining
             Advocations
             ,
             or
             Suspensions
             of
             Processes
             for
             Conventicles
             ,
             
             to
             be
             only
             past
             
               in
               presentia
            
             ,
             or
             by
             three
             Lords
             in
             vacant
             time
             ,
             June
             24.
             1673.
             
          
           
             Letter
             anent
             Pryzes
             ,
             July
             8.
             1673.
             
          
           
             Act
             for
             Ordering
             new
             hearings
             in
             the
             Outer
             House
             ,
             July
             11.
             1673.
             
          
           
             Letter
             from
             His
             Majestie
             against
             appeals
             ,
             June
             17.
             1674.
             
          
           
             Act
             concerning
             Acts
             before
             Answer
             ,
             July
             23.
             1674.
             
          
           
             Act
             for
             Tryal
             of
             those
             presented
             to
             be
             Ordinary
             Lords
             of
             Session
             ,
             July
             the
             last
             1674.
             
          
           
             Act
             upon
             the
             Marquess
             of
             
             Huntly's
             disowning
             Appeals
             ,
             January
             26.
             1675.
             
          
           
             Act
             concerning
             Prisoners
             for
             debt
             ,
             February
             5.
             1675.
             
          
           
             Act
             anent
             Bills
             of
             Suspension
             ,
             February
             9.
             1675.
             
          
           
             Act
             Ordaining
             Processes
             after
             Avisandum
             to
             be
             carryed
             to
             the
             Ordinary
             that
             same
             day
             ,
             and
             Reported
             in
             his
             Week
             ,
             June
             2.
             1675.
             
          
           
             
               Heugh
               Riddel
            
             sent
             to
             the
             Plantations
             ,
             July
             20.
             1675.
             
          
           
             Act
             anent
             passing
             of
             Bills
             for
             liberty
             out
             of
             Prison
             ,
             July
             21.
             1675.
             
          
           
             Act
             concerning
             the
             granting
             of
             Protections
             ,
             February
             1.
             1676.
             
          
           
             His
             Majesties
             Letter
             concerning
             the
             Clerks
             ,
             June
             20
             :
             1676.
             
          
           
             Act
             concerning
             the
             Registers
             ,
             Iuly
             4.
             1676.
             
          
           
             Act
             for
             Inventaring
             the
             Registers
             Books
             ,
             July
             13.
             1676.
             
          
           
             Act
             anent
             the
             manner
             of
             Booking
             Decreets
             of
             Registration
             ,
             November
             21.
             1676.
             
          
           
             Act
             anent
             the
             Registers
             of
             Seasines
             and
             Hornings
             in
             the
             several
             Shires
             ,
             January
             4.
             1677.
             
          
           
             Act
             concerning
             Arrestments
             ,
             February
             1.
             1677.
             
          
           
             Act
             concerning
             Advocates
             ,
             June
             7.
             1677.
             
          
           
             Act
             concerning
             the
             sisting
             of
             Execution
             upon
             Bills
             of
             Suspension
             ,
             July
             3.
             1677.
             
          
           
             Act
             concerning
             the
             Suspensions
             of
             Protestations
             ,
             July
             10.
             1677.
             
          
           
             Act
             against
             Solicitations
             ,
             November
             6.
             1677.
             
          
           
             Act
             concerning
             Bills
             relating
             to
             concluded
             Causes
             ,
             November
             9.
             1677.
             
          
           
             Suspensions
             of
             the
             Excize
             to
             be
             past
             only
             
               in
               presentia
               ,
               December
            
             6.
             1677.
             
          
           
             Warrand
             anent
             Precepts
             for
             giving
             Seasine
             upon
             Retoures
             ,
             February
             15.
             1678.
             
          
           
             Act
             in
             favours
             of
             the
             Lord
             Register
             ,
             February
             22.
             1678.
             
          
           
             Act
             Discharging
             Clerks
             to
             lend
             out
             Processes
             to
             any
             except
             Advocats
             and
             their
             Servants
             ,
             February
             26.
             1678.
             
          
           
             Act
             prohibiting
             the
             Clerks
             to
             give
             up
             Bills
             relating
             to
             Processes
             ,
             whereupon
             there
             is
             any
             Deliverance
             of
             the
             Lords
             ,
             July
             23.
             1678.
             
          
           
             Act
             discharging
             Advocates
             ,
             and
             Writers
             Servants
             ,
             to
             Write
             their
             Masters
             Subscription
             ,
             July
             last
             1678.
             
          
           
             Act
             Ordaining
             Hornings
             and
             Inhibitions
             to
             be
             Booked
             ,
             which
             were
             not
             Booked
             the
             time
             of
             the
             Vsurpers
             ,
             January
             3.
             1679.
             
          
           
             Orders
             for
             payment
             of
             the
             Dues
             of
             the
             Signet
             ,
             where
             Suspensions
             are
             appointed
             to
             be
             discust
             upon
             the
             Bill
             ,
             January
             24.
             1679.
             
          
           
             Act
             in
             favours
             of
             Intrant
             Advocats
             ,
             February
             7.
             1679.
             
          
           
             Act
             anent
             Executors
             Creditors
             ,
             November
             14.
             1679.
             
          
           
             Act
             anent
             the
             Registration
             of
             Hornings
             ,
             November
             19.
             1679.
             
          
           
             Act
             against
             Solicitations
             ,
             December
             24.
             1679.
             
          
           
             Act
             anent
             the
             taking
             of
             Renunciations
             from
             Persons
             Inhibited
             ,
             February
             19.
             1680.
             
          
           
             Act
             against
             Petitions
             for
             alteration
             of
             Acts
             Extracted
             ,
             February
             24.
             1680.
             
          
           
             His
             Majesties
             Letter
             in
             favours
             of
             the
             Lord
             Register
             ,
             anent
             the
             nomination
             of
             the
             Clerks
             of
             Session
             ,
             June
             8.
             1680.
             
          
           
             Act
             concerning
             Nottars
             ,
             July
             29.
             1680.
             
          
           
             Act
             concerning
             Bills
             of
             Suspension
             ,
             November
             9.
             1680.
             
          
           
             Act
             anent
             the
             marking
             of
             Advocates
             compearance
             for
             Defenders
             ,
             November
             25.
             1680.
             
          
           
             Act
             in
             Favours
             of
             the
             Macers
             ,
             February
             15.
             1681.
             
          
           
             Act
             anent
             Seasines
             and
             Reversions
             of
             Lands
             within
             Burgh
             ,
             February
             22.
             1681.
             
          
        
      
    
     
       
         
         
           THE
           ACTS
           OF
           SEDERUNT
           ,
           OF
           THE
           LORDS
           of
           SESSION
           .
        
         
           Beginning
           the
           5th
           Iune
           1661
           ,
           and
           ending
           in
           February
           1681.
           
        
         
           
             ACT
             for
             Vniformity
             of
             Habit
             by
             the
             ordinary
             Lords
             .
             Iune
             5th
             .
             1661.
             
          
           
             THE
             Lords
             did
             find
             ,
             that
             the
             whole
             fifteen
             ordinary
             Lords
             of
             Session
             ,
             of
             whatsoever
             Place
             ,
             Dignity
             ,
             or
             Title
             they
             be
             ,
             should
             carry
             and
             use
             the
             ordinary
             Habit
             and
             Robes
             of
             the
             ordinary
             Lords
             of
             Session
             in
             all
             time
             coming
             .
          
        
         
           
             ACT
             for
             continuing
             Summonds
             ,
             and
             writing
             in
             Latine
             as
             formerly
             .
             Iune
             6.
             1661.
             
          
           
             THE
             Lords
             taking
             to
             their
             serious
             consideration
             ,
             of
             how
             dangerous
             consequence
             the
             alteration
             of
             Formes
             and
             Customes
             is
             ;
             They
             have
             therfore
             ordained
             ,
             and
             hereby
             ordain
             all
             Summonds
             which
             formerly
             abode
             Continuation
             ,
             and
             shall
             be
             insisted
             in
             before
             them
             to
             be
             continued
             in
             time
             coming
             ,
             and
             an
             Act
             to
             be
             made
             thereanent
             ,
             and
             Letters
             to
             be
             direct
             
             thereon
             ,
             as
             was
             in
             use
             to
             be
             done
             before
             the
             Year
             1651
             ,
             not
             exceeding
             the
             Rates
             and
             Prices
             formerly
             exacted
             .
             And
             also
             ,
             considering
             that
             during
             the
             Power
             of
             the
             late
             Usurpers
             ,
             the
             use
             and
             custome
             of
             writing
             in
             Latine
             was
             then
             discharged
             ,
             by
             the
             pretended
             Commissioners
             for
             Administration
             of
             Justice
             :
             Therefore
             the
             saids
             Lords
             ordain
             all
             Charters
             ,
             Seasings
             ,
             and
             other
             Writes
             of
             that
             nature
             ,
             alswell
             such
             as
             pass
             the
             Seals
             ,
             as
             other
             ways
             ,
             which
             were
             in
             use
             to
             be
             formed
             and
             written
             in
             Latine
             ,
             to
             be
             continued
             in
             the
             same
             Language
             as
             formerly
             ,
             before
             the
             Year
             1652.
             
             And
             to
             the
             effect
             none
             may
             pretend
             Ignorance
             hereof
             ,
             ordains
             these
             Presents
             to
             be
             published
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ,
             after
             sound
             of
             Trumpet
             by
             a
             Macer
             .
          
        
         
           
             ACT
             anent
             Warnings
             .
             Iune
             11th
             .
             1661.
             
          
           
             THE
             saids
             Lords
             ordain
             ,
             That
             all
             wakenings
             of
             Processes
             lying
             undiscust
             ,
             be
             execute
             upon
             24
             hours
             ,
             against
             all
             such
             Persons
             as
             are
             for
             the
             time
             within
             Edinburgh
             ,
             or
             Leith
             ,
             and
             upon
             6
             dayes
             against
             all
             other
             Parties
             within
             this
             Kingdom
             ;
             and
             upon
             fifteen
             dayes
             against
             all
             such
             Persons
             as
             are
             out
             of
             the
             Kingdom
             .
          
        
         
           
             ACT
             for
             retaining
             the
             Principal
             Writes
             presented
             to
             the
             Register
             ,
             and
             giving
             forth
             only
             Extracts
             thereof
             .
          
           
             THE
             which
             Day
             ,
             the
             Lords
             of
             Council
             and
             Session
             taking
             into
             their
             consideration
             ,
             That
             the
             custom
             of
             the
             Clerks
             in
             the
             Usurpers
             time
             of
             giving
             back
             to
             the
             Parties
             the
             Principal
             Bonds
             ,
             Contracts
             ,
             and
             other
             Writes
             ,
             given
             in
             to
             be
             registrat
             ,
             did
             tend
             to
             the
             hazard
             and
             prejudice
             of
             the
             Leidges
             ,
             and
             was
             contrary
             to
             the
             practise
             formerly
             observed
             .
             They
             do
             therefore
             ordain
             ,
             that
             the
             Clerks
             of
             Session
             ,
             and
             all
             Clerks
             of
             Inferiour
             Courts
             and
             Judicatories
             ,
             shall
             henceforth
             keep
             and
             retain
             the
             Principal
             Writes
             (
             for
             which
             they
             shall
             be
             answerable
             and
             give
             forth
             only
             Extracts
             thereof
             as
             formerly
             ,
             before
             the
             Year
             1651.
             )
             and
             ordains
             these
             Presents
             to
             be
             published
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             .
             Likeas
             ,
             the
             saids
             Lords
             require
             the
             Clerks
             of
             the
             Session
             to
             be
             careful
             in
             preserving
             and
             keeping
             all
             Principal
             Bonds
             ,
             Contracts
             ,
             and
             other
             Writes
             to
             be
             given
             in
             to
             them
             to
             be
             registrat
             ,
             and
             that
             they
             be
             countable
             for
             them
             and
             for
             their
             Servants
             ,
             so
             long
             as
             they
             shall
             give
             them
             trust
             thereof
             .
             And
             that
             once
             in
             the
             two
             years
             they
             deliver
             them
             to
             be
             keeped
             by
             the
             Clerk
             of
             Register
             ,
             with
             the
             Publick
             Records
             of
             the
             Kingdom
             .
          
        
         
           
             ACT
             for
             Protestation
             Money
             .
             Iuly
             4.
             1661.
             
          
           
             THE
             said
             day
             the
             Lords
             taking
             to
             their
             Consideration
             ,
             the
             Litigiousness
             ,
             and
             Malitiousness
             of
             some
             Suspenders
             ,
             who
             upon
             frivolous
             and
             unjust
             Reasons
             and
             Grounds
             ,
             purchase
             Letters
             of
             Suspension
             and
             Advocation
             ,
             and
             will
             not
             at
             the
             Day
             of
             Compearance
             ,
             nor
             on
             any
             other
             of
             the
             Days
             appointed
             for
             Production
             of
             the
             saids
             Principal
             Letters
             of
             Suspension
             and
             Advocation
             ,
             produce
             the
             respective
             Letters
             aforesaid
             ,
             but
             keep
             the
             famine
             up
             ,
             of
             purpose
             to
             trouble
             ,
             vex
             ,
             and
             put
             to
             farther
             Charges
             and
             Expenses
             ,
             the
             Chargers
             and
             Parties
             Persuers
             in
             the
             Principal
             Cause
             Advocated
             
             to
             the
             saids
             Lords
             .
             Therefore
             ,
             the
             saids
             Lords
             ordain
             the
             several
             Sums
             of
             Money
             following
             to
             be
             payed
             by
             the
             saids
             Suspenders
             ,
             and
             Purchasers
             of
             the
             saids
             Letters
             of
             Advocation
             ,
             to
             the
             Chargers
             and
             Parties
             Pursuers
             in
             the
             Principal
             Cause
             Advocated
             to
             the
             saids
             Lords
             ;
             And
             that
             upon
             their
             purchasing
             of
             Protestation
             ,
             or
             Act
             of
             Remit
             against
             the
             said
             Suspenders
             ,
             and
             purchasers
             of
             the
             saids
             Letters
             of
             Advocation
             ;
             viz.
             If
             the
             sum
             charged
             for
             be
             an
             hundred
             merks
             ,
             or
             within
             the
             same
             ,
             the
             sum
             of
             8.
             
               lib.
               Scots
            
             ;
             and
             if
             the
             sum
             be
             above
             100.
             merks
             ,
             or
             not
             a
             liquid
             sum
             ,
             the
             sum
             of
             ten
             pounds
             money
             foresaid
             .
             And
             for
             every
             Remit
             the
             sum
             of
             15.
             
               lib.
               Scots
            
             ,
             and
             ordains
             an
             Act
             to
             be
             extended
             hereupon
             in
             manner
             foresaid
             .
          
        
         
           
             ACT
             for
             granting
             Commissions
             to
             Debitors
             ,
             who
             are
             sick
             or
             out
             of
             the
             Countrey
             on
             the
             Act
             Debitor
             and
             Creditor
             .
             Iuly
             31.
             1661.
             
          
           
             THE
             Lords
             of
             Session
             considering
             ,
             that
             in
             prosecution
             of
             the
             Act
             of
             Parliament
             of
             the
             12.
             of
             Iuly
             last
             ,
             anent
             Creditor
             and
             Debitor
             ;
             such
             Debitors
             as
             are
             far
             off
             the
             Countrey
             ,
             or
             are
             ,
             or
             shall
             be
             disabled
             by
             Sicknesse
             to
             come
             here
             ,
             to
             take
             the
             benifite
             of
             the
             Act
             ,
             will
             be
             thereby
             prejudged
             of
             the
             benefit
             thereof
             ,
             if
             some
             course
             be
             not
             taken
             to
             prevent
             the
             same
             .
             They
             do
             therefore
             impower
             the
             Lord
             President
             ,
             or
             the
             Lord
             Register
             ,
             or
             any
             two
             of
             the
             Lords
             of
             Session
             ,
             upon
             Petitions
             ,
             and
             sufficient
             Attestations
             of
             the
             Sicknesse
             of
             any
             Debitor
             ,
             or
             of
             their
             being
             forth
             of
             the
             Countrey
             ,
             to
             give
             Commission
             during
             this
             ensuing
             Vacation
             ,
             to
             such
             Persons
             in
             the
             Countrey
             ,
             as
             they
             shall
             think
             fit
             to
             receive
             the
             Oath
             and
             Declaration
             of
             the
             Debitors
             ,
             conform
             to
             the
             said
             Act
             ,
             and
             to
             report
             the
             same
             betwixt
             and
             the
             day
             of
             November
             next
             to
             come
             ,
             to
             the
             Clerk
             of
             Register
             ,
             or
             his
             Deputs
             (
             Clerk
             to
             the
             Bills
             )
             to
             be
             Recorded
             with
             others
             of
             that
             nature
             .
          
        
         
           
             ACT
             discharging
             Lessons
             the
             last
             moneth
             of
             the
             Session
             .
             November
             28.
             1661.
             
          
           
             THE
             same
             day
             the
             Lords
             considering
             ,
             that
             in
             the
             end
             of
             the
             Session
             ,
             the
             giving
             way
             to
             Young-gentlemen
             to
             give
             proof
             of
             their
             Literature
             ,
             by
             making
             publick
             Lessons
             ,
             is
             greatly
             prejudicial
             to
             the
             Leidges
             :
             that
             time
             which
             is
             appointed
             for
             hearing
             and
             discussing
             of
             Interloquitors
             being
             taken
             up
             with
             the
             saids
             Lessons
             .
             Therefore
             the
             Lords
             renews
             a
             former
             Act
             made
             to
             the
             effect
             after-specified
             ,
             in
             Anno
             1650.
             
             And
             of
             new
             ordains
             in
             all
             time
             coming
             ,
             That
             any
             who
             are
             to
             make
             their
             Lessons
             ,
             shall
             come
             and
             make
             them
             at
             such
             times
             of
             the
             Session
             ,
             as
             the
             hearing
             of
             them
             be
             not
             prejudicial
             to
             the
             administration
             of
             Justice
             ,
             and
             that
             none
             shall
             be
             heard
             to
             make
             such
             Lessons
             any
             time
             the
             last
             moneth
             of
             of
             the
             Session
             .
          
        
         
           
             ACT
             anent
             Executors
             Creditors
             .
             February
             28.
             1662.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             of
             Councill
             and
             Session
             considering
             the
             great
             confusions
             that
             arises
             amongst
             the
             Executors
             of
             Defunct
             Persons
             ,
             and
             prejudices
             sustained
             by
             many
             of
             them
             ,
             in
             prosecution
             of
             their
             respective
             diligences
             ,
             against
             the
             Executors
             of
             Defunct
             Persons
             ,
             
             and
             otherways
             ,
             by
             obtaining
             the
             saids
             Creditors
             to
             be
             themselves
             decerned
             Executors
             Creditors
             to
             the
             Defunct
             ,
             in
             prejudice
             of
             other
             Creditors
             ,
             who
             either
             dwelling
             at
             a
             far
             distance
             ,
             or
             being
             out
             of
             the
             Countrey
             ,
             or
             otherways
             not
             knowing
             of
             the
             death
             of
             their
             Debitors
             ,
             are
             postponed
             ;
             and
             others
             using
             sudden
             diligence
             are
             preferred
             .
             In
             respect
             whereof
             ,
             and
             for
             a
             remeid
             in
             time
             coming
             ,
             The
             saids
             Lords
             declare
             ,
             and
             ordain
             ,
             that
             all
             Creditors
             of
             Defunct
             Persons
             using
             Legal
             diligence
             at
             any
             time
             within
             half
             a
             year
             of
             the
             defuncts
             death
             ,
             by
             citation
             of
             the
             Executors
             Creditors
             ,
             or
             intrometters
             with
             the
             Defuncts
             Goods
             ,
             or
             by
             obtaining
             themselves
             decerned
             ,
             and
             confirmed
             Executors
             Creditors
             ,
             or
             by
             citing
             of
             any
             other
             Executors
             confirmed
             :
             the
             saids
             Executors
             using
             any
             such
             diligence
             before
             the
             expiring
             of
             half
             a
             year
             as
             said
             is
             ,
             shall
             come
             in
             
               pari
               passu
            
             with
             any
             other
             Creditors
             ,
             who
             have
             used
             more
             timely
             diligence
             ,
             by
             obtaining
             themselves
             decerned
             ,
             and
             confirmed
             Executors
             Creditors
             ,
             or
             otherwise
             .
             It
             is
             always
             declared
             ,
             That
             the
             Creditor
             using
             posterior
             diligence
             ,
             shall
             bear
             a
             proportional
             part
             of
             the
             charges
             wared
             out
             by
             the
             Executor
             Creditor
             first
             decerned
             ,
             and
             confirmed
             ,
             before
             he
             have
             any
             benefit
             of
             the
             Inventarie
             confirmed
             ;
             and
             that
             it
             shall
             be
             lawful
             to
             the
             saids
             Creditor
             to
             obtain
             himself
             joyned
             to
             the
             said
             Executor
             :
             and
             ordains
             these
             presents
             to
             be
             insert
             in
             the
             Books
             of
             Sederunt
             ,
             and
             to
             be
             Proclaimed
             at
             the
             the
             Mercat
             Crosse
             of
             Edinburgh
             .
          
        
         
           
             ACT
             anent
             granting
             of
             Bonds
             be
             appearand
             Heirs
             ;
             whereupon
             Apprysings
             ,
             or
             Adjudications
             may
             follow
             ,
             in
             prejudice
             of
             the
             Defuncts
             Creditors
             .
          
           
             THE
             said
             day
             the
             Lords
             of
             Council
             and
             Session
             taking
             to
             their
             consideration
             ,
             the
             manyfest
             Frauds
             and
             Prejudices
             done
             by
             appearand
             Heirs
             ,
             to
             the
             Creditors
             of
             their
             deceast
             Fathers
             ,
             or
             other
             Predecessors
             ,
             in
             their
             just
             and
             lawful
             debts
             :
             Therefore
             ,
             and
             for
             preventing
             any
             such
             fraud
             for
             the
             future
             ,
             the
             saids
             Lords
             declare
             ,
             That
             if
             any
             appearand
             Heir
             shall
             grant
             Bonds
             ,
             whereupon
             Adjudications
             ,
             or
             Apprysings
             shall
             be
             deduced
             to
             their
             own
             behove
             ;
             or
             that
             the
             saids
             Apprysings
             ,
             or
             Adjudications
             shall
             return
             before
             ,
             or
             after
             the
             expyring
             of
             the
             Legal
             Reversion
             ,
             in
             the
             Persons
             of
             the
             saids
             appearand
             Heirs
             ,
             or
             any
             to
             their
             behoves
             .
             In
             either
             of
             these
             cases
             ,
             the
             saids
             Apprysings
             or
             Adjudications
             shal
             no
             ways
             defend
             them
             against
             their
             Predecessors
             Creditors
             ;
             but
             that
             they
             shall
             be
             lyable
             ,
             as
             behaving
             themselves
             as
             Heirs
             to
             their
             predecessors
             by
             intromission
             with
             the
             Rents
             of
             their
             Estates
             ,
             so
             Adjudged
             ,
             and
             Apprysed
             ;
             nor
             shall
             it
             be
             lawful
             to
             them
             to
             renunce
             to
             be
             Heirs
             ,
             after
             such
             intromission
             :
             and
             ordains
             an
             Act
             to
             be
             made
             thereupon
             ,
             and
             to
             be
             registrate
             in
             the
             Books
             of
             Sedernut
             ,
             and
             to
             be
             published
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ,
          
        
         
           
             ACT
             anent
             Advocats
             Expectants
             .
          
           
             THE
             said
             day
             the
             Lords
             of
             Council
             and
             Session
             understanding
             ,
             that
             the
             greatest
             number
             of
             the
             Advocats
             ,
             and
             Expectants
             ,
             admitted
             since
             the
             first
             of
             Ianuary
             ,
             1648.
             years
             .
             Are
             deficient
             ,
             in
             paying
             of
             Dues
             to
             the
             keepers
             of
             the
             Box
             for
             the
             Advocats
             :
             to
             wit
             ,
             twenty
             merks
             for
             every
             Advocate
             ,
             and
             ten
             merks
             Scots
             ,
             for
             every
             Expectant
             ;
             to
             the
             prejudice
             of
             the
             Box
             appointed
             for
             the
             poor
             ,
             and
             others
             their
             publick
             affairs
             .
             Therefore
             the
             said
             Lords
             ordain
             all
             Advocats
             and
             Expectants
             ,
             admitted
             since
             Ianuary
             ,
             1648.
             who
             are
             deficient
             ,
             in
             payment
             of
             the
             saids
             dues
             :
             
             and
             all
             others
             who
             shall
             be
             admitted
             ,
             and
             receive
             the
             said
             respective
             priviledges
             in
             time
             coming
             ,
             to
             pay
             the
             saids
             dues
             ,
             to
             the
             keeper
             of
             the
             Box
             for
             the
             time
             .
             And
             ordains
             Letters
             of
             Horning
             ,
             and
             Poynding
             ,
             upon
             sex
             days
             ,
             to
             be
             direct
             against
             the
             deficients
             ;
             upon
             a
             subscribed
             Roll
             by
             the
             Thesaurer
             :
             and
             ordains
             no
             suspension
             to
             passe
             but
             upon
             consignation
             .
          
        
         
           
             ACT
             discharging
             confusion
             the
             last
             day
             of
             the
             Session
             .
             February
             21.
             1663.
             
          
           
             THE
             Lords
             of
             Council
             and
             Session
             considering
             ,
             how
             necessary
             it
             is
             for
             the
             advancement
             ,
             and
             honour
             of
             His
             Majesties
             service
             ,
             that
             the
             Judicatories
             intrusted
             in
             him
             in
             the
             principal
             administration
             of
             Justice
             to
             His
             People
             ,
             be
             attended
             in
             all
             their
             meetings
             ,
             with
             due
             Decencie
             ,
             and
             Respect
             from
             all
             His
             good
             Subjects
             .
             And
             that
             the
             rude
             ,
             disorderly
             ,
             and
             barbarous
             carriage
             of
             some
             Servants
             attending
             the
             Colledge
             of
             Justice
             ,
             and
             others
             joyning
             with
             them
             upon
             the
             last
             day
             of
             the
             Session
             ,
             is
             dishonourable
             to
             the
             Authority
             of
             the
             Court
             ,
             unsuitable
             to
             the
             gravity
             becoming
             the
             Persons
             relating
             thereto
             ,
             and
             un-beseeming
             the
             civility
             fit
             for
             such
             a
             place
             :
             have
             therefore
             thought
             fit
             to
             discharge
             ,
             and
             hereby
             discharges
             all
             Servants
             of
             any
             Advocats
             ,
             Clerks
             ,
             Writers
             ,
             or
             other
             members
             of
             the
             Colledge
             of
             Justice
             ;
             and
             all
             other
             Persons
             whatsoever
             :
             That
             none
             presume
             upon
             the
             last
             day
             of
             the
             Session
             ,
             to
             throw
             ,
             or
             cast
             any
             pocks
             ,
             dust
             ,
             sand
             ,
             or
             stones
             ,
             or
             to
             make
             any
             disorder
             ,
             or
             to
             use
             any
             rude
             ,
             or
             uncivil
             carriage
             within
             the
             Session
             House
             ,
             or
             in
             the
             Parliament
             Closs
             .
             Certifying
             all
             such
             ,
             who
             being
             Servants
             to
             any
             Members
             ,
             or
             relating
             to
             the
             House
             ,
             shall
             in
             any
             degree
             offend
             herein
             ;
             they
             shall
             suffer
             three
             moneths
             imprisonment
             ,
             and
             for
             ever
             thereafter
             be
             debarred
             the
             House
             ,
             and
             service
             thereof
             .
             And
             if
             they
             shall
             happen
             to
             escape
             the
             time
             of
             the
             committing
             the
             offence
             :
             That
             their
             Masters
             shall
             be
             oblidged
             to
             enter
             them
             in
             prison
             in
             the
             Tolbooth
             of
             Edinburgh
             ,
             within
             eight
             days
             thereafter
             ,
             under
             the
             pain
             of
             two
             hundred
             merks
             Scots
             :
             and
             ceritfying
             all
             such
             Persons
             ,
             who
             not
             relating
             to
             the
             House
             as
             said
             is
             ;
             shall
             offer
             to
             offend
             in
             manner
             foresaid
             :
             They
             shall
             be
             apprehended
             ,
             and
             committed
             to
             waird
             ,
             for
             the
             space
             of
             three
             moneths
             ;
             and
             thereafter
             banished
             the
             Town
             .
             And
             that
             none
             pretend
             ignorance
             ,
             ordains
             these
             presents
             to
             be
             printed
             ,
             and
             affixed
             upon
             the
             most
             patent
             doors
             of
             the
             Session
             House
             ;
             and
             to
             be
             insert
             in
             the
             Books
             of
             Sederunt
             :
             therein
             to
             remain
             
               ad
               futuram
               rei
               memoriam
            
             .
          
        
         
           
             ACT
             in
             favours
             of
             the
             keeper
             of
             the
             Minut
             Book
             .
             Iune
             6.
             1663.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             taking
             to
             their
             consideration
             an
             overture
             formerly
             presented
             to
             them
             ,
             be
             the
             Advocats
             ,
             in
             favours
             of
             
               Iohn
               Scot
            
             keeper
             of
             the
             Minut
             Book
             :
             shewing
             that
             the
             allowance
             appointed
             to
             him
             for
             inrolling
             of
             Causes
             ;
             by
             the
             
               Act
               of
               Sederunt
            
             ,
             dated
             the
             28.
             of
             February
             1662.
             is
             very
             inconsiderable
             (
             being
             only
             two
             shilling
             scots
             for
             every
             Process
             )
             and
             no
             ways
             answerable
             to
             his
             pains
             ,
             and
             attendance
             thereupon
             :
             In
             respect
             whereof
             ,
             and
             for
             the
             said
             
               Iohn
               Scot
            
             his
             further
             incouragement
             to
             continue
             that
             faithfulnesse
             ,
             and
             integrity
             ,
             whereof
             he
             hath
             hitherto
             given
             proof
             ,
             in
             discharging
             the
             said
             trust
             .
             The
             Lords
             ordain
             ,
             in
             time
             coming
             the
             Parties
             at
             whose
             desires
             any
             Process
             shall
             be
             inrolled
             ,
             or
             his
             Agent
             ,
             to
             pay
             to
             the
             said
             
               Iohn
               Scot
            
             ,
             for
             every
             Cause
             that
             shall
             be
             inrolled
             be
             him
             four
             shilling
             Scots
             money
             allanerly
             .
             And
             ordains
             
             these
             presents
             to
             be
             publickly
             intimate
             ,
             and
             an
             Act
             to
             be
             extended
             thereupon
             .
          
        
         
           
             ACT
             concerning
             the
             buying
             of
             the
             Citiedeal
             .
             September
             8.
             1663.
             
          
           
             THE
             Lord
             President
             having
             produced
             before
             the
             Lords
             ,
             a
             proposition
             made
             by
             the
             Town
             Council
             of
             Edinburgh
             ,
             and
             subscribed
             by
             Sir
             
               Andrew
               Ramsay
            
             Provost
             of
             the
             said
             Burgh
             ,
             bearing
             as
             follows
             ,
             viz.
             The
             Lord
             Provost
             having
             reported
             to
             the
             Committee
             ,
             That
             the
             Citiedeal
             of
             Leith
             being
             of
             late
             erected
             in
             a
             Burgh
             of
             Regality
             ,
             which
             without
             doubt
             may
             in
             time
             prove
             prejudicial
             to
             this
             City
             ,
             for
             many
             undenyable
             reasons
             .
             And
             that
             the
             Honourable
             Lord
             the
             Earl
             of
             Lauderdail
             ,
             to
             whom
             His
             Majesty
             hath
             granted
             the
             Right
             of
             the
             said
             Citiedeal
             ,
             had
             done
             the
             honour
             and
             favour
             to
             the
             Council
             of
             Edinburgh
             ,
             as
             to
             make
             them
             an
             offer
             thereof
             ,
             upon
             reasonable
             terms
             :
             And
             that
             they
             are
             come
             that
             length
             in
             their
             Treaty
             ;
             as
             that
             it
             may
             be
             had
             for
             6000
             
               lib.
               Sterling
            
             payable
             in
             four
             years
             ;
             which
             the
             Magistrats
             are
             not
             at
             all
             in
             capacity
             to
             raise
             ,
             or
             make
             payment
             of
             ,
             without
             the
             two
             third
             parts
             thereof
             be
             raised
             out
             of
             the
             Chamber
             of
             Imposition
             ;
             which
             the
             Council
             thought
             not
             fit
             to
             do
             without
             the
             consent
             of
             the
             Grand
             Committee
             of
             the
             said
             Imposition
             .
             And
             therefore
             desired
             the
             advice
             of
             the
             Lord
             President
             ;
             and
             all
             others
             the
             Members
             of
             the
             Committee
             .
             To
             which
             report
             ,
             and
             proposition
             the
             said
             Lord
             President
             ,
             Sir
             
               Iohn
               Nisbet
            
             ,
             Mr.
             
               Iohn
               Ellies
            
             ,
             and
             
               Robert
               Hay
            
             made
             answer
             :
             That
             they
             found
             His
             Majestie
             's
             gift
             so
             strick
             ,
             as
             they
             could
             not
             of
             themselves
             ,
             without
             consent
             of
             the
             whole
             Colledge
             of
             Justice
             give
             consent
             ;
             That
             any
             of
             the
             said
             moyeties
             should
             be
             imployed
             otherwise
             ,
             then
             to
             the
             payment
             of
             debts
             contracted
             before
             September
             ,
             1650.
             
             Therefore
             the
             Committee
             thought
             expedient
             ,
             That
             the
             President
             Sir
             
               Iohn
               Nisbet
            
             ,
             Mr.
             
               Iohn
               Ellies
            
             ,
             and
             
               Robert
               Hay
            
             might
             advise
             concerning
             that
             scruple
             ,
             and
             with
             all
             conveniency
             report
             ,
             that
             so
             necessary
             a
             bargain
             might
             be
             brought
             to
             some
             conclusion
             :
             The
             saids
             Lords
             having
             considered
             the
             above-written
             proposition
             in
             one
             voice
             do
             consent
             ,
             and
             give
             advice
             ,
             that
             the
             two
             third
             parts
             of
             the
             pryce
             of
             the
             Citie-deal
             be
             raised
             forth
             of
             the
             Chamber
             of
             Imposition
             .
          
        
         
           
             The
             Seall
             of
             Court.
             November
             26.
             1663.
             
          
           
             
               MR.
               Alexander
               Gibson
            
             produced
             in
             presence
             of
             the
             Lords
             their
             common
             Seal
             ,
             wherewith
             Commissions
             ,
             and
             other
             Papers
             ,
             which
             went
             out
             of
             the
             Countrey
             ,
             use
             to
             be
             Sealled
             ;
             which
             Seal
             the
             Lords
             ordain
             to
             be
             made
             use
             of
             in
             time
             coming
             .
             And
             ordained
             the
             said
             Mr.
             Alexander
             to
             make
             the
             same
             forth-coming
             to
             the
             saids
             Lords
             ,
             when
             ever
             it
             should
             be
             required
             :
             And
             ordains
             him
             to
             give
             the
             use
             of
             the
             said
             Seal
             to
             the
             remanent
             Clerks
             ,
             when
             they
             have
             to
             do
             therewith
             .
          
        
         
           
             ACT
             against
             general
             Letters
             .
             Iune
             8.
             1665.
             
          
           
             THE
             Lords
             considering
             the
             manyfold
             inconveniences
             arising
             of
             late
             from
             the
             frequent
             use
             of
             directing
             General
             Letters
             ,
             and
             Charges
             Summarly
             ;
             and
             that
             the
             same
             is
             contrary
             to
             the
             ancient
             custom
             ,
             whereby
             they
             were
             only
             raised
             upon
             Decreets
             conform
             :
             Therefore
             the
             Lords
             do
             hereby
             revive
             and
             renew
             that
             ancient
             custom
             :
             And
             Enact
             ,
             and
             
             ordain
             ,
             that
             in
             time
             coming
             ,
             no
             Charges
             ,
             nor
             Letters
             of
             Horning
             shall
             be
             direct
             Generally
             ,
             against
             all
             and
             sundrie
             ;
             except
             allanerly
             upon
             Decreets
             conform
             ;
             purchast
             ,
             and
             obtained
             be
             the
             Parties
             raisers
             of
             the
             saids
             Letters
             .
             And
             prohibit
             and
             discharge
             the
             Writers
             to
             the
             Signet
             ,
             and
             the
             Clerks
             to
             the
             Bills
             to
             writ
             ,
             present
             ,
             or
             passe
             any
             Bills
             for
             General
             Letters
             ,
             and
             the
             keeper
             of
             the
             signet
             to
             affix
             the
             signet
             to
             any
             such
             General
             Letters
             ;
             unless
             the
             same
             be
             direct
             upon
             Decreets
             ,
             conform
             as
             said
             is
             .
             Likeas
             the
             Lords
             declare
             any
             such
             General
             Letters
             that
             shall
             be
             raised
             in
             time
             coming
             ,
             where
             Decreets
             conform
             have
             not
             proceeded
             ,
             with
             all
             execution
             following
             thereupon
             ,
             to
             be
             void
             ,
             and
             null
             ,
             and
             have
             no
             affect
             ;
             But
             prejudice
             always
             of
             any
             General
             Letters
             ,
             or
             Charges
             raised
             ,
             or
             to
             be
             raised
             at
             the
             instance
             of
             His
             
             Majesty's
             Thesaurer
             ,
             Thesaurer
             Depute
             ,
             or
             others
             impowered
             for
             His
             Majesti's
             Rents
             ,
             Customs
             ,
             Casualities
             ,
             or
             other
             dues
             belonging
             to
             the
             KING'S
             Majesty
             ,
             according
             as
             they
             have
             been
             in
             use
             to
             do
             .
             And
             also
             excepting
             any
             General
             Letters
             raised
             ,
             or
             to
             be
             raised
             at
             the
             instance
             of
             the
             Lords
             of
             Session
             ,
             for
             the
             contribution
             money
             ,
             payable
             to
             them
             ,
             And
             such
             other
             General
             Letters
             as
             are
             expresly
             warranted
             be
             the
             Acts
             of
             Parliament
             .
             And
             ordains
             an
             Act
             to
             be
             extracted
             hereupon
             ,
             and
             insert
             in
             the
             Books
             of
             Sederunt
             .
          
        
         
           
             ACT
             for
             keeping
             the
             Barrs
             .
             Iune
             22.
             1665.
             
          
           
             THE
             Lords
             considering
             ,
             what
             great
             confusion
             ,
             and
             disorder
             ,
             is
             occasioned
             by
             the
             thronging
             of
             people
             ,
             of
             all
             sorts
             within
             the
             Barrs
             ,
             of
             the
             Inner
             ,
             and
             utter
             House
             ,
             in
             the
             morning
             ,
             before
             the
             Lords
             sit
             down
             ,
             and
             at
             twelve
             a
             clocke
             in
             the
             forenoon
             ,
             and
             the
             prejudice
             arising
             there
             through
             ;
             by
             the
             miscarrying
             of
             Processes
             .
             For
             remeid
             whereof
             ,
             the
             Lords
             do
             hereby
             discharge
             the
             Macers
             in
             time
             coming
             ;
             to
             give
             access
             to
             whatsomever
             Persons
             of
             whatsoever
             quality
             ,
             within
             the
             Barr
             of
             the
             Inner-house
             ,
             after
             any
             of
             the
             saids
             Lords
             have
             entred
             the
             House
             ;
             in
             the
             morning
             ,
             or
             after
             twelve
             a
             clock
             :
             till
             the
             Lords
             be
             all
             risen
             off
             the
             Bench
             ,
             and
             be
             removed
             out
             of
             the
             House
             .
             And
             sicklike
             ,
             that
             they
             permit
             no
             person
             whatsoever
             ,
             to
             stay
             within
             the
             Innermost-barr
             ,
             of
             the
             Utter-house
             ,
             where
             the
             ordinary
             Lord
             ,
             and
             Clerks
             do
             abide
             ,
             neither
             before
             the
             ordinary
             Lord
             come
             out
             after
             that
             the
             Clerks
             and
             their
             Servants
             have
             begun
             to
             call
             ,
             nor
             during
             the
             time
             that
             the
             ordinary
             Lord
             is
             upon
             the
             Bench
             ,
             neither
             after
             ,
             untill
             the
             reading
             of
             the
             Minut
             Book
             be
             ended
             :
             except
             the
             persons
             following
             ,
             viz.
             The
             keeper
             of
             the
             Minut
             Book
             ,
             the
             King's
             Solliciter
             ,
             and
             one
             Servant
             appointed
             by
             His
             Majestie
             's
             Advocat
             :
             And
             that
             person
             appointed
             for
             reading
             the
             Minut
             Book
             ,
             during
             the
             time
             of
             the
             reading
             of
             the
             Minut
             Book
             and
             no
             longer
             .
             And
             the
             Macers
             are
             hereby
             authorized
             to
             carrie
             immediately
             to
             prison
             any
             person
             that
             shal
             be
             found
             within
             any
             of
             the
             saids
             Barrs
             ,
             during
             the
             time
             foresaid●
             Certifying
             the
             saids
             Macers
             ,
             that
             if
             any
             of
             them
             shal
             be
             found
             negligent
             in
             performance
             of
             their
             dutie
             in
             the
             premisses
             ,
             They
             shall
             forthwith
             be
             removed
             from
             their
             Office.
             And
             ordains
             an
             Act
             to
             be
             extended
             hereupon
             .
          
        
         
           
             ACT
             anent
             Pro-tutors
             .
             Iune
             10.
             1665.
             
          
           
             FOrasmuch
             ,
             as
             in
             the
             Action
             of
             compt
             and
             reckoning
             depending
             at
             the
             instance
             of
             Robert
             and
             
               Bessie
               Swintouns
            
             ,
             against
             
               Iames
               Notman
            
             ,
             at
             length
             heard
             before
             the
             Lords
             of
             Council
             and
             Session
             ;
             It
             being
             questioned
             ,
             and
             debated
             ,
             how
             far
             a
             Pro-tutor
             is
             lyable
             by
             the
             Law
             ,
             and
             Practice
             of
             this
             
             Kingdom
             ;
             whether
             for
             ommission
             ,
             as
             well
             as
             for
             commission
             ,
             and
             intromission
             :
             And
             the
             saids
             Lords
             considering
             ,
             That
             albeit
             Pro-tutors
             be
             excusable
             ,
             as
             to
             their
             bygon
             intromissions
             ;
             In
             regard
             it
             was
             not
             constant
             hitherto
             ,
             how
             far
             they
             could
             be
             lyable
             :
             yet
             finding
             it
             expedient
             ,
             that
             the
             foresaid
             question
             should
             be
             determined
             as
             to
             the
             future
             ;
             and
             the
             Leiges
             no
             longer
             left
             in
             uncertainty
             thereanent
             .
             Therefore
             the
             Lords
             declare
             ,
             that
             whatsoever
             person
             ,
             or
             persons
             shall
             in
             time
             coming
             intromet
             with
             the
             means
             and
             estate
             of
             any
             Minor
             ,
             and
             shall
             act
             in
             his
             affairs
             ,
             as
             Pro-tutors
             ,
             having
             no
             right
             of
             Tutory
             ,
             nor
             Curatorie
             ,
             established
             in
             their
             Persons
             .
             They
             shall
             be
             lyable
             aswell
             for
             what
             they
             might
             have
             intrometted
             with
             ,
             if
             they
             had
             been
             Tutors
             ,
             and
             Curators
             ;
             as
             for
             what
             they
             shall
             intromet
             with
             
               de
               facto
            
             ;
             Sicklike
             ,
             and
             in
             the
             same
             manner
             as
             Tutors
             ,
             and
             Curators
             ,
             are
             lyable
             by
             the
             Law
             and
             Practice
             of
             this
             Kingdom
             .
             And
             the
             Lords
             declare
             ,
             that
             they
             will
             observe
             this
             as
             an
             inviolable
             practice
             in
             time
             coming
             .
             And
             ordain
             these
             presents
             to
             be
             published
             ,
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ,
             and
             an
             Act
             to
             be
             extended
             thereupon
             ,
             and
             insert
             in
             the
             Books
             of
             Sederunt
             .
          
        
         
           
             ACT
             ordering
             no
             sight
             of
             Processes
             in
             the
             Summer
             Session
             which
             were
             seen
             in
             the
             Winter
             before
             .
             November
             8.
             1665.
             
          
           
             THE
             Lords
             considering
             ,
             That
             through
             the
             shortness
             of
             the
             Summer
             Session
             ,
             unnecessary
             giving
             out
             ,
             and
             malicious
             detaining
             of
             Processes
             ,
             which
             have
             been
             seen
             the
             Winter
             Session
             immediately
             preceeding
             :
             The
             Leiges
             are
             oftimes
             frustrate
             of
             Justice
             during
             that
             Session
             ,
             after
             much
             charges
             ,
             expenses
             ,
             time
             ,
             vexation
             ,
             and
             trouble
             .
             And
             having
             it
             always
             in
             their
             thought
             how
             Justice
             may
             be
             speedily
             administrat
             ,
             with
             the
             greatest
             ease
             ,
             and
             least
             expenses
             to
             the
             Subjects
             .
             Do
             declare
             ,
             that
             in
             the
             future
             they
             will
             not
             allow
             Defenders
             ,
             and
             their
             Procurators
             to
             see
             Processes
             
               in
               communi
               forma
            
             ,
             during
             the
             Summer
             Session
             :
             where
             the
             same
             has
             been
             seen
             ,
             and
             returned
             by
             them
             the
             Winter
             Session
             ,
             immediately
             preceeding
             :
             and
             that
             they
             will
             proceed
             to
             do
             Justice
             therein
             without
             indulging
             to
             defenders
             any
             such
             sight
             ,
             during
             the
             Summer
             Sessions
             ,
             in
             the
             future
             ,
             where
             there
             hath
             been
             no
             material
             amendments
             ,
             made
             be
             the
             Pursuers
             ,
             of
             their
             Summonds
             nor
             new
             pieces
             produced
             in
             the
             Process
             ;
             to
             be
             instructions
             and
             grounds
             thereof
             :
             and
             which
             were
             not
             seen
             the
             Winter
             Session
             immediately
             preceeding
             .
             And
             ordains
             these
             presents
             to
             be
             insert
             in
             the
             Books
             of
             Sederunt
             .
          
        
         
           
             His
             Majesties
             Instructions
             to
             the
             Commissars
             .
             February
             20.
             1666.
             
          
           
             THE
             Lord
             President
             having
             received
             the
             Instructions
             following
             from
             Iohn
             Earl
             of
             Rothes
             His
             Majesties
             High
             Commissioner
             ,
             did
             communicat
             the
             same
             to
             the
             hail
             Lords
             :
             and
             that
             it
             was
             His
             Graces
             pleasure
             ,
             and
             desire
             ,
             that
             the
             same
             might
             be
             recorded
             in
             the
             Books
             of
             Sederunt
             .
             The
             Lords
             of
             Council
             ,
             and
             Session
             ,
             ordained
             the
             saids
             Injunctions
             to
             be
             insert
             ,
             and
             recorded
             in
             the
             saids
             Books
             of
             Sederunt
             :
             under
             Protestation
             always
             ,
             that
             the
             recording
             of
             there
             saids
             Injunctions
             should
             be
             no
             ways
             prejudicial
             to
             the
             priviledge
             of
             the
             Lords
             of
             Session
             ,
             or
             derogat
             in
             any
             sort
             from
             their
             Iurisdiction
             in
             civil
             causes
             .
             And
             ordained
             the
             said
             Injuctions
             after
             recording
             thereof
             ;
             to
             be
             given
             up
             ,
             and
             delivered
             ,
             to
             the
             Archbishop
             of
             St.
             Andrews
             his
             Grace
             ,
             or
             to
             any
             having
             his
             warrand
             to
             receive
             the
             same
             .
             And
             that
             the
             Extracts
             of
             the
             saids
             Injunctions
             be
             given
             to
             all
             Persons
             who
             shal
             conceive
             themselves
             concerned
             therein
             ,
             whereof
             the
             tenor
             follows
             .
          
           
             Sic
             Supra
             Scribitur
             
               CHARLES
               R.
            
             
          
        
         
           
           
             HIS
             Majesty
             Authorizes
             and
             injoyns
             ,
             these
             following
             Instructions
             ,
             contained
             in
             five
             Leaves
             ,
             Attested
             ,
             and
             Subscribed
             by
             two
             of
             the
             late
             Commissars
             of
             Edinburgh
             ,
             for
             regulating
             the
             Proceedings
             ,
             of
             the
             Commissars
             in
             their
             respective
             Courts
             .
             
               Oxford
               ,
               January
            
             21.
             1666.
             and
             of
             His
             Reign
             ,
             the
             seventeenth
             year
             .
             By
             his
             Majesties
             Command
             ,
          
           
             Sic
             Subscribitur
             ,
             LAVDERDAIL
             .
          
        
         
           
             INstructions
             and
             Rules
             set
             down
             ,
             and
             appointed
             ,
             by
             the
             Reverend
             Fathers
             ,
             Arch-bishops
             ,
             and
             Bishops
             ,
             in
             this
             Kingdom
             ,
             to
             the
             Commissars
             ,
             Clerks
             ,
             Procurator-fiscals
             ,
             and
             other
             Members
             of
             Court
             ,
             of
             the
             Whole
             Ecclesiastical
             Jurisdiction
             ;
             having
             Commission
             from
             the
             saids
             Reverend
             Fathers
             .
          
           
             1.
             
             Ye
             are
             by
             vertue
             of
             your
             Commission
             ,
             to
             decide
             ,
             and
             judge
             ,
             in
             Causes
             concerning
             Benefices
             ,
             and
             Teinds
             ,
             in
             matters
             of
             Scandal
             ,
             Confirmations
             of
             Testaments
             ,
             great
             ,
             and
             small
             ,
             within
             your
             bounds
             ,
             all
             Causes
             Testamentar
             ,
             and
             in
             all
             other
             matters
             ,
             wherein
             the
             Oath
             of
             Party
             is
             required
             ;
             if
             the
             same
             does
             not
             exceed
             fourty
             pounds
             .
             And
             in
             all
             other
             Causes
             wherein
             the
             Parties
             submit
             themselves
             to
             your
             Jurisdictions
             .
          
           
             2.
             
             Ye
             are
             to
             Judge
             ,
             in
             Reductions
             ,
             and
             Declarators
             ,
             of
             Nullity
             of
             Marriage
             ,
             for
             Impotency
             ,
             or
             upon
             any
             other
             ground
             ,
             or
             reason
             whatsomever
             .
             All
             actions
             of
             Divorcement
             for
             Adultery
             ,
             or
             upon
             any
             other
             ground
             .
             All
             Actions
             ,
             or
             Questions
             ,
             of
             Bastardry
             ,
             and
             adherences
             ,
             when
             the
             samine
             shall
             have
             a
             connexion
             with
             the
             Lawfulness
             of
             Marriage
             ,
             or
             Adultery
             ;
             all
             which
             are
             reserved
             to
             the
             Commissars
             of
             Edinburgh
             ,
             and
             do
             belong
             to
             their
             Jurisdiction
             ,
             privative
             .
             But
             when
             the
             adherence
             is
             pursued
             ,
             upon
             the
             account
             of
             malicious
             desertion
             only
             ;
             and
             where
             there
             is
             no
             question
             of
             the
             Nullity
             and
             lawfulness
             of
             the
             Marriage
             :
             the
             inferiour
             Commissars
             may
             decide
             in
             the
             samine
             .
          
           
             3.
             
             You
             are
             to
             proceed
             ,
             
               in
               rebus
               levibus
            
             ,
             not
             exceeding
             fourty
             pounds
             upon
             the
             Pursuers
             Claim
             ,
             without
             necessity
             of
             a
             libelled
             Summons
             :
             the
             Defender
             being
             alwayes
             cited
             at
             several
             times
             ,
             by
             two
             distinct
             Warrands
             ,
             and
             Summons
             ,
             to
             that
             purpose
             .
             And
             the
             case
             foresaid
             ,
             where
             the
             subj●ct
             is
             Leve
             ,
             not
             exceeding
             the
             said
             sum
             ;
             you
             are
             to
             proceed
             in
             manner
             foresaid
             :
             whether
             the
             Defender
             be
             pursued
             upon
             his
             own
             Deed
             ,
             or
             representing
             any
             other
             Person
             ,
             his
             predecessors
             ;
             
               in
               rebus
               levibus
            
             ;
             and
             in
             Cases
             of
             the
             nature
             foresaid
             ,
             If
             the
             Claim
             be
             referred
             to
             the
             Defenders
             Oath
             ;
             and
             the
             Defender
             appear
             ,
             and
             be
             content
             to
             depone
             presently
             ;
             you
             are
             to
             take
             his
             declaration
             upon
             the
             same
             .
             And
             if
             the
             Defender
             desire
             to
             see
             ,
             and
             be
             advised
             with
             the
             Claim
             :
             ye
             shall
             give
             him
             a
             short
             time
             to
             that
             purpose
             .
             If
             the
             Claim
             be
             referred
             to
             the
             Defenders
             Oath
             ;
             and
             he
             appear
             not
             himself
             :
             he
             is
             to
             be
             warned
             again
             
               pro
               tertio
            
             ,
             and
             cited
             personally
             to
             give
             his
             Oath
             ,
             with
             certification
             ,
             he
             shall
             be
             holden
             as
             confest
             .
             In
             such
             cases
             of
             small
             moment
             ,
             if
             the
             Claim
             be
             not
             referred
             to
             the
             Parties
             Oath
             ,
             nor
             verified
             in●ranter
             ;
             and
             the
             Defender
             appear
             ,
             you
             are
             to
             give
             ,
             a
             short
             time
             to
             him
             ,
             if
             he
             be
             conveened
             ,
             upon
             his
             own
             Deed
             ;
             to
             see
             the
             Claim
             ,
             and
             answer
             verbo
             .
             And
             if
             he
             be
             conveened
             as
             representing
             any
             other
             person
             ,
             as
             Executor
             ,
             or
             Intrometter
             ;
             or
             otherways
             ;
             
             you
             shall
             assign
             a
             time
             to
             the
             Defender
             to
             qualifie
             ,
             and
             give
             in
             his
             Defenses
             in
             Writ
             .
          
           
             4.
             
             In
             Causes
             of
             greater
             moment
             exceeding
             fourty
             pounds
             ,
             and
             in
             Arduis
             ,
             wherein
             there
             may
             be
             difficulty
             ,
             you
             are
             to
             proceed
             upon
             a
             Libelled
             Summons
             ;
             in
             the
             same
             manner
             as
             is
             prescribed
             in
             the
             Cases
             above-mentioned
             ,
             except
             only
             ,
             that
             at
             your
             discretion
             ,
             you
             may
             assign
             ,
             a
             longer
             time
             to
             the
             Defender
             to
             give
             his
             Oath
             ;
             if
             the
             Libel
             be
             referred
             thereto
             :
             and
             to
             answer
             verbo●
             or
             to
             qualifie
             ,
             and
             give
             in
             his
             Defenses
             in
             writ
             :
             when
             the
             Libel
             is
             to
             be
             proven
             otherwise
             ,
             and
             the
             Defender
             is
             conveened
             ,
             either
             as
             representing
             another
             person
             ,
             or
             difficulty
             ,
             or
             importance
             of
             the
             case
             doth
             require
             ;
             that
             the
             Dispute
             shall
             be
             in
             Writ
             .
          
           
             5.
             
             You
             shall
             be
             careful
             that
             your
             Clerks
             shall
             have
             and
             keep
             on
             Book
             for
             all
             the
             ordinary
             Dyets
             ,
             and
             Acts
             ;
             and
             also
             another
             Book
             fo●
             Acts
             of
             Litiscontestation
             ,
             either
             made
             in
             absence
             ,
             or
             
               parte
               comparente
            
             ,
             wherein
             it
             shall
             be
             set
             down
             ,
             as
             shortly
             as
             can
             be
             ,
             the
             substance
             of
             the
             Libels
             and
             Alleadgences
             ,
             Interlocutors
             ,
             and
             Litiscontestations
             thereupon
             ;
             which
             Record
             shall
             be
             sufficient
             without
             necessity
             ,
             either
             for
             extracting
             the
             same
             ,
             or
             of
             Registration
             ,
             or
             extracting
             an
             Act
             of
             
               Litiscontestation
               ad
               longum
            
             ,
             except
             either
             of
             the
             Parties
             shall
             desire
             an
             Act
             to
             be
             extracted
             
               ad
               longum
            
             ;
             upon
             the
             Parties
             Charges
             ,
             who
             shall
             desire
             the
             same
             .
          
           
             6.
             
             Your
             Clerk
             shall
             keep
             a
             Register
             of
             Decreets
             of
             whatsoever
             nature
             :
             but
             so
             that
             in
             cases
             of
             small
             moment
             ,
             within
             fourty
             pounds
             ;
             the
             said
             Decreet
             shall
             be
             recorded
             as
             shortly
             as
             can
             be
             .
          
           
             7.
             
             If
             in
             any
             Process
             whatsomever
             ,
             the
             time
             of
             Litiscontestation
             ,
             or
             after
             the
             Interlocutor
             is
             pronounced
             :
             and
             when
             either
             a
             Term
             is
             assigned
             for
             proving
             the
             Libel
             ,
             or
             any
             alleadgance
             ;
             or
             the
             Judge
             having
             pronounced
             Interlocutor
             verbo
             ;
             or
             a
             Signature
             ,
             being
             made
             in
             Writ
             ;
             is
             about
             to
             assign
             a
             Term
             ,
             the
             Defender
             shall
             pass
             from
             his
             compearance
             :
             or
             any
             time
             thereafter
             
               post
               Litiscontestationem
            
             .
             Nevertheless
             ,
             Litiscontestation
             in
             all
             such
             Processes
             ,
             shall
             be
             holden
             and
             esteemed
             ,
             to
             be
             made
             
               parte
               comparente
            
             .
             And
             in
             like
             manner
             ,
             if
             the
             Defender
             ,
             at
             Sentence
             ,
             shall
             pass
             from
             his
             compearance
             ;
             the
             Sentence
             ,
             nevertheless
             ,
             shall
             be
             given
             out
             against
             the
             saids
             Defenders
             ;
             as
             compearing
             .
          
           
             8.
             
             Ye
             shall
             be
             careful
             ,
             that
             your
             Summons
             be
             execute
             ,
             alwayes
             by
             a
             sufficient
             man
             ;
             before
             two
             Witnesses
             at
             least
             .
             And
             that
             the
             same
             being
             returned
             ,
             and
             indorsed
             ,
             be
             keeped
             by
             the
             Clerk
             ;
             in
             case
             the
             execution
             be
             questioned
             :
             and
             that
             ye
             are
             not
             to
             stay
             the
             proceeding
             of
             the
             principal
             Cause
             ,
             upon
             offer
             of
             Improbation
             ,
             of
             the
             execution
             :
             and
             if
             any
             execution
             shall
             be
             found
             false
             ,
             and
             Improven
             ;
             and
             if
             it
             shall
             be
             found
             ,
             that
             any
             of
             your
             Advocats
             ,
             Procurators
             ,
             or
             their
             Servants
             ,
             or
             Agents
             ,
             or
             other
             Persons
             ,
             having
             interest
             in
             your
             Courts
             ;
             have
             written
             ,
             or
             caused
             write
             the
             saids
             executions
             ,
             or
             has
             used
             ,
             the
             same
             ,
             and
             knowing
             them
             ,
             to
             be
             false
             ;
             or
             are
             otherwayes
             accessory
             to
             the
             said
             folshood
             :
             they
             shall
             be
             declared
             uncapable
             of
             any
             Office
             ,
             Trust
             ,
             Interest
             ,
             or
             Practice
             within
             the
             said
             Court
             :
             without
             prejudice
             of
             such
             further
             Censure
             ,
             and
             punishment
             as
             may
             be
             inflicted
             ,
             for
             the
             Crime
             of
             falshood
             ;
             and
             upon
             the
             contriver
             ,
             or
             user
             ,
             or
             false
             Writs
             .
          
           
           
             9.
             
             Ye
             shall
             direct
             Precepts
             for
             Summoning
             of
             Witnesses
             ,
             to
             compear
             before
             you
             ,
             to
             be
             Witnesses
             in
             Causes
             :
             under
             such
             pecunial
             pains
             as
             ye
             shall
             think
             expedient
             ,
             according
             to
             the
             value
             of
             the
             Causes
             ,
             and
             quality
             of
             the
             Person
             ,
             that
             bees
             Summoned
             .
             And
             if
             the
             Witnesses
             contemptuously
             disobey
             ,
             the
             fines
             ,
             and
             mulcts
             ,
             to
             be
             uplifted
             by
             your
             Officers
             :
             and
             they
             to
             have
             power
             to
             poind
             for
             the
             samine
             .
             And
             the
             pains
             shall
             be
             applyed
             ;
             the
             one
             half
             ,
             for
             your
             own
             use
             :
             and
             the
             other
             half
             to
             the
             poor
             .
             And
             if
             the
             Witnesses
             compear
             not
             for
             the
             first
             Summons
             :
             the
             Party
             to
             have
             Summons
             ,
             against
             the
             Witnesses
             not
             compearing
             ,
             under
             greater
             pecunial
             pains
             ;
             to
             be
             applyed
             at
             your
             discretion
             :
             or
             to
             raise
             Letters
             upon
             deliverance
             of
             the
             Lords
             of
             Session
             ,
             for
             compelling
             them
             to
             compear
             ,
             under
             the
             pain
             of
             Horning
             :
             as
             you
             shall
             think
             expedient
             .
             At
             the
             examination
             of
             Witnesses
             ,
             your selves
             shall
             not
             fail
             to
             be
             present
             :
             excluding
             all
             others
             .
          
           
             10.
             
             You
             shall
             suffer
             none
             of
             the
             Advocats
             ,
             in
             their
             procuring
             ,
             to
             use
             frivolous
             Alleadgances
             and
             if
             they
             do
             ,
             sharply
             to
             reprove
             them
             therefore
             :
             and
             ,
             in
             case
             of
             not
             amending
             ,
             for
             reproof
             ,
             to
             proceed
             to
             pecunial
             pains
             :
             and
             if
             they
             persist
             ,
             to
             deprive
             them
             .
          
           
             11.
             
             In
             the
             advising
             of
             Processes
             ,
             ye
             are
             not
             the
             use
             the
             advice
             of
             any
             Procurator
             ,
             or
             Advocat
             ,
             or
             consult
             with
             them
             thereanent
             ;
             neither
             admit
             of
             them
             ,
             to
             be
             present
             at
             the
             advising
             of
             the
             same
             .
          
           
             12.
             
             Ye
             shall
             tax
             the
             expenses
             of
             all
             pleas
             ,
             of
             Causes
             ,
             where
             Sentence
             is
             obtained
             ,
             before
             you
             ,
             and
             that
             right
             highly
             .
             And
             shall
             insert
             the
             same
             ,
             in
             the
             principal
             Decreet
             ,
             or
             Sentence
             .
             And
             the
             Precept
             ,
             to
             be
             directed
             out
             for
             executing
             of
             the
             Sentence
             ,
             shall
             contain
             Poinding
             ,
             as
             well
             for
             the
             saids
             expenses
             ,
             as
             for
             the
             principal
             .
          
           
             13.
             
             Ye
             may
             direct
             your
             Precepts
             ,
             to
             Officers
             of
             your
             Commissariot
             ,
             or
             Officers
             of
             Arms
             ,
             or
             to
             the
             Officers
             of
             Provost
             ,
             Bailzies
             of
             Burghs
             ;
             at
             the
             desire
             and
             option
             of
             the
             Party
             .
             If
             any
             Person
             shall
             deforce
             your
             Officers
             ,
             in
             execution
             of
             your
             Precepts
             :
             ye
             may
             be
             Judges
             ,
             to
             all
             such
             Deforcements
             :
             and
             inflict
             the
             like
             pains
             ,
             as
             by
             the
             Law
             may
             be
             inflicted
             ,
             for
             deforcing
             of
             Officers
             ,
             of
             Arms
             ,
             excepting
             only
             the
             loss
             of
             Deforcers
             ,
             their
             Escheat
             .
             Without
             prejudice
             to
             the
             Person
             concerned
             ,
             to
             pursue
             for
             the
             same
             ,
             upon
             the
             Deforcement
             of
             your
             Officers
             ,
             before
             the
             competent
             Judge
             .
          
           
             14.
             
             If
             any
             temporal
             Judge
             within
             this
             Realm
             will
             proceed
             ,
             in
             Causes
             belonging
             to
             your
             Jurisdiction
             :
             you
             shall
             direct
             Precepts
             for
             Inhibiting
             them
             ,
             from
             all
             further
             proceeding
             thereuntil
             .
          
           
             15.
             
             Ye
             shall
             give
             forth
             Inhibition
             upon
             Teinds
             ,
             great
             and
             small
             ,
             as
             you
             are
             desired
             upon
             sight
             of
             the
             Parties
             Title
             ,
             allanerly
             .
          
           
             16.
             
             If
             Summons
             of
             Reduction
             ,
             be
             Libelled
             against
             any
             of
             your
             Decreets
             ,
             before
             the
             Commissars
             of
             Edinburgh
             :
             ye
             may
             cause
             ,
             notwithstanding
             ,
             put
             your
             Sentence
             to
             execution
             .
             And
             if
             the
             same
             be
             not
             pursued
             ,
             within
             year
             ,
             and
             day
             ,
             the
             Party
             being
             of
             perfect
             age
             ,
             and
             within
             this
             Realm
             :
             your
             Decreet
             stands
             unreduced
             .
          
           
           
             17.
             
             You
             ,
             and
             your
             Clerk
             ,
             shall
             reside
             in
             the
             place
             of
             your
             Commissariots
             ,
             under
             the
             pain
             of
             deprivation
             ;
             except
             by
             the
             Arch-bishop
             or
             Bishops
             ,
             Consent
             and
             License
             ,
             upon
             grave
             occasion
             ,
             you
             obtain
             liberty
             ,
             to
             do
             otherwayes
          
           
             18.
             
             You
             shall
             make
             two
             Registers
             ,
             of
             the
             Testaments
             ,
             to
             be
             confirmed
             by
             you
             .
             The
             one
             to
             be
             keeped
             by
             you
             ;
             and
             the
             other
             to
             be
             delivered
             ,
             to
             to
             the
             Arch-bishop
             ,
             or
             Bishop
             ,
             yearly
             .
          
           
             19.
             
             Your
             Clerk
             ,
             the
             time
             of
             making
             the
             Accompts
             ,
             two
             times
             in
             the
             year
             ,
             viz.
             the
             first
             day
             of
             May
             ,
             and
             first
             of
             November
             ;
             shall
             make
             Faith
             to
             the
             respective
             Arch-bishops
             ,
             Bishops
             ,
             or
             any
             having
             their
             Order
             :
             That
             there
             is
             no
             more
             Testaments
             Confirmed
             then
             these
             ,
             which
             are
             Booked
             ,
             in
             the
             Books
             ,
             then
             to
             be
             produced
             .
          
           
             20.
             
             You
             shal
             give
             forth
             no
             Precepts
             ,
             in
             matters
             above
             fourty
             pounds
             ;
             untill
             the
             Decreet
             be
             first
             extracted
             .
          
           
             21.
             
             In
             case
             any
             of
             you
             shall
             happen
             to
             fall
             sick
             ,
             and
             not
             be
             able
             to
             wait
             upon
             your
             Office
             ,
             or
             give
             attendance
             :
             or
             if
             it
             shall
             happen
             any
             such
             Declinator
             ,
             or
             exception
             ,
             (
             being
             of
             Verity
             )
             to
             be
             proponed
             against
             you
             ,
             as
             might
             set
             ,
             or
             decline
             ,
             Sheriffs
             or
             any
             other
             Judge
             :
             In
             that
             case
             ,
             you
             shall
             shew
             the
             Arch-bishop
             ,
             or
             Bishop
             the
             samine
             ;
             who
             then
             shall
             deput
             another
             ,
             who
             shall
             be
             most
             fit
             ,
             and
             apt
             ,
             to
             sit
             ,
             cognosce
             ,
             and
             decide
             ,
             in
             the
             Causes
             aforesaid
             .
          
           
             22.
             
             Ye
             shall
             find
             Caution
             to
             compear
             ,
             before
             the
             Arch-bishop
             ,
             and
             Bishop
             ,
             twice
             every
             year
             ,
             viz.
             The
             first
             day
             of
             May
             ,
             and
             November
             ,
             and
             give
             just
             count
             of
             your
             intromission
             with
             the
             Quote
             :
             where
             the
             Arch-bishop
             ,
             or
             Bishop
             ,
             has
             not
             a
             Quot-master
             appointed
             by
             themselves
             .
             And
             also
             for
             payment
             of
             your
             Contribution
             Silver
             ,
             to
             the
             Commissars
             of
             Edinburgh
             :
             and
             that
             under
             the
             pain
             of
             five
             hundred
             pounds
             ,
             
               toties
               ,
               quoties
            
             .
          
           
             23.
             
             If
             any
             of
             you
             or
             your
             Clerks
             ,
             Confirm
             any
             Testaments
             ,
             and
             make
             no
             accompt
             thereof
             ,
             to
             your
             Arch-bishop
             ,
             or
             Bishop
             ,
             the
             saids
             dayes
             :
             the
             samine
             being
             sufficiently
             verified
             ;
             your
             Office
             ,
             shall
             thereby
             
               ipso
               facto
            
             ,
             Vaick
             .
          
           
             24.
             
             It
             shall
             not
             be
             leisome
             for
             you
             ,
             to
             admit
             any
             procurator
             ,
             without
             License
             of
             your
             Arch-bishop
             ,
             or
             Bishop
             ,
             respective
             .
             But
             you
             may
             create
             ,
             Commissar-officers
             ,
             that
             be
             honest
             ,
             and
             faithful
             ,
             as
             ye
             will
             be
             answerable
             .
             And
             your
             Procurators
             ,
             shall
             wear
             Gowns
             in
             the
             Court
             ,
             as
             ye
             are
             appointed
             ,
             and
             injoyned
             ,
             by
             these
             principal
             injunctions
             ,
             to
             do
             the
             samine
             your selves
             .
             And
             that
             you
             put
             the
             samine
             to
             execution
             ,
             betwixt
             and
             the
             day
             of
             next
             to
             come
             .
          
           
             25.
             
             The
             profite
             of
             all
             Summons
             ,
             Sentences
             ,
             Transumpts
             ,
             Registrations
             ,
             and
             Confirmations
             of
             Testaments
             ,
             and
             Registrations
             of
             all
             Tacks
             ,
             Contracts
             ,
             Obligations
             ,
             and
             other
             Writs
             whatsomever
             ,
             and
             Extracts
             of
             the
             samine
             .
             As
             likewise
             the
             profite
             of
             the
             Seal
             ,
             and
             Signet
             ;
             to
             be
             divided
             in
             manner
             following
             :
             That
             is
             to
             say
             ;
             the
             two
             part
             thereof
             to
             the
             Commissars
             ,
             and
             the
             third
             part
             to
             the
             Clerk
             ;
             he
             always
             ,
             finding
             Paper
             ,
             Ink
             ,
             Wax
             ,
             and
             Writing-Chamber
             .
          
        
      
       
         
         
           ORDERS
        
         
           
             To
             be
             observed
             in
             Confirmations
             of
             all
             Testaments
             .
          
           
             YOU
             shall
             have
             a
             care
             ,
             that
             all
             Edicts
             be
             served
             generally
             ,
             at
             the
             Paroch
             Churches
             ,
             twice
             ,
             or
             at
             least
             every
             year
             .
             And
             if
             any
             Party
             shall
             desire
             particular
             Edicts
             ,
             as
             occasion
             offers
             :
             you
             shall
             cause
             give
             them
             forth
             ,
             and
             the
             general
             Edict
             to
             be
             given
             gratis
             to
             the
             Procurator-fiscal
             .
             The
             Edict
             being
             Served
             ,
             and
             the
             Person
             ,
             or
             Persons
             ,
             having
             best
             right
             ,
             being
             decerned
             Executors
             ,
             to
             the
             Defunct
             ;
             the
             Inventary
             shall
             be
             given
             up
             by
             the
             Executor
             ,
             who
             shall
             make
             Faith
             upon
             the
             truth
             of
             the
             samine
             .
             If
             the
             Wife
             be
             Deceast
             ,
             and
             the
             Husband
             give
             up
             Inventary
             ;
             both
             of
             the
             Goods
             ,
             Geir
             ,
             and
             Debts
             ,
             owing
             by
             hi●
             ,
             and
             to
             him
             ,
             such
             Debts
             as
             he
             gives
             up
             ,
             and
             by
             his
             Oath
             Swears
             ,
             to
             be
             true
             Debts
             ,
             should
             be
             deduced
             off
             the
             free
             Geir
             alwayes
             ,
             if
             the
             Executor
             suspect
             any
             Fraud
             ,
             that
             the
             Debts
             given
             up
             exhaust
             the
             free
             Geir
             ,
             and
             think
             fit
             to
             omit
             the
             samine
             ,
             he
             may
             lawfully
             do
             .
             And
             thir
             Debts
             are
             in
             Testaments
             Dative
             ,
             only
             to
             be
             received
             as
             owing
             by
             the
             Defunct
             ,
             Servants
             Fe●s
             for
             a
             year
             preceeding
             the
             Defuncts
             decea●e
             ,
             Duties
             of
             Lands
             ,
             or
             T●inds
             for
             a
             year
             ,
             Apothecaries
             Drogs
             immediatly
             imployed
             before
             the
             Defuncts
             decease
             ,
             House-meals
             for
             half
             a
             year
             at
             most
             ,
             Pensions
             ,
             and
             Ministers
             Stipends
             ,
             Steelbow-goods
             ,
             and
             Corns
             to
             the
             Master
             :
             If
             the
             man
             ,
             or
             the
             Person
             whose
             Testament
             is
             to
             be
             confirmed
             ,
             give
             up
             the
             Inventary
             of
             Debts
             ,
             with
             his
             own
             mouth
             ,
             in
             a
             Testament
             Testamentar
             ;
             such
             Debts
             ,
             as
             they
             give
             up
             ,
             must
             be
             allowed
             .
             But
             if
             there
             be
             no
             Testament
             Testamentar
             made
             by
             the
             Defunct
             ;
             or
             that
             in
             the
             samine
             he
             has
             ordained
             his
             Executor
             to
             give
             up
             the
             Inventary
             of
             his
             Goods
             ,
             Geir
             ,
             and
             Debts
             ;
             in
             that
             case
             ,
             no
             Debts
             are
             to
             be
             deduced
             ;
             except
             the
             Debts
             mentioned
             ,
             and
             contained
             in
             the
             immediat
             preceeding
             Article
             .
             Which
             Deductions
             being
             made
             by
             the
             Person
             deceast
             ;
             he
             leaving
             behind
             him
             .
             Wife
             and
             Bairns
             ;
             if
             any
             of
             the
             Bairns
             ,
             be
             unfori●familiat
             ;
             the
             Testament
             is
             divided
             in
             three
             parts
             ;
             and
             the
             third
             part
             of
             the
             ●●ee
             Geir
             ,
             pays
             only
             Quot
             .
          
           
             If
             all
             the
             Bairns
             be
             forisfamiliat
             ,
             the
             Testament
             then
             divides
             in
             two
             :
             and
             the
             half
             of
             the
             free
             Geir
             pays
             Quot
             .
             If
             there
             be
             no
             Bairns
             ,
             the
             Testament
             likewise
             is
             divided
             in
             two
             :
             and
             the
             half
             of
             the
             free
             Geir
             pays
             Quot
             .
             If
             the
             Person
             deceast
             be
             single
             ,
             and
             has
             no
             Bairns
             unforisf●miliat
             ,
             in
             that
             case
             the
             whole
             free
             Geir
             pays
             Quot
             ,
             without
             any
             division
             .
             If
             it
             fall
             out
             that
             any
             challenge
             the
             Geir
             of
             the
             Defunct
             ,
             by
             virtue
             of
             an
             Assignation
             ,
             from
             the
             Defunct
             before
             his
             decease
             ;
             he
             ought
             ,
             not
             the
             less
             ,
             to
             Confirm
             the
             Testament
             :
             notwithstanding
             of
             the
             Assignation
             .
             
               Quia
               quoad
               confirmationem
               Testament
            
             ;
             it
             is
             estimat
             to
             be
             simulat
             .
             But
             he
             may
             as
             Assignay
             ,
             make
             Protestation
             ,
             That
             the
             Confirmation
             shall
             not
             prejudge
             his
             Assignation
             ,
             
               pro
               ut
               de
               jure
            
             .
          
           
             Ye
             are
             to
             advert
             ,
             that
             the
             prices
             of
             the
             Goods
             ,
             given
             up
             in
             Testament
             ,
             be
             estimat
             ,
             conform
             to
             the
             common
             course
             ,
             as
             they
             are
             sold
             in
             the
             Countrey
             ,
             neither
             too
             high
             ,
             nor
             to
             low
             ,
             in
             prejudice
             of
             the
             Quot
             ,
             and
             Bairns
             of
             the
             Defunct
             .
          
           
           
             Let
             no
             Testament
             be
             Confirmed
             ,
             without
             the
             Oath
             of
             the
             Executor
             ,
             and
             the
             Relicts
             Oath
             ,
             Man
             ,
             or
             Wife
             ,
             who
             survives
             other
             ;
             and
             if
             any
             thing
             shall
             be
             found
             to
             be
             omitted
             :
             any
             benefite
             which
             would
             have
             belonged
             to
             the
             persons
             omitting
             ,
             of
             the
             which
             they
             had
             no
             probable
             ignorance
             ;
             The
             samine
             shall
             pertain
             to
             the
             Arch-bishop
             ,
             or
             Bishop
             ,
             or
             to
             any
             ,
             to
             whom
             they
             shall
             dispone
             it
             .
          
           
             You
             shall
             give
             no
             License
             to
             pursue
             ,
             except
             to
             poor
             bodies
             :
             and
             that
             for
             small
             sums
             ,
             and
             where
             Debts
             are
             desperate
             .
             If
             there
             be
             no
             nomination
             ,
             or
             Testament
             made
             by
             the
             Defunct
             ,
             or
             if
             the
             Testament
             Testamentar
             ,
             shall
             not
             be
             desired
             to
             be
             Confirmed
             :
             ye
             shall
             Confirm
             the
             nearest
             of
             Kin
             ,
             desiring
             to
             be
             Confirmed
             .
             And
             if
             the
             nearest
             of
             Kin
             shall
             not
             desire
             to
             be
             Confirmed
             ;
             ye
             shall
             Confirm
             such
             of
             the
             Creditors
             ,
             as
             desire
             to
             be
             Confirmed
             as
             Creditors
             :
             they
             instructing
             their
             Debts
             .
             And
             if●
             neither
             nearest
             of
             Kin
             ,
             Executor
             ,
             nor
             Creditor
             ,
             shall
             desire
             to
             be
             Confirmed
             ,
             you
             shall
             Confirm
             ,
             the
             Legators
             ,
             such
             of
             them
             as
             desire
             to
             be
             Confirmed
             ;
             and
             instruct
             ,
             that
             they
             are
             Legators
             .
             And
             if
             no
             other
             person
             having
             interest
             foresaid
             shall
             Confirm●
             you
             shall
             Confirm
             your
             Procurator-fiscal
             ,
             datives
             ,
             alwayes
             being
             duly
             given
             thereto
             before
             .
             And
             if
             after
             the
             saids
             datives
             ,
             but
             before
             Confirmation
             ;
             any
             Person
             having
             Interest
             ,
             shall
             desire
             to
             be
             Surrogat
             ,
             in
             place
             of
             the
             Procurator-fiscal
             :
             ye
             shall
             Confirm
             them
             as
             Executors
             ,
             Surrogat
             ,
             in
             place
             of
             the
             Procurator-fiscal
             .
             And
             to
             the
             effect
             the
             Debts
             may
             be
             the
             better
             known
             ;
             ye
             shall
             call
             within
             your
             Jurisdictions
             ,
             the
             Intrometters
             with
             the
             Defuncts
             Goods
             ,
             and
             Geir
             ,
             (
             Datives
             being
             given
             up
             as
             said
             is
             )
             to
             give
             up
             Inventar
             thereof
             .
             And
             in
             case
             the
             Intrometters
             will
             not
             compear
             ,
             to
             the
             effect
             foresaid
             .
             Then
             ye
             shall
             cause
             Summond
             ,
             four
             or
             five
             of
             the
             Defuncts
             nearest
             neighbours
             ;
             and
             others
             who
             best
             knew
             the
             samine●
             who
             being
             sworn
             ,
             shall
             give
             up
             Inventar
             ;
             of
             the
             Dead's
             Goods
             ,
             and
             declare
             the
             quantity
             thereof
             ,
             under
             what
             division
             the
             samine
             comes
             ,
             and
             the
             expense
             ,
             to
             be
             made
             thereupon
             ,
             shall
             be
             modified
             yearly
             :
             at
             the
             making
             of
             the
             Accompts
             .
          
           
             That
             every
             one
             of
             you
             have
             a
             Procurator-fiscal
             ,
             who
             shall
             be
             an
             honest
             ,
             discreet
             man
             ,
             and
             responsal
             ,
             for
             pursuing
             all
             common
             actions
             ,
             and
             who
             shall
             be
             decerned
             Executor
             dative
             ,
             to
             all
             the
             Defuncts
             ,
             within
             your
             Jurisdiction
             where
             he
             serves
             ;
             in
             case
             the
             nearest
             of
             Kine
             of
             the
             Dead
             ,
             nor
             any
             other
             nominat
             Executor
             ,
             Confirm
             not
             his
             Testament
             ,
             in
             due
             time
             .
             And
             ilk
             Procurator-fiscal
             shall
             find
             Caution
             that
             the
             Goods
             he
             shall
             happen
             to
             intromet
             with
             ,
             shall
             be
             forthcoming
             as
             effeirs
             :
             and
             shall
             make
             Compt
             yearly
             ,
             and
             payment
             of
             the
             saids
             Goods
             ,
             that
             shall
             happen
             to
             be
             intrometted
             with
             by
             him
             :
             to
             the
             Arch-bishop
             ,
             or
             Bishop
             ,
             and
             shall
             have
             three
             shilling
             ,
             for
             ilk
             pound
             that
             he
             brings
             in
             ,
             and
             makes
             payment
             of
             .
             The
             Procurator-fiscals
             ,
             shall
             be
             holden
             to
             Compt
             twice
             in
             the
             year
             ,
             for
             the
             diligence
             to
             be
             done
             by
             them
             ,
             in
             taking
             up
             the
             names
             of
             all
             the
             Defunct
             Persons
             ,
             within
             the
             whole
             Parochs
             of
             your
             respective
             Commissariots
             :
             wherein
             they
             shall
             be
             faithful
             .
             And
             if
             it
             shall
             be
             found
             that
             they
             have
             exacted
             Money
             from
             the
             People
             ,
             or
             oppressed
             them
             ,
             or
             transacted
             with
             such
             Persons
             as
             shall
             happen
             to
             be
             charged
             to
             Confirm
             ,
             and
             shall
             receive
             Money
             from
             them
             to
             pass
             from
             the
             saids
             charges
             ,
             or
             for
             Money
             or
             good
             deed
             ;
             shall
             forbear
             to
             cause
             charge
             any
             such
             person
             ,
             who
             ought
             to
             be
             charged
             .
             Any
             such
             Procurator-fiscal
             so
             doing
             ;
             the
             samine
             being
             sufficiently
             proven
             ,
             shall
             be
             deprived
             from
             his
             Office
             .
          
           
           
             That
             all
             Persons
             ,
             named
             ,
             or
             to
             be
             named
             Executors
             ,
             to
             any
             Defunct
             ;
             shall
             Confirm
             their
             Testaments
             within
             three
             Moneths
             ,
             after
             the
             Defunct's
             death
             ,
             at
             farthest
             .
          
           
             If
             any
             person
             shall
             be
             decerned
             Executor
             to
             a
             Defunct
             ,
             when
             he
             compears
             not
             personally
             ,
             by
             reason
             of
             sickness
             ,
             or
             upon
             any
             other
             reasonable
             occasion
             :
             and
             craves
             a
             commission
             to
             take
             the
             Executors
             Oath
             .
             Ye
             shall
             not
             grant
             any
             Commission
             for
             that
             effect
             ,
             without
             the
             Ministers
             Testificat
             ,
             of
             the
             Parties
             inability
             ,
             and
             knowledge
             ,
             and
             consent
             ,
             of
             the
             Arch-bishop
             ,
             and
             Bishop
             .
          
           
             When
             an
             Edict
             is
             execute
             to
             a
             day
             ,
             and
             the
             Party
             compear
             and
             desire
             to
             be
             decerned
             ,
             Executor
             ,
             and
             crave
             a
             day
             ,
             to
             give
             up
             Inventary
             ,
             and
             Confirm
             :
             ye
             shall
             continue
             the
             decerning
             of
             the
             Party
             as
             Executor
             ,
             until
             the
             day
             ,
             that
             he
             should
             Confirm
             ;
             to
             the
             end
             all
             may
             be
             done
             ,
             
               Simul
               &
               semel
            
             .
          
           
             You
             shall
             not
             suffer
             Testaments
             to
             have
             Faith
             ,
             or
             any
             thing
             contained
             in
             them
             ,
             without
             Confirmation
             ,
             ye
             shall
             not
             suffer
             an
             e●k
             of
             Testaments
             to
             be
             made
             ,
             exceeding●
             the
             third
             of
             the
             Inventary
             ,
             and
             that
             but
             once
             ,
             without
             knowledge
             of
             the
             Arch-bishop
             ,
             or
             Bishop
             .
             That
             the
             Inventar
             be
             likewise
             given
             up
             ,
             as
             they
             were
             the
             time
             of
             the
             Defuncts
             decease
             .
             And
             twelve
             pennies
             of
             every
             pound
             of
             the
             Deads
             part
             ,
             shall
             be
             the
             Quot
             of
             all
             Testaments
             ,
             both
             great
             and
             small
             ,
             which
             shall
             be
             Confirmed
             ;
             as
             well
             of
             the
             Testaments
             ,
             dative
             ,
             as
             others
             .
             And
             the
             mitigation
             ,
             and
             composition
             of
             the
             samine
             Quot
             ,
             shall
             appertain
             to
             the
             Arch-bishop
             ,
             or
             Bishop
             ,
             to
             whom
             it
             belongs
             alanerly
             :
             if
             need
             beis
             .
          
        
         
           
             Institutions
             to
             the
             Clerk.
             
          
           
             YE
             shall
             have
             two
             Register
             Books
             ,
             one
             for
             the
             Acts
             ,
             and
             Sentences
             ,
             and
             another
             for
             the
             Testaments
             .
             Which
             Book
             of
             the
             Testaments
             ,
             shall
             be
             marked
             by
             the
             hand
             of
             the
             Arch-bishops
             or
             Bishops
             ,
             or
             Bishops
             Clerk
             :
             and
             when
             the
             samine
             are
             filled
             up
             ,
             to
             receive
             a
             new
             Book
             ,
             besides
             your
             Book
             of
             Registration
             .
          
           
             Ye
             are
             all
             of
             you
             ,
             both
             Commissars
             ,
             Clerks
             ,
             and
             Fiscalls
             ,
             to
             serve
             the
             Leidges
             thankfully
             :
             at
             the
             Rates
             ,
             and
             Prices
             which
             are
             to
             be
             settled
             ,
             by
             the
             Arch-bishops
             ,
             and
             Bishops
             .
          
           
             We
             have
             considered
             the
             abovementioned
             Instructions
             ,
             contained
             in
             these
             five
             preceeding
             Leaves
             .
             And
             to
             conceive
             that
             it
             is
             fit
             ,
             that
             the
             same
             be
             Authorized
             and
             injoyned
             ,
             for
             Regulating
             the
             Proceedings
             of
             the
             Commissars
             ;
             in
             their
             respective
             Courts
             .
          
           
             
               Sic
               Subscribitur
            
             ,
             
               
                 IO.
                 NISBIT
                 .
              
               
                 IO.
                 BAIRD
                 .
              
            
          
        
         
           
             ACT
             against
             Decreets
             ,
             for
             not
             Reproduction
             of
             c●ssiones
             bonorum
             .
             November
             6.
             1666.
             
          
           
             THe
             Lords
             considering
             ,
             the
             great
             abuse
             lately
             crept
             in
             ,
             under
             the
             colour
             ,
             of
             the
             Act
             ,
             ordering
             Decreets
             for
             not
             Reproduction
             of
             Process
             :
             to
             extract
             Decreets
             of
             Bonorum
             ,
             which
             was
             never
             the
             Lords
             meaning
             ,
             to
             extend
             the
             foresaid
             Act
             ,
             to
             any
             Summons
             of
             Bonorum
             .
             Therefore
             the
             saids
             Lords
             ,
             for
             Rectification
             of
             the
             foresaid
             abuse
             :
             discharge
             the
             granting
             
             of
             any
             Decreets
             for
             not
             Production
             ,
             in
             time
             coming
             ;
             in
             so
             far
             as
             relates
             to
             Actions
             of
             Bonorum
             :
             at
             the
             Instance
             of
             any
             Debitor
             ,
             against
             his
             Creditors
             .
             But
             ordain
             the
             Pursuer
             to
             complain
             to
             the
             Lords
             ,
             
               in
               presentia
               ,
               in
               communi
               forma
               ,
            
             for
             keeping
             up
             of
             Processes
             ,
             of
             that
             Nature
             :
             and
             discharge
             the
             Lord
             Ordinary
             ,
             in
             the
             Outter-house
             ,
             to
             decern
             in
             any
             such
             Causes
             :
             but
             that
             they
             be
             all
             Advised
             ,
             and
             Decerned
             ,
             
               in
               presentia
            
             .
          
        
         
           
             His
             Majesties
             Letter
             to
             the
             Lords
             concerning
             Prizes
             .
             Ianuary
             3.
             1667.
             
          
           
             
               Follows
               the
               Tenor
               of
               the
               Letter
               ,
               Superscribed
               thus
               ;
            
          
           
             
               CHARLES
               R.
               
            
          
           
             RIght
             Trusty
             ,
             and
             Right
             well
             beloved
             Cusing
             and
             Councellour
             ,
             Right
             Trusty
             ,
             and
             well
             beloved
             Councellours
             ,
             and
             Trusty
             and
             well
             beloved
             :
             We
             Greet
             you
             well
             :
             we
             have
             been
             often
             troubled
             ,
             with
             Complaints
             from
             strangers
             ,
             in
             Amity
             with
             Vs
             ;
             and
             others
             ,
             concerning
             the
             Prizes
             taken
             by
             Our
             private
             men
             of
             War
             ,
             in
             that
             Our
             Kingdom
             ,
             and
             Sentences
             pronounced
             by
             Our
             High
             Court
             of
             Admirality
             there
             :
             and
             whereas
             We
             understand
             ,
             that
             ye
             by
             Our
             Law
             ,
             are
             Authorized
             to
             be
             Supream
             Iudges
             in
             all
             these
             cases
             :
             We
             do
             hereby
             Require
             ,
             and
             Authorize
             you
             ,
             to
             think
             ,
             and
             conclude
             on
             such
             Orders
             ,
             as
             shall
             be
             necessary
             for
             bringing
             before
             you
             ,
             and
             Deciding
             all
             these
             Causes
             in
             a
             Summar
             way
             :
             and
             that
             ye
             proceed
             with
             all
             expedition
             ;
             in
             respect
             the
             Persons
             concerned
             ,
             are
             ,
             for
             the
             most
             part
             ,
             Strangers
             .
             And
             their
             Ships
             ,
             and
             Goods
             ,
             being
             apt
             to
             perish
             ;
             their
             prejudice
             may
             be
             irreparable
             ;
             if
             they
             have
             not
             Summar
             Iustice.
             And
             We
             do
             most
             particularly
             recommend
             to
             you
             ,
             the
             Subjects
             of
             the
             Kings
             of
             Spain
             ,
             and
             Sweden
             ,
             with
             whom
             we
             have
             particular
             Treaties
             ,
             which
             We
             shall
             send
             to
             you
             :
             And
             w●ose
             Ships
             ,
             and
             Goods
             are
             to
             pass
             free
             ;
             they
             having
             such
             Passes
             ,
             as
             are
             agreed
             upon
             ,
             of
             which
             ,
             We
             did
             send
             Copies
             to
             Our
             Privy
             Council
             ;
             and
             so
             We
             bid
             you
             Farewell
             .
          
           
             
               Given
               at
               Our
               Court
               at
               Whitehall
               ,
               
                 the
                 twenty
                 seven
                 day
                 of
                 December
                 ,
                 One
                 thousand
                 six
                 hundred
                 sixty
                 and
                 six
                 .
                 And
                 of
                 Our
                 Reign
                 ,
                 the
                 eighteen
                 year
                 .
              
            
             
               By
               His
               Majesties
               Command
               ,
               Subscribed
               thus
               ,
               LAUDERDAIL
               .
            
          
        
         
           
             VVarrand
             for
             General
             Letters
             ,
             for
             the
             Contribution
             due
             out
             of
             Benefices
             to
             the
             Lords
             .
             November
             17.
             1668.
             
          
           
             THE
             Lords
             have
             Ordained
             ,
             and
             hereby
             Ordain
             ,
             Letters
             ,
             and
             Executorials
             of
             Horning
             ,
             to
             be
             Direct
             at
             the
             Instance
             of
             these
             Ordinary
             Lords
             ;
             who
             have
             been
             admitted
             ,
             since
             Iune
             1663.
             or
             shall
             be
             admitted
             hereafter
             ,
             against
             the
             Arch-bishops
             ,
             Bishops
             ,
             Priors
             ,
             Heretors
             ,
             Liferenters
             ,
             Feuars
             ,
             Farmers
             ,
             Tennents
             ,
             and
             Tacksmen
             of
             the
             Prelacies
             within
             this
             Kingdom
             :
             for
             payment
             to
             them
             of
             their
             respective
             proportions
             ,
             of
             the
             Contribution
             Money
             ,
             payable
             out
             of
             the
             saids
             Prelacies
             ,
             and
             Allocat
             to
             their
             Predecessors
             :
             in
             whose
             place
             they
             have
             succeeded
             ,
             by
             an
             Act
             of
             Sederunt
             ,
             of
             the
             date
             ,
             the
             11.
             day
             of
             Iune
             1663.
             and
             a
             Roll
             subjoyned
             thereto
             ;
             containing
             the
             particular
             division
             ,
             of
             the
             Contribution
             Money
             amongst
             the
             saids
             Lords
             ,
             and
             that
             for
             all
             Years
             and
             Terms
             ,
             since
             their
             admission
             ,
             and
             Entry
             ,
             and
             Yearly
             and
             Termly
             in
             time
             coming
             .
          
        
         
           
           
             Oaths
             to
             be
             taken
             for
             the
             Price
             of
             Fowls
             .
             Ianuary
             15.
             1669.
             
          
           
             THE
             which
             day
             ,
             It
             being
             represented
             to
             the
             Lords
             ,
             That
             the
             Magistrates
             of
             Edinburgh
             ,
             desired
             to
             know
             ,
             whether
             they
             might
             warrantably
             exact
             the
             Oaths
             of
             the
             Poultrie-men
             ,
             and
             In-keepers
             ,
             concerning
             their
             contravention
             ,
             of
             the
             Acts
             lately
             made
             for
             the
             price
             of
             Fowl
             drest
             and
             undrest
             .
             The
             Lords
             finds
             that
             the
             Magistrates
             of
             Edinburgh
             ,
             may
             and
             ought
             to
             exact
             the
             Oaths
             ,
             of
             the
             contraveeners
             of
             these
             Acts
             ,
             either
             the
             Poultrie-people
             ,
             who
             sell
             the
             Fowls
             undrest
             ,
             or
             In-keepers●
             who
             sell
             them
             drest
             .
             And
             recommend
             to
             the
             Magistrates
             to
             be
             careful
             ,
             in
             the
             speedie
             ,
             and
             exact
             execution
             of
             these
             Acts.
             
          
        
         
           
             ACT
             anent
             extracts
             of
             Registrate
             writs
             bearing
             the
             Procurators
             named
             though
             not
             subscribed
             .
             December
             9.
             1670.
             
          
           
             THE
             Lords
             of
             Council
             and
             Session
             ,
             do
             grant
             warrand
             to
             the
             Lord
             Register
             ,
             and
             the
             Clerks
             of
             Session
             ;
             his
             Deputes
             to
             registrate
             such
             Bands
             ,
             Contracts
             ,
             and
             other
             Writs
             ,
             as
             shall
             be
             given
             in
             to
             them
             to
             be
             registrat
             ,
             and
             therein
             to
             insert
             the
             consent
             of
             Advocats
             ,
             as
             Procurators
             to
             the
             Registration
             :
             as
             they
             were
             in
             use
             to
             do
             formerly●
             and
             accordingly
             to
             give
             out
             extracts
             thereof
             ,
             notwithstanding
             that
             the
             Advocats
             do
             not
             subscrib
             their
             consent
             .
             And
             appoints
             this
             warrand
             to
             continue
             untill
             further
             order
             .
             Likeas
             ,
             the
             Lords
             declare
             ,
             that
             any
             Extracts
             given
             out
             by
             the
             Clerks
             ,
             in
             manner
             foresaid
             ;
             since
             the
             first
             day
             of
             November
             last
             are
             warrantably
             given
             :
             and
             cannot
             be
             quarrelled
             upon
             that
             ground
             ,
             that
             the
             Advocats
             consent
             to
             the
             Registration
             is
             not
             subscribed
             .
          
        
         
           
             ACT
             Anent
             Extracting
             Acts
             and
             Decreets
             .
             Ianuary
             20.
             1671.
             
          
           
             THE
             Lords
             enacted
             and
             ordained
             that
             no
             Act
             ,
             or
             Decreet
             ,
             done
             either
             in
             the
             Inner
             or
             Utter-house
             shall
             be
             extracted
             untill
             24
             hours
             elapse
             ,
             after
             the
             same
             is
             read
             in
             the
             Minut
             Book
             .
          
        
         
           
             ACT
             against
             Magistrats
             of
             Burghs
             ,
             forletting
             prisoners
             for
             Debt
             go
             out
             of
             the
             tolbooth
             .
             Iune
             14.
             1671.
             
          
           
             THE
             Lords
             considering
             ,
             That
             albeit
             by
             the
             Law
             ,
             Magistrats
             of
             Burghs
             ,
             are
             oblidged
             to
             retain
             ,
             in
             sure
             warde
             and
             firmance
             ,
             Persons
             incarcerat
             in
             their
             Tolbooths
             for
             Debt
             .
             Yet
             hitherto
             they
             have
             been
             in
             use
             to
             indulge
             Prisoners
             ,
             to
             go
             abroad
             upon
             several
             occasions
             .
             And
             it
             being
             expedient
             ,
             that
             in
             time
             coming
             the
             foresaid
             liberty
             ,
             taken
             by
             the
             Magistrates
             ,
             of
             Burghs
             should
             be
             restrained
             ;
             and
             the
             Law
             duely
             observed
             .
             Therefore
             the
             saids
             Lords
             do
             declare
             ,
             that
             hereafter
             it
             shal
             not
             be
             lawful
             to
             the
             Magistrates
             of
             Burghs
             ,
             upon
             any
             occasion
             whatsomever
             ,
             without
             warrand
             from
             His
             Majesties
             Privy
             Council
             ,
             or
             the
             Lords
             of
             Session
             to
             permit
             any
             Person
             incarcerat
             in
             their
             Tolbooth
             for
             Debt
             ,
             to
             go
             out
             of
             Prison
             ,
             except
             in
             the
             case
             of
             the
             Parties
             sickness
             ,
             and
             extream
             danger
             of
             Life
             :
             The
             same
             being
             always
             attested
             upon
             oath
             ,
             under
             the
             hand
             of
             a
             Physician
             ,
             Chirurgion
             ,
             Appothecary
             ,
             or
             Minister
             of
             the
             Gospel
             in
             the
             place
             :
             Which
             Testificat
             shall
             be
             recorded
             in
             the
             Town
             Court
             Books
             .
             And
             in
             that
             case
             ,
             that
             the
             Magistrats
             
             allow
             the
             Partie
             only
             liberty
             ,
             to
             reside
             in
             some
             house
             ,
             within
             the
             Town
             during
             the
             continuance
             of
             his
             sickness
             :
             They
             being
             always
             answerable
             that
             the
             Partie
             escape
             not
             .
             And
             upon
             his
             recovery
             to
             return
             to
             Prison
             .
             And
             the
             Lords
             declare
             ,
             that
             any
             Magistrats
             of
             Burghs
             who
             shall
             contraveen
             the
             premisses
             ,
             shall
             be
             lyable
             in
             payment
             of
             the
             Debts●
             for
             which
             the
             Rebel
             was
             incarcerat
             :
             And
             appoints
             this
             Act
             to
             be
             intimat
             to
             the
             Agent
             for
             the
             Royal
             Burrows
             :
             and
             to
             be
             insert
             in
             the
             Books
             of
             Sederunt
             .
          
        
         
           
             His
             MAJESTIES
             Order
             to
             the
             Commissioners
             of
             His
             Thesaury
             to
             free
             the
             Lords
             from
             the
             Cess
             .
             Iuly
             19.
             1671.
             
          
           
             
               CHARLES
               R.
               
            
          
           
             RIght
             trusty
             and
             well
             beloved
             Cusing
             and
             Counciller
             ,
             right
             trusty
             and
             well
             beloved
             Councillers
             ,
             and
             trusty
             and
             well
             beloved
             ,
             We
             greet
             you
             well
             .
             Vpon
             the
             humble
             desire
             of
             President
             ,
             and
             Senators
             of
             Our
             Colledge
             of
             Iustice
             Signified
             unto
             Vs
             by
             Our
             Secretary
             .
             We
             have
             thought
             fit
             to
             express
             Our
             so
             great
             tenderness
             of
             their
             Priviledges
             ,
             as
             to
             discharge
             the
             President
             ,
             and
             all
             the
             ordinary
             Lords
             of
             Session
             ,
             of
             their
             proportions
             of
             the
             Currant
             Supply
             granted
             unto
             Vs
             ,
             by
             the
             late
             Session
             of
             Our
             Parliament
             ;
             although
             they
             gave
             their
             Bond
             for
             the
             same
             .
             Therefore
             Our
             pleasure
             is
             ,
             and
             We
             do
             hereby
             Authorize
             you
             to
             give
             Command
             nor
             to
             exact
             any
             of
             the
             said
             Supply
             from
             the
             proper
             states
             of
             the
             said
             President
             ,
             and
             ordinary
             Lords
             of
             Session
             ,
             but
             that
             the
             same
             be
             discharged
             .
             And
             if
             any
             part
             thereof
             be
             already
             Collected
             ,
             that
             it
             be
             payed
             back
             to
             them
             respectively
             ;
             for
             which
             this
             shall
             be
             your
             warrand
             .
             And
             so
             We
             bid
             you
             heartily
             Farewell
             .
          
           
             
               Given
               at
               Our
               Court
               at
               
                 Windsor
                 Casile
              
               
                 the
                 12
                 day
                 of
                 Iuly
                 ,
                 1671.
                 and
                 of
                 Our
                 Reign
                 the
                 23
                 Year
                 .
              
            
             
               Subscribed
               thus
               by
               his
               Majesties
               command
               Lauderdail
               .
            
          
        
         
           
             ACT
             for
             keeping
             the
             Barrs
             November
             3.
             1671.
             
          
           
             THE
             Lords
             of
             Council
             and
             Session
             considering
             ,
             that
             there
             is
             great
             disorder
             and
             confusion
             occasion●d
             by
             the
             thronging
             in
             of
             the
             Advocats
             men
             ,
             and
             others
             upon
             the
             Clerks
             ,
             and
             their
             Servants
             in
             the
             Utter-house
             before
             the
             ordinary
             Lord
             go
             to
             the
             Bench.
             And
             after
             twelve
             a
             clock
             at
             the
             reading
             of
             the
             Minut
             Book
             :
             For
             remeid
             whereof
             ,
             they
             ordain
             the
             Minut
             Book
             in
             time
             coming
             to
             be
             read
             in
             the
             nethermost
             end
             of
             the
             Loft
             appointed
             for
             the
             Advocats
             Servants
             .
             And
             prohibit
             and
             discharge
             all
             Advocats
             Servants
             ,
             and
             other
             persons
             ,
             who
             are
             not
             licenced
             ,
             and
             allowed
             to
             enter
             ,
             or
             remain
             within
             the
             Innermost
             Barr
             of
             the
             Utter-house
             ,
             where
             the
             Clerks
             ,
             and
             their
             Servants
             stays
             ;
             under
             the
             pain
             of
             three
             pounds
             Scots
             ,
             to
             be
             applyed
             the
             one
             half
             for
             the
             use
             of
             the
             Poor
             ,
             and
             the
             other
             to
             the
             Macers
             .
             And
             to
             be
             further
             censured
             by
             imprisonment
             ,
             or
             otherways
             as
             the
             saids
             Lords
             shall
             think
             sit
             .
             And
             to
             the
             end
             the
             said
             Act
             may
             be
             more
             duely
             observed
             .
             The
             Lord
             do
             ordain
             ,
             authorize
             and
             require
             the
             Macers
             to
             exact
             the
             said
             ●ine
             of
             three
             pounds
             ,
             Scots
             ,
             from
             any
             Person
             whom
             they
             shall
             find
             within
             the
             said
             Barr.
             And
             in
             case
             the
             Party
             refuse
             to
             pay
             the
             same
             :
             that
             they
             carry
             them
             to
             Prison
             ,
             untill
             they
             make
             payment
             thereof
             .
             Certifying
             the
             saids
             Macers
             ,
             that
             if
             upon
             delation
             of
             them
             ,
             by
             any
             of
             the
             Clerks
             ,
             they
             shall
             be
             found
             negligent
             in
             performing
             of
             what
             is
             hereby
             enjoyned
             to
             them
             ,
             they
             shall
             be
             fined
             in
             the
             said
             sum
             of
             three
             pounds
             Scots
             :
             and
             imprisoned
             during
             the
             pleasure
             of
             the
             Lords
             .
             And
             this
             Sentence
             to
             be
             inflicted
             upon
             the
             Macers
             ,
             or
             other
             transgressors
             of
             this
             Act
             ,
             as
             oft
             as
             they
             shall
             be
             found
             to
             contraveen
             the
             same
             .
          
        
         
           
           
             ACT
             concerning
             Priviledged
             Summons
             .
             Iuly
             21.
             1672.
             
          
           
             THE
             Lords
             considering
             ,
             that
             divers
             Summons
             as
             declarators
             ,
             and
             others
             ,
             which
             by
             the
             constant
             from
             and
             practice
             of
             this
             Kingdom
             ,
             did
             always
             abide
             21.
             days
             warning
             ,
             have
             of
             la●e
             been
             execute
             sometimes
             upon
             six
             days
             ,
             as
             being
             priviledged
             by
             deliverance
             of
             the
             Lords
             upon
             Bills
             given
             in
             for
             that
             effect
             ;
             and
             seeing
             these
             Bills
             being
             d●awn
             and
             given
             in
             by
             Writers
             to
             the
             Signet
             ,
             do
             passe
             of
             Course
             without
             perusal
             ,
             or
             consideration
             thereof
             ,
             by
             the
             ordinary
             ,
             which
             hath
             given
             occasion
             to
             the
             foresaid
             abuse
             .
             And
             finding
             it
             expedient
             ,
             that
             it
             be
             determined
             for
             the
             future
             ,
             what
             Summons
             shall
             be
             Priviledged
             :
             Therefore
             the
             saids
             Lords
             do
             ordain
             ,
             That
             in
             time
             coming
             ,
             all
             Summons
             shal
             come
             in
             upon
             21
             days
             warning
             .
             And
             that
             none
             be
             priviledged
             by
             the
             Lords
             deliverance
             ,
             or
             otherways
             ,
             except
             these
             following
             ,
             viz.
             Removings
             ,
             Recent-spulzie
             ,
             and
             Recent
             Ejections
             ,
             where
             the
             Summons
             is
             Execute
             within
             15
             days
             after
             the
             comitting
             of
             the
             deed
             intrusions
             ,
             and
             coming
             in
             the
             Vice
             ,
             Causes
             alimentary
             ,
             Exhibitions
             ,
             Summons
             ,
             for
             making
             arrested
             Goods
             forthcoming
             ,
             Transferrings
             ,
             Poyndings
             of
             the
             Ground
             ,
             Waknings
             ,
             Special
             Declarators
             ,
             Suspensions
             ,
             Prevento●s
             ,
             and
             Transumpts
             .
             And
             that
             Recent-spulzies
             ,
             Ejections
             ,
             Intrusions
             and
             Succeeding
             in
             the
             Vice
             be
             execute
             upon
             15
             days
             :
             and
             that
             all
             the
             rest
             of
             the
             foresaids
             Summons
             be
             Execute
             upon
             six
             days
             :
             and
             that
             the
             second
             Citation
             be
             likewise
             upon
             six
             days
             .
             And
             it
             is
             further
             declared
             ,
             That
             all
             the
             Summons
             above-mentioned
             shall
             be
             priviledged
             as
             a
             foresaid
             ,
             whither
             the
             Summons
             bear
             a
             priviledge
             or
             not
             .
             And
             the
             Lords
             do
             hereby
             prohibit
             ,
             and
             discharge
             the
             Writers
             to
             the
             Signet
             ,
             to
             Write
             ,
             Form
             ,
             or
             Present
             to
             the
             Clerks
             to
             be
             put
             in
             any
             Bills
             for
             priviledging
             any
             Summons
             ,
             but
             these
             above-expr●st
             ;
             Certifying
             such
             as
             shall
             coutrav●en
             ,
             that
             for
             the
             first
             fault
             they
             shall
             be
             fyned
             in
             one
             hundred
             merks
             Scots
             ,
             to
             be
             applyed
             for
             the
             use
             of
             the
             poor
             :
             and
             for
             the
             second
             fault
             ,
             they
             shall
             be
             deprived
             of
             their
             Office.
             It
             is
             always
             hereby
             declared
             ,
             that
             this
             Act
             is
             not
             to
             be
             extended
             to
             Summons
             execute
             against
             Persons
             Inhabitants
             of
             the
             Burgh
             of
             Edinburgh
             ,
             or
             the
             contiguous
             Suburbs
             thereof
             ,
             who
             may
             be
             Summoned
             by
             the
             second
             Citation
             ,
             upon
             24
             hours
             ,
             conform
             to
             the
             custom
             formerly
             observed
             .
          
        
         
           
             ACT
             anent
             payment
             of
             dues
             for
             Summons
             containing
             two
             dyets
             .
             Iuly
             11.
             1672.
             
          
           
             FOrasmuch
             ,
             as
             the
             Lords
             ,
             after
             mature
             d●liberation
             ,
             did
             think
             fit
             ,
             That
             the
             former
             custom
             of
             continuing
             Summons
             ,
             and
             taking
             out
             of
             Act
             and
             Letters
             thereupon
             ,
             in
             all
             such
             Causes
             ,
             and
             Processes
             ,
             as
             formerly
             did
             require
             and
             abide
             continuation
             ,
             should
             be
             laid
             aside
             in
             time
             coming
             .
             And
             that
             in
             Place
             and
             Lieu
             thereof
             ;
             the
             Summons
             in
             all
             Process
             of
             the
             nature
             foresaid
             ,
             should
             contain
             two
             distinct
             warrands
             ,
             for
             citing
             the
             Defenders
             at
             two
             several
             times
             ,
             and
             to
             two
             several
             dyets
             ,
             and
             dayes
             of
             Compearance
             with
             the
             same
             Certification
             as
             before
             was
             usual
             ;
             and
             contained
             in
             the
             first
             and
             second
             Summons
             respective
             .
             And
             that
             Proc●ss●s
             should
             be
             granted
             in
             the
             Causes
             foresaids
             ,
             upon
             Summons
             containing
             the
             warrands
             above-mentioned
             ,
             and
             Execute
             conform
             to
             the
             same
             ,
             as
             formerly
             was
             granted
             upon
             Summons
             ,
             Act
             and
             Letters
             .
             And
             upon
             an
             overture
             given
             in
             ,
             and
             approven
             by
             the
             Lords
             of
             Articles
             .
             An
             Act
             of
             Parliament
             hath
             followed
             ,
             and
             is
             made
             to
             that
             purpose
             .
             As
             the
             Act
             of
             Parliament
             intituled
             
               Act
               discharging
               
               second
               Summons
            
             ,
             at
             length
             proports
             .
             And
             seing
             the
             Lords
             of
             Session
             ,
             when
             they
             had
             the
             said
             alteration
             of
             the
             former
             Custom
             ,
             under
             their
             consideration
             ,
             thought
             it
             no
             ways
             reasonable
             ,
             that
             thereby
             ,
             either
             His
             Majesties
             Secretary
             ,
             or
             the
             Clerk
             of
             Register
             ,
             or
             the
             ordinary
             Clerks
             of
             Session
             ,
             his
             Deputes
             should
             be
             prejudged
             of
             their
             dues
             ,
             and
             profits
             formerly
             belonging
             to
             them
             respective
             .
             And
             in
             regard
             ,
             the
             Summonds
             which
             are
             to
             contain
             the
             said
             distinct
             warrands
             for
             Citation
             ,
             are
             in
             effect
             ,
             and
             upon
             the
             matter
             ,
             two
             several
             Summons
             ,
             and
             are
             equivalent
             to
             Summons
             ,
             Acts
             and
             Letter
             ,
             and
             have
             the
             same
             effect
             to
             all
             intents
             :
             and
             the
             profits
             formerly
             arising
             from
             all
             Acts
             of
             Continuation
             ,
             and
             Letters
             thereupon
             ,
             are
             a
             considerable
             part
             of
             the
             Dues
             belonging
             to
             the
             Lord
             Secretare
             ,
             Lord
             Register
             ,
             and
             his
             Deputs
             ,
             for
             their
             Incouragement
             ,
             and
             Service
             in
             their
             respective
             Offices●
             and
             upon
             the
             considerations
             foresaid
             ,
             it
             was
             resolved
             .
             That
             notwithstand
             ,
             ing
             ,
             the
             said
             alteration
             ,
             the
             same
             should
             be
             continued
             ,
             and
             secured
             to
             them
             ,
             in
             manner
             after
             mentioned
             .
             Therefore
             ,
             and
             in
             order
             to
             their
             satisfaction
             :
             The
             Lords
             of
             Session
             does
             Statute
             and
             Ordain
             ,
             That
             for
             the
             Signing
             of
             all
             Summons
             ,
             which
             formerly
             did
             abide
             continuation
             ;
             and
             in
             lieu
             thereof
             ,
             shall
             now
             ,
             and
             hereafter
             continue
             the
             said
             warrands
             for
             two
             several
             Citations
             ,
             the
             keepers
             of
             the
             Signet
             shall
             have
             ,
             and
             may
             take
             as
             much
             as
             formerly
             he
             might
             have
             taken
             ,
             both
             for
             Summons
             and
             Letters
             ,
             while
             the
             same
             were
             signeted
             a
             part
             .
             As
             also
             it
             is
             hereby
             appointed
             ,
             That
             all
             the
             saids
             new
             Summons
             ,
             containing
             two
             distinct
             warrands
             for
             citing
             to
             the
             Defenders
             two
             dyets
             be
             subscribed
             by
             the
             Clerk
             of
             Register
             ,
             or
             in
             his
             absence
             ,
             by
             one
             of
             his
             D●puts
             ,
             or
             the
             ordinary
             Clerks
             of
             Session
             ,
             who
             at
             the
             subscribing
             thereof
             ,
             are
             to
             receive
             for
             the
             same
             ,
             the
             dues
             formerly
             payed
             ,
             for
             Act
             ,
             and
             Letters
             .
             And
             the
             Lords
             do
             hereby
             discharge
             the
             keeper
             of
             the
             Signet
             to
             affix
             the
             Signet
             to
             any
             of
             these
             new
             Summons
             ,
             for
             two
             ,
             or
             more
             Citations
             ,
             but
             such
             as
             shall
             be
             subscribed
             by
             the
             Clerk
             of
             Register
             ,
             or
             his
             Deputes
             ,
             as
             said
             is
             :
             and
             that
             no
             Process
             be
             granted
             upon
             auy
             such
             Summons
             unlesse
             they
             be
             subscribed
             by
             them
             in
             manner
             foresaid
             .
          
        
         
           
             ACT
             concerning
             Bankrupts
             .
             Ianuary
             23.
             1673.
             
          
           
             FOrasmuch
             ,
             as
             by
             an
             Act
             of
             Sederunt
             ,
             of
             the
             26
             February
             ,
             1669.
             
             It
             is
             Satute
             an
             Ordained
             ,
             that
             all
             Decreets
             of
             Bonorum
             in
             time
             coming
             ,
             should
             contain
             a
             Clause
             ,
             ordaining
             the
             Persons
             ,
             in
             whose
             favour
             the
             Bonorum
             should
             be
             granted
             :
             To
             take
             on
             ,
             and
             weare
             the
             habit
             of
             Bankrupts
             .
             Which
             is
             a
             Coat
             ,
             or
             upper
             Garment
             ,
             which
             is
             to
             cover
             the
             Parties
             Cloaths
             ,
             Body
             and
             Armes
             :
             whereof
             the
             one
             half
             is
             to
             be
             of
             a
             Yellow
             ,
             and
             the
             other
             half
             of
             a
             Broun
             Colour
             ,
             and
             a
             Cape
             ,
             or
             Hood
             ,
             which
             they
             are
             to
             wear
             on
             their
             Heads
             ,
             Partie-coloured
             ,
             as
             said
             is
             ,
             which
             habit
             ,
             they
             are
             to
             take
             on
             ,
             before
             they
             come
             out
             of
             Prison
             ,
             and
             come
             out
             with
             it
             upon
             them
             .
             And
             that
             it
             shall
             be
             lawful
             to
             the
             Creditors
             ,
             to
             seiz
             upon
             ,
             and
             imprison
             any
             of
             them
             ,
             who
             shall
             be
             found
             wanting
             the
             foresaid
             habit
             .
             And
             the
             Lords
             considering
             ,
             that
             this
             Course
             ,
             for
             preventing
             ,
             and
             punishing
             of
             Bankrupts
             ,
             hath
             through
             the
             in-observance
             of
             the
             same
             ,
             proven
             ineffectual
             ,
             as
             to
             the
             designed
             end
             of
             the
             same
             ,
             do
             therefore
             statute
             ,
             and
             ordain
             ,
             That
             all
             Decreets
             ,
             of
             Bonorum
             ,
             and
             Charges
             to
             put
             at
             liberty
             ,
             to
             be
             raised
             thereupon
             ,
             shall
             thereafter
             contain
             the
             hail
             tenor
             of
             the
             Act
             of
             Sederunt
             above-written
             .
             And
             that
             the
             Magistrats
             of
             Burghs
             shall
             not
             put
             out
             the
             Partie
             in
             whose
             favours
             the
             Decreet
             ,
             and
             Letters
             are
             granted
             ,
             untill
             first
             they
             put
             on
             the
             habit
             ,
             and
             come
             out
             of
             the
             Tolbooth
             ,
             betwixt
             9.
             and
             12.
             a
             clock
             in
             the
             Fore-noon
             ,
             with
             the
             habit
             on
             them
             ,
             as
             is
             prescribed
             by
             the
             Act.
             And
             
             ordain
             the
             Clerks
             of
             the
             Session
             ,
             the
             Keepers
             of
             ,
             and
             Writers
             to
             the
             Signet
             ;
             and
             others
             having
             interest
             ,
             to
             be
             careful
             ,
             that
             this
             Act
             be
             punctually
             observed
             .
             And
             ordain
             a
             Coppy
             thereof
             to
             be
             delivered
             to
             the
             Baillies
             of
             Edinburgh
             ,
             to
             be
             Registrate
             in
             their
             Books
             ,
             and
             keeped
             for
             the
             entry
             ,
             and
             liberty
             of
             Prisoners
             in
             their
             Tolbooth
             .
          
        
         
           
             ACT
             ordaining
             Advocations
             ,
             or
             Suspensions
             ,
             of
             Processes
             for
             Conventicles
             to
             be
             only
             past
             in
             presentia
             ,
             or
             by
             the
             three
             Lords
             in
             vacant
             time
             .
             Iune
             24.
             1673.
             
          
           
             THis
             day
             the
             Lords
             ordained
             ,
             that
             no
             Bill
             of
             Advocation
             be
             past
             of
             any
             Processes
             depending
             before
             the
             Sheriffs
             and
             other
             Judges
             ordinary
             ,
             against
             Persons
             guilty
             of
             keeping
             Conventicles
             ,
             unless
             the
             same
             be
             past
             
               in
               presentia
            
             ,
             during
             the
             sitting
             of
             the
             Session
             ,
             or
             by
             three
             Lords
             met
             together
             in
             time
             of
             Vacancie
             ,
             and
             that
             no
             supension
             be
             past
             of
             Decreets
             given
             upon
             those
             Processes
             ,
             except
             upon
             Consignation
             of
             the
             sums
             decerned
             ,
             or
             in
             presence
             of
             the
             whole
             Lords
             ,
             or
             in
             time
             of
             Vaca●cie
             by
             three
             Lords
             .
             And
             appoint
             Intimation
             hereof
             to
             be
             made
             to
             the
             Clerks
             of
             the
             Bills
             .
          
        
         
           
             Letter
             anent
             Prizes
             .
             Iuly
             8.
             1673.
             
          
           
             
               THis
               day
               the
               Lord
            
             Chancellor
             
               produced
               ,
               in
               presence
               of
               the
               Lords
               ,
               a
               Letter
               directed
               from
               the
               Duke
               of
            
             Lauderdail
             
               Lord
               Secretary
               ,
               by
               His
            
             Majestie
             's
             
               Command
               to
               the
               Lord
               Chancellor
               ,
               President
               ,
               and
               remanent
               Senators
               of
               the
               Colledge
               of
               Justice
               ,
               which
               Letter
               being
               Read
               in
               presence
               of
               the
               saids
               Lords
               :
               they
               ordained
               the
               same
               to
               be
               Recorded
               in
               the
            
             Books
             of
             Sederunt
             ,
             
               whereof
               the
               tenor
               follows
            
             .
             For
             the
             right
             Honourable
             .
             The
             Earle
             of
             Rothes
             Lord
             Chancellor
             
               of
               Scotland
            
             ,
             Sir
             
               James
               Da●ymple
            
             of
             Stair
             President
             of
             the
             Colledge
             of
             Iustice
             ,
             and
             the
             Remanent
             Senators
             thereof
             :
             Whitehall
             ,
             Iune
             30.
             1673.
             
             My
             Lords
             ,
             Since
             the
             Receit
             of
             Yours
             ,
             of
             the
             25.
             
             January
             ,
             I
             have
             been
             using
             my
             best
             Endeavours
             to
             know
             how
             to
             satisfie
             your
             Lordships
             desire
             therin
             .
             And
             now
             having
             acquainted
             the
             KING
             t●erewith
             ,
             in
             presence
             of
             divers
             of
             his
             Council
             here
             ;
             I
             am
             commanded
             by
             His
             Majesty
             ,
             to
             let
             you
             know
             ,
             that
             the
             Treaty
             of
             Breda
             is
             certainly
             void
             by
             the
             War
             :
             and
             that
             no
             Ally
             can
             claim
             any
             benefite
             thereby
             ,
             when
             they
             carry
             any
             provision
             of
             Victual
             ,
             or
             other
             Counterband
             Goods
             to
             the
             Ports
             of
             Our
             Enemies
             ,
             or
             when
             they
             have
             Goods
             belonging
             to
             Enemies
             on
             Board
             .
             As
             to
             the
             other
             part
             of
             the
             Letter
             ,
             it
             was
             deliberatly
             thought
             fit
             in
             the
             Council
             of
             England
             ,
             That
             any
             number
             of
             the
             Dutch
             Nation
             being
             found
             aboard
             ,
             should
             not
             confiscat
             Ship
             and
             goods
             ,
             as
             it
             did
             during
             the
             last
             War
             ,
             and
             therefore
             ,
             that
             Article
             was
             kept
             out
             of
             the
             Rules
             ,
             which
             were
             given
             to
             the
             Court
             of
             Admiralty
             here
             in
             England
             .
             But
             if
             any
             part
             of
             the
             Ship
             belong
             to
             any
             Inhabiting
             within
             the
             Dominions
             of
             the
             States-general
             ;
             the
             whole
             both
             Shipe
             and
             Goods
             are
             to
             be
             declared
             Prize
             ,
             and
             if
             the
             Master
             have
             his
             Residence
             in
             Holland
             ,
             you
             are
             left
             to
             judge
             in
             this
             case
             according
             to
             Law
             ,
             and
             as
             you
             shall
             think
             just
             .
          
           
             I
             have
             likewise
             communicated
             to
             the
             KING
             your
             answers
             to
             the
             Swedish
             Envoys
             memorial
             .
             And
             to
             the
             Complaints
             of
             the
             King
             of
             Polland
             ,
             and
             the
             City
             of
             Danzick
             ,
             which
             did
             give
             a
             great
             dale
             satisfaction
             to
             His
             Majesty
             ,
             and
             severalls
             of
             His
             Privy
             Council
             there
             ,
             who
             were
             present●
             And
             Coppies
             of
             them
             were
             sent
             unto
             Sweden
             .
             I
             am
             ,
             my
             Lord
             ,
             your
             Lordships
             most
             humble
             Servant
             ,
          
           
             Sic
             subscribitur
             LAUDERDAIL
             .
          
        
         
           
           
             ACT
             for
             ordering
             new
             hearings
             in
             the
             Vtter-house
             .
             Iuly
             11.
             1673.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             ordain
             any
             Lord
             ,
             who
             is
             to
             hear
             a
             Cause
             debated
             in
             the
             Utter-house
             ,
             before
             the
             Lord
             ordinary
             come
             forth
             ;
             shall
             go
             to
             the
             Bench
             ,
             and
             call
             the
             said
             Cause
             at
             8
             a
             clock
             in
             the
             morning
             :
             And
             ordain
             the
             Advocats
             ,
             Clerks
             ,
             and
             Macers
             ,
             to
             be
             present
             ,
             and
             attend
             at
             the
             said
             hour
             :
             and
             if
             no
             Procurators
             be
             present
             ,
             for
             that
             Partie
             ,
             that
             seeketh
             calling
             ;
             yet
             the
             said
             Lord
             shall
             proceed
             ,
             in
             making
             Act
             or
             Decreet
             ;
             and
             the
             said
             Cause
             is
             not
             to
             be
             heard
             any
             more
             thereafter
             .
             And
             if
             none
             be
             appearing
             for
             the
             other
             Partie
             ,
             at
             the
             said
             hour
             ,
             or
             when
             the
             Cause
             shall
             be
             called
             :
             then
             that
             Parties
             Procurators
             are
             not
             thereafter
             to
             be
             heard
             by
             the
             said
             Lord
             ,
             except
             the
             said
             Party
             ,
             or
             his
             Procurators
             give
             in
             two
             Dollers
             to
             the
             poor's
             Box.
             And
             ordain
             this
             Act
             to
             be
             recorded
             in
             the
             Books
             of
             Sederunt
             ,
             and
             intimate
             to
             the
             Advocats
             in
             the
             Utter-house
             .
          
        
         
           
             Letter
             from
             His
             Majesty
             against
             Appeals
             .
             Iune
             17.
             1674.
             
          
           
             THis
             day
             the
             
               Lord
               Thesaurer
               Deput
            
             produced
             ,
             in
             presence
             of
             the
             saids
             Lords
             ,
             a
             Letter
             ,
             direct
             from
             His
             Majesty
             ,
             to
             the
             Lord
             Chancellor
             ,
             Lord
             President
             ,
             and
             Remanent
             Senators
             of
             the
             Colledge
             of
             Iustice.
             Whereof
             the
             tenor
             follows
             .
          
           
             
               CHARLES
               R.
               
            
          
           
             RIght
             trusty
             aud
             well-beloved
             Cusing●
             and
             Councilers
             ,
             Right
             trusty
             and
             well-beloved
             Council●rs
             ,
             aud
             trusty
             and
             well-beloved
             .
             We
             greet
             you
             well
             ,
             We
             received
             your
             Letter
             of
             the
             28
             February
             ,
             Last
             ,
             with
             an
             accompt
             of
             these
             Appeals
             ,
             given
             into
             you
             by
             the
             Lord
             Almond
             ,
             and
             Earl
             of
             Aboyne
             ,
             but
             could
             not
             then
             return
             any
             answer
             ,
             the
             Session
             being
             up
             .
             And
             now
             upon
             full
             consideration
             of
             that
             whole
             affair
             ,
             We
             find
             it
             indispensably
             necessary
             ,
             for
             Our
             Service
             ,
             and
             the
             mentainence
             of
             Our
             Authority
             ,
             and
             for
             the
             quiet
             and
             security
             of
             Our
             Subjects
             in
             their
             Fortuns
             and
             Estates
             ,
             That
             the
             honour
             ,
             aud
             Authority
             of
             Our
             Colledge
             of
             Iustice
             be
             inviolably
             preserved
             :
             and
             that
             there
             be
             an
             intire
             confidence
             in
             ,
             and
             def●rence
             to
             all
             the
             Decreets
             and
             Sentences
             thereof
             .
             And
             after
             the
             Laudable
             Example
             of
             Our
             Royall
             Progenitors
             ;
             We
             do
             assure
             you
             ,
             that
             We
             will
             constantly
             mentain
             Our
             Authority
             exercised
             in
             that
             Court
             ,
             against
             all
             Incroachments
             ,
             Indignities
             and
             Reproaches
             ,
             that
             may
             be
             attempted
             against
             the
             same
             ,
             or
             against
             any
             of
             the
             Lords
             of
             Session
             ,
             whom
             We
             shall
             always
             cause
             to
             be
             held
             in
             special
             Honour
             ,
             as
             these
             who
             represent
             Our
             Person
             ,
             and
             ●ear
             Our
             Authority
             .
             And
             as
             We
             cannot
             but
             declare
             Our
             dis-satisfaction
             with
             ,
             and
             abhorance
             of
             these
             Appeals
             :
             So
             it
             is
             Our
             express
             pleasure
             ,
             that
             special
             care
             be
             taken
             to
             prevent
             the
             like
             practices
             for
             the
             future
             ;
             and
             for
             that
             effect
             ,
             that
             you
             cause
             solemn
             Intimation
             to
             be
             made
             ,
             to
             all
             Advocats
             ,
             Clerks
             ,
             Writeres
             and
             others
             ,
             who
             are
             members
             of
             ,
             or
             have
             dependence
             upon
             the
             Colledge
             of
             Iustice
             ,
             and
             others
             whom
             it
             may
             concern
             ,
             That
             none
             of
             them
             presume
             to
             advise
             ,
             consult
             ,
             propose
             ,
             plead
             ,
             speak
             ,
             or
             suggest
             any
             thing
             ,
             that
             doth
             import
             the
             charging
             of
             any
             of
             the
             Decreets
             ,
             and
             Sentences
             of
             the
             Lords
             of
             Session
             ,
             with
             In-justice
             ,
             whether
             in
             the
             Terms
             of
             Appealls
             ,
             Protestations
             ,
             Supplications
             ,
             Informations
             ,
             or
             any
             other
             manner
             of
             way
             ,
             either
             publickly
             ,
             in
             the
             exercise
             of
             their
             Function
             ,
             or
             privately
             in
             their
             ordinary
             conversation
             with
             their
             Clients
             ,
             or
             others
             ,
             under
             the
             pain
             of
             being
             utterly
             excluded
             ,
             from
             exercising
             any
             Office
             ,
             in
             ,
             or
             ,
             depending
             upon
             the
             
             Colledge
             of
             Iustice
             :
             and
             that
             all
             Advocats
             to
             be
             admitted
             hereafter
             have
             the
             same
             declared
             to
             them
             ,
             as
             a
             part
             of
             the
             Oath
             de
             fid●●
             ,
             and
             obedience
             to
             the
             Lords
             ,
             which
             is
             ●e●customed
             to
             be
             given
             by
             Advocats
             at
             their
             entrie
             .
             And
             We
             are
             graciously
             pleased
             ,
             that
             you
             proceed
             no
             further
             against
             those
             who
             gave
             in
             these
             late
             appealls
             ,
             nor
             ●ga●st
             these
             Advocats
             ,
             who
             refused
             to
             give
             their
             Oaths
             concerning
             their
             accession
             thereto
             ,
             providing
             these
             Advocats
             do
             som●nly
             disown
             these
             appealls
             ,
             and
             all
             other
             appealls
             ,
             and
             Protestations
             ,
             which
             may
             any
             way
             import
             a
             Charging
             of
             the
             Sentences
             of
             the
             Lords
             ,
             or
             their
             In●e●
             locutors
             with
             un-justice
             ,
             and
             in
             case
             they
             refuse
             to
             disown
             the
             same
             ,
             We
             peremptorlie
             command
             you
             to
             debar
             them
             from
             the
             Ex●rc●se
             of
             any
             part
             of
             their
             Function
             as
             Advocats
             in
             time
             coming
             .
             And
             We
             do
             Authorize●
             and
             strickly
             Command
             you
             to
             declare
             any
             membe●
             of
             the
             Colledge
             of
             Iustice
             ,
             or
             others
             ,
             who
             depend
             thereupon
             ,
             who
             shall
             not
             give
             ob●d●ence
             in
             the
             particulars
             above-mentioned
             ,
             incapable
             to
             exerce
             any
             Office
             in
             ,
             or
             depending
             upon
             the
             Colledge
             of
             Iustice
             :
             and
             for
             the
             better
             discovering
             cont
             ivances
             ,
             you
             are
             to
             receive
             no
             Supplications
             ,
             but
             such
             as
             are
             signed
             by
             an
             Advocat
             .
             As
             also
             you
             are
             hereby
             required
             ,
             if
             need
             bees
             ,
             to
             put
             all
             who
             depend
             upon
             the
             Colledge
             of
             ●ustice
             to
             give
             their
             Oaths
             ,
             as
             Parties
             ,
             or
             Witnesses
             for
             d●scovering
             the
             contrivances
             :
             and
             in
             case
             any
             other
             ,
             having
             no
             dependence
             upon
             the
             Colledge
             of
             justice
             ,
             shall
             present
             any
             thing
             Expressing
             ,
             or
             Importing
             the
             cha●ging
             of
             any
             of
             your
             Sentences
             ,
             with
             Injustice
             in
             the
             Terms
             foresaid
             ,
             or
             any
             other
             way
             .
             We
             do
             Auth●rize
             ,
             and
             Command
             you
             ,
             that
             you
             do
             immediately
             secure
             their
             Pers●ns
             ,
             if
             they
             be
             pres●nt
             ,
             and
             if
             they
             be
             absent
             ,
             that
             you
             isue
             forth
             Charges
             ,
             and
             all
             other
             Execution
             against
             them
             for
             that
             effect
             ,
             And
             that
             you
             give
             an
             accompt
             thereof
             to
             Us●
             That
             We
             may
             signifie
             Our
             further
             pleasure
             therein
             .
             For
             doing
             of
             all
             which
             ,
             this
             shall
             be
             your
             sufficient
             warrand
             .
             And
             so
             We
             bid
             you
             heartily
             Farewell
             .
          
           
             
               Given
               at
               Our
               Court
               ,
               at
               Whitehall
               
                 the
                 10
                 May
                 ,
                 1674.
                 
                 And
                 of
                 Our
                 Reign
                 the
                 26.
                 year
                 .
              
            
             
               
                 Sic
                 Subscri●itur
              
               ,
               By
               His
               Majesties
               Command
               LAUDERDAIL
               .
            
          
        
         
           
             Iuly
             23.
             1674.
             
             ACT
             concerning
             Acts
             before
             answer
             .
          
           
             THE
             Lords
             considering
             ,
             That
             in
             several
             Cases
             ,
             they
             are
             in
             use
             before
             discussing
             of
             the
             Relevancy
             of
             the
             points
             debated
             ,
             to
             ordain
             the
             Parties
             Pursuer
             ,
             or
             Defender
             ,
             or
             either
             of
             them
             ,
             to
             produce
             Writs
             ,
             or
             to
             prove
             certain
             Points
             of
             fact
             ,
             that
             they
             may
             have
             the
             whole
             matter
             intirely
             before
             them
             ,
             both
             as
             to
             the
             Relevancy
             ,
             and
             Probation
             ;
             whereupon
             Acts
             are
             Extracted
             :
             Which
             are
             called
             Acts
             before
             Answer
             .
             And
             in
             reguard
             Questions
             do
             ,
             and
             may
             arise
             ,
             concerning
             the
             import
             and
             effect
             of
             such
             Acts
             ,
             if
             the
             Parties
             be
             thereby
             so
             concluded
             ,
             as
             they
             may
             not
             thereafter
             propon
             new
             alledgances
             ;
             and
             what
             Terms
             ,
             and
             Dyets
             should
             be
             allowed
             for
             Probation
             :
             and
             seing
             it
             will
             be
             a
             great
             prejudice
             to
             the
             Leiges
             ,
             if
             after
             Acts
             Extracted
             ,
             and
             Probation
             led
             thereupon
             ,
             Parties
             ,
             or
             their
             Pocurators
             should
             be
             permitted
             to
             to
             offer
             new
             alledgances
             ,
             not
             formerly
             insisted
             on
             in
             the
             Act
             :
             for
             Probation
             whereof
             ,
             new
             Terms
             behoved
             to
             be
             asigned
             ,
             and
             thereby
             Processes
             would
             be
             drawn
             to
             a
             great
             length
             .
             Therefore
             ,
             the
             saids
             Lords
             do
             ordain
             the
             Parties
             Procurators
             to
             propone
             all
             their
             alledgances
             in
             the
             Cause
             before
             ,
             or
             at
             the
             time
             of
             pronouncing
             these
             Acts
             ,
             before
             Answer
             .
             And
             declare
             ,
             that
             after
             these
             Acts
             are
             Extracted
             ;
             they
             shall
             not
             be
             heard
             to
             propone
             any
             new
             alledgances
             which
             were
             competent
             ,
             but
             omitted
             to
             be
             proponed
             when
             the
             Act
             was
             pronounced
             .
             And
             the
             Lords
             declare
             ,
             That
             ,
             
             where
             the
             Parties
             Pursuer
             ,
             or
             Defender
             are
             ,
             before
             answer
             to
             the
             relevancy
             burdened
             with
             the
             Probation
             of
             any
             point
             :
             they
             shall
             have
             the
             same
             Terms
             ,
             or
             Dyets
             ,
             for
             Probation
             thereof
             ,
             as
             by
             the
             constant
             practice
             is
             allowed
             to
             Pursuers
             for
             proving
             their
             Lybells
             ,
             when
             the
             same
             are
             admitted
             to
             their
             Probation
             ;
             but
             if
             in
             the
             same
             Acts
             ,
             any
             point
             be
             found
             relevant
             ,
             and
             admitted
             to
             Probation
             :
             that
             the
             Parties
             Pursuer
             ,
             or
             Defender
             to
             whose
             Probation
             the
             same
             is
             admitted
             ,
             shall
             have
             the
             same
             Dyets
             for
             proving
             thereof
             ,
             as
             are
             allowed
             to
             them
             respectivè
             ,
             in
             Acts
             of
             
               litis
               contestation
            
             .
             But
             after
             the
             Probation
             upon
             the
             saids
             Acts
             is
             closed
             ,
             they
             shall
             not
             be
             admitted
             to
             adduce
             any
             other
             probation
             ,
             of
             any
             points
             formerly
             alledged
             in
             the
             Act.
             And
             further
             ,
             the
             Lords
             declare
             ,
             that
             where
             any
             Alledgance
             ,
             or
             Reply
             is
             founded
             upon
             Writs
             ,
             and
             that
             before
             Answer
             there
             to
             ,
             the
             Writs
             are
             ordained
             to
             be
             produced
             ,
             in
             case
             the
             Party
             burthened
             with
             the
             producing
             of
             these
             Writs
             shall
             fail
             therein
             and
             thereupon
             the
             Term
             shall
             be
             circumduced
             against
             him
             ,
             that
             the
             alledgance
             ,
             or
             reply
             in
             the
             Case
             foresaid
             shall
             be
             holden
             as
             not
             proponed
             .
          
        
         
           
             ACT
             for
             tryall
             of
             those
             presented
             to
             be
             Ordinary
             Lords
             of
             Session
             :
             Iuly
             Last
             1674.
             
          
           
             THE
             Lords
             considering
             ,
             That
             the
             KING'
             's
             ,
             Majestie
             ,
             by
             His
             Letter
             ,
             May
             19.
             last
             ,
             did
             require
             them
             ,
             to
             present
             to
             His
             Majesty
             ,
             what
             Tryal
             they
             should
             think
             best
             and
             firest
             to
             be
             taken
             ,
             for
             Cognoscing
             the
             Qualifications
             ,
             and
             sufficiency
             of
             such
             Persons
             ,
             as
             His
             Majesty
             shall
             hereafter
             Nominat
             to
             supply
             any
             Vacant
             place
             in
             the
             Session
             ,
             and
             the
             saids
             Lords
             ,
             in
             answer
             thereunto
             ,
             having
             offered
             their
             humble
             opinions
             .
             That
             thereafter
             ,
             when
             any
             new
             Lords
             of
             Session
             shall
             be
             presented
             by
             His
             Majesty
             ,
             for
             tryal
             of
             their
             Qualifications
             :
             they
             shall
             sit
             three
             days
             beside
             the
             ordinary
             ,
             in
             the
             Utter-house
             ,
             and
             shall
             have
             inspection
             of
             the
             said
             Processes
             ,
             which
             shall
             be
             carried
             to
             Interlocutor
             ;
             and
             shall
             make
             report
             of
             the
             Points
             taken
             to
             the
             Interlocutor
             ,
             in
             presence
             of
             the
             whole
             Lords
             .
             As
             also
             for
             compleating
             their
             Tryal
             ,
             they
             shall
             sit
             on
             day
             in
             the
             Inner-house
             ,
             and
             after
             any
             Dispute
             is
             brought
             to
             a
             Period
             ,
             and
             the
             Lords
             are
             to
             advise
             the
             same
             ,
             in
             order
             to
             the
             pronouncing
             their
             Interlocutor
             ;
             they
             shall
             resume
             the
             Dispute
             ,
             and
             first
             give
             their
             opinion
             there
             anent
             ,
             in
             presence
             of
             the
             whole
             Lords
             .
             Likeas
             ,
             His
             Majesty
             by
             His
             Letter
             ,
             of
             the
             14.
             of
             this
             instant
             ,
             having
             approven
             the
             foresaid
             Rule
             offered
             ,
             for
             the
             Tryal
             of
             such
             as
             shall
             be
             presented
             by
             His
             Majestie
             ,
             as
             ordinary
             Lords
             of
             Session
             ,
             and
             appointed
             it
             to
             be
             entred
             in
             the
             Books
             of
             Sederunt
             ,
             for
             that
             purpose
             .
             The
             said
             Lords
             ,
             in
             obedience
             to
             His
             Majesties
             commands
             ,
             do
             ordain
             the
             same
             to
             be
             observed
             ,
             as
             the
             constant
             Rule
             in
             all
             time
             coming
             ,
             for
             Tryal
             of
             such
             Persons
             ,
             as
             shall
             be
             presented
             by
             His
             Majesty
             to
             be
             ordinary
             Lords
             of
             the
             Session
             .
             And
             ordain
             these
             presents
             to
             be
             Recorded
             in
             the
             Books
             of
             Sederunt
             .
          
        
         
           
             Ianuary
             26.
             1675.
             
          
           
             THIS
             day
             compeared
             Personally
             ,
             George
             Marque●s
             of
             Huntly
             ,
             in
             presence
             of
             the
             Lords
             ,
             and
             declared
             ,
             that
             he
             having
             given
             Commission
             to
             divers
             of
             his
             Friends
             ,
             for
             managing
             his
             affairs
             during
             his
             absence
             forth
             of
             the
             Countrey
             ,
             who
             ,
             as
             he
             was
             informed
             had
             given
             in
             an
             Appeal
             in
             an
             Action
             pursued
             in
             his
             Lordships
             name
             against
             Gordon
             of
             Carnborrow
             ;
             and
             craved
             that
             in
             regard
             he
             doth
             passe
             from
             the
             said
             Appeall
             ,
             that
             warrant
             might
             be
             given
             to
             deliver
             up
             the
             same
             to
             him
             .
             Which
             desire
             the
             Lords
             granted
             .
          
        
         
           
           
             ACT
             concerning
             Prisoners
             for
             Debt
             .
             February
             5.
             1675.
             
          
           
             THere
             being
             an
             Address
             made
             to
             the
             Lords
             of
             Council
             ,
             and
             Session
             by
             the
             Keeper
             of
             the
             Tolbooth
             of
             Edinburgh
             ,
             representing
             ,
             That
             Persons
             imprisoned
             in
             the
             said
             Tolbooth
             for
             Debt
             ,
             upon
             Captions
             ,
             having
             obtained
             discharge
             of
             the
             Debt
             ,
             are
             pressing
             to
             be
             liberat
             ,
             upon
             production
             of
             the
             discharge
             ,
             without
             a
             Charge
             to
             set
             at
             Liberty
             ,
             which
             he
             refuses
             to
             do
             ,
             al●●it
             the
             same
             be
             usually
             done
             ,
             by
             the
             Keepers
             of
             other
             Tolbooths
             .
             And
             particularly
             ,
             by
             the
             Jailor
             of
             the
             Tolbooth
             of
             the
             Canongate
             ;
             and
             therefore
             d●siring
             ,
             that
             the
             Lords
             would
             allow
             him
             the
             same
             priviledge
             ,
             which
             is
             assumed
             by
             the
             Jailor
             of
             the
             Tolbooth
             of
             the
             Canongate
             ,
             or
             otherways
             to
             determine
             what
             both
             of
             them
             ought
             to
             do
             herein
             .
             And
             the
             saids
             Lords
             having
             taken
             the
             general
             Case
             to
             their
             consideration
             ,
             and
             finding
             ,
             that
             where
             the
             Debt
             ,
             for
             which
             Persons
             are
             Incarcerat
             ,
             is
             in-considerable
             ,
             the
             Expenses
             of
             procuring
             ●
             Charge
             to
             set
             at
             Liberty
             will
             sometimes
             near
             equal
             the
             Debt
             it self
             ,
             the
             Prisoners
             being
             also
             poor
             ,
             and
             not
             able
             to
             satisfie
             the
             saids
             Expenses
             ;
             Therefore
             ,
             the
             saids
             Lords
             do
             Authorize
             ,
             and
             allow
             the
             Magistrates
             of
             Burghs
             ,
             to
             set
             at
             Liberty
             out
             of
             their
             Tolbooths
             ,
             Persons
             imprisoned
             for
             Debt
             ,
             by
             vertue
             of
             Letters
             of
             Caption
             ,
             upon
             production
             of
             a
             sufficient
             discharge
             of
             the
             Debt
             ,
             granted
             by
             the
             Creditor
             ,
             at
             whose
             instance
             they
             are
             incarcerat
             ,
             bearing
             a
             Consent
             to
             the
             Debitors
             Liberation
             ,
             and
             duly
             registrat
             ,
             if
             the
             sum
             do
             not
             exceed
             two
             hundred
             merks
             Scots
             ,
             and
             the
             Prisoner
             be
             not
             arrested
             at
             the
             Instance
             of
             other
             Parties
             ,
             the
             Magistrats
             ,
             or
             Keeper
             of
             the
             Tolbooth
             ,
             being
             always
             careful
             to
             keep
             an
             Extract
             of
             the
             said
             discharge
             ;
             and
             finds
             no
             necessity
             ,
             in
             this
             Case
             of
             a
             Charge
             to
             set
             at
             Liberty
             .
             But
             if
             the
             sum
             ,
             for
             which
             the
             Debitor
             is
             Incarcerat
             ,
             exceed
             two
             hundred
             merks
             Scots
             ,
             the
             Lords
             discharge
             the
             Magistrats
             of
             the
             Burgh
             to
             Liberat
             him
             out
             of
             Prison
             ,
             without
             a
             Suspension
             ,
             and
             Charge
             to
             set
             at
             liberty
             under
             His
             Majesties
             Signet
             .
          
        
         
           
             February
             9.
             1675.
             
             ACT
             anent
             Bills
             of
             Suspension
             .
          
           
             THE
             Lords
             finding
             it
             expedient
             ,
             That
             some
             setled
             Rule
             ,
             and
             Order
             be
             set
             down
             ,
             concerning
             the
             presenting
             and
             passing
             of
             Bills
             of
             Suspension
             ;
             That
             any
             abuses
             which
             of
             late
             have
             creept
             in
             ,
             may
             be
             prevented
             in
             time
             coming
             ,
             do
             ordain
             :
             that
             hereafter
             ,
             in
             time
             of
             Session
             ,
             no
             Bill
             of
             Suspension
             shall
             be
             presented
             to
             any
             Lord
             to
             be
             past
             ,
             but
             to
             him
             who
             shall
             be
             ordinary
             Lord
             for
             the
             time
             upon
             the
             Bills
             ,
             and
             that
             both
             in
             time
             of
             Session
             ,
             and
             Vacancy
             ,
             the
             Ordinary
             shall
             continue
             upon
             the
             Bills
             ,
             from
             Tuesday
             to
             Tuesday
             ,
             in
             the
             inseuing
             week
             .
             And
             ordain
             the
             Bills
             to
             be
             presented
             only
             by
             the
             Clerk
             of
             the
             Bills
             ,
             or
             his
             Servant
             ;
             and
             when
             the
             Bill
             of
             Suspension
             shall
             be
             presented
             ,
             if
             the
             Ordinary
             ,
             after
             the
             perusal
             thereof
             ,
             find
             the
             Reasons
             relevant
             ,
             and
             sufficiently
             instructed
             ,
             that
             he
             passe
             the
             Bill
             .
             And
             in
             case
             application
             shall
             be
             made
             to
             him
             by
             the
             other
             Partie
             concerned
             ,
             for
             a
             hearing
             ;
             the
             Ordinary
             shall
             Writ
             towards
             the
             foot
             of
             the
             Bill
             ;
             that
             before
             the
             Bill
             of
             Suspension
             be
             expede
             ,
             and
             go
             to
             the
             Signet
             ,
             the
             other
             Partie
             shall
             see
             and
             answer
             ,
             and
             in
             that
             Case
             he
             may
             stop
             execution
             for
             sometime
             ,
             not
             exceeding
             a
             moneth
             from
             the
             time
             of
             presenting
             the
             Bill
             .
             And
             if
             the
             Ordinary
             shall
             re●use
             the
             Bill
             of
             Suspension
             ,
             he
             shall
             mark
             upon
             the
             back
             of
             the
             Bill
             with
             his
             own
             hand
             ,
             that
             the
             Bill
             is
             refused
             ,
             in
             respect
             the
             Reasons
             are
             either
             not
             relevant
             ,
             or
             not
             instructed
             ;
             which
             Bill
             the
             Clerk
             is
             thereby
             ordered
             to
             keep
             ,
             and
             mark
             with
             his
             hand
             ,
             upon
             the
             back
             thereof
             ,
             what
             Writs
             are
             produced
             for
             instructing
             the
             Bill
             .
             And
             if
             the
             same
             Bill
             ,
             or
             any
             new
             Bill
             of
             Suspension
             upon
             that
             matter
             shall
             be
             desired
             
             to
             be
             presented
             to
             another
             Lord
             being
             Ordinary
             for
             the
             time
             ,
             the
             Clerk
             shall
             present
             to
             the
             Ordinary
             ,
             the
             Bill
             of
             Suspension
             which
             was
             formely
             refused
             .
             In
             which
             Case
             the
             Ordinary
             is
             not
             to
             passe
             the
             Bill
             ,
             untill
             it
             be
             presented
             to
             the
             whole
             Lords
             in
             time
             of
             Session
             ,
             or
             to
             three
             Lords
             met
             together
             in
             time
             of
             Vacancy
             .
          
        
         
           
             ACT
             ordaining
             Processes
             after
             Avisandum
             to
             be
             carried
             to
             the
             Ordinary
             that
             same
             day
             ,
             and
             reported
             in
             his
             Week
             .
             Iune
             2.
             1675
             :
          
           
             THE
             Lords
             considering
             ,
             the
             inconveniences
             arising
             from
             the
             giving
             up
             of
             Processes
             to
             Parties
             ,
             or
             their
             Advocats
             ,
             after
             the
             same
             are
             taken
             to
             Interlocutor
             ,
             the
             reporting
             of
             Causes
             being
             thereby
             much
             delayed
             ,
             and
             it
             being
             contrary
             to
             the
             ancient
             Custom
             ;
             Therefore
             ,
             the
             saids
             Lords
             ordain
             ,
             that
             in
             time
             coming
             ,
             after
             any
             Cause
             is
             dispute
             before
             the
             Ordinary
             ,
             in
             the
             Utter-house
             ,
             and
             an
             Avisandum
             made
             therein
             to
             the
             Lords
             ,
             that
             the
             Process
             shal
             that
             same
             day
             be
             carried
             by
             the
             Clerk
             ,
             or
             his
             Servants
             to
             the
             Ordinary
             ,
             that
             he
             may
             peruse
             the
             same
             ,
             and
             that
             he
             may
             endeavour
             to
             report
             to
             the
             Lords
             ,
             the
             points
             taken
             to
             Interlocutor
             the
             next
             day
             thereafter
             ;
             or
             at
             fardest
             once
             in
             his
             Week
             .
             And
             the
             Lords
             discharge
             either
             the
             Ordinary
             ,
             or
             the
             Clerk
             to
             give
             up
             ,
             or
             lend
             out
             to
             the
             Parties
             ,
             or
             any
             Person
             for
             them
             ,
             the
             Processes
             ,
             or
             any
             part
             thereof
             ,
             after
             an
             Avisandum
             is
             made
             therein
             to
             the
             Lords
             ,
             or
             when
             the
             Ordinary
             shall
             call
             for
             the
             Process
             ,
             to
             consider
             it
             himself
             .
             And
             if
             any
             Act
             or
             Decreet
             pronounced
             by
             the
             Ordinary
             shal
             be
             stopped
             upon
             the
             desire
             of
             any
             of
             the
             Parties
             ,
             for
             a
             new
             hearing
             ,
             that
             the
             Lord
             who
             formerly
             hard
             the
             Cause
             ,
             shall
             go
             to
             the
             Bench
             in
             the
             Utter-house
             ,
             betwixt
             8.
             and
             9.
             a
             clock
             in
             the
             morning
             before
             the
             ordinary
             come
             out
             ,
             and
             call
             ,
             and
             hear
             the
             Parties
             Procurators
             ,
             wherein
             the
             Lord
             was
             Ordinary
             the
             immediat
             preceeding
             Week
             shall
             have
             the
             preference
             before
             any
             other
             Lord
             ,
             who
             was
             Ordinary
             in
             any
             of
             the
             former
             Weeks
             .
             Likeas
             ,
             the
             Lords
             discharge
             any
             writen
             Dispute
             upon
             Bills
             of
             Suspensions
             ,
             or
             Advocation
             ,
             but
             where
             the
             Ordinary
             upon
             the
             Bills
             ,
             shall
             think
             fit
             to
             allow
             a
             Bill
             ,
             to
             be
             seen
             ,
             that
             he
             call
             the
             Parties
             the
             next
             day
             and
             hear
             what
             they
             have
             to
             say
             ,
             
               viva
               voce
            
             ,
             without
             taking
             in
             written
             answers
             .
          
        
         
           
             Hugh
             Riddel
             sent
             to
             the
             Pla●tations
             .
             Iuly
             20.
             1675.
             
          
           
             THE
             which
             day
             ,
             anent
             the
             Petition
             given
             in
             to
             the
             Lords
             ,
             by
             
               Iohn
               Riddel
            
             Merchant
             in
             Edinburgh
             ,
             shewing
             that
             ,
             
               Heugh
               Riddel
            
             ,
             the
             Petitioners
             only
             Brother
             ,
             having
             committed
             an
             unexcusable
             Crime
             (
             Whereat
             the
             Supplicant
             blushes
             )
             in
             cutting
             some
             Silver-buttons
             off
             a
             Gentle-mans
             Cloaths
             ,
             in
             the
             Utter-house
             ,
             during
             the
             time
             that
             the
             Lords
             were
             sitting
             ;
             and
             being
             therefore
             committed
             to
             Prison
             ,
             the
             saids
             Lords
             have
             most
             justly
             ordered
             him
             this
             day
             to
             be
             brought
             by
             the
             publick
             Executioner
             ,
             from
             Prison
             ,
             to
             the
             great
             door
             of
             the
             Session
             House
             ,
             at
             9.
             a
             clock
             in
             the
             forenoon
             ,
             and
             to
             stand
             till
             10.
             a
             clock
             ,
             with
             a
             Paper
             on
             his
             Fore-head
             ,
             expresing
             the
             Crime
             whereof
             he
             is
             guilty
             :
             and
             thereafter
             to
             be
             taken
             by
             the
             foresaid
             Executioner
             to
             the
             Trone
             ,
             and
             there
             to
             stand
             with
             that
             Paper
             on
             his
             forehead
             ,
             from
             ten
             to
             eleven
             a
             Clock
             :
             Which
             Sentence
             ,
             the
             Supplicant
             acknowledgeth
             to
             be
             less
             then
             the
             said
             
               Hugh
               Riddel
            
             deserveth
             ;
             only
             he
             being
             a
             young
             man
             ,
             and
             related
             to
             honest
             Parents
             ,
             and
             the
             Supplicants
             Brother
             ,
             and
             never
             known
             to
             have
             been
             addicted
             to
             any
             such
             base
             Acts
             formerly
             :
             albeit
             the
             Petitioner
             and
             his
             Friends
             ,
             are
             ashamed
             in
             his
             behalf
             ,
             to
             plead
             any
             
             exemption
             from
             his
             deserved
             punishment
             ,
             which
             his
             riper
             years
             may
             cause
             him
             detest
             and
             abhore
             ,
             as
             an
             offence
             to
             the
             saids
             Lords
             ,
             and
             Scandal
             to
             his
             Friends
             ,
             and
             prejudice
             to
             the
             Party
             offended
             :
             which
             the
             said
             Party
             offended
             ,
             willingly
             forgiveth
             ,
             out
             of
             respect
             to
             his
             Friends
             .
             Therefore
             humbly
             desiring
             ,
             that
             the
             saids
             Lords
             ,
             for
             preventing
             such
             a
             publick
             Stain
             upon
             the
             Petitioner
             and
             his
             Friends
             ,
             by
             the
             said
             publick
             disgrace
             upon
             a
             youth
             of
             his
             years
             ,
             would
             be
             pleased
             to
             〈◊〉
             his
             Sentence
             ,
             as
             to
             the
             way
             and
             manner
             of
             the
             disgrace
             ,
             and
             infamy
             ,
             by
             〈◊〉
             his
             Imprisonment
             upon
             the
             Supplicants
             Charges
             ,
             till
             there
             be
             an
             occasion
             for
             Transporting
             of
             him
             beyond
             Seas
             ,
             or
             where
             the
             saids
             Lords
             shall
             judge
             convenient
             ,
             whether
             by
             way
             of
             banishment
             ,
             or
             otherwise
             ,
             during
             then
             Pleasure
             ,
             for
             which
             effect
             the
             Supplicant
             shall
             be
             obliged
             by
             Bond
             ,
             if
             the
             Lo●ds
             shall
             require
             the
             same
             :
             and
             in
             the
             mean
             time
             ,
             to
             be
             favourably
             pleas●d
             to
             discharge
             the
             Execution
             of
             the
             said
             Sentence
             .
             Which
             Supplication
             being
             considered
             by
             the
             s●ids
             Lords
             ;
             they
             by
             their
             deliverance
             thereupon
             ,
             of
             the
             16.
             of
             thus
             Instant
             ,
             granted
             Warrant
             to
             the
             Magistrates
             of
             Edinburgh
             ,
             to
             continue
             the
             execution
             of
             their
             Sentence
             ,
             pronounced
             against
             the
             said
             
               Hugh
               Riddel
            
             ,
             until
             VVednesday
             the
             21.
             of
             this
             Moneth
             :
             betwixt
             and
             which
             time
             ,
             if
             he
             should
             find
             sufficient
             Caution
             ,
             to
             conti●●e
             in
             Prison
             upon
             his
             own
             Charges
             ,
             until
             an
             occasion
             shall
             offer
             for
             his
             Transportation
             ,
             to
             his
             Majesties
             Plantations
             in
             America
             ,
             and
             that
             he
             shall
             then
             remove
             to
             the
             saids
             Plantations
             ,
             and
             not
             return
             to
             this
             Kingdom
             ,
             under
             the
             pain
             of
             five
             thousand
             merks
             ,
             Scots
             Money
             ,
             to
             be
             disposed
             of
             as
             the
             saids
             Lords
             shall
             think
             fit
             ,
             in
             case
             he
             contraveen
             :
             In
             that
             case
             ,
             the
             Lords
             declare
             ,
             they
             will
             dispense
             with
             the
             execution
             of
             their
             former
             Sentence
             :
             and
             if
             Caution
             were
             not
             found
             ,
             to
             the
             effect
             foresaid
             ,
             betwixt
             and
             the
             said
             day
             ,
             they
             ordained
             the
             former●
             Sentence
             to
             be
             then
             put
             in
             execution
             .
             Likeas
             ,
             this
             day
             the
             Lords
             having
             considered
             a
             Bond
             of
             Cautionry
             produced
             ,
             subscribed
             by
             the
             said
             
               Iohn
               Riddel
            
             ,
             dated
             the
             19.
             day
             of
             this
             Instant
             ;
             and
             finding
             the
             same
             to
             be
             conform
             to
             their
             foresaid
             deliverance
             :
             therefore
             they
             have
             dispensed
             ,
             and
             hereby
             dispense
             with
             the
             execution
             of
             their
             former
             Sentence
             ,
             pronounced
             against
             the
             said
             
               Hugh
               Riddel
            
             ,
             upon
             the
             15.
             
             Instant
             ;
             and
             grants
             Warrant
             to
             the
             Magistrates
             of
             Edinburgh
             ,
             to
             deliver
             the
             Person
             of
             the
             said
             Hugh
             ,
             to
             the
             said
             
               Iohn
               Riddel
            
             ,
             when
             he
             shall
             desire
             him
             ,
             in
             order
             to
             his
             Transportation
             .
          
        
         
           
             ACT
             anent
             passing
             of
             Bills
             for
             liberty
             out
             of
             Prison
             .
             Iuly
             21.
             1675.
             
          
           
             THE
             Lords
             considering
             ,
             that
             oftentimes
             ,
             where
             Parties
             have
             done
             ultimate
             diligence
             against
             their
             Debitors
             ,
             by
             apprehending
             them
             with
             Caption
             ,
             and
             Incarcerating
             them
             :
             Bills
             of
             Suspension
             and
             Charges
             to
             set
             at
             liberty
             are
             presented
             ,
             and
             past
             in
             favours
             of
             these
             Persons
             ,
             without
             the
             knowledge
             of
             the
             Creditors
             ,
             at
             whose
             Instance
             they
             are
             Incarcerat
             ,
             and
             to
             their
             great
             prejudice
             ,
             thereby
             frustrating
             the
             diligence
             done
             by
             them
             :
             For
             remeid
             whereof
             ,
             the
             Lords
             ordain
             ,
             That
             in
             time
             coming
             ,
             when
             any
             Person
             intends
             to
             give
             in
             a
             Bill
             of
             Suspension
             ,
             and
             Charge
             to
             set
             at
             liberty
             ,
             that
             he
             shall
             make
             previous
             Intimation
             of
             the
             same
             ,
             to
             his
             Creditor
             ,
             at
             whose
             Instance
             he
             is
             Incarcerat
             ,
             or
             arrested
             in
             Prison
             ,
             Personally
             ,
             or
             at
             their
             dwelling
             place
             by
             a
             Nottar
             ,
             before
             Witnesses
             ,
             mentioning
             the
             time
             when
             the
             Bill
             shall
             be
             presented
             ,
             in
             case
             the
             Creditors
             be
             within
             the
             Kingdom
             for
             the
             time
             :
             and
             that
             the
             Instrument
             of
             Intimation
             to
             the
             Creditors
             ,
             under
             the
             Nottars
             hand
             ,
             be
             produced
             ,
             with
             the
             Bill
             of
             Suspension
             ,
             and
             Charge
             to
             set
             at
             liberty
             ,
             when
             the
             same
             is
             presented
             
             to
             the
             Ordinary
             upon
             the
             Bills
             :
             otherwayes
             that
             the
             Bill
             be
             not
             past
             .
             And
             the
             Lords
             ordain
             the
             Intimation
             to
             be
             special
             ,
             in
             the
             time
             when
             the
             Bill
             shall
             be
             presented
             ,
             being
             within
             the
             latitude
             of
             a
             Week
             ,
             that
             the
             Creditors
             may
             be
             at
             a
             certainty
             ,
             when
             to
             attend
             the
             same
             .
          
        
         
           
             ACT
             concerning
             the
             granting
             of
             Protections
             .
             February
             1.
             1676.
             
          
           
             THE
             Lords
             considering
             ,
             that
             divers
             Persons
             who
             are
             under
             the
             hazard
             of
             Caption
             for
             Debt
             ,
             pretending
             that
             they
             are
             cited
             to
             bear
             Witnesse
             in
             Processes
             ,
             depending
             before
             the
             Lords
             ,
             do
             upon
             production
             of
             a
             Charge
             given
             to
             them
             for
             that
             effect
             ,
             under
             Messengers
             hands
             ,
             procure
             Warrants
             from
             the
             Lords
             ,
             to
             Discharge
             the
             execution
             of
             Letters
             of
             Caption
             ,
             and
             Acts
             of
             Warding
             ,
             against
             them
             for
             some
             time
             ,
             albeit
             they
             be
             not
             made
             use
             of
             as
             Witnesses
             ;
             but
             only
             the
             said
             Charge
             impetrat
             by
             them
             from
             a
             Messenger
             ,
             that
             they
             may
             obtain
             the
             foresaid
             Warrant
             .
             For
             remeid
             of
             which
             abuse
             ,
             the
             Lords
             declare
             ,
             that
             in
             time
             coming
             ,
             they
             will
             grant
             no
             Warrant
             for
             stopping
             of
             execution
             ,
             of
             Letters
             of
             Caption
             ,
             or
             Acts
             of
             Warding
             upon
             that
             ground
             ,
             that
             the
             Craver
             thereof
             is
             cited
             as
             a
             Witness
             in
             a
             Process
             ,
             unless
             ,
             with
             the
             Petition
             ,
             there
             be
             given
             in
             a
             Declaration
             under
             the
             hand
             of
             the
             Party
             Pursuer
             ,
             or
             Defender
             ,
             who
             adduces
             the
             Witnesses
             ,
             bearing
             ,
             
               that
               the
               Person
               who
               desires
               the
               said
               Warrand
               is
               really
               cited
               at
               his
               instance
               as
               a
               VVitness
               ,
               and
               that
               he
               is
               a
               necessary
               VVitness
               :
            
             And
             the
             Lords
             declare
             ,
             they
             will
             fine
             the
             Party
             who
             gave
             the
             said
             Declaration
             ,
             if
             at
             the
             conclusion
             of
             the
             Cause
             ,
             it
             appear
             that
             there
             was
             Collusion
             in
             giving
             the
             same
             ;
             it
             being
             only
             done
             ,
             that
             the
             said
             Person
             might
             obtain
             a
             Personal
             Protection
             .
          
        
         
           
             His
             Majesties
             Letter
             concerning
             the
             Clerks
             .
             Iune
             20.
             1676.
             
          
           
             
               CHARLES
               R.
               
            
          
           
             RIGHT
             Trusty
             and
             well
             beloved
             Cousins
             and
             Counsellers
             ,
             Right
             Trusty
             and
             well
             beloved
             Counsellers
             ,
             and
             Trusty
             and
             well
             beloved
             ,
             We
             Greet
             you
             well
             :
             We
             have
             often
             evidenced
             Our
             Affection
             to
             ,
             and
             Care
             of
             you
             ,
             the
             Senators
             of
             Our
             Colledge
             of
             Iustice
             ;
             and
             as
             VVe
             have
             Trusted
             you
             with
             the
             Distribution
             of
             Iustice
             ,
             and
             the
             preservation
             of
             the
             Rights
             and
             Properties
             of
             Our
             Subjects
             in
             that
             Kingdom
             ,
             according
             to
             Law
             ;
             and
             are
             very
             confident
             of
             your
             equal
             and
             expedite
             procedor
             in
             Iustice
             ,
             to
             all
             Our
             Subjects
             ,
             which
             is
             the
             most
             acceptable
             Service
             you
             can
             perform
             to
             Vs
             :
             So
             VVe
             will
             suffer
             none
             of
             Our
             Subjects
             to
             reproach
             your
             Procedor
             ;
             much
             lesse
             these
             who
             serve
             before
             you
             ,
             and
             by
             your
             Favour
             and
             VVarrand
             ,
             have
             the
             priviledge
             to
             procure
             and
             plead
             for
             others
             ,
             who
             (
             if
             they
             should
             be
             permitted
             to
             defame
             your
             Sentences
             )
             might
             prove
             the
             unhappy
             Instruments
             to
             lessen
             the
             Honour
             and
             Confidence
             which
             hath
             been
             alwayes
             attributed
             to
             that
             Senate
             by
             Natives
             and
             Strangers
             ,
             and
             might
             diffuse
             the
             Leaven
             of
             Male-contents
             amongst
             Our
             People
             ,
             as
             if
             their
             Rights
             and
             Interests
             were
             not
             securely
             lodged
             ;
             and
             thereby
             make
             them
             more
             capable
             of
             evil
             Impressions
             ,
             and
             desirous
             of
             change
             .
             And
             We
             do
             Require
             you
             by
             all
             means
             to
             suppresse
             and
             prevent
             all
             mutinous
             Courses
             ,
             which
             you
             have
             prudently
             adverted
             to
             ,
             and
             obviat
             by
             your
             Act
             of
             Sederunt
             ,
             of
             the
             5th
             .
             of
             January
             last
             ,
             wherewith
             We
             are
             very
             well
             satisfied
             .
             And
             We
             do
             leave
             the
             Advocats
             ,
             and
             others
             of
             the
             Colledge
             of
             Justice
             ,
             to
             be
             Ordered
             by
             you
             in
             all
             things
             relating
             to
             their
             Imployments
             .
             And
             We
             do
             further
             Require
             you
             to
             prevent
             and
             punish
             all
             Conbinations
             ,
             and
             unwarrantable
             Correspondences
             amongst
             Advocates
             ,
             whereby
             they
             may
             forbear
             or
             refuse
             to
             Consult
             ,
             
             Plead
             ,
             or
             concur
             with
             these
             who
             did
             so
             faithfully
             adhere
             to
             Our
             Service
             ;
             and
             did
             continue
             in
             ,
             or
             early
             return
             to
             their
             Station
             ;
             and
             as
             further
             Evidences
             of
             Our
             Royal
             Favour
             ,
             We
             do
             Ordain
             ,
             That
             the
             three
             Clerks
             of
             Session
             ,
             who
             do
             expede
             your
             Decreets
             ,
             shall
             be
             nominate
             by
             the
             Senators
             of
             Our
             Coledge
             of
             Iustice
             ,
             in
             all
             time
             coming
             ;
             and
             that
             they
             be
             subject
             to
             their
             Sensare
             ,
             and
             that
             the
             Clerk
             of
             Register
             give
             them
             Deputations
             from
             time
             to
             time
             :
             and
             in
             case
             of
             Vaiking
             of
             the
             Clerk
             of
             Registers
             Off●●●
             ,
             We
             do
             Authorize
             the
             saids
             Clerks
             of
             Session
             ,
             to
             Act
             by
             your
             Warrand
             ,
             as
             they
             shall
             be
             Ordered
             by
             you
             ,
             without
             prejudice
             ,
             to
             the
             Clerk
             of
             Register
             ,
             of
             all
             other
             Benefite
             ,
             and
             Emolument
             belonging
             ●o
             ,
             or
             depending
             upon
             that
             Office.
             And
             it
             is
             Our
             further
             Pleasure
             ,
             that
             in
             all
             time
             coming
             ,
             there
             be
             only
             three
             ordinarie
             Clerks
             of
             Session
             ,
             besides
             the
             Clerk
             of
             the
             Bills
             ,
             according
             to
             the
             ancient
             Constitution
             ,
             and
             that
             of
             the
             number
             that
             now
             serve
             you
             ,
             make
             choice
             of
             three
             that
             shall
             still
             serve
             ;
             and
             that
             you
             modifie
             such
             Satisfaction
             ,
             to
             be
             payed
             by
             those
             that
             remain
             ,
             to
             those
             that
             are
             to
             go
             out
             ,
             as
             you
             shall
             find
             just
             and
             reasonable
             ;
             and
             so
             We
             bid
             you
             Farewel
             .
          
           
             
               Given
               at
               Our
               Court
               at
               Whitehall
               ,
               
                 the
                 twenty
                 fourth
                 day
                 of
                 May
                 ,
                 One
                 thousand
                 six
                 hundred
                 seventy
                 and
                 six
                 .
                 And
                 of
                 Our
                 Reign
                 ,
                 the
                 twenty
                 eight
                 year
                 .
              
            
             
               Subscribed
               thus
               ,
               by
               His
               Majesties
               Command
               ,
               LAUDERDAIL
               .
            
          
        
         
           
             ACT
             concerning
             the
             Registers
             .
             Iuly
             4.
             1676.
             
          
           
             THE
             Lords
             having
             considered
             His
             Majesties
             Letter
             ,
             direct
             to
             them
             ,
             bearing
             ,
             
               that
               whereas
               by
               His
               Majesties
               advancing
               Sir
            
             Archibald
             Primerose
             of
             Caringtoun
             ,
             
               late
               Clerk
               Register
               ,
               to
               the
               Office
               of
               Iustice-General
               ,
               the
               Office
               of
               Clerk
               Register
               is
               now
               Vacant
            
             ;
             and
             seing
             His
             Majesty
             hath
             thought
             it
             necessar
             for
             the
             advantage
             of
             His
             Service
             ,
             and
             for
             the
             good
             of
             His
             Subjects
             ,
             that
             the
             hail
             publick
             Records
             of
             this
             Kingdom
             ,
             which
             are
             ,
             and
             were
             in
             the
             Possession
             and
             Custody
             of
             the
             late
             Clerk
             Register
             ,
             or
             his
             Deputs
             and
             Servants
             ,
             be
             put
             and
             keeped
             in
             good
             Order
             :
             Therefore
             His
             Majesty
             ,
             impowers
             and
             authorizes
             the
             saids
             Lords
             ,
             to
             take
             special
             care
             ,
             and
             see
             that
             the
             same
             be
             effectually
             done
             ;
             and
             to
             that
             effect
             ,
             that
             they
             appoint
             some
             of
             their
             number
             ,
             to
             take
             inspection
             thereof
             :
             and
             by
             themselves
             ,
             and
             such
             as
             they
             shall
             imploy
             under
             them
             ,
             to
             put
             ,
             and
             continue
             them
             in
             good
             Order
             .
             And
             His
             Majesty
             authorizes
             the
             saids
             Lords
             ,
             and
             those
             of
             their
             number
             ,
             appointed
             by
             them
             ,
             to
             receive
             the
             hail
             publick
             Registers
             and
             Records
             from
             the
             late
             Clerk
             Register
             ,
             upon
             such
             account
             and
             Inventar
             ,
             as
             they
             should
             find
             just
             ,
             safe
             and
             secure
             :
             and
             which
             being
             effectually
             gone
             about
             ,
             and
             done
             ,
             that
             they
             render
             to
             His
             Majesty
             ,
             or
             to
             His
             Secretary
             ,
             for
             His
             Majesties
             perusal
             ,
             a
             full
             and
             exact
             account
             of
             their
             diligence
             therein
             ,
             to
             the
             end
             ,
             His
             Majesty
             may
             thereafter
             ,
             declare
             His
             further
             Pleasure
             ;
             and
             for
             effectuating
             hereof
             ,
             that
             the
             Lords
             in
             His
             Majestie
             's
             Name
             ,
             and
             by
             His
             Authority
             ,
             Require
             the
             late
             Clerk
             Register
             and
             his
             Deputs
             and
             Servants
             ,
             to
             exhibite
             and
             produce
             the
             saids
             hail
             Records
             to
             them
             ,
             or
             those
             appointed
             by
             them
             ,
             immediatly
             after
             receipt
             of
             His
             Majesties
             Letter
             .
             The
             saids
             Lords
             in
             pursuance
             of
             His
             Majestie
             's
             Command
             ,
             do
             nominat
             and
             appoint
             the
             Lords
             Thesaurer
             Depute
             ,
             
               Collingtoun
               ,
               Reidfoord
            
             and
             Newtoun
             ,
             or
             any
             two
             of
             them
             ,
             to
             meet
             at
             such
             times
             as
             they
             
             shall
             think
             convenient
             ,
             and
             to
             take
             inspection
             of
             the
             hail
             publick
             Records
             of
             the
             Kingdom
             ,
             which
             are
             ,
             or
             were
             in
             the
             Possession
             and
             Custody
             of
             the
             Lord
             Caringtoun
             ,
             late
             Clerk
             Register
             ,
             or
             his
             Deputs
             and
             Servants
             ,
             and
             by
             themselves
             ,
             or
             such
             as
             they
             shall
             imploy
             under
             them
             ,
             to
             put
             ,
             and
             continue
             the
             same
             in
             good
             Order
             ;
             and
             authorize
             the
             Lords
             above-named
             ,
             to
             receive
             the
             saids
             hail
             publick
             Records
             from
             the
             Lord
             Caringtoun
             ,
             upon
             sufficient
             Account
             and
             Inventar
             :
             and
             to
             that
             effect
             ,
             the
             Lords
             in
             His
             Majesties
             Name
             ,
             and
             by
             His
             Authority
             ,
             do
             Require
             the
             Lord
             Caringtoun
             and
             his
             Deputs
             and
             Servants
             ,
             to
             exhibite
             and
             produce
             the
             saids
             hail
             publick
             Records
             ,
             to
             the
             Lords
             above-named
             ,
             or
             any
             two
             of
             them
             ,
             whem
             they
             shall
             desire
             the
             same
             ;
             and
             allows
             the
             said
             Lord
             Caringtoun
             ,
             or
             any
             Person
             whom
             he
             shall
             authorize
             to
             be
             present
             at
             the
             Inventaring
             of
             the
             saids
             Registers
             ,
             to
             the
             end
             ,
             obedience
             may
             be
             given
             to
             His
             Majestie
             's
             Letter
             in
             all
             points
             .
          
        
         
           
             ACT
             for
             Inventaring
             the
             Registers
             Books
             .
             Iuly
             13.
             1676.
             
          
           
             THE
             which
             day
             ,
             the
             Lord
             Thesaurer
             Depute
             ,
             
               Collingtoun
               ,
               Reidfoord
            
             and
             Newtoun
             ,
             made
             report
             to
             the
             Lords
             ,
             that
             conform
             to
             the
             Warrand
             given
             to
             them
             ,
             they
             had
             met
             with
             the
             Lord
             Caringtoun
             ,
             late
             Clerk
             Register
             ,
             and
             had
             delivered
             to
             him
             the
             Ordinance
             ,
             past
             by
             the
             Lords
             upon
             His
             Majestie
             's
             Letters
             ,
             concerning
             the
             Registers
             ,
             and
             had
             taken
             a
             view
             of
             the
             hail
             Records
             in
             his
             Custody
             ,
             in
             the
             Parliament-House
             ,
             and
             in
             the
             Castle
             of
             Edinburgh
             ;
             and
             that
             the
             Lord
             Caringtoun
             declared●
             he
             would
             deliver
             the
             same
             ,
             either
             upon
             Inventar
             ,
             or
             in
             bulk
             without
             Inventary
             upon
             oath
             ,
             that
             he
             has
             Abstracted
             none
             of
             them
             ,
             as
             the
             Lords
             should
             think
             fit
             to
             order
             ,
             he
             being
             exonered
             of
             the
             saids
             Registers
             :
             but
             they
             found
             the
             Warrans
             to
             be
             so
             many
             ,
             and
             not
             in
             order
             that
             it
             would
             take
             a
             long
             time
             to
             Inventar
             them
             ;
             which
             report
             being
             considered
             by
             the
             Lords
             ,
             they
             in
             pursuance
             of
             His
             Majesties
             Commands
             ,
             do
             ordain
             the
             whole
             Register
             Books
             ,
             which
             are
             in
             the
             said
             Lord
             Caringtoun's
             Custody
             ,
             to
             be
             presently
             Inventared
             by
             
               Iohn
               Anderson
            
             Writer
             in
             Edinburgh
             ,
             and
             any
             others
             who
             shall
             be
             appointed
             by
             the
             Lords
             above-named
             ,
             who
             shall
             give
             their
             oaths
             ,
             that
             they
             shall
             faithfully
             discharge
             this
             Trust
             ,
             according
             to
             such
             Directions
             as
             they
             shall
             receive
             from
             these
             appointed
             by
             the
             Lords
             :
             and
             ordain
             the
             Inventary
             to
             bear
             ,
             
               What
               each
               Book
               contains
               in
               general
               ,
               at
               what
               time
               it●
               begins
               ,
               and
               when
               the
               same
               ends
               ,
               and
               if
               there
               be
               any
               blanks
               in
               ,
               the
               Books
               ,
               that
               the
               same
               be
               marked
               in
               the
               Inventary
               :
            
             And
             ordains
             the
             said
             Lord
             Caringtoun
             ,
             to
             give
             the
             said
             
               Iohn
               Anderson
            
             ,
             or
             any
             others
             to
             be
             appointed
             by
             the
             saids
             ,
             Lords
             ,
             access
             to
             the
             saids
             Registers
             ,
             to
             the
             effect
             foresaid
             ,
             and
             allows
             him
             ,
             or
             any
             he
             shall
             appoint
             ,
             to
             be
             present
             at
             the
             said
             Inventaring
             :
             and
             after
             the
             said
             Inventar
             shall
             be
             made
             ,
             the
             Lords
             do
             impower
             those
             of
             their
             number
             above-named
             ,
             or
             any
             two
             of
             them
             ,
             to
             to
             take
             the
             oath
             of
             the
             Lord
             Caringtoun
             ,
             if
             he
             hath
             any
             more
             Register
             Books
             ,
             Records
             ,
             or
             Warrants
             ,
             then
             are
             in
             the
             Rooms
             in
             the
             Parliament-House
             ,
             and
             Castle
             of
             Edinburgh
             ,
             whereof
             he
             is
             to
             deliver
             the
             Keys
             ,
             and
             if
             he
             abstracted
             ,
             or
             embazeled
             any
             of
             them
             ,
             or
             if
             they
             be
             all
             intire
             ,
             as
             he
             received
             them
             ,
             or
             as
             they
             came
             at
             any
             time
             thereafter
             to
             his
             hands
             .
             And
             likewise
             ordain
             any
             of
             his
             Servants
             ,
             intrusted
             with
             the
             keeping
             of
             the
             saids
             Registers
             ,
             to
             be
             examined
             upon
             oath
             thereanent
             :
             and
             thereafter
             ordain
             the
             Lord
             Caringtoun
             ,
             to
             deliver
             the
             Keys
             of
             the
             Rooms
             ,
             or
             Presses
             where
             the
             saids
             Registers
             and
             Warrands
             are
             ,
             to
             these
             of
             their
             number
             ,
             appointed
             
             to
             receive
             the
             samine
             :
             Which
             Inventary
             being
             made
             ,
             and
             the
             Lord
             Caringtoun
             giving
             his
             oath
             ,
             and
             delivering
             the
             Keys●
             as
             said
             is
             :
             the
             Lords
             ordains
             the
             said
             Lord
             Caringtoun
             to
             be
             Exonered
             ,
             and
             Discharged
             of
             the
             saids
             Records
             ,
             and
             of
             his
             Trust
             in
             keeping
             of
             the
             same
             ;
             and
             ordain
             an
             Act
             of
             Exoneration
             to
             be
             extended
             thereupon
             ,
             in
             his
             Favours
             .
          
           
             The
             Lords
             do
             ordain
             the
             Inventar
             of
             the
             Register
             Books
             ,
             to
             be
             set
             down
             in
             order
             in
             time
             coming
             ,
             and
             according
             to
             the
             several
             matters
             contained
             therein
             .
             First
             ,
             of
             the
             Records
             ,
             of
             Parliament
             .
             Secondly
             of
             the
             Records
             of
             Council
             .
             Thirdly
             ,
             the
             Registers
             of
             Session
             :
             and
             amongst
             them
             of
             Registrate
             Writs
             a-part
             ,
             of
             Decreets
             and
             Acts
             a-part
             ,
             and
             of
             Books
             of
             Sederunt
             .
             Next
             to
             these
             ,
             the
             Registers
             of
             Exchequer
             .
             Then
             the
             Registers
             of
             the
             Chancellory
             .
             And
             thereafter
             ,
             the
             Registers
             of
             Seasins
             ,
             both
             the
             general
             Registers
             at
             Edinburgh
             ,
             and
             the
             special
             Registers
             of
             the
             Shires
             .
             And
             in
             all
             ,
             to
             keep
             the
             order
             of
             time
             .
          
           
             As
             for
             the
             Warrands
             of
             the
             Registers
             of
             Session
             ,
             since
             the
             year
             1660.
             they
             are
             yet
             in
             the
             hands
             of
             the
             Clerks
             of
             Session
             .
             And
             the
             former
             Warrands
             being
             in
             great
             Masses
             ,
             without
             any
             Order
             ;
             the
             Lords
             do
             appoint
             ,
             that
             the
             said
             Masses
             be
             sorted
             ,
             putting
             the
             Registrat
             Writs
             together
             ,
             and
             the
             Processes
             together
             ;
             and
             that
             the
             number
             of
             them
             both
             be
             taken
             and
             set
             down
             ,
             that
             thereafter
             they
             may
             be
             also
             digested
             ,
             according
             to
             the
             Order
             of
             time
             .
          
           
             It
             is
             appointed
             ,
             that
             so
             soon
             as
             the
             Inventary
             shall
             be
             perfected
             ,
             it
             shall
             be
             insert
             in
             the
             Books
             of
             Sederunt
             .
          
        
         
           
             ACT
             anent
             the
             manner
             of
             Booking
             Decreets
             of
             Registration
             .
             November
             21.
             1676.
             
          
           
             THE
             Lords
             considering
             that
             where
             Registrations
             are
             persued
             by
             by
             way
             of
             Action
             ,
             it
             is
             ,
             and
             hath
             been
             the
             custom
             of
             the
             Clerks
             ,
             to
             keep
             in
             their
             hands
             ,
             the
             principal
             Writes
             ,
             decerned
             to
             be
             Registrate
             in
             the
             same
             manner
             as
             they
             do
             ,
             where
             Writs
             are
             Registrat
             upon
             the
             Parties
             consent
             .
             Therefore
             the
             Lords
             ordain
             ,
             that
             these
             Decreets
             of
             Registration
             be
             Booked
             together
             ,
             with
             Bonds
             ,
             Contracts
             ,
             and
             other
             Writes
             ,
             which
             are
             Registrat
             upon
             the
             Parties
             consent
             ,
             according
             to
             the
             date
             thereof
             ;
             and
             that
             the
             Process
             be
             keeped
             with
             the
             Warrants
             of
             the
             Registrat
             Writes
             .
          
        
         
           
             ACT
             anent
             the
             Registers
             of
             Seasins
             and
             Hornings
             in
             the
             several
             Shires
             .
             Ianuary
             4.
             1677.
             
          
           
             THE
             Lords
             considering
             ,
             that
             by
             the
             Act
             of
             Parliament
             ,
             in
             Anno
             1672.
             
             Concerning
             the
             Regulation
             of
             Judicatories
             ;
             the
             Keepers
             of
             the
             Registers
             of
             Hornings
             ,
             and
             Inhibitions
             ,
             and
             Seasins
             ,
             and
             Reversions
             in
             the
             several
             Shires
             ,
             are
             ordained
             to
             make
             exact
             Minut-books
             ,
             relating
             to
             these
             Registers
             ,
             in
             manner
             prescribed
             in
             that
             Act
             :
             and
             the
             Sheriff
             ,
             Bailzie
             of
             the
             Regality
             ,
             or
             Royalty
             ,
             or
             their
             Deputs
             ,
             with
             two
             Justices
             of
             Peace
             ,
             if
             they
             be
             present
             ,
             are
             appointed
             at
             the
             times
             expressed
             in
             the
             said
             Act
             ,
             to
             take
             inspection
             of
             the
             saids
             Registers
             ,
             and
             the
             Minut-books
             relating
             thereto
             ,
             and
             after
             Collationing
             thereof
             ,
             to
             Subscribe
             the
             Minut-book
             ,
             
             under
             the
             Penalty
             of
             an
             hundred
             Pounds
             Scots
             ,
             for
             ilk
             Failzie
             ,
             in
             not
             meeting
             ,
             and
             comparing
             the
             saids
             Registers
             .
             And
             the
             saids
             Lords
             to
             whom
             the
             care
             of
             seeing
             the
             Premisses
             done
             ,
             is
             committed
             by
             the
             said
             Act
             ,
             having
             by
             Missive
             Letters
             ,
             of
             the
             31.
             of
             Iuly
             last
             ,
             direct
             to
             the
             several
             Sheriffs
             of
             this
             Kingdom
             ,
             required
             them
             by
             themselves
             ,
             or
             their
             Deputs
             ,
             to
             go
             about
             the
             performance
             of
             what
             is
             enjoyned
             to
             them
             by
             the
             foresaid
             Act
             ,
             and
             to
             return
             a
             satisfactory
             account
             of
             their
             diligence
             ,
             the
             first
             day
             of
             November
             thereafter
             ,
             now
             by-past
             :
             certifying
             them
             if
             they
             failed
             ,
             they
             would
             be
             charged
             with
             Letters
             of
             Horning
             ,
             for
             the
             Penalties
             contained
             in
             the
             said
             Act
             :
             and
             seeing
             the
             Sheriffs
             of
             the
             Shires
             after-mentioned
             ,
             and
             their
             Deputs
             ,
             
               viz.
               of
               Argile
               Renfrew
               ,
               Wigtoun
               ,
               Bute
               ,
               Peebles
               ,
               Sel●irk
               ,
               Perth
               ,
               Kincardin
               ,
               Aberdene
               ,
               Nairn
               ,
               Sutherland
               ,
               Caithness
               ,
               Berwick
               ,
               ●or●ar
            
             and
             Inverness
             ,
             The
             Stewart
             of
             Kirkcudburgh
             ,
             and
             the
             Stewart
             of
             Orkney
             ,
             have
             not
             returned
             report
             to
             the
             saids
             Lords
             ,
             of
             their
             diligence
             in
             the
             Premisses
             :
             therefore
             the
             Lords
             do
             ordain
             Letters
             of
             Horning
             to
             be
             direct
             against
             the
             saids
             Sheriffs
             and
             Stewarts
             ,
             and
             their
             Deputs
             ,
             Charging
             them
             to
             meet
             ,
             and
             to
             compare
             the
             Registers
             of
             Hornings
             ,
             Inhibitions
             ,
             Seasins
             and
             Reversions
             ,
             in
             their
             respective
             Shires
             ,
             with
             the
             Minut-books
             relating
             thereto
             ;
             and
             after
             Collationing
             of
             the
             same
             ,
             to
             Subscribe
             the
             Minut-books
             ,
             conform
             to
             the
             said
             Act
             of
             Parliament
             ,
             and
             to
             make
             report
             of
             their
             diligence
             therein
             to
             the
             saids
             Lords
             ,
             betwixt
             and
             the
             twenty
             day
             of
             February
             next
             :
             and
             likewise
             Charging
             them
             to
             make
             payment
             to
             Sir
             
               William
               Sharp
            
             ,
             His
             Majesties
             Cash-keeper
             ,
             of
             the
             Penalties
             already
             incurred
             by
             them
             ,
             viz.
             an
             hundred
             Pounds
             Scots
             ,
             for
             ilk
             by-gone
             Failzie
             ,
             in
             not
             meeting
             and
             comparing
             the
             saids
             Registers
             ,
             at
             the
             times
             exprest
             in
             the
             said
             Act
             of
             Parliament
             ,
             and
             that
             within
             the
             space
             of
             fifteen
             dayes
             after
             the
             Charge
             ,
             as
             to
             such
             of
             the
             saids
             Sheriffs
             and
             their
             Deputs
             ,
             who
             reside
             upon
             this
             side
             of
             the
             River
             of
             Spey
             :
             and
             upon
             twenty
             one
             dayes
             ,
             as
             to
             those
             who
             reside
             benorth
             Spey
             .
          
        
         
           
             ACT
             concerning
             Arrestments
             .
             February
             1.
             1677.
             
          
           
             THE
             Lords
             considering
             the
             great
             prejudice
             to
             Creditors
             ,
             and
             delay
             of
             Justice
             ,
             occasioned
             by
             Arrestments
             ,
             proceeding
             upon
             Decreets
             ,
             which
             are
             not
             ordinarly
             loused
             ,
             whereupon
             Debitors
             do
             procure
             delay
             of
             the
             Decreets
             at
             the
             instance
             of
             their
             Creditors
             against
             them
             ,
             before
             the
             same
             be
             extracted
             ,
             whereby
             lawful
             Creditors
             are
             hindered
             in
             recovering
             their
             j●st
             Debts
             ,
             until
             a
             several
             Process
             of
             double
             Poinding
             ,
             calling
             the
             Creditors
             and
             Arresters
             to
             dispute
             their
             Rights
             ,
             be
             raised
             and
             determined
             ;
             which
             ,
             if
             they
             should
             come
             in
             as
             distinct
             Processes
             ,
             by
             the
             course
             of
             the
             Roll
             ,
             would
             take
             a
             long
             time
             ,
             during
             which
             ,
             the
             principal
             Cause
             behoved
             to
             ●ist
             .
             For
             remeid
             whereof
             ,
             the
             saids
             Lords
             do
             declare
             ,
             that
             they
             will
             receive
             all
             double
             Poindings
             ,
             for
             purging
             of
             Arrestments
             ,
             as
             incident
             Processes
             with
             the
             principal
             Cause
             ,
             without
             any
             new
             Inrolment
             ;
             and
             do
             further
             declare
             ;
             that
             if
             the
             Arrester
             proceed
             not
             in
             Diligence
             ,
             by
             an
             Action
             for
             making
             forthcoming
             ,
             whereby
             his
             Debitor
             may
             be
             Certiorat
             of
             the
             Arrestment
             ,
             and
             may
             raise
             double
             Poinding
             in
             the
             name
             of
             his
             Creditor
             ,
             in
             whose
             hands
             the
             Arrestment
             is
             made
             ,
             that
             they
             will
             grant
             no
             delay
             ,
             upon
             pretence
             of
             such
             Arrestments
             ,
             albeit
             upon
             Decreets
             :
             But
             that
             the
             same
             shall
             be
             purged
             by
             Caution
             ,
             to
             be
             found
             by
             the
             Creditor
             to
             warrand
             the
             Debitor
             ,
             at
             the
             hands
             of
             the
             Arrester
             ,
             and
             that
             upon
             pretence
             of
             the
             Caution
             found
             ,
             they
             will
             not
             grant
             Suspension
             ,
             except
             upon
             Consignation
             ,
             after
             Distress
             by
             Decreet
             .
             Likeas
             ,
             the
             saids
             Lords
             do
             declare
             ,
             
             that
             they
             will
             grant
             no
             Suspension
             upon
             Arrestments
             ,
             laid
             on
             after
             extracting
             of
             Decreets
             ;
             whether
             upon
             Decreets
             or
             Dependences
             ,
             but
             by
             way
             of
             double
             Poinding
             ;
             that
             thereupon
             both
             the
             Creditor
             and
             Arrester
             may
             be
             called
             .
          
        
         
           
             ACT
             concerning
             Advocats
             .
             Iune
             7.
             1677.
             
          
           
             THE
             Lords
             having
             called
             in
             the
             whole
             Advocats
             ,
             did
             intimate
             to
             them
             ,
             that
             whereas
             His
             Majesty
             had
             by
             a
             Letter
             ,
             of
             the
             24.
             of
             May
             ,
             1676.
             required
             the
             saids
             Lords
             to
             prevent
             and
             punish
             all
             Combinations
             and
             unwarrantable
             Correspondences
             amongst
             Advocats
             ,
             whereby
             they
             may
             forbear
             ,
             or
             refuse
             to
             Consult
             or
             Concur
             with
             these
             who
             did
             faithfully
             adhere
             to
             his
             Majestie
             's
             Service
             ,
             and
             did
             continue
             in
             ,
             or
             early
             return
             to
             their
             Station
             .
             Which
             Letter
             ,
             immediatly
             after
             receipt
             thereof
             ,
             was
             publickly
             read
             before
             the
             whole
             Advocats
             ,
             notwithstanding
             whereof
             ,
             some
             Advocats
             do
             refuse
             ,
             or
             forbear
             to
             meet
             with
             others
             of
             the
             same
             Station
             ,
             and
             jointly
             Consult
             their
             Clients
             Causes
             :
             which
             being
             contrair
             to
             the
             Custom
             ,
             always
             formerly
             observed
             ,
             and
             very
             inconvenient
             and
             prejudicial
             to
             the
             Leidges
             ,
             who
             are
             thereby
             put
             to
             Consult
             their
             Advocats
             severally
             ,
             and
             have
             not
             the
             benefit
             of
             their
             joint
             Advice
             ,
             as
             to
             the
             matter
             and
             manner
             of
             carrying
             on
             their
             Causes
             ,
             whereof
             the
             Lords
             have
             seen
             instances
             in
             their
             own
             presence
             ,
             by
             some
             Advocats
             ,
             their
             difiering
             and
             disclaiming
             the
             alleadgences
             proponed
             by
             others
             for
             the
             same
             Party
             :
             For
             remeid
             whereof
             ,
             the
             Lords
             declare
             ,
             that
             if
             any
             Advocat
             in
             time
             coming
             ,
             upon
             the
             account
             of
             Personal
             prejudice
             ,
             or
             any
             other
             pretence
             ,
             shall
             re●use
             or
             forbear
             to
             Consult
             or
             Concur
             in
             the
             capacity
             of
             an
             Advocat
             ,
             with
             any
             others
             ,
             whom
             the
             Lords
             do
             ,
             or
             shall
             authorize
             to
             be
             Advocats
             ,
             that
             they
             shall
             be
             removed
             from
             their
             Imployments
             .
          
        
         
           
             ACT
             concerning
             the
             sisting
             of
             Execution
             upon
             Bills
             of
             Suspension
             .
             Iuly
             3.
             1677.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             considering
             that
             sometimes
             after
             Bills
             of
             Suspension
             are
             past
             ,
             the
             same
             are
             not
             exped
             at
             the
             Signet
             ,
             through
             the
             Parties
             fault
             ,
             in
             not
             finding
             Caution
             ,
             or
             other
             neglect
             ;
             and
             that
             Bills
             of
             Suspension
             are
             frequently
             by
             Deliverance
             of
             the
             Orpinary
             ,
             appointed
             to
             be
             seen
             by
             the
             Charger
             ,
             or
             his
             Procurators
             ,
             and
             in
             the
             mean
             time
             ,
             Execution
             stopped
             at
             the
             Chargers
             Instance
             ,
             indefinitly
             ,
             not
             limiting
             the
             same
             to
             a
             certain
             day
             .
             And
             seeing
             some
             Question
             may
             arise
             ,
             if
             in
             these
             Cases
             Execution
             should
             be
             sisted
             ,
             and
             during
             what
             time
             ?
             For
             clearing
             whereof
             ,
             the
             Lords
             declare
             ,
             that
             where
             a
             Bill
             of
             Suspension
             is
             past
             and
             intimat
             ,
             or
             shown
             to
             the
             Charger
             ,
             or
             to
             the
             Messenger
             ,
             the
             time
             of
             the
             Execution
             ,
             but
             not
             expede
             at
             the
             Signet
             :
             That
             Execution
             is
             only
             to
             sist
             for
             the
             space
             of
             fourteen
             dayes
             after
             the
             Date
             of
             the
             Deliverance
             passing
             the
             Bill
             ,
             unless
             the
             Ordinary
             upon
             further
             consideration
             ,
             by
             a
             Signature
             upon
             the
             Bill
             ,
             Subscribed
             by
             him
             ,
             discharge
             the
             expeding
             of
             the
             Bill
             ,
             untill
             a
             further
             day
             ,
             or
             allow
             the
             Suspender
             a
             longer
             time
             for
             expeding
             thereof
             providing
             the
             same
             exceed
             not
             a
             Month
             from
             the
             Date
             of
             the
             Deliverance
             of
             the
             Bill
             ,
             passing
             the
             same
             .
             After
             ela●sing
             whereof
             of
             ,
             the
             Lords
             declare
             ,
             that
             the
             Charger
             may
             proceed
             to
             further
             Execution
             ,
             notwithstanding
             of
             the
             foresaid
             past
             Bill
             .
             And
             if
             the
             Ordinary
             express
             no
             day
             ,
             but
             stop
             Execution
             indefinitly
             :
             The
             Lords
             declare
             that
             the
             stop
             
             shall
             continue
             only
             for
             the
             space
             of
             fourteen
             dayes
             from
             the
             Date
             of
             the
             Deliverance
             as
             aforesaid
             :
             but
             prejudice
             alwayes
             of
             Deliverances
             given
             by
             the
             Lords
             
               in
               presentia
            
             ,
             upon
             Petitions
             ,
             ordaining
             the
             Reasons
             of
             Suspension
             to
             be
             Discust
             summarly
             upon
             the
             Bill
             :
             and
             in
             the
             mean
             time
             ,
             discharging
             execution
             .
             In
             which
             case
             Execution
             is
             to
             sist
             ,
             untill
             the
             Cause
             be
             Discust
             ,
             or
             the
             Stop
             be
             taken
             off
             by
             the
             Lords
             .
             And
             the
             saids
             Lords
             prohibite
             the
             Clerk
             of
             the
             Bills
             to
             write
             any
             Date
             upon
             the
             Deliverance
             of
             a
             Bill
             of
             Suspension
             ,
             but
             in
             presence
             of
             the
             Ordinary
             ,
             and
             that
             it
             be
             the
             true
             Date
             ,
             wherein
             the
             same
             is
             Subscribed
             .
          
        
         
           
             ACT
             concerning
             the
             Suspensions
             of
             Protestations
             .
             Iuly
             10.
             1677.
             
          
           
             THE
             Lords
             considering
             that
             the
             Act
             of
             Parliament
             doth
             appoint
             ,
             that
             where
             a
             Protestation
             is
             Suspended
             ,
             the
             Deliverance
             of
             the
             Bill
             should
             mention
             ,
             that
             it
             is
             the
             second
             Suspension
             ,
             and
             so
             forth
             of
             all
             the
             Suspensions
             obtained
             thereafter
             ,
             that
             the
             same
             is
             the
             third
             or
             fourth
             Suspension
             :
             Yet
             notwithstanding
             by
             the
             Fault
             ,
             or
             Inadvertency
             of
             the
             Clerk
             of
             the
             Bills
             ,
             the
             same
             is
             not
             observed
             :
             Therefore
             the
             Lords
             declare
             ,
             that
             where
             there
             is
             a
             Suspension
             past
             of
             a
             Protestation
             ,
             if
             the
             Deliverance
             of
             the
             Bill
             do
             not
             bear
             ,
             
               that
               the
               same
               is
               the
               second
               Suspension
               ,
            
             and
             so
             forth
             of
             any
             subsequent
             Suspensions
             ,
             that
             they
             will
             recal
             the
             Suspension
             ,
             albeit
             the
             same
             be
             exped
             at
             the
             Signet
             ,
             as
             being
             contrair
             to
             the
             Act
             of
             Parliament
             .
          
        
         
           
             ACT
             against
             Sollicitations
             .
             November
             6.
             1677.
             
          
           
             THE
             Lords
             taking
             to
             their
             serious
             consideration
             ,
             that
             by
             several
             Acts
             of
             Sederunt
             ,
             The
             Lords
             have
             formerly
             prohibited
             all
             Sollicitations
             ,
             in
             Causes
             depending
             before
             them
             ,
             whereby
             Parties
             did
             endeavour
             and
             expect
             favour
             ,
             by
             the
             Credit
             ,
             and
             Moyon
             of
             themselves
             ,
             or
             their
             friends
             interposing
             with
             the
             Lords
             ,
             and
             Personal
             respects
             ,
             not
             relating
             to
             the
             Cause
             ,
             to
             the
             great
             discouragement
             of
             others
             ,
             who
             had
             not
             the
             like
             friendship
             ,
             or
             moyon
             ,
             and
             to
             the
             great
             trouble
             of
             all
             ,
             conceiving
             it
             their
             interest
             ,
             and
             that
             it
             might
             be
             looked
             on
             as
             a
             slight
             ,
             or
             neglect
             ,
             if
             they
             did
             not
             upon
             all
             occasions
             by
             themselves
             ,
             or
             their
             friends
             Sollicit
             the
             whole
             Lords
             ,
             at
             their
             Houses
             lying
             scattered
             through
             the
             several
             places
             of
             the
             City
             ,
             imagining
             thereby
             ,
             to
             have
             much
             promoted
             their
             interest
             ,
             and
             payed
             respect
             to
             the
             Lords
             ,
             who
             have
             no
             regard
             to
             ,
             but
             are
             troubled
             with
             such
             Sollicitations
             ;
             it
             being
             their
             duty
             ,
             and
             design
             to
             do
             Justice
             to
             all
             impartially
             ,
             without
             respect
             of
             Persons
             :
             Notwithstanding
             of
             which
             Acts
             ,
             and
             endeavours
             of
             the
             Lords
             against
             Sollicitations
             ,
             the
             same
             have
             been
             revived
             upon
             pretence
             of
             giving
             Information
             in
             the
             Cause
             :
             but
             now
             seing
             written
             Informations
             are
             become
             ordinary
             ;
             and
             that
             all
             that
             ought
             to
             be
             represented
             to
             the
             Lords
             in
             any
             Case
             ,
             may
             easily
             without
             trouble
             be
             done
             ,
             by
             written
             Informations
             sent
             to
             the
             Lords
             by
             a
             servant
             ,
             which
             they
             will
             heartily
             accept
             ,
             and
             will
             not
             fail
             to
             peruse
             ;
             and
             finding
             it
             unfeasible
             to
             hinder
             Sollicitations
             so
             long
             as
             they
             admit
             of
             Verbal
             Information
             .
             Therefore
             the
             Lords
             do
             declare
             ,
             that
             they
             will
             admit
             of
             no
             Sollicitation
             ,
             or
             Verbal
             Information
             ,
             in
             any
             Cause
             depending
             ,
             or
             that
             shall
             depend
             before
             them
             ,
             during
             the
             Dependence
             thereof
             either
             by
             the
             Parties
             themselves
             ,
             or
             by
             any
             other
             Person
             .
             And
             to
             the
             end
             ,
             the
             same
             may
             be
             effectual
             against
             all
             importunity
             .
             
             The
             saids
             Lords
             do
             Enact
             and
             Declare
             ,
             That
             it
             shall
             be
             a
             relevant
             Reason
             of
             Declinator
             against
             any
             of
             the
             saids
             Lords
             Ordinary
             ,
             or
             Extraordinary
             ,
             that
             they
             have
             received
             or
             heard
             any
             Sollicitation
             ,
             or
             Verbal
             Information
             in
             the
             Cause
             ,
             during
             the
             Dependence
             thereof
             .
             But
             upon
             the
             first
             observing
             ,
             that
             the
             matter
             offered
             to
             be
             spoken
             to
             them
             ,
             did
             bear
             ,
             or
             import
             any
             Sollicitation
             ,
             or
             Verbal
             Information
             ,
             in
             a
             Cause
             depending
             ,
             if
             they
             did
             not
             use
             all
             the
             means
             they
             could
             to
             stop
             ,
             or
             withdraw
             to
             hear
             any
             further
             thereof
             .
             Or
             in
             case
             any
             Sollicitation
             ,
             or
             Information
             ,
             in
             a
             Cause
             depending
             ,
             be
             offered
             by
             a
             Missive-letter
             ,
             if
             they
             do
             not
             present
             the
             same
             to
             the
             Lords
             .
             Likeas
             ,
             the
             saids
             Lords
             do
             strictly
             Prohibite
             all
             Advocats
             ,
             Clerks
             ,
             Writers
             and
             others
             ,
             depending
             upon
             the
             Colledge
             of
             Justice
             ,
             or
             their
             Servants
             ,
             to
             offer
             to
             any
             of
             the
             Lords
             ,
             any
             Sollicitation
             or
             Information
             ,
             by
             Word
             or
             Letter
             ,
             but
             only
             by
             Written
             Informations
             Bills
             or
             Tickets
             ,
             for
             calling
             ,
             under
             the
             pain
             of
             Deprivation
             ,
             and
             being
             secluded
             from
             the
             House
             ,
             excepting
             the
             Clerk
             of
             the
             Process
             ,
             for
             clearing
             any
             Interlocutor
             ,
             or
             Minute
             in
             the
             Cause
             .
             Likeas
             ,
             the
             saids
             Lords
             do
             declare
             ,
             That
             if
             any
             Party
             ,
             or
             others
             of
             the
             Leidges
             ,
             offer
             any
             Sollicitation
             or
             Information
             ,
             by
             Word
             or
             Missive
             ,
             that
             they
             will
             Ammerciat
             them
             as
             follows
             ,
             viz.
             Every
             Nobleman
             in
             three
             hundred
             merks
             Scots
             Money
             :
             Every
             Baron
             ,
             or
             Knight
             ,
             in
             two
             hundred
             merks
             :
             Every
             other
             Heretor
             ,
             Gentleman
             ,
             or
             Chief
             Burgesse
             ,
             in
             one
             hundred
             Pounds
             :
             And
             every
             other
             Person
             in
             one
             hundred
             merks
             ,
             
               toties
               quoties
            
             ,
             to
             be
             applyed
             for
             the
             use
             of
             the
             Poor
             .
             It
             is
             alwayes
             hereby
             declared
             ,
             That
             the
             Verbal
             Information
             of
             any
             Party
             ,
             or
             other
             Person
             for
             him
             ,
             when
             required
             or
             allowed
             Judicially
             ,
             or
             before
             Auditors
             ,
             in
             Diets
             appointed
             for
             both
             Parties
             to
             be
             heard
             ;
             or
             before
             the
             Ordinaries
             upon
             the
             Bills
             ,
             in
             relation
             to
             the
             passing
             of
             Bills
             of
             Suspension
             or
             Advocation
             ;
             or
             before
             any
             of
             the
             Lords
             ,
             to
             whom
             ,
             either
             by
             consent
             of
             Parties
             ,
             or
             by
             appointment
             ,
             or
             Recommendation
             of
             the
             Lords
             ,
             an
             Accommodation
             in
             any
             Process
             is
             referred
             ,
             is
             no
             wayes
             hereby
             Prohibited
             .
             And
             to
             the
             effect
             ,
             the
             Leidges
             may
             be
             secured
             against
             any
             prejudice
             which
             they
             may
             apprehend
             ,
             by
             debarring
             them
             from
             Sollicitation
             ,
             or
             Verbal
             Information
             ,
             the
             Lords
             do
             declare
             ,
             that
             there
             shall
             be
             free
             access
             for
             all
             Persons
             to
             Inform
             them
             by
             Written
             Informations
             ,
             only
             to
             be
             delivered
             by
             Servants
             ,
             and
             that
             in
             all
             Cases
             ,
             from
             time
             to
             time
             ;
             and
             for
             the
             more
             sure
             delivery
             of
             Informations
             ,
             they
             ordain
             ,
             that
             every
             one
             of
             the
             Lords
             shall
             have
             a
             Servant
             attending
             in
             his
             House
             ,
             from●
             five
             a
             Clock
             ,
             to
             eight
             a
             Clock
             at
             night
             ,
             who
             shall
             be
             holden
             to
             receive
             any
             Informations
             ,
             doubles
             of
             Bills
             ,
             or
             Tickets
             for
             Calling
             ,
             that
             shall
             be
             given
             in
             without
             payment
             of
             any
             Money
             ,
             under
             such
             pain
             or
             punishment
             as
             the
             Lords
             shall
             think
             fit
             :
             And
             which
             Informations
             ,
             Bills
             ,
             or
             Tickets
             ,
             shall
             be
             delivered
             by
             the
             Servants
             of
             Advocats
             ,
             or
             of
             the
             Parties
             ,
             and
             by
             none
             others
             .
             And
             Ordain
             this
             Act
             to
             be
             affixed
             on
             the
             Wall
             of
             the
             Outter-House
             .
             And
             to
             be
             Printed
             ,
             that
             none
             may
             pretend
             ignorance
             thereof
             .
          
        
         
           
             ACT
             concerning
             Bills
             relating
             to
             concluded
             Causes
             :
             November
             9.
             1677.
             
          
           
             THE
             Lords
             considering
             ,
             that
             sometimes
             after
             concluded
             Causes
             are
             Advised
             ,
             and
             Sentences
             pronounced
             therein
             ,
             Parties
             endeavour
             to
             delay
             the
             Extracting
             thereof
             for
             a
             considerable
             time
             ,
             and
             then
             do
             offer
             Petitions
             for
             alteration
             of
             the
             Decreet
             ,
             whereby
             the
             Process
             not
             being
             recent
             in
             the
             Memory
             of
             the
             Lords
             ,
             they
             are
             put
             of
             new
             to
             peruse
             the
             Process
             and
             Probation
             .
             For
             remeid●
             whereof
             ,
             the
             Lords
             Declare
             ,
             
             that
             in
             timecoming
             ,
             they
             will
             not
             receive
             any
             Petitions
             ,
             in
             relation
             to
             the
             Stopping
             or
             altering
             of
             any
             Decreet
             or
             Interlocutor
             pronouncing
             ,
             upon
             Advising
             of
             concluded
             Causes
             ,
             unless
             the
             Petition
             be
             given
             in
             within
             the
             space
             of
             two
             Sederunt
             dayes
             ,
             after
             pronouncing
             of
             the
             Decreet
             or
             Interlocutor
             .
          
        
         
           
             Suspensions
             of
             the
             Excise
             to
             be
             past
             only
             in
             presentia
             .
             December
             6.
             1677.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             Ordained
             that
             no
             Suspension
             shall
             be
             past
             of
             any
             Charges
             given
             for
             His
             Majesties
             Annuity
             or
             Excise
             ,
             except
             in
             presence
             of
             the
             whole
             Lords
             .
          
        
         
           
             Warrant
             anent
             Precepts
             ,
             for
             giving
             Seasine
             upon
             Retours
             .
             February
             15.
             1678.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             Ordained
             ,
             that
             Bills
             craving
             Warrant
             to
             the
             Director
             of
             the
             Chancellory
             ,
             to
             direct
             Precepts
             to
             a
             Sheriff
             in
             that
             part
             to
             grant
             Infeftement
             upon
             Retours
             ,
             in
             respect
             of
             the
             Sheriffs
             refusal
             ,
             to
             Infeft
             the
             Party
             ;
             shall
             not
             be
             past
             in
             time
             coming
             ,
             by
             the
             Ordinary
             upon
             the
             Bills
             ,
             but
             the
             same
             shall
             be
             past
             by
             the
             whole
             Lords
             
               in
               presentia
            
             ;
             and
             the
             Lords
             discharge
             the
             Director
             of
             the
             Chancellory
             ,
             to
             direct
             ,
             or
             give
             out
             any
             Precepts
             to
             Sheriffs
             in
             that
             part
             ,
             for
             granting
             Infeftment
             upon
             Retours
             ,
             unless
             the
             Warrant
             be
             past
             
               in
               presentia
            
             ,
             as
             said
             is
             .
          
        
         
           
             ACT
             in
             Favours
             of
             the
             Lord
             Register
             .
             February
             22.
             1678.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             considering
             ,
             that
             the
             Kings
             Majesty
             hath
             nominated
             and
             appointed
             Sir
             
               Thomas
               Murray
               of
               Glendook
            
             ,
             one
             of
             their
             number
             ,
             to
             be
             Clerk
             of
             Register
             ,
             with
             power
             to
             him
             to
             receive
             all
             the
             Profites
             of
             the
             Office
             ,
             since
             the
             advancement
             of
             Sir
             
               Archibald
               Primerose
            
             to
             be
             Justice-General
             :
             and
             he
             being
             accordingly
             admitted
             to
             the
             said
             Office.
             Therefore
             the
             Lords
             do
             grant
             Warrant
             to
             the
             Lords
             ,
             Newtoun
             and
             Hercus
             ,
             to
             take
             the
             Oaths
             of
             these
             Persons
             ,
             who
             by
             their
             Warrant
             ,
             were
             intrusted
             with
             the
             keeping
             of
             the
             publick
             Registers
             ,
             which
             were
             in
             the
             Custody
             of
             the
             late
             Clerk
             of
             Register
             ,
             if
             they
             have
             abstracted
             or
             imbazeled
             any
             of
             the
             said
             Register
             Books
             ,
             or
             Warrants
             ,
             or
             if
             they
             be
             all
             intire
             and
             in
             the
             same
             order
             as
             they
             are
             set
             down
             in
             the
             Inventar
             ,
             insert
             in
             the
             Books
             of
             Sederunt
             .
             And
             ordain
             the
             Keys
             of
             the
             Rooms
             ,
             wherein
             these
             Registers
             are
             ,
             viz.
             that
             below
             the
             Parliament-House
             ,
             and
             of
             the
             Chamber
             in
             the
             
               Castle
               of
               Edinburgh
            
             ,
             to
             be
             delivered
             to
             the
             said
             Lord
             Register
             .
             And
             grants
             Warrant
             and
             Order
             to
             Mr.
             
               Alexander
               Gibson
            
             ,
             one
             of
             the
             Clerks
             of
             Session
             ,
             to
             make
             Compt
             and
             Payment
             to
             the
             said
             Lord
             Register
             ,
             of
             the
             Dues
             of
             the
             Clerk
             of
             Registers
             Office
             ,
             which
             he
             has
             intrometted
             with
             ,
             by
             Warrand
             of
             the
             Lords
             :
             and
             declare
             ,
             that
             this
             Act
             ,
             with
             the
             said
             Lord
             Register
             his
             receipt
             ,
             shall
             be
             a
             sufficient
             Exoneration
             to
             the
             said
             Mr.
             
               Alexander
               Gibson
            
             thereof
             .
          
        
         
           
           
             ACT
             Discharging
             Clerks
             to
             lend
             out
             Processes
             to
             any
             ,
             except
             Advocats
             and
             their
             Servants
             .
             February
             26.
             1678.
             
          
           
             THE
             Lords
             considering
             the
             abuse
             committed
             by
             giving
             out
             of
             Processes
             ,
             to
             some
             Persons
             attending
             the
             House
             ,
             and
             pretending
             to
             Negotiat
             in
             ,
             and
             mannage
             Processes
             ,
             who
             are
             neither
             Advocats
             ,
             nor
             Servants
             to
             Advocats
             .
             For
             remeid
             whereof
             ,
             the
             saids
             Lords
             Discharge
             the
             Clerks
             of
             Session
             ,
             and
             their
             Servants
             ,
             to
             give
             up
             ,
             or
             lend
             out
             to
             any
             Persons
             ,
             any
             Processes
             or
             Writes
             ,
             produced
             therein
             ,
             except
             only
             to
             Advocats
             and
             their
             known
             Servants
             .
             And
             the
             Lords
             Declare
             ,
             that
             each
             Advocat
             shall
             be
             allowed
             to
             have
             one
             Servant
             ;
             and
             if
             any
             shall
             desire
             to
             have
             more
             Servants
             allowed
             to
             them
             then
             one
             ,
             appoint
             them
             to
             represent
             the
             same
             to
             the
             Lords
             ,
             and
             they
             will
             take
             it
             unto
             their
             Consideration
             .
          
        
         
           
             ACT
             prohibiting
             the
             Clerks
             to
             give
             up
             Bills
             relating
             to
             Processes
             ,
             whereupon
             there
             is
             any
             Deliverance
             of
             the
             Lords
             .
             Iuly
             23.
             1678.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             did
             Discharge
             the
             Clerks
             to
             give
             up
             to
             Parties
             ,
             any
             Bills
             or
             Petitions
             ,
             whereupon
             there
             are
             Deliverances
             ,
             relateing
             to
             Interlocutors
             or
             Decreets
             in
             Processes
             ,
             except
             where
             the
             same
             are
             appointed
             to
             be
             seen
             and
             Answered
             .
             And
             appoint
             the
             Clerks
             to
             keep
             the
             foresaid
             principal
             Petitions
             ,
             bearing
             ,
             
               Deliverances
               of
               the
               Lords
               ,
               and
               to
               give
               out
               to
               parties
               only
               doubles
               thereof
               .
            
          
        
         
           
             ACT
             Discharging
             Advocats
             ,
             and
             Writers
             Servants
             ,
             to
             Write
             their
             Masters
             Subscription
             .
             Iuly
             last
             ,
             1678.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             Considering
             ,
             that
             there
             is
             a
             corrupt
             Custom
             ,
             lately
             crept
             in
             of
             Advocats
             ,
             and
             Writers
             Servants
             ,
             adhibiting
             their
             Masters
             Subscriptions
             ,
             to
             Petitions
             and
             Bills
             given
             in
             to
             the
             Lords
             which
             is
             not
             to
             be
             endured
             .
             Therefore
             the
             Lords
             declare
             ,
             that
             if
             in
             time
             coming
             ,
             the
             Servant
             of
             any
             Advocat
             shall
             presume
             to
             Adhibite
             and
             Write
             his
             Masters
             Subscription
             to
             a
             Petition
             ,
             or
             to
             the
             out-giving
             ,
             or
             return
             of
             a
             Process
             ;
             or
             if
             the
             Servant
             of
             any
             Writer
             to
             the
             Signet
             ,
             shall
             Adhibite
             his
             Masters
             Subscription
             to
             a
             Bill
             of
             Suspension
             ,
             or
             other
             Bill
             used
             to
             be
             drawn
             by
             Writers
             ,
             that
             they
             will
             proceed
             against
             ,
             and
             punish
             these
             Persons
             as
             falsaries
             and
             forgers
             of
             Writes
             .
          
        
         
           
             ACT
             Ordaining
             Hornings
             and
             Inhibitions
             to
             be
             Booked
             ,
             which
             were
             not
             Booked
             the
             time
             of
             the
             Vsurpers
             .
             Ianuary
             3.
             1679.
             
          
           
             THE
             which
             day
             ,
             the
             Lord
             Register
             ,
             Newtoun
             and
             Hercus
             did
             make
             Report
             to
             the
             Lords
             ,
             that
             conform
             to
             the
             Warrand
             given
             them
             ,
             of
             the
             fourth
             of
             December
             last
             ,
             they
             had
             considered
             the
             condition
             of
             the
             general
             Registers
             of
             Hornings
             and
             Inhibitions
             ,
             and
             of
             the
             particular
             Registers
             thereof
             in
             the
             Shire
             of
             Edinburgh
             during
             the
             Englishes
             time
             ,
             and
             found
             ,
             that
             during
             the
             said
             time
             ,
             there
             were
             no
             Hornings
             Booked
             for
             the
             space
             of
             five
             years
             ,
             
             and
             three
             moneths
             ,
             or
             thereby
             ;
             and
             that
             no
             Inhibition
             were
             Booked
             for
             the
             space
             of
             three
             years
             and
             six
             moneths
             ;
             and
             that
             they
             had
             called
             the
             Persons
             who
             were
             intrusted
             in
             that
             time
             ,
             as
             Clerks
             to
             ,
             and
             Keepers
             of
             the
             saids
             Registers
             of
             Hornings
             and
             Inhibitions
             ,
             and
             where
             they
             were
             dead
             ,
             they
             called
             and
             heard
             their
             Representatives
             ;
             but
             that
             one
             of
             these
             who
             had
             the
             Keeping
             of
             the
             saids
             Registers
             ,
             from
             the
             5.
             of
             Iune
             1652.
             to
             the
             8.
             of
             September
             1654.
             
             Called
             
               Thomas
               Freeman
            
             ,
             being
             deceased
             ,
             there
             can
             be
             none
             found
             to
             represent
             him
             ,
             which
             being
             taken
             in
             consideration
             by
             the
             Lords
             ,
             they
             Ordain
             the
             Hornings
             and
             Inhibitions
             to
             be
             Booked
             for
             the
             saids
             years
             ,
             by
             such
             Persons
             as
             the
             Lord
             Register
             shall
             appoint
             ,
             and
             allows
             them
             for
             their
             pains
             ,
             three
             shillings
             four
             pennies
             for
             ilk
             Leaf
             of
             the
             Book
             ,
             Written
             in
             such
             manner
             as
             the
             Lord
             Register
             shall
             appoint
             ,
             And
             the
             Lords
             Ordain
             the
             same
             to
             be
             payed
             by
             the
             Persons
             who
             enjoyed
             and
             possest
             the
             said
             Offices
             ,
             and
             were
             oblieged
             to
             have
             Booked
             the
             same
             ,
             or
             their
             Representatives
             .
             And
             where
             they
             have
             none
             to
             Represent
             them
             by
             the
             Person
             who
             succeeded
             next
             in
             the
             said
             Office
             ,
             and
             his
             Representatives
             .
             And
             Ordain
             Letters
             of
             Horning
             to
             be
             direct
             upon
             six
             dayes
             ,
             to
             the
             effect
             foresaid
             .
          
        
         
           
             Orders
             for
             payment
             of
             the
             Dues
             of
             the
             Signet
             ,
             where
             Suspensions
             are
             appointed
             to
             be
             discussed
             upon
             the
             Bill
             .
             Ianuary
             24.
             1679.
             
          
           
             THE
             Lords
             considering
             that
             they
             do
             frequently
             grant
             Warrands
             to
             the
             Ordinary
             upon
             the
             Bills
             ,
             to
             Discuss
             the
             Reasons
             of
             Suspension
             upon
             the
             Bill
             ,
             especially
             where
             the
             Charger
             desires
             the
             same
             .
             And
             seeing
             that
             Warrand
             or
             Deliverance
             ,
             hath
             the
             effect
             of
             a
             Suspension
             past
             the
             Signet
             ,
             the
             Party
             ingiver
             of
             the
             Bill
             of
             Suspension
             ,
             being
             thereby
             secured
             against
             any
             further
             Personal
             Execution
             ,
             untill
             the
             Reasons
             of
             Suspension
             be
             Discussed
             .
             It
             is
             just
             and
             reasonable
             in
             this
             Case
             ,
             that
             the
             Dues
             payable
             for
             affixing
             the
             Signet
             ,
             should
             be
             satisfied
             ,
             as
             if
             the
             Suspension
             had
             been
             past
             and
             exped
             .
             Therefore
             the
             saids
             Lords
             do
             Ordain
             ,
             that
             before
             the
             Suspenders
             Process
             be
             heard
             upon
             the
             Reasons
             of
             Suspension
             before
             the
             Ordinary
             upon
             the
             Bills
             ,
             in
             order
             to
             the
             Discussing
             thereof
             ,
             there
             be
             payed
             in
             to
             the
             Clerk
             of
             the
             Bills
             ,
             or
             his
             Servant
             in
             that
             Office
             ,
             the
             Dues
             payable
             for
             affixing
             the
             Signet
             to
             the
             Suspension
             ,
             for
             which
             they
             are
             to
             be
             comptable
             to
             the
             Keeper
             of
             the
             Signet
             ,
             under
             the
             Lord
             Secretary
             ,
             and
             to
             make
             payment
             thereof
             as
             he
             shall
             call
             for
             the
             same
             .
             And
             appoint
             the
             Clerk
             of
             the
             Bills
             ,
             and
             his
             Servants
             ,
             to
             keep
             a
             Note
             of
             such
             Bills
             of
             Suspension
             ,
             whereof
             the
             Reasons
             are
             ordained
             to
             be
             be
             Discussed
             on
             the
             Bills
             ,
             to
             the
             effect
             foresaid
             .
          
        
         
           
             ACT
             in
             Favours
             of
             Intrant
             Advocats
             .
             February
             7.
             1679.
             
          
           
             THE
             Lords
             considering
             a
             Petition
             presented
             to
             them
             by
             
               Robert
               Nairn
            
             ,
             Son
             to
             Mr.
             
               Alexander
               Nairn
            
             of
             Greenyards
             ,
             mentioning
             ,
             
               That
               the
               Petitioner
               upon
               a
               Reference
               of
               the
               Lords
               ,
               to
               the
               Dean
               of
               Faculty
               ,
               and
               the
               Advocats
               ,
            
             Examinators
             for
             taking
             Tryal
             of
             his
             Qualifications
             ,
             in
             order
             to
             his
             Admission
             to
             the
             Office
             of
             an
             Advocat
             ,
             having
             undergone
             ,
             both
             the
             privat
             and
             publick
             Tryal
             and
             Examination
             ,
             and
             thereafter
             applyed
             to
             the
             Dean
             of
             Faculty
             ,
             to
             assign
             him
             the
             Subject
             of
             his
             publick
             Lesson
             before
             the
             Lords
             ;
             the
             same
             is
             refused
             ,
             until
             the
             Petitioner
             make
             payment
             to
             the
             Advocats
             
             Box
             ,
             of
             500.
             merks
             Scots
             ,
             conform
             to
             a
             late
             Act
             of
             the
             Faculty
             ,
             made
             to
             that
             purpose
             .
             And
             the
             Lords
             considering
             ,
             that
             the
             Office
             and
             Imployment
             of
             Advocats
             ,
             being
             a
             liberal
             profession
             ,
             albeit
             they
             will
             not
             allow
             any
             sums
             of
             money
             to
             be
             imposed
             upon
             young
             men
             ,
             at
             their
             Entry
             to
             the
             Office
             ,
             and
             Station
             of
             Advocats
             ,
             yet
             they
             recommend
             to
             them
             ,
             to
             Contribute
             Voluntarly
             ,
             for
             a
             Library
             to
             be
             erected
             for
             the
             use
             of
             the
             Colledge
             of
             Justice
             .
          
        
         
           
             ACT
             anent
             Executors
             Creditors
             .
             November
             14.
             1679.
             
          
           
             THE
             Lords
             considering
             ,
             that
             it
             is
             imcumbent
             to
             all
             Executors
             ,
             by
             vertue
             of
             their
             Office
             ,
             to
             execute
             the
             Testament
             of
             the
             Defunct●
             by
             recovering
             his
             Goods
             ,
             and
             payment
             of
             the
             Debts
             owing
             to
             him
             ,
             for
             the
             behove
             and
             interest
             of
             the
             Relict
             Children
             ,
             or
             nearest
             of
             Kin
             ,
             Creditors
             and
             Legatars
             of
             the
             Defunct
             .
             Therefore
             the
             saids
             Lords
             do
             Declare
             ,
             that
             Executors
             decerned
             ,
             and
             Confirmed
             as
             Creditors
             to
             the
             Defunct
             ,
             are
             holden
             as
             lyable
             to
             do
             Diligence
             ,
             for
             recovery
             of
             the
             Defuncts
             Goods
             and
             the
             Debts
             due
             to
             him
             Confirmed
             in
             the
             Testament
             ,
             or
             ●iked
             ,
             sicklike
             as
             other
             Executors
             Dative
             are
             holden
             to
             do
             by
             the
             Law
             ,
             and
             practick
             of
             this
             Kingdom
             .
             And
             to
             the
             effect
             ,
             that
             Creditors
             be
             not
             unnecessarly
             intangled
             in
             the
             Execution
             of
             Defuncts
             Debts
             ,
             beyond
             their
             own
             satisfaction
             ;
             The
             Lords
             Declare
             ,
             that
             Executors
             Creditors
             shall
             not
             be
             oblieged
             to
             make
             a
             total
             Confirmation
             ;
             but
             only
             of
             so
             much
             as
             they
             shall
             think
             fit
             ,
             that
             there
             may
             be
             place
             for
             an
             Executor
             ,
             
               ad
               ommissa
            
             ,
             for
             the
             rest
             ,
             who
             shall
             be
             lyable
             to
             all
             Parties
             having
             Interest
             in
             the
             same
             way
             as
             principal
             Executors
             .
             It
             is
             also
             Declared
             ,
             that
             Executors
             Creditors
             ,
             shall
             have
             license
             to
             pursue
             ,
             if
             they
             will
             make
             Faith
             ,
             that
             they
             are
             doubtful
             of
             the
             Validity
             ,
             Existence
             ,
             or
             Probation
             of
             the
             Debts
             of
             the
             Defunct
             ,
             for
             which
             they
             desire
             license
             ;
             the
             same
             being
             returned
             to
             the
             Commissars
             within
             such
             competent
             time
             ,
             as
             they
             shall
             appoint
             ,
             and
             upon
             Caution
             to
             Confirm
             as
             hath
             been
             granted
             in
             the
             Case
             of
             Licenses
             formerly
             .
          
        
         
           
             ACT
             anent
             the
             Registration
             of
             Hornings
             .
             November
             19.
             1679.
             
          
           
             FOrasmuch
             ;
             as
             all
             Letters
             of
             Horning
             are
             to
             be
             Registrate
             ,
             either
             in
             the
             Registers
             of
             the
             Shire
             ,
             where
             the
             Denounced
             Person
             dwells
             ,
             or
             in
             the
             general
             Register
             of
             Hornings
             ,
             keeped
             at
             Edinburgh
             :
             and
             the
             Sheriffs
             ,
             Clerks
             ,
             and
             Keepers
             of
             these
             Registers
             in
             the
             Shires
             ,
             are
             by
             special
             Act
             of
             Parliament
             ,
             appointed
             to
             bring
             in
             those
             Registers
             ,
             to
             be
             marked
             by
             the
             Clerk
             of
             Register
             :
             and
             when
             they
             mark
             the
             Registration
             of
             any
             Horning
             upon
             the
             Letters
             ,
             they
             should
             also
             insert
             therein
             the
             number
             of
             the
             leaves
             of
             the
             Register
             wherein
             the
             same
             is
             Registrate
             .
             Which
             Order
             is
             renewed
             by
             Act
             of
             Regulation
             ,
             in
             Anno
             1672.
             
             And
             the
             due
             observance
             hereof
             being
             of
             great
             Importance
             ,
             for
             the
             Benefite
             and
             Security
             of
             the
             Leidges
             .
             Therefore
             the
             Lords
             do
             accordingly
             Ordain
             ,
             all
             Sheriff
             Clerks
             ,
             to
             bring
             in
             their
             Registers
             of
             Horning
             ,
             to
             be
             marked
             by
             the
             Clerk
             of
             Register
             ;
             and
             that
             in
             every
             Horning
             to
             be
             Registrate
             by
             them
             ,
             they
             insert
             at
             the
             marking
             thereof
             ,
             the
             particular
             leaf
             of
             the
             Register
             ,
             wherein
             they
             are
             Registrate
             :
             and
             that
             the
             Sheriff●
             Clerk
             take
             in
             no
             Hornings
             to
             be
             Registrate
             in
             their
             Books
             ,
             but
             against
             Persons
             dwelling
             within
             their
             Shire
             .
             And
             the
             Lords
             recommend
             to
             the
             Lord
             Register
             ,
             to
             take
             special
             care
             of
             the
             exact
             
             observance
             hereof
             :
             And
             also
             Ordain
             the
             Clerk
             of
             the
             Bills
             ,
             not
             to
             receive
             any
             Bill
             of
             Caption
             or
             others
             ,
             upon
             any
             Horning
             not
             Registrate
             and
             marked
             in
             manner
             foresaid
             :
             And
             Ordain
             Letters
             of
             Horning
             ,
             to
             be
             direct
             hereupon
             ,
             upon
             a
             Charge
             of
             fifteen
             dayes
             .
          
        
         
           
             ACT
             against
             Sollicitation
             .
             December
             24.
             1679.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             considering
             ,
             that
             notwithstanding
             of
             the
             Act
             made
             against
             Sollicitation
             and
             verbal
             Information
             ,
             dated
             the
             sixth
             day
             of
             November
             1677.
             years
             .
             Yet
             some
             Persons
             are
             so
             bold
             ,
             as
             to
             venture
             to
             Sollicite
             the
             Lords
             in
             their
             Actions
             .
             And
             it
             being
             the
             Resolution
             of
             the
             saids
             Lords
             ,
             that
             so
             laudable
             and
             necessary
             an
             Act
             be
             made
             effectual
             .
             Therefore
             they
             declare
             ,
             that
             in
             any
             Process
             now
             depending
             or
             which
             shall
             hereafter
             be
             intented
             before
             them
             ,
             when
             the
             same
             comes
             to
             be
             advised
             ,
             they
             will
             purge
             themselves
             concerning
             their
             receiving
             any
             Sollicitation
             ,
             or
             Verbal
             Information
             in
             the
             Cause
             ,
             if
             it
             shall
             either
             be
             desired
             by
             the
             Partis
             ,
             or
             moved
             by
             any
             of
             their
             own
             number
             .
             And
             that
             they
             will
             delate
             the
             Persons
             ,
             who
             do
             Sollicite
             ,
             or
             Verbally
             inform
             them
             ,
             that
             they
             may
             be
             punished
             therefore
             conform
             to
             the
             said
             Act.
             
          
        
         
           
             ACT
             anent
             the
             taking
             of
             Renunciations
             from
             Persons
             Inhibited
             .
             February
             19.
             1680.
             
          
           
             THE
             Lords
             considering
             ,
             That
             it
             hath
             been
             the
             ordinary
             Custom
             of
             Debitors
             ,
             to
             make
             payment
             of
             sums
             due
             upon
             Wodset
             ,
             or
             Anualrent
             by
             Infeftment
             ,
             and
             to
             accept
             Renunciations
             ,
             or
             grants
             of
             Redemption
             from
             the
             Wodsetter
             ,
             or
             Annualrenter
             ;
             albeit
             the
             Credtor
             had
             been
             Inhibit
             before
             payment
             :
             which
             being
             made
             
               bona
               fide
            
             the
             Debitors
             conceived
             themselves
             secure
             ,
             and
             that
             they
             needed
             not
             search
             Registers
             ,
             to
             find
             Inhibitions
             against
             the
             Wodsetters
             ,
             or
             Annualrenters
             .
             Which
             hath
             tended
             much
             to
             the
             detriment
             of
             Creditors
             ,
             seing
             such
             Sums
             secured
             by
             Infeftment
             were
             not
             arrestable
             .
             For
             remeid
             whereof
             ,
             the
             saids
             Lords
             declare
             that
             if
             the
             user
             of
             an
             Inhibition
             
               upon
            
             search
             of
             the
             Registers
             ,
             or
             otherway
             shall
             find
             Infeftments
             of
             Annualrents
             ,
             or
             upon
             Wodsets
             ,
             in
             favours
             of
             their
             Debitor
             ,
             being
             Inhibit
             ,
             and
             shall
             make
             intimation
             ,
             by
             Instrument
             of
             an-Nottar
             ,
             to
             the
             Persons
             who
             have
             Right
             to
             the
             Reversion
             of
             the
             saids
             Wodsets
             ,
             or
             Annualrents
             ,
             that
             the
             Wodsetter
             or
             Annualrenter
             stands
             Inhibit
             ,
             at
             their
             instance
             ;
             and
             shall
             produce
             in
             presence
             of
             the
             Partie
             ,
             and
             Nottar
             the
             Inhibition
             duely
             Registrat
             .
             Then
             ,
             and
             in
             that
             Case
             ,
             the
             Lords
             will
             not
             sustain
             Renunciations
             ,
             or
             grants
             of
             Redemption
             ,
             although
             upon
             true
             payment
             ,
             not
             being
             made
             
               bona
               fide
            
             in
             respect
             of
             the
             Intimation
             ,
             unless
             the
             Redemption
             prcceed
             by
             way
             of
             action
             ;
             the
             Inhibiter
             being
             always
             Cited
             thereto
             ,
             or
             by
             Suspension
             of
             double
             Poynding
             ,
             upon
             consignation
             of
             the
             sums
             ,
             whereupon
             the
             Annualrent
             ,
             or
             Wodset
             is
             Redeemable
             .
             And
             ordain
             this
             Act
             to
             be
             Printed
             and
             afixed
             upon
             the
             Wall
             of
             the
             Utter-house
             ,
             that
             the
             same
             may
             be
             known
             to
             all
             the
             Lelges
             .
          
        
         
           
           
             ACT
             against
             Petitions
             for
             alteration
             of
             Acts
             Extracted
             .
             February
             24.
             1680.
             
          
           
             THE
             which
             day
             ,
             the
             Lords
             considering
             ,
             That
             some
             times
             ,
             after
             Acts
             of
             
               Litis
               contestation
            
             are
             Extracted
             ,
             Petitions
             are
             given
             in
             to
             them
             by
             one
             of
             the
             Parties
             ,
             craving
             the
             Act
             to
             be
             altered
             ,
             wherein
             there
             may
             be
             prejudice
             to
             the
             other
             Partie
             concerned
             ;
             not
             being
             present
             ,
             nor
             at
             that
             time
             obliged
             to
             be
             present
             :
             conceiving
             himself
             
               in
               tuto
            
             ,
             after
             Extracting
             of
             the
             Act.
             For
             remeid
             whereof
             ,
             the
             Lords
             declares
             ,
             that
             in
             time
             coming
             ,
             they
             will
             receive
             no
             Bills
             ,
             or
             Supplications
             for
             alteration
             of
             Acts
             after
             the
             Acts
             are
             warantably
             Extracted
             ,
             seing
             both
             Parties
             ,
             or
             either
             of
             them
             may
             have
             a
             sight
             ,
             or
             Scroll
             of
             the
             Act
             before
             Extracting
             ,
             if
             they
             desire
             the
             same
             .
             And
             likewise
             ,
             because
             sometimes
             Bills
             are
             given
             in
             for
             adducing
             of
             Witnesses
             ,
             which
             have
             not
             been
             contained
             in
             the
             first
             Diligence
             ,
             but
             are
             alleadged
             to
             have
             come
             to
             Knowledge
             since
             the
             first
             Diligence
             was
             taken
             out
             ;
             or
             after
             taking
             out
             of
             the
             second
             Diligence
             ,
             whereby
             Witnesses
             come
             to
             be
             Examined
             ,
             when
             the
             other
             Partie
             is
             not
             present
             ,
             nor
             obleiged
             to
             attend
             ,
             that
             they
             may
             either
             object
             against
             the
             hability
             of
             the
             Witnesses
             ,
             or
             propone
             Interrogators
             to
             them
             .
             Therefore
             the
             Lords
             do
             declare
             ,
             that
             in
             case
             upon
             any
             speciallity
             ,
             they
             do
             give
             warrant
             to
             Examine
             any
             Witnesses
             ,
             not
             contained
             in
             the
             first
             and
             second
             Diligence
             ;
             that
             they
             will
             only
             admit
             the
             saids
             Witnesses
             to
             be
             examined
             at
             the
             first
             and
             second
             Terms
             of
             Probation
             ,
             when
             both
             Parties
             are
             obliedged
             to
             attend
             .
          
        
         
           
             His
             Majesties
             Letter
             in
             favours
             of
             the
             Lord
             Register
             anent
             the
             nomination
             of
             the
             Clerks
             of
             Session
             .
             Iune
             8.
             1680.
             
          
           
             
               CHARLES
               R.
               
            
          
           
             RIght
             Trusty
             ,
             and
             well
             beloved
             Councellours
             ,
             and
             Trusty
             ,
             and
             well
             beloved
             ,
             We
             Greet
             you
             well
             :
             Whereas
             ,
             by
             Our
             Letter
             to
             you
             ,
             of
             the
             24.
             of
             May
             ,
             1676.
             
             We
             did
             Ordain
             ,
             That
             the
             three
             Clerks
             of
             the
             Session
             ,
             who
             do
             Expede
             your
             Decre●ts
             ,
             shall
             be
             Nominated
             by
             the
             Senators
             of
             Our
             Colledge
             of
             Iustice
             ,
             in
             all
             time
             coming
             .
             And
             that
             the
             Clerk
             of
             Register
             give
             them
             Deputations
             from
             time
             to
             time
             ;
             without
             prejudice
             to
             the
             Clerk
             of
             Register
             ,
             of
             all
             other
             Benefit
             and
             Emolument
             belonging
             to
             ,
             or
             depending
             upon
             that
             Office.
             And
             seing
             the
             Office
             of
             Clerk
             of
             Register
             was
             then
             Vacant
             ,
             and
             that
             the
             Nomination
             of
             the
             Clerks
             of
             Session
             was
             always
             Inherent
             in
             ,
             and
             Depending
             upon
             the
             office
             of
             Clerk
             of
             Register
             .
             And
             that
             since
             We
             have
             advanced
             Sir
             
               Thomas
               Murray
            
             of
             Glendook
             one
             of
             your
             number
             ,
             to
             the
             said
             Place
             :
             And
             being
             well
             satisfied
             with
             the
             good
             Service
             done
             by
             him
             to
             Vs
             ,
             in
             the
             late
             Convention
             of
             Estates
             ,
             and
             upon
             several
             other
             occasions
             .
             Therefore
             ,
             as
             a
             Mark
             of
             our
             Royal
             favour
             to
             him
             ,
             We
             do
             by
             these
             presents
             ,
             Recall
             our
             said
             Letter
             ,
             anent
             the
             Nomination
             of
             the
             Clerks
             of
             Session
             ;
             and
             do
             Impower
             ,
             Authorize
             and
             Appoint
             the
             the
             said
             Sir
             
               Thomas
               Murray
            
             ,
             during
             his
             enjoyment
             of
             the
             said
             Office
             of
             our
             Clerk
             of
             Register
             ,
             Solely
             to
             nominate
             ,
             and
             appoint
             the
             Clerks
             of
             Session
             .
             So
             that
             upon
             Death
             ,
             Demission
             ,
             and
             Vacancy
             of
             any
             of
             the
             Clerks
             of
             Session
             ,
             the
             said
             Sir
             
               Thomas
               Murray
            
             is
             to
             grant
             Deputations
             ,
             to
             such
             Persons
             as
             he
             shall
             think
             fit
             ,
             and
             that
             during
             their
             Lifetime
             ;
             and
             shall
             as
             absolutely
             amply
             ,
             and
             freely
             
             use
             ,
             and
             exerce
             the
             said
             Office
             of
             Clerk
             of
             Register
             as
             any
             other
             Clerk
             of
             Register
             formerly
             did
             ,
             or
             might
             do
             ,
             declaring
             the
             same
             to
             be
             as
             Effectuall
             to
             the
             said
             Sir
             
               Thomas
               Murray
            
             ,
             as
             to
             his
             sole
             Nomination
             of
             the
             Clerks
             of
             Session
             ,
             as
             if
             it
             had
             been
             contained
             in
             his
             Gift
             ,
             of
             the
             Office
             of
             Clerk
             of
             Register
             .
             And
             ordaining
             these
             Presents
             to
             be
             Recorded
             in
             your
             Books
             of
             Sederunt
             .
             And
             so
             We
             bid
             you
             heartily
             Farewell
             .
          
           
             
               Given
               at
               Our
               Court
               at
               Whitehall
               ,
               
                 the
                 twelfth
                 day
                 of
                 November
                 ,
                 One
                 thousand
                 six
                 hundred
                 seventy
                 and
                 nine
                 .
                 And
                 of
                 Our
                 Reign
                 ,
                 the
                 thirty
                 one
                 year
                 .
              
            
             
               Sic
               subscribitur
               .
               By
               His
               Majesties
               Command
               ,
               LAUDERDAIL
               .
            
          
        
         
           
             ACT
             concerning
             Nottars
             .
             Iuly
             29.
             1680.
             
          
           
             THE
             Lords
             considering
             ,
             That
             by
             Acts
             of
             Parliament
             ,
             it
             is
             Statute
             and
             Ordained
             ;
             That
             Nottars
             be
             sufficiently
             Qualified
             for
             exercing
             that
             Office
             ,
             after
             examination
             by
             the
             Lords
             of
             Session
             ;
             that
             sufficient
             Caution
             be
             found
             ,
             for
             their
             due
             Administration
             of
             their
             Office
             :
             and
             in
             case
             the
             Caution
             be
             not
             sufficient
             ,
             that
             new
             and
             better
             Caution
             be
             found
             :
             and
             after
             the
             Decease
             of
             the
             Nottars
             ,
             their
             Protocalls
             are
             Ordained
             to
             be
             brought
             in
             to
             the
             Clerk
             of
             Register
             ,
             or
             his
             Deputs
             ,
             appointed
             by
             him
             to
             that
             effect
             ,
             who
             is
             impowred
             to
             Revise
             the
             Protocalls
             of
             all
             Nottars
             ,
             and
             consider
             in
             what
             Condition
             they
             are
             .
             And
             albeit
             the
             due
             observance
             of
             these
             Acts
             of
             Parliament
             ,
             be
             a
             publick
             Concern
             ,
             as
             to
             the
             interest
             ,
             and
             security
             of
             the
             whole
             Leiges
             ;
             Yet
             the
             saids
             Lords
             understanding
             ,
             that
             by
             reason
             of
             the
             late
             Troubles
             ,
             and
             the
             Confusions
             ensuing
             thereupon
             .
             Especially
             during
             the
             time
             of
             the
             Usurpers
             ,
             these
             Acts
             have
             been
             neglected
             to
             be
             put
             in
             Execution
             :
             In
             so
             far
             ,
             as
             many
             Nottars
             are
             Deceased
             ,
             whos
             's
             Protocals
             are
             not
             returned
             to
             the
             Clerk
             of
             Register
             ,
             or
             his
             Deputes
             ;
             but
             do
             remain
             in
             the
             hands
             of
             their
             Relicts
             ,
             and
             Children
             ,
             which
             occasions
             divers
             inconveniencies
             ,
             and
             divers
             of
             their
             Protocalls
             are
             upon
             perusal
             ,
             found
             to
             be
             Defective
             ,
             and
             Unformal
             :
             and
             some
             of
             their
             Cautioners
             are
             not
             sufficient
             .
             Likeas
             ,
             divers
             Persons
             pretending
             to
             have
             been
             admitted
             under
             the
             Usurpers
             ,
             do
             presume
             to
             Officiat
             as
             Nottars
             ,
             albeit
             they
             be
             not
             lawfully
             Authorized
             so
             to
             do
             .
             For
             redresse
             of
             which
             abuses
             and
             disorders
             ,
             The
             Lords
             do
             Ordain
             Letters
             to
             be
             direct
             at
             the
             Instance
             of
             the
             Clerk
             of
             Register
             ,
             or
             his
             Deput
             ,
             Clerk
             to
             the
             admission
             of
             Nottars
             ,
             for
             charging
             the
             Relict
             ,
             and
             Executors
             of
             such
             Persons
             as
             are
             Decea●ed
             ,
             and
             their
             Cautioners
             ,
             to
             bring
             in
             ,
             and
             deliver
             to
             them
             the
             Protocall
             Books
             of
             the
             saids
             Nottars
             ,
             conform
             to
             the
             Act
             of
             Parliament
             ,
             and
             their
             Respective
             Acts
             of
             Admission
             .
             And
             also
             Ordains
             General
             Letters
             to
             be
             Direct
             ,
             at
             the
             Instance
             of
             the
             Clerk
             of
             Register
             or
             his
             said
             Deput
             ;
             for
             charging
             such
             Nottars
             ,
             as
             they
             are
             informed
             to
             have
             Protocalls
             Detective
             ,
             or
             Informal
             ,
             to
             produce
             their
             Protocalls
             before
             the
             said
             Deput
             ,
             at
             the
             head
             Burgh
             of
             the
             Shire
             ,
             where
             the
             Nottar
             does
             Reside
             ;
             and
             where
             the
             Cautioners
             found
             for
             any
             Nottar
             is
             insufficient
             ,
             to
             charge
             that
             Nottar
             to
             find
             new
             ,
             and
             more
             sufficient
             Caution
             .
             And
             Ordain
             these
             General
             Letters
             to
             be
             Execute
             upon
             six
             days
             ,
             and
             that
             against
             such
             Particular
             Persons
             ,
             only
             as
             shall
             be
             given
             in
             a
             List
             ,
             under
             the
             hand
             of
             the
             Clerk
             of
             Register
             .
             And
             the
             saids
             Lords
             do
             hereby
             prohibit
             ,
             and
             discharge
             all
             Persons
             who
             were
             admitted
             Nottars
             ,
             under
             the
             Usurpers
             ,
             to
             Officiat
             as
             Nottars
             ,
             
             untill
             they
             be
             of
             new
             admitted
             .
             And
             the
             saids
             Lords
             considering
             ,
             that
             it
             is
             Statute
             and
             Ordained
             by
             Acts
             of
             Parliament
             ,
             and
             specially
             by
             the
             78.
             
             
               Act
               Parliament
               5.
               
               Iames
            
             5.
             
             That
             all
             Sheriffs
             ,
             Stuarts
             ,
             Bailzies
             and
             others
             ,
             both
             to
             B●rgh
             and
             Land
             shall
             present
             their
             Clerks
             in
             presence
             of
             the
             Lords
             of
             Session
             ,
             to
             be
             Examined
             ,
             Sworn
             and
             admitted
             by
             them
             :
             and
             seing
             the
             Clerks
             of
             these
             Courts
             have
             neglected
             for
             some
             time
             by
             past
             ,
             ●o
             compear
             before
             the
             saids
             Lords
             ,
             to
             be
             tryed
             and
             approven
             by
             them
             :
             and
             it
             being
             necessary
             ,
             and
             the
             publick
             Interest
             of
             the
             Leidges
             ,
             that
             these
             Acts
             of
             Parliament
             be
             punctually
             observed
             in
             time
             coming
             .
             Therefore
             the
             saids
             Lords
             do
             ordain
             and
             require
             all
             persons
             ,
             who
             hereafter
             shall
             be
             nominate
             Sheriff
             Clerks
             ,
             Clerks
             of
             S●ewartries
             ,
             and
             Bailiries
             ,
             before
             they
             enter
             to
             ,
             and
             exerce
             their
             Office
             of
             Clerkship
             ,
             to
             compear
             before
             the
             saids
             Lords
             ,
             that
             they
             may
             be
             tryed
             and
             approven
             by
             them
             ,
             conform
             to
             the
             Act
             of
             Parliament
             ,
             Certifying
             them
             ,
             if
             they
             failzie
             therein
             ,
             they
             shall
             be
             deprived
             of
             their
             Offices
             .
          
        
         
           
             ACT
             concerning
             Bills
             of
             Suspension
             .
             November
             9.
             1630.
             
          
           
             THE
             Lords
             considering
             ,
             that
             by
             former
             Acts
             of
             Sederunt
             ,
             of
             the
             9.
             of
             February
             1675.
             and
             the
             3.
             of
             Iuly
             1677
             ,
             They
             did
             give
             Warrant
             to
             the
             Ordinary
             upon
             the
             Bills
             ,
             to
             allow
             a
             sight
             of
             a
             Bill
             of
             Suspension
             ,
             to
             the
             Charger
             ,
             and
             to
             stop
             Execution
             for
             some
             time
             ,
             not
             exceeding
             a
             Moneth
             ,
             declaring
             also
             ,
             that
             a
             Bill
             of
             Suspension
             signed
             by
             the
             Ordinary
             ,
             though
             not
             expeded
             at
             the
             Signet
             ,
             should
             import
             a
             stop
             of
             Execution
             for
             the
             space
             of
             fourteen
             dayes
             ,
             from
             the
             date
             it
             was
             signed
             ,
             that
             in
             the
             mean
             time
             sufficient
             Caution
             might
             be
             found
             ,
             and
             that
             the
             Clerk
             of
             the
             Bills
             might
             enquire
             anent
             the
             condition
             of
             the
             Cautioner
             .
             And
             now
             finding
             that
             abuses
             have
             crept
             in
             ,
             stops
             being
             procured
             from
             several
             Ordinaries
             ,
             from
             time
             to
             time
             ,
             and
             that
             when
             the
             first
             fourteen
             dayes
             after
             ,
             a
             signed
             Bill
             were
             elapsed
             ,
             a
             new
             one
             was
             presented
             and
             past
             ,
             which
             stopped
             Execution
             for
             other
             fourteen
             dayes
             ,
             and
             so
             might
             continue
             for
             a
             long
             time
             .
             Therefore
             the
             Lords
             do
             declare
             ,
             that
             they
             will
             give
             no
             stops
             of
             Execution
             hereafter
             ,
             upon
             Bills
             of
             Suspension
             ,
             fourteen
             dayes
             from
             the
             date
             being
             a
             sufficient
             time
             ,
             both
             for
             seeing
             and
             expeding
             the
             Bill
             .
             And
             Declares
             all
             other
             stops
             to
             be
             void
             ,
             except
             where
             Causes
             are
             ordained
             by
             the
             Lords
             ,
             to
             be
             Discust
             upon
             Bills
             ;
             and
             ordains
             the
             Clerk
             of
             the
             Bills
             to
             make
             a
             Minut-book
             ,
             both
             of
             past
             and
             refused
             Bills
             ,
             by
             the
             Alphabetick
             Order
             of
             the
             Parties
             sirnames
             ,
             which
             he
             is
             to
             make
             patent
             to
             any
             Charger
             that
             shall
             desire
             to
             see
             the
             same
             ,
             gratis
             ,
             and
             discharges
             him
             to
             present
             any
             new
             Bills
             in
             that
             Cause
             except
             to
             the
             whole
             Lords
             in
             time
             of
             Session
             ,
             or
             to
             three
             Lords
             in
             time
             of
             Vacance
             ,
             as
             he
             will
             be
             answerable
             at
             his
             peril
             ;
             and
             because
             Parties
             ,
             or
             their
             Procurators
             ,
             are
             accustomed
             to
             procure
             Suspensions
             ,
             upon
             pretence
             ,
             that
             the
             Copy
             of
             the
             Charge
             given
             by
             the
             Messenger
             is
             general
             ,
             or
             unformal
             ;
             and
             for
             verrifying
             thereof
             ,
             do
             produce
             forged
             Copies
             ,
             and
             sometime
             forged
             Writes
             ,
             for
             instructing
             Reasons
             of
             Suspension
             ,
             founded
             thereupon
             ,
             never
             intending
             to
             make
             use
             of
             the
             same
             ;
             and
             therefore
             do
             suffer
             Protestations
             to
             pass
             .
             For
             remeid
             whereof
             ,
             the
             Lords
             do
             declare
             ,
             that
             if
             the
             Charger
             shall
             produce
             such
             a
             Suspension
             ,
             or
             a
             duplicat
             thereof
             ,
             under
             the
             hand
             of
             the
             Keeper
             of
             the
             Signet
             ,
             that
             in
             that
             case
             ,
             the
             Lords
             ,
             besides
             the
             ordinary
             expenses
             of
             Protestation
             ,
             will
             modifie
             large
             Expenses
             to
             the
             Charger
             ,
             for
             his
             delay
             ;
             and
             in
             case
             Protestation
             shall
             not
             be
             admitted
             but
             
             the
             Suspension
             shal
             come
             to
             be
             Discust
             :
             and
             at
             the
             Discussing
             the
             Charge
             ,
             or
             other
             Writes
             mentioned
             in
             the
             Reason
             of
             Suspension
             ,
             be
             not
             produced
             :
             The
             Lords
             Declares
             ,
             they
             will
             hold
             these
             Writes
             false
             and
             sorged
             ,
             and
             modifie
             large
             Expenses
             to
             the
             Charger
             ,
             but
             pr●judice
             to
             insist
             against
             the
             forger
             of
             the
             saids
             Copies
             or
             Writes
             ;
             and
             ordain
             a
             Copy
             of
             this
             Act
             ,
             and
             of
             the
             other
             two
             Acts
             above-mentioned
             ,
             to
             be
             affixed
             upon
             the
             Wall
             of
             the
             Outter-House
             ,
             and
             Copies
             thereof
             to
             be
             delivered
             to
             the
             Clerk
             of
             the
             Bills
             ,
             to
             remain
             affixed
             on
             the
             Wall
             of
             the
             Bill-Chamber
             ,
             that
             he
             may
             exactly
             observe
             the
             same
             .
          
        
         
           
             ACT
             anent
             the
             marking
             of
             Advocats
             Compearance
             for
             Defenders
             .
             November
             25.
             1680.
             
          
           
             THE
             Lords
             declares
             ,
             that
             in
             time
             coming
             ,
             where
             several
             Defenders
             are
             conveened
             in
             one
             Summonds
             ;
             and
             that
             at
             the
             calling
             thereof
             by
             the
             Clerk
             ,
             an
             Advocat
             shall
             be
             marked
             ,
             compearing
             indefinitly
             for
             the
             Defenders
             ,
             and
             who
             shall
             likewise
             return
             the
             Process
             :
             that
             Advocat
             shall
             be
             holden
             compearing
             for
             all
             the
             Defenders
             ,
             unless
             by
             the
             return
             upon
             the
             Process
             ,
             he
             qualifie
             his
             Compearance
             ,
             and
             express
             ,
             for
             which
             of
             the
             Defenders
             he
             compears
             ,
             and
             for
             which
             of
             them
             he
             doth
             not
             compear
             .
          
        
         
           
             ACT
             in
             favours
             of
             the
             Macers
             .
             February
             15.
             1681.
             
          
           
             THE
             which
             day
             ,
             there
             being
             a
             Petition
             given
             in
             to
             the
             Lords
             ,
             by
             their
             four
             ordinary
             Macers
             ,
             representing
             ,
             that
             where
             the
             Lords
             are
             in
             use
             upon
             application
             of
             Parties
             to
             grant
             Commissions
             for
             taking
             the
             Oaths
             of
             Parties
             ,
             and
             the
             Depositions
             of
             Witnesses
             in
             Causes
             ,
             where
             it
             appears
             by
             Testificats
             produced
             ,
             that
             the
             Parties
             or
             Witnesses
             ,
             are
             through
             age
             and
             infirmity
             ,
             unable
             to
             travel
             .
             And
             sometimes
             Commissions
             are
             grantted
             ,
             where
             the
             persons
             live
             at
             a
             great
             distance
             ,
             and
             the
             matter
             is
             of
             Small
             moment
             :
             By
             granting
             of
             which
             Commissions
             ,
             the
             Petitioners
             are
             frustrate
             of
             the
             Dues
             payable
             to
             them
             ,
             in
             case
             the
             Parties
             and
             Witnesses
             did
             come
             here
             and
             Depone
             before
             the
             Lords
             ;
             and
             therefore
             craving
             that
             they
             might
             have
             their
             Dues
             ,
             for
             Parties
             and
             Witnesses
             ,
             where
             they
             are
             Examined
             by
             Commission
             :
             which
             being
             taken
             to
             consideration
             by
             the
             saids
             Lords
             ,
             they
             Ordain
             ,
             that
             in
             time
             coming
             ,
             where
             Commissions
             shall
             be
             granted
             by
             the
             Lords
             ,
             for
             Examining
             Parties
             or
             Witnesses
             ,
             that
             the
             Macers
             shall
             have
             the
             half
             of
             the
             Dues
             which
             are
             payed
             to
             them
             ,
             when
             Parties
             and
             Witnesses
             do
             compear
             before
             the
             Lords
             and
             Depone
             ,
             viz.
             twelve
             shilling
             scots
             for
             ilk
             Party
             to
             be
             Examined
             by
             Commission
             ,
             to
             be
             payed
             in
             manner
             following
             ,
             viz.
             where
             a
             Commission
             is
             granted
             for
             taking
             a
             Parties
             Oath
             ,
             that
             the
             Dues
             be
             payed
             to
             
               Francis
               Scot
            
             ,
             Keeper
             of
             the
             Minut-book
             ,
             within
             fourty
             eight
             hours
             after
             the
             Commission
             shall
             be
             put
             up
             in
             the
             Minut-book
             ,
             and
             in
             case
             the
             same
             be
             not
             payed
             within
             that
             space
             ,
             that
             the
             Commission
             shall
             be
             delet
             out
             of
             the
             Minut-book
             ,
             and
             not
             Extracted
             until
             the
             same
             be
             put
             up
             again
             ,
             and
             the
             Dues
             payed
             ;
             and
             that
             the
             saids
             Dues
             for
             Witnesses
             be
             payed
             at
             the
             return
             of
             the
             Report
             and
             Commission
             ,
             before
             an
             avisandum
             be
             put
             up
             thereof
             in
             the
             Minut-book
             :
             And
             to
             the
             end
             ,
             the
             number
             of
             the
             Witnesses
             may
             be
             known
             ,
             that
             the
             Person
             to
             whom
             the
             Commission
             is
             granted
             ,
             shall
             set
             down
             upon
             the
             back
             of
             the
             Commission
             ,
             or
             Report
             ,
             a
             list
             subscribed
             by
             him
             ,
             of
             the
             Witnesses
             names
             :
             and
             the
             Clerks
             
             are
             hereby
             Ordered
             ,
             to
             insert
             in
             the
             Commission
             a
             Warrant
             to
             the
             Commissioner
             to
             transmit
             that
             list
             with
             the
             Report
             of
             the
             Comission
             ;
             and
             that
             
               Francis
               Scot
            
             attest
             under
             his
             hand
             ,
             that
             payment
             is
             made
             to
             him
             of
             the
             saids
             Dues
             ,
             before
             an
             avisandum
             be
             put
             up
             of
             the
             Report
             in
             the
             Minute-Book
             .
          
        
         
           
             ACT
             anent
             Seasins
             and
             Reversions
             of
             Lands
             within
             Burgh
             .
             February
             22.
             1681.
             
          
           
             THE
             Lords
             of
             Council
             and
             Session
             considering
             ,
             that
             the
             Act
             of
             Parliament
             1617.
             anent
             the
             Registration
             of
             Seasins
             and
             Rev●rsions
             of
             all
             Lands
             and
             Annualrents
             ,
             there
             is
             an
             exception
             of
             Land
             and
             Annualrents
             lying
             within
             Burgh
             ,
             and
             within
             the
             Burgage
             Lands
             of
             Royall
             Burrows
             ,
             which
             is
             supposed
             to
             have
             been
             upon
             account
             of
             the
             Books
             of
             the
             Town
             Clerks
             of
             Royal
             Burrows
             ,
             wherein
             the
             Seasins
             and
             Reversions
             of
             such
             Lands
             might
             be
             found
             .
             Nevertheless
             the
             Lords
             finds
             ,
             that
             not
             only
             Seasins
             within
             Burgh
             ,
             are
             sometimes
             omitt●d
             ,
             and
             not
             found
             insert
             in
             the
             Town
             Clerk
             Books
             :
             But
             that
             frequently
             ,
             Reversions
             of
             Tenements
             and
             Annualrents
             within
             Burgh
             ,
             and
             Assignations
             to
             ,
             and
             Discharges
             of
             Reversions
             ,
             and
             Bonds
             for
             granting
             such
             Reversions
             ,
             are
             not
             to
             be
             found
             in
             the
             saids
             Books
             ,
             to
             the
             great
             detriment
             of
             the
             Leidges
             ,
             and
             especially
             of
             the
             Inhabitants
             of
             the
             saids
             Royal
             Burrows
             .
             For
             Remeid
             whereof
             ,
             the
             Lords
             do
             appoint
             and
             ordain
             ,
             the
             Magistrates
             of
             Royal
             Burrows
             ,
             and
             their
             Successours
             in
             Office
             ,
             to
             take
             good
             Caution
             and
             Surety
             of
             their
             Town
             Clerks
             ,
             that
             now
             are
             ,
             or
             shall
             be
             in
             Office
             ,
             that
             they
             insert
             in
             their
             Books
             ,
             all
             Seasins
             of
             Lands
             ,
             Tenements
             ,
             and
             Annualrents
             within
             their
             respective
             Burghs
             ,
             or
             Burrow-lands
             ;
             and
             of
             all
             Reversions
             ,
             Bonds
             for
             granting
             Reversions
             ,
             Assignations
             to
             ,
             and
             Discharges
             of
             Reversions
             ,
             Renounciations
             ,
             and
             grants
             of
             Redemption
             ,
             of
             any
             Tenements
             ,
             or
             Annualrents
             within
             their
             Burghs
             ,
             or
             Burgage
             Lands
             ,
             that
             shall
             be
             given
             at
             any
             time
             hereafter
             ,
             within
             the
             space
             of
             threscore
             dayes
             ,
             from
             the
             dates
             thereof
             respective
             ,
             in
             like
             manner
             as
             is
             prescribed
             by
             Act
             of
             Parliament
             ,
             anent
             the
             Registration
             of
             Seasins
             ,
             or
             Reversions
             of
             Lands
             without
             Burgh
             :
             and
             that
             the
             said
             Surety
             be
             under
             the
             pain
             of
             the
             damnage
             that
             shall
             befall
             to
             any
             Party
             ,
             through
             the
             Latency
             of
             the
             saids
             Writes
             ,
             which
             shall
             be
             past
             by
             the
             saids
             Clerks
             ,
             or
             presented
             to
             them
             to
             be
             insert
             in
             their
             saids
             Books
             .
             Likeas
             ,
             the
             Lords
             ordains
             the
             saids
             Magistrates
             to
             insert
             an
             Act
             hereupon
             ,
             in
             their
             Town
             Court
             Books
             ,
             and
             to
             cause
             publish
             the
             same
             by
             Tuck
             of
             Drum
             ,
             that
             none
             pretend
             ignorance
             .
             And
             further
             ,
             the
             Lords
             do
             Declare
             ,
             that
             if
             any
             Party
             shall
             neglect
             to
             insert
             their
             Seasins
             ,
             Reversions
             ,
             Bonds
             for
             granting
             of
             Reversions
             ,
             Assignations
             to
             ,
             and
             Discharges
             of
             Reversions
             ,
             Renounciations
             and
             grants
             of
             Redemption
             ,
             in
             manner
             foresaid
             ,
             that
             the
             Lords
             will
             hold
             and
             repute
             them
             as
             latent
             and
             fraudulent
             Deeds
             ,
             keeped
             up
             of
             design
             ,
             to
             deceive
             and
             prejudge
             the
             Purchasers
             of
             Tenements
             and
             Annualrents
             within
             Burgh
             ,
             
               bona
               fide
            
             ,
             for
             just
             and
             onerous
             Causes
             ;
             and
             ordains
             the
             Provost
             of
             Edinburgh
             ,
             to
             intimate
             this
             Act
             to
             the
             Commissioners
             of
             the
             Royal
             Burrows
             ,
             at
             the
             next
             Convention
             of
             Burrows
             ,
             And
             ordains
             thir
             Presents
             to
             be
             Printed
             ,
             and
             Published
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             and
             other
             places
             needful
             .
          
        
      
       
         
         
         
           CERTAIN
           DECISIONS
           Of
           several
           Debates
           ,
           Intented
           and
           Debated
           BEFORE
           THE
           LORDS
           OF
           COUNCIL
           &
           SESSION
           ,
           IN
           Some
           Weighty
           and
           Important
           Affairs
           ,
           brought
           before
           them
           .
        
         
           Beginning
           the
           29.
           of
           June
           1661.
           and
           ending
           in
           July
           1681.
           
        
         
           
             Iames
             Talzifer
             contra
             Maxtoun
             and
             Cunninghame
             .
             Iune
             29.
             1661.
             
          
           
             
               IOHN
               KER
            
             ,
             Merchant
             in
             Edinburgh
             ,
             having
             an
             Wodset-Right
             of
             some
             Tenements
             in
             
               Edinburgh
               ,
               William
               Clerk
            
             his
             Creditor
             ,
             Comprized
             the
             Wodset-Right
             from
             him
             ,
             and
             obtained
             Decreet
             of
             Removing
             ,
             against
             the
             Tennents
             of
             the
             Tenements
             ;
             
               Iames
               Tailzifer
            
             having
             Right
             to
             the
             Reversion
             of
             the
             said
             Wodset
             ,
             consigned
             the
             Sum
             for
             which
             the
             Wodset
             was
             granted
             ,
             in
             the
             hands
             of
             the
             Clerk
             of
             the
             Bills
             ,
             and
             thereupon
             obtained
             a
             Suspension
             of
             the
             Decreet
             of
             Removing
             ;
             and
             thereafter
             having
             obtained
             Right
             from
             
               William
               Clerk
            
             ,
             to
             his
             Appryzing
             ,
             did
             ,
             by
             Supplication
             ,
             desire
             the
             sum
             Consigned
             by
             him
             ,
             to
             be
             given
             up
             to
             himself
             ;
             1.
             
             Because
             
             the
             Consignation
             was
             not
             orderly
             made
             ,
             conform
             to
             the
             Reversion
             .
             And
             ,
             2.
             
             Though
             it
             had
             been
             orderly
             ,
             yet
             before
             Declarator
             ,
             he
             might
             pass
             from
             the
             Consignation
             ,
             and
             take
             up
             his
             Money
             ,
             whereby
             the
             Wodset
             Right
             wou●d
             remain
             unprejudged
             .
             3.
             
             The
             Wodset-Right
             being
             now
             returned
             to
             himself
             ,
             by
             acquiring
             Clerks
             Appryzing
             ,
             he
             had
             thereby
             Right
             to
             the
             sum
             Consigned
             ,
             for
             Redemption
             of
             the
             Wodset
             :
             Compearance
             was
             made
             for
             Maxtoun
             and
             Cunningham
             ,
             for
             whom
             it
             was
             alledged
             that
             the
             consigned
             Sum
             ought
             to
             be
             give
             up
             to
             them
             ;
             because
             ,
             before
             
               William
               Clerks
            
             Appryzing
             ,
             they
             and
             
               William
               Clerk
            
             ,
             had
             joyntly
             obtained
             from
             the
             King
             ,
             a
             Gift
             of
             the
             Escheat
             ,
             and
             Liferent
             of
             the
             said
             
               Iohn
               Ker
            
             ,
             who
             had
             been
             year
             and
             day
             at
             the
             Horn
             ,
             before
             
               Welliam
               Clerk
            
             Appryzed
             from
             him
             ;
             so
             that
             the
             sum
             Consigned
             ,
             being
             now
             moveable
             ,
             fell
             under
             
               Kers
               E●chea●
            
             ,
             and
             thereby
             they
             have
             R●ght
             to
             two
             third
             parts
             thereof
             ,
             and
             Clerk
             or
             Tailzifer
             by
             his
             Right
             ,
             can
             only
             have
             the
             other
             third
             ;
             and
             if
             the
             Sum
             were
             not
             ●ound
             to
             fall
             under
             Kers
             E●cheat
             ,
             the
             Annualrent
             thereof
             ,
             during
             K●rs
             〈◊〉
             would
             fall
             to
             the
             three
             Donators
             of
             his
             Liferent
             equally
             ,
             and
             the
             ●um
             ought
             to
             be
             given
             out
             ,
             in
             security
             to
             them
             for
             their
             Liferent
             ;
             and
             to
             Tailzifer
             ,
             as
             having
             Right
             to
             Clerks
             Appryzing
             in
             Fee
             ,
             except
             the
             third
             ,
             thereto
             Clerk
             had
             Right
             as
             joynt
             Donator
             with
             them
             ;
             neither
             could
             Tailzifer
             pass
             from
             his
             Confignation
             ,
             seeing
             th●y
             accepted
             thereof
             ;
             nor
             could
             he
             object
             against
             any
             informality
             in
             the
             Consignation
             made
             by
             himself
             ,
             seeing
             they
             past
             from
             that
             objection
             .
             It
             was
             answered
             for
             Tailzifer
             ,
             that
             Maxtoun
             and
             Cunninghame
             had
             no
             Right
             by
             the
             single
             Escheat
             of
             Ker
             ;
             because
             before
             the
             Consignation
             ,
             by
             which
             it
             is
             pretended
             the
             Consigned
             Sum
             became
             moveable
             ,
             Ker
             was
             den●ded
             by
             Clerks
             Appryzing
             :
             So
             that
             the
             Consigned
             Sum
             came
             in
             place
             of
             the
             Appryzing
             .
             It
             was
             answered
             for
             Maxtoun
             and
             Cunninghame
             ,
             that
             albei●
             the
             Apprizing
             might
             carry
             the
             Stock
             and
             Fee
             of
             the
             Consigned
             Sum
             ;
             yet
             the
             Liferent
             of
             the
             Annualrent
             thereof
             ,
             belongs
             to
             the
             three
             joynt
             Donators
             of
             Kers
             Liferent
             ,
             seeing
             Ker
             was
             year
             and
             d●y
             Denounced
             ;
             whereby
             
               jus
               fuit
               acquisitum
               domino
               Regi
            
             ,
             before
             
               Welliam
               Clerk
            
             Apprized
             .
             It
             was
             answered
             for
             Tailzifer
             ,
             the
             diligences
             of
             Lawful
             Creditors
             ,
             are
             still
             preferred
             to
             the
             Fisk
             ,
             before
             Declarator
             ,
             and
             here
             that
             was
             no
             Declarator
             ,
             of
             the
             Liferent
             of
             Ker
             :
             and
             therefore
             Clerks
             Appryzing
             must
             carry
             the
             whole
             Right
             of
             the
             Wodset
             ,
             and
             in
             consequence
             of
             the
             Sum
             Consigned
             in
             place
             thereof
             .
             It
             was
             answered
             for
             Maxtoun
             and
             Cunninghame
             ,
             that
             although
             compleat
             Dilligences
             of
             Creditors
             ,
             attaining
             effect
             before
             Declarator
             ,
             are
             not
             lyable
             to
             Re●●i●ution
             ,
             in
             single
             Escheats
             ,
             it
             is
             not
             so
             in
             Liferent-escheats
             ;
             especially
             where
             the
             Diligence
             is
             not
             compleat
             ,
             
               ●n
               cursu
               rebellionis
            
             ,
             as
             in
             this
             case
             ,
             and
             likewise
             
               Clerk
               ,
               Tailzifers
            
             author
             had
             homologat
             the
             Right
             of
             Liferent
             ,
             by
             concurring
             with
             them
             ,
             founding
             thereon
             in
             many
             Process●s
             .
          
           
             The
             Lords
             found
             the
             Alleadgence
             for
             Maxtoun
             and
             Cunninghame
             ,
             upon
             the
             joynt
             Gift
             of
             Kers
             Liferent
             ,
             Homologate
             ,
             as
             said
             is
             ,
             relevant
             and
             proven
             ;
             and
             therefore
             ,
             ordained
             the
             Consigned
             Money
             to
             be
             given
             up
             to
             Tailzifer
             ,
             who
             by
             vertue
             of
             his
             Right
             to
             Clerks
             Appryzing
             ,
             had
             the
             Right
             of
             the
             Stock
             thereof
             ,
             and
             ordained
             him
             to
             imploy
             the
             same
             ,
             or
             give
             Security
             for
             the
             Annualrent
             ,
             of
             two
             third
             parts
             thereof
             to
             Maxtoun
             and
             Cunninghame
             ,
             during
             John
             Ker's
             Lifetime
             .
          
        
         
           
           
             Major
             of
             Bervick
             ,
             contra
             L.
             of
             Hayning
             .
             Iune
             1.
             1661.
             
          
           
             THE
             Major
             of
             Bervick
             ,
             and
             others
             having
             right
             to
             the
             Salmond
             Fishing
             in
             Tweed
             ,
             within
             Bervick
             bounds
             ,
             gave
             in
             a
             Supplication
             to
             the
             Parliament
             ,
             against
             the
             Laird
             of
             Hayning
             ,
             bearing
             ,
             that
             he
             was
             now
             drayning
             a
             Loch
             ,
             which
             fell
             into
             the
             Water
             of
             Etrick
             ,
             and
             thence
             into
             the
             Water
             of
             Tweed
             ,
             which
             had
             given
             a
             red
             Tinctur
             to
             all
             the
             River
             to
             the
             Sea
             ,
             most
             noysom
             to
             the
             Salmond
             ,
             which
             were
             found
             never
             to
             swime
             where
             the
             said
             Tinctur
             was
             ,
             but
             in
             other
             clearer
             places
             of
             the
             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
             ,
             
             nor
             was
             he
             working
             contrary
             Nature
             ,
             but
             helping
             it
             ,
             by
             redding
             the
             passage
             ,
             to
             let
             the
             Loch
             run
             quickly
             away
             .
             2dly
             .
             Albeit
             he
             might
             make
             no
             new
             work
             on
             his
             own
             ground
             ,
             to
             the
             Detriment
             of
             his
             Neighbours
             Propertie
             ,
             yet
             might
             he
             well
             send
             away
             any
             stagnant
             water
             ,
             corruption
             or
             filth
             ,
             by
             a
             publick
             River
             ,
             whereof
             one
             prime
             use
             is
             to
             purge
             the
             earth
             of
             all
             corruption
             ,
             and
             to
             carry
             it
             to
             the
             Sea
             ,
             and
             therefore
             the
             Corruption
             ,
             not
             only
             of
             Men
             ,
             and
             Beasts
             ,
             but
             of
             the
             Earth
             ,
             as
             of
             Minerals
             ,
             Coal-pits
             ,
             Lime
             ,
             and
             all
             others
             might
             be
             freely
             turned
             thereunto
             ,
             unlesse
             there
             were
             a
             positive
             Law
             or
             Custome
             to
             the
             contrair
             ,
             albeit
             there
             may
             be
             detriment
             of
             Fishing
             ,
             which
             is
             but
             a
             Casualitie
             ,
             and
             must
             carry
             the
             accident
             of
             such
             inconvenience
             along
             with
             it
             .
             And
             as
             for
             the
             
               Roman
               Interdicts
            
             ,
             they
             neither
             meet
             the
             Case
             ,
             nor
             are
             they
             Laws
             for
             us
             ,
             where
             the
             Civil
             Law
             is
             not
             a
             Law
             ,
             but
             an
             Example
             we
             follow
             freely
             when
             we
             find
             it
             Just
             and
             fit
             .
          
           
             The
             Lords
             were
             Inclined
             to
             refuse
             the
             said
             Bill
             ,
             on
             that
             consideration
             mainly
             ,
             that
             it
             was
             the
             proper
             use
             of
             Rivers
             to
             carry
             away
             the
             Corruption
             and
             Filth
             of
             the
             Earth
             ,
             which
             should
             not
             be
             hindred
             by
             any
             Right
             of
             Fishing
             ,
             which
             is
             but
             a
             Casualiti●
             given
             and
             taken
             with
             the
             common
             use
             of
             the
             River
             ,
             but
             in
             regard
             the
             matter
             was
             remitted
             by
             the
             Parliament
             ,
             who
             might
             ,
             if
             they
             found
             great
             Inconveniency
             make
             a
             Law
             for
             remeid
             thereof
             (
             before
             answer
             )
             The
             Lords
             granted
             Commission
             to
             trye
             the
             condition
             of
             the
             Loch
             ,
             and
             how
             it
             runn
             before
             this
             drayning
             ,
             and
             how
             it
             would
             run
             after
             the
             same
             ,
             and
             how
             long
             the
             drayning
             would
             continue
             ,
             and
             what
             alteration
             was
             in
             the
             Fishing
             of
             Tweed
             thereby
             ,
             and
             what
             appearance
             that
             the
             same
             was
             caused
             by
             the
             drayning
             of
             this
             Loch
             .
          
        
         
           
             Raith
             of
             Edmonstoun
             ,
             Contra
             the
             Laird
             of
             Niddrie
             .
             Iuly
             4.
             1661.
             
          
           
             
               JOhn
               Boid
            
             Merchant
             in
             Edinburgh
             ,
             as
             Assigny
             constitute
             by
             the
             Laird
             of
             of
             Wolmet
             ,
             to
             a
             Decreet
             obtained
             at
             his
             Instance
             ,
             against
             Niddrie
             ,
             for
             payment
             of
             the
             sum
             of
             7000.
             merks
             ,
             for
             which
             he
             gave
             Band
             to
             Wmquhil
             Wolmet
             for
             
               Iames
               Reith
            
             of
             Edmonstoun
             his
             good
             brother
             ,
             as
             an
             Asythment
             for
             the
             Mutilation
             of
             the
             Laird
             of
             Wolmet
             by
             Edmonstoun
             ,
             who
             cut
             off
             Wolmets
             left
             hand
             .
             Niddrie
             Suspended
             on
             double
             Poynding
             ,
             called
             the
             said
             
               Iohn
               Boyd
               ,
               Iean
               Dowglas
            
             ,
             Umquhile
             Wolmets
             Relict
             ,
             and
             the
             said
             
               Iames
               Reith
            
             .
             It
             was
             alledged
             for
             Niddrie
             ,
             and
             the
             said
             
               Iames
               Reith
            
             ,
             that
             the
             Decreet
             did
             bear
             the
             sum
             not
             to
             be
             payable
             till
             their
             were
             delivered
             ,
             a
             sufficient
             Letter
             of
             Slaine
             and
             Remission
             for
             the
             Mutilation
             ,
             but
             the
             Letters
             of
             Slain
             now
             produced
             is
             not
             sufficient
             ,
             because
             it
             did
             bear
             only
             the
             Remission
             of
             an
             accidental
             Mutilation
             ,
             and
             this
             Mutilation
             being
             of
             purpose
             .
             2dly
             .
             It
             was
             only
             subscribed
             by
             Wolmets
             Heir
             ,
             and
             not
             by
             his
             Wife
             ,
             and
             their
             Children
             .
             It
             was
             answered
             for
             the
             Chargers
             ,
             that
             there
             was
             no
             necessity
             of
             a
             Letter
             of
             Slains
             for
             Mutilation
             ,
             but
             the
             Remission
             alone
             was
             sufficient
             .
             2dly
             .
             This
             sum
             was
             granted
             for
             Asythment
             to
             Umquhile
             Wolmet
             himself
             in
             his
             Lifetime
             ,
             and
             the
             Decreet
             mentioned
             a
             Letter
             of
             Slains
             granted
             by
             him
             .
             3dly
             .
             Any
             Interest
             his
             Wife
             or
             Bairns
             could
             have
             ,
             was
             only
             for
             the
             Asythment
             of
             their
             Damnage
             ,
             which
             
             could
             be
             none
             ,
             seeing
             Wolmet
             was
             a
             Landed
             Gentleman
             ,
             and
             did
             not
             intertain
             his
             Family
             by
             his
             handie
             work
             ,
             
               The
               Lords
               Repelled
               the
               Reason
               of
               Suspension
               ;
               In
               respect
               of
               the
               Answer
               on
               the
               Decreet
               and
               Letters
               of
               Slain
               produced
               ,
               which
               they
               found
               Sufficient
               .
            
             It
             was
             also
             alledged
             be
             the
             said
             
               Iean
               Dowglas
            
             ,
             that
             she
             ought
             to
             be
             preferred
             to
             the
             said
             
               Iohn
               Boyd
            
             ,
             because
             she
             had
             arrested
             the
             sum
             long
             before
             his
             Assignation
             .
             It
             is
             answered
             ,
             for
             Boyd
             ,
             the
             Arrestment
             was
             upon
             a
             dependence
             and
             loosed
             ,
             and
             there
             is
             yet
             no
             Decreet
             upon
             the
             Dependence
             .
             It
             is
             answered
             for
             Dowglas
             ,
             That
             the
             loosing
             of
             the
             Arrestment
             would
             have
             freed
             Niddrie
             ,
             if
             he
             had
             actually
             payed
             the
             sum
             ,
             but
             it
             being
             yet
             in
             his
             hand
             ,
             it
             ought
             to
             prefer
             her
             as
             Creditor
             ,
             doing
             first
             Diligence
             ,
             especially
             ,
             seing
             Wolmet
             the
             time
             of
             the
             Assignation
             ,
             was
             Rebel
             ,
             and
             Bankrupt
             .
             
               The
               Lords
               preferred
               the
               Assigny
               ,
               in
               respect
               there
               was
               no
               Decreet
               Extracted
               upon
               the
               Dependence
               :
               Reserving
               to
               the
               Arrester
               after
               sentence
               to
               reduce
               upon
               the
               prior
               diligence
               as
               accords
               ,
            
             &c.
             
          
        
         
           
             Tailizfer
             ,
             Contra
             Maxtoun
             and
             Cuninghame
             .
             Iuly
             6.
             1661.
             
          
           
             IN
             the
             Competition
             betwixt
             
               Tailzifer
               ,
               Maxtoun
            
             and
             Cuninghame
             ,
             mentioned
             Iune
             29.
             
             Where
             Tailzifer
             was
             preferred
             to
             the
             Stock
             of
             the
             sum
             consigned
             ,
             for
             the
             Redemption
             of
             the
             Wodset
             in
             Question
             .
             It
             was
             further
             alledged
             for
             Maxtoun
             ,
             that
             he
             ought
             to
             have
             a
             share
             of
             the
             Stock
             ,
             because
             he
             produced
             a
             mutual
             Band
             betwixt
             himself
             and
             
               William
               Clerk
               ,
               Tailzifers
            
             Author
             ,
             who
             apprysed
             the
             Wodset
             ,
             whereby
             they
             were
             oblidged
             to
             to
             Communicat
             the
             Profit
             that
             should
             accresce
             to
             them
             by
             their
             Actions
             intented
             ,
             and
             to
             be
             intented
             upon
             their
             Rights
             of
             
               Iohn
               Ker
            
             ,
             the
             common
             Debitors
             Lands
             ,
             without
             opposing
             one
             another
             upon
             their
             several
             Apprysings
             ,
             Tailzifer
             answerd
             
               non
               relevat
            
             against
             him
             ,
             who
             was
             a
             singular
             Successor
             ,
             this
             being
             but
             a
             personal
             Band
             of
             his
             Author
             ,
             and
             could
             not
             affect
             his
             Real
             Right
             of
             Apprysing
             ,
             it
             was
             answerd
             for
             
               Maxtoun
               ,
               First
            
             ,
             Albeit
             Apprysings
             and
             Infeftmens
             thereupon
             be
             Real
             Rights
             ,
             in
             some
             respect
             ,
             yet
             in
             many
             others
             ,
             they
             were
             only
             accompted
             as
             Personal
             Rights
             ,
             at
             least
             might
             be
             taken
             away
             by
             Personal
             deeds
             ,
             as
             by
             Intromission
             with
             the
             Maills
             and
             Duties
             of
             the
             Apprized
             Lands
             ,
             or
             by
             payment
             of
             the
             Sums
             therein
             contained
             ,
             which
             would
             be
             valid
             against
             singular
             Successors
             ,
             without
             necessity
             of
             any
             Consignation
             .
             It
             was
             answered
             for
             Tailzifer
             ,
             That
             this
             is
             by
             reason
             of
             the
             Act
             of
             Parliament
             1621.
             
             Declaring
             Apprysings
             satisficable
             by
             Intromission
             with
             the
             Maills
             and
             Duties
             ,
             and
             so
             to
             expire
             
               ipso
               facto
            
             ,
             but
             cannot
             be
             streached
             beyond
             the
             Tenor
             of
             that
             Statute
             ,
             contrair
             the
             nature
             of
             Real
             Rights
             .
             
               The
               Lords
               repelled
               the
               alleadgeance
               for
               Maxtoun
               upon
               the
               Band
               for
               Communication
               ,
               which
               did
               not
               affect
               singular
               Successors
               .
            
             It
             was
             further
             alleadged●
             that
             this
             mutual
             Band
             was
             Homolgat
             by
             Tailzifer
             in
             so
             far
             as
             he
             had
             concurred
             in
             all
             pursuits
             with
             Maxtoun
             conform
             to
             the
             Tenor
             of
             the
             said
             Band
             ,
             and
             had
             uplifted
             the
             Mails
             and
             Duties
             accordingly
             .
             It
             was
             answered
             for
             
               Tailzifer
               ,
               non
               relevat
            
             ,
             to
             infer
             Homologation
             ,
             seeing
             these
             Deeds
             are
             not
             relative
             to
             any
             such
             personal
             Bond
             ,
             which
             Tailzifer
             
             never
             knew
             ,
             and
             therefore
             could
             not
             Homologat
             ;
             whereupon
             Tailzifers
             oath
             was
             taken
             ,
             if
             he
             knew
             the
             same
             ,
             who
             denyed
             :
             And
             thereupon
             the
             alleadgence
             was
             repelled
             .
             Maxtoun
             farther
             alleadged
             ,
             that
             albeit
             there
             had
             been
             no
             more
             ,
             but
             the
             concurrence
             judicially
             ,
             it
             was
             sufficient
             to
             communicat
             the
             Appryzings
             .
             It
             was
             answered
             for
             
               Tailzifer
               ,
               non
               relevat
            
             ,
             unless
             the
             concurrence
             had
             born
             expresly
             ,
             
               to
               communicat
               ,
               for
               the
               concurrence
               only
               to
               exclude
               third
               Parties
               ,
            
             would
             never
             infer
             the
             same
             .
          
           
             The
             Lords
             Repelled
             Maxtoun's
             Alleadgences
             ,
             and
             adhered
             to
             their
             first
             Interlocutor
             .
          
        
         
           
             Colledge
             of
             St.
             Andrews
             Supplicant
             .
             Iuly
             16.
             1661.
             
          
           
             THE
             Colledge
             of
             
               St.
               Andrews
            
             Supplicat
             ,
             that
             in
             respect
             their
             hail
             Rents
             were
             arrested
             ,
             at
             the
             Instance
             of
             Doctor
             Gleig
             ,
             and
             thereby
             they
             were
             not
             able
             to
             intertain
             their
             Table
             and
             Bursers
             ;
             craved
             the
             arrestment
             to
             be
             loosed
             ,
             without
             Caution
             ,
             in
             respect
             they
             were
             an
             Incorporation
             ,
             for
             whom
             no
             body
             would
             be
             Caution
             .
          
           
             The
             Lords
             after
             debating
             the
             Case
             amongst
             themselves
             ,
             whether
             arrestment
             could
             be
             loosed
             without
             Caution
             ,
             or
             upon
             
               juratorie
               cautione
            
             ,
             thought
             it
             could
             not
             ;
             but
             in
             this
             case
             ,
             they
             allowed
             the
             same
             to
             be
             loosed
             ,
             the
             Masters
             of
             the
             Colledges
             giving
             a
             Bond
             ,
             to
             bind
             themselves
             and
             their
             Heirs
             personally
             ,
             for
             what
             should
             be
             uplifted
             by
             any
             of
             them
             ,
             whereby
             every
             Person
             stood
             Caution
             for
             his
             own
             Intromission
             ,
             for
             the
             University
             ,
             they
             not
             being
             otherwayes
             bound
             personaliter
             ,
             but
             only
             
               secundum
               officium
            
             .
          
        
         
           
             Relict
             of
             Robert
             Fleming
             ,
             contra
             Forresters
             .
             Iuly
             17.
             1661.
             
          
           
             THE
             Relict
             of
             
               Robert
               Fleming
            
             ,
             Bailzie
             of
             Edinburgh
             ,
             as
             his
             Executrix
             ,
             Charged
             Forresters
             the
             Bailzies
             Sister
             Daughters
             ,
             to
             pay
             1600.
             merks
             ,
             due
             by
             their
             Father
             ,
             by
             Bond
             ,
             and
             decerned
             against
             them
             as
             lawfully
             Charged
             to
             enter
             Heirs
             to
             him
             nineteen
             years
             ago
             ,
             and
             now
             eiked
             to
             the
             Bailzies
             Testament
             ,
             by
             the
             Charger
             ;
             whereupon
             She
             obtained
             Letters
             of
             Horning
             ,
             Summarly
             ;
             the
             Suspenders
             alleadged
             ,
             the
             Letters
             ought
             to
             be
             Suspended
             simpliciter
             ,
             because
             they
             offered
             a
             Renounciation
             to
             be
             Heirs
             :
             The
             Charger
             answered
             ,
             
               non
               relevat
               post
               sententiam
               et
               tantum
               temporis
               Intervallum
               :
            
             The
             Suspender
             replyed
             ,
             they
             were
             Minors
             the
             time
             of
             the
             Decreet
             ,
             and
             that
             the
             delay
             of
             time
             was
             ,
             because
             their
             Uncle
             never
             Insisted
             ,
             and
             it
             was
             like
             ,
             purposed
             not
             to
             Insist
             .
             The
             Charger
             answered
             ,
             they
             were
             now
             Majors
             ,
             and
             did
             not
             reduce
             
               intra
               annos
               utiles
            
             .
          
           
             The
             Lords
             admitted
             the
             Renunciation
             .
          
        
         
           
           
             Laird
             of
             Buchannan
             .
             contra
             Oseburn
             .
             Iuly
             24.
             1661.
             
          
           
             THE
             Laird
             of
             Buchannan
             Pursues
             ,
             Reduction
             of
             a
             Decreet
             ,
             obtained
             against
             him
             ,
             at
             the
             Instance
             of
             Lieutennent
             Collonel
             Oseburn
             ,
             in
             Anno
             1653.
             upon
             many
             Reasons
             ,
             mainly
             ,
             because
             the
             ground
             of
             the
             Decreet
             was
             only
             a
             Bill
             not
             past
             the
             Signet
             ,
             at
             the
             Instance
             of
             umquhil
             ,
             Mr.
             
               William
               Cunninghame
            
             ,
             continued
             in
             Oseburn
             ,
             after
             his
             decease
             ,
             without
             transferring
             ,
             for
             rectifying
             or
             rescinding
             a
             minute
             of
             Disposition
             ,
             of
             the
             Lands
             of
             Ballindalloch
             ,
             by
             Mr.
             William
             to
             Buchannan
             ,
             put
             in
             the
             hands
             of
             Mr.
             
               David
               Buchannan
            
             ,
             who
             gave
             his
             Ticket
             that
             the
             same
             should
             be
             keeped
             ,
             until
             it
             were
             perfeited
             according
             to
             Equity
             and
             Justice
             ;
             and
             Deponed
             ,
             that
             the
             Point
             to
             be
             rectified
             ,
             was
             only
             the
             warrandice
             which
             in
             the
             Minute
             was
             absolute
             ,
             upon
             which
             Bills
             ,
             the
             then
             Judges
             ,
             ordained
             the
             Parties
             to
             submit
             ,
             who
             accordingly
             submitted
             to
             four
             Friends
             ,
             and
             two
             Overs-men
             ,
             who
             were
             to
             report
             ,
             February
             10.
             1653.
             
             Which
             Oversmen
             did
             unwarrantably
             report
             ,
             after
             the
             expyring
             of
             the
             said
             Reference
             ,
             upon
             the
             19.
             of
             February
             ,
             to
             Buchannans
             great
             prejudice
             ,
             contrair
             to
             Justice
             ,
             in
             so
             far
             as
             they
             ordained
             him
             to
             pay
             Oseburn
             sixteen
             years
             Purchase
             ,
             for
             the
             price
             of
             the
             Lands
             ,
             without
             Production
             or
             Debating
             of
             the
             Parties
             Rights
             ,
             or
             calling
             ,
             or
             hearing
             the
             Arbiters
             ;
             and
             with
             warrandice
             from
             Oseburn
             ,
             and
             his
             Goodfathers
             Fact
             ,
             and
             Deed
             only
             ,
             albeit
             the
             Lands
             were
             insecure
             ,
             holden
             Ward
             ,
             and
             lying
             in
             the
             Highlands
             .
             And
             found
             the
             Rental
             of
             the
             Lands
             to
             be
             five
             thousand
             merks
             yearly
             ,
             without
             distinguishing
             between
             Stock
             and
             Teind
             ,
             though
             the
             Testimony
             of
             the
             Witnesses
             proves
             not
             above
             three
             thousand
             merks
             ,
             beside
             the
             Teind
             ;
             of
             which
             Lands
             ,
             Oseburn
             nor
             his
             Good-father
             ,
             had
             neither
             Title
             nor
             Possession
             of
             
               Buchanbeg
               ;
               Buchanmore
            
             and
             Ballochroon
             ,
             which
             are
             parts
             of
             Ballandoloch
             ,
             whereunto
             the
             Judges
             did
             unjustly
             interpone
             their
             authority
             ,
             superceeding
             twenty
             thousand
             merks
             ,
             until
             the
             Right
             of
             
               Buchanbeg
               ,
               Buchanmore
            
             and
             Ballachroon
             ,
             were
             discussed
             ;
             and
             whereas
             the
             Decreet
             bears
             ,
             
               Buchannan
               to
               have
               consented
            
             ,
             he
             denyed
             the
             same
             ,
             neither
             was
             there
             any
             minut
             of
             Process
             taken
             upon
             the
             day
             of
             his
             alleadged
             consent
             ;
             but
             by
             an
             Ordinance
             of
             the
             Judges
             half
             a
             year
             thereafter
             ,
             made
             upon
             their
             memory
             ,
             which
             cannot
             prove
             against
             him
             ,
             not
             being
             subscribed
             by
             him
             ,
             at
             least
             he
             might
             have
             resiled
             ,
             
               re
               integra
            
             ,
             before
             extracting
             the
             Decreet
             ,
             as
             he
             did
             .
             The
             Defender
             answered
             ,
             that
             whatever
             was
             the
             ground
             of
             the
             Processes
             ,
             yet
             there
             was
             a
             Submission
             subscribed
             by
             both
             Parties
             ,
             and
             a
             Report
             by
             the
             Oversmen
             conform
             ,
             which
             is
             express
             contrair
             to
             all
             that
             is
             alleadged
             :
             and
             is
             sufficient
             and
             full
             Probation
             ,
             Arbiters
             having
             so
             great
             Trust.
             And
             the
             Decreet
             beareth
             ,
             
               the
               Report
               made
               upon
               the
            
             9.
             of
             February
             :
             And
             albeit
             the
             minuts
             of
             Process
             were
             wanting
             ,
             or
             contrary
             ,
             
               nihil
               est
            
             ,
             because
             the
             Clerk
             being
             
               publicus
               proto
               notarius
            
             his
             solemn
             Instruments
             make
             full
             Probation
             ,
             and
             the
             minuts
             are
             but
             the
             notes
             taken
             by
             him
             for
             remembrance
             ,
             till
             the
             full
             Instrument
             be
             compleated
             ;
             against
             which
             ,
             Parties
             may
             object
             at
             Extracting
             ,
             as
             not
             conform
             to
             the
             Warrands
             ,
             but
             not
             thereafter
             ;
             otherwayes
             the
             Clerks
             by
             altering
             ,
             or
             losing
             the
             minuts
             ,
             might
             destroy
             all
             Decreets
             ,
             which
             are
             the
             greatest
             Securities
             of
             the
             Kingdom
             .
             The
             Report
             also
             bears
             ,
             
               Inspection
               of
               the
               Parties
               Rights
               ,
               and
               consid●ration
               thereof
               ,
               and
               of
               the
               Debates
               and
               Informations
               given
               in
               by
               either
               〈◊〉
               in
               write
               :
            
             And
             if
             Buchannan
             saw
             not
             Oseburns
             Rights
             ,
             it
             was
             his
             fault
             ,
             that
             
             called
             not
             for
             them
             out
             of
             the
             Overs-mens
             hands
             ,
             where
             they
             long
             lay
             ,
             being
             expired
             Appryzings
             and
             Infeftments
             against
             Glengarnock
             ,
             the
             ancient
             Proprietar
             ,
             and
             against
             the
             Lairds
             of
             Buchannan
             themselves
             ;
             so
             that
             the
             Report
             being
             a
             Decreet
             Arbitral
             ,
             and
             Confirmed
             by
             the
             Judges
             ,
             and
             consented
             to
             by
             Parties
             ,
             is
             most
             solemn
             .
             And
             as
             to
             the
             Consent
             ,
             it
             was
             Judicial
             and
             Palpable
             ,
             by
             joyning
             hands
             ,
             and
             needed
             no
             Subscription
             ;
             it
             be-being
             most
             ordinary
             ,
             that
             Decreets
             bear
             ,
             
               Consent
               of
               Parties
            
             ;
             especially
             when
             the
             Consent
             quadrateth
             with
             ,
             and
             is
             conform
             to
             a
             Process
             ;
             as
             the
             compearances
             of
             Parties
             ,
             whereby
             Decreets
             became
             irreduceable
             ,
             accepting
             of
             Offices
             of
             Tutory
             ,
             or
             Curatory
             :
             and
             so
             if
             Buchannan
             had
             appeared
             ,
             and
             said
             for
             fourty
             thousand
             pound
             ,
             
               non
               faciam
               vim
            
             ;
             but
             as
             for
             the
             twenty
             thousand
             merks
             ,
             the
             Right
             of
             these
             Lands
             would
             be
             first
             cleared
             .
             It
             would
             have
             been
             an
             unquestionable
             consent
             ,
             albeit
             contrary
             or
             extrinsick
             Acts
             require
             Subscription
             ,
             and
             
               ex
               abundanti
            
             ,
             have
             the
             same
             :
             yet
             they
             need
             not
             ,
             seeing
             
               publica
               scriptura
            
             ,
             by
             the
             Instrument
             Judicial
             of
             the
             Clerks
             ,
             of
             Supream
             Court
             ,
             is
             more
             Solemn
             than
             a
             private
             Write
             by
             Parties
             Subscription
             ;
             and
             albeit
             
               de
               recenti
            
             ,
             at
             the
             same
             time
             ,
             when
             consents
             ,
             or
             offers
             are
             proposed
             ,
             Parties
             may
             resile
             ,
             yet
             
               ex
               intervallo
            
             ,
             they
             cannot
             :
             For
             there
             is
             only
             
               locus
               penitentiae
            
             in
             Dispositions
             ,
             or
             Tacks
             of
             Lands
             ,
             where
             Writ
             is
             requisit
             ,
             not
             only
             as
             an
             Evidence
             ,
             but
             as
             a
             solemnity
             accomplishing
             the
             Right
             :
             But
             in
             other
             Pactions
             and
             Promises
             ,
             where
             Write
             is
             not
             essential
             ,
             there
             is
             no
             place
             therefor
             .
             The
             Lords
             having
             considered
             the
             Decreet
             ,
             and
             whole
             Warrands
             thereof
             ,
             Reduced
             ,
             and
             turned
             the
             same
             in
             a
             Libel
             ,
             ordained
             
               O
               seburn
            
             to
             proceed
             upon
             the
             two
             Supplications
             ,
             on
             which
             the
             Decreet
             was
             pronounced
             ,
             and
             continued
             his
             Possession
             ,
             till
             the
             close
             of
             the
             next
             Session
             ,
             for
             they
             found
             beside
             ,
             many
             informalities
             ,
             the
             sentence
             and
             Report
             of
             the
             Overs-men
             ,
             to
             have
             been
             after
             expyring
             of
             the
             Reference
             ,
             by
             the
             Warrand
             thereof
             ,
             subscribed
             with
             their
             hands
             :
             And
             as
             to
             the
             Consent
             ,
             they
             found
             by
             Signature
             of
             Process
             under
             all
             the
             then
             Judges
             hands
             ,
             that
             there
             was
             no
             minut
             of
             the
             said
             Consent
             at
             the
             time
             it
             was
             alleadged
             to
             have
             been
             ,
             but
             half
             a
             year
             thereafter
             ,
             made
             up
             of
             their
             memories
             :
             Upon
             which
             two
             Points
             mainly
             they
             Reduced
             ,
             without
             Discussing
             the
             other
             Alleadgences
             :
             neither
             had
             they
             respect
             to
             Buchannans
             Homologations
             of
             the
             Arbiters
             Sentences
             ,
             by
             taking
             out
             Diligences
             conform
             ,
             and
             adducing
             Witnesses
             to
             prove
             the
             Rental
             :
             nor
             by
             acquiescing
             in
             his
             Bills
             to
             the
             price
             ;
             because
             there
             was
             alwayes
             some
             qualities
             in
             his
             Consent
             .
          
        
         
           
             Laird
             of
             Lamertoun
             ,
             contra
             Earl
             of
             Levin
             ,
             and
             Alexander
             Kennedy
             .
             Eodem
             die
             .
          
           
             THE
             Laird
             of
             Lamertoun
             having
             wakened
             an
             Improbation
             against
             
               Alexander
               Kennedy
            
             ,
             and
             the
             Earl
             of
             Levin
             ,
             for
             improving
             of
             several
             Bonds
             ,
             exhibite
             by
             the
             said
             
               Alexander
               Kennedy
            
             ,
             and
             made
             use
             of
             by
             the
             Earl
             of
             
               Levin
               ;
               Lamertoun
            
             craved
             ,
             
               that
               the
               Earl
               of
            
             Levin
             ,
             
               might
               bide
               by
               the
               Bonds
            
             ,
             seeing
             he
             made
             use
             thereof
             ;
             the
             Earl
             offered
             to
             abide
             by
             them
             ,
             
               qualificate●
               ,
               viz.
            
             that
             he
             made
             use
             of
             them
             ,
             as
             believing
             they
             were
             true
             Bonds
             ;
             and
             that
             he
             was
             not
             accessory
             to
             any
             falshood
             ,
             or
             forgery
             thereof
             .
             It
             was
             alleadged
             ,
             he
             ought
             to
             bide
             by
             them
             simply
             ,
             for
             such
             qualities
             were
             contrair
             to
             the
             Act
             of
             Parliament
             ,
             declaring
             users
             of
             false
             Writs
             ,
             and
             abiders
             
             by
             them
             ,
             to
             be
             accounted
             as
             accessory
             thereto
             ;
             many
             of
             the
             Lords
             were
             of
             opinion
             ,
             that
             he
             should
             abide
             by
             them
             simply
             ;
             but
             that
             he
             might
             protest
             under
             the
             foresaid
             quality
             ,
             in
             respect
             it
             was
             not
             proper
             to
             the
             Lords
             ,
             to
             consider
             the
             consequence
             of
             his
             biding
             by
             the
             Bonds
             ,
             which
             was
             Criminal
             ;
             yet
             
               alterius
               fori
            
             ;
             yet
             it
             was
             carried
             ,
             that
             he
             might
             bide
             by
             them
             qualificate
             :
             and
             therefore
             he
             was
             ordained
             to
             give
             it
             in
             in
             Write
             ,
             that
             the
             Lords
             may
             consider
             how
             far
             they
             will
             allow
             it
             .
          
        
         
           
             Mitchels
             ,
             contra
             Iohn
             Hutchison
             .
             Iuly
             24.
             1661.
             
          
           
             JEAN
             and
             
               Marion
               Mitchels
            
             ,
             having
             ●pursued
             
               Iohn
               Hutchison
            
             ,
             in
             Anno
             1659.
             for
             Reduction
             of
             a
             Decreet
             ,
             obtained
             by
             him
             against
             them
             ,
             as
             Heirs
             to
             their
             Father
             ,
             upon
             Minority
             and
             Lesion
             :
             and
             also
             ,
             because
             their
             Service
             ,
             the
             only
             ground
             of
             the
             Decreet
             was
             Reduced
             ,
             in
             Anno
             1656.
             wherein
             there
             was
             an
             Act
             of
             Litiscontestation
             now
             wakened
             .
             The
             Defender
             alleadged
             he
             got
             wrong
             in
             the
             said
             Act
             ;
             because
             ,
             he
             having
             proponed
             a
             Defense
             upon
             the
             Pursuers
             behaving
             themselves
             as
             Heirs
             (
             no
             wayes
             acknowledging
             their
             Minority
             )
             he
             alleadged
             they
             behoved
             to
             prove
             the
             Reason
             ,
             as
             well
             as
             the
             Exception
             ,
             seeing
             they
             were
             both
             consistent
             :
             yet
             the
             Act
             ordained
             him
             to
             prove
             his
             Defense
             of
             behaviour
             ;
             but
             did
             not
             ordain
             them
             to
             prove
             their
             Minority
             .
             The
             Lords
             found
             this
             alleadgence
             relevant
             .
             It
             was
             further
             alleadged
             ,
             that
             the
             Reduction
             of
             the
             Pursuers
             retour
             is
             not
             competent
             against
             this
             Defender
             ,
             to
             Reduce
             his
             Decreet
             ;
             because
             the
             said
             Reduction
             was
             long
             posterior
             to
             his
             Decreet
             ,
             and
             he
             was
             not
             cited
             to
             the
             Reduction
             .
             The
             Pursuers
             answered
             ,
             they
             needed
             call
             none
             to
             the
             Reduction
             of
             of
             their
             Retour
             ,
             but
             the
             Judge
             ,
             and
             Clerk
             ,
             and
             Inquest●
             and
             though
             the
             Defenders
             Decreet
             was
             anterior
             ,
             they
             did
             not
             know
             the
             same
             ,
             having
             been
             obtained
             when
             they
             were
             within
             twelve
             years
             of
             age
             ,
             and
             never
             charged
             thereupon
             ,
             before
             the
             Reduction
             of
             their
             Retour
             ,
             and
             so
             they
             never
             knew
             it
             ,
             nor
             were
             oblieged
             to
             know
             it
             .
          
           
             The
             Lords
             repelled
             this
             Defense
             ,
             and
             sustained
             the
             reason
             of
             Reduction
             ,
             unless
             the
             same
             were
             elided
             by
             the
             said
             Defense
             ,
             of
             behaving
             as
             Heir
             .
          
        
         
           
             Thomas
             Iack
             ,
             contra
             Fiddess
             .
             Eod
             die
             .
          
           
             
               EODEM
               die
               ,
               Thomas
               Iack
            
             pursues
             Fiddess
             ,
             alleadging
             that
             Fiddes
             having
             given
             him
             in
             custody
             ,
             the
             sum
             of
             five
             hundred
             merks
             ,
             in
             Anno
             1650.
             by
             a
             Ticket
             produced
             ,
             bearing
             ,
             
               To
               be
               keeped
               by
               him
               with
               his
               own
               ,
               upon
               the
               Deponers
               hazard
            
             ;
             and
             that
             the
             Pursuer
             for
             his
             security
             ,
             did
             thereafter
             go
             to
             Dundee
             ,
             and
             took
             his
             Goods
             thither
             ,
             where
             he
             lost
             the
             said
             sum
             ,
             and
             all
             his
             other
             Goods
             ,
             by
             the
             English
             taking
             the
             Town
             by
             storm
             ,
             and
             plundering
             it
             :
             yet
             Fiddess
             conveened
             him
             before
             the
             English
             Officers
             at
             Leith
             ,
             who
             most
             unjustly
             decerned
             him
             to
             pay
             the
             sum
             ,
             and
             
             put
             him
             in
             Prison
             ,
             till
             he
             was
             forced
             to
             give
             Bond
             for
             it
             ,
             and
             thereafter
             payed
             it
             ,
             unto
             this
             Defender
             his
             Assigney
             ,
             who
             concurred
             with
             him
             ,
             and
             knew
             the
             whole
             matter
             ,
             and
             now
             craved
             repetition
             
               condictione
               indebiti
            
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuer
             made
             voluntar
             payment
             ,
             and
             so
             homologat
             the
             Decreet
             ,
             and
             never
             questioned
             the
             same
             till
             now
             .
             The
             Pursuer
             answered
             ,
             it
             was
             no
             homologation
             ,
             nor
             voluntar
             ,
             he
             being
             compelled
             to
             grant
             it
             ,
             and
             expected
             to
             remeid
             from
             the
             English
             Judges
             ,
             with
             whom
             the
             Officers
             had
             so
             grear
             power
             ;
             neither
             could
             this
             be
             counted
             any
             Transaction
             ,
             seeing
             the
             whole
             sum
             was
             payed
             ,
             nor
             any
             voluntar
             consent
             ,
             nor
             homologation
             ,
             being
             to
             shun
             the
             hazard
             of
             Law
             :
             So
             that
             though
             these
             Officers
             had
             been
             a
             Judicature
             ,
             if
             in
             obedience
             to
             their
             Sentence
             ,
             he
             had
             payed
             ,
             and
             after
             had
             Reduced
             the
             Sentence
             ,
             he
             might
             have
             repeated
             what
             he
             payed
             ,
             much
             more
             when
             they
             had
             no
             colour
             of
             Authority
             .
             
               The
               Lords
               Repelled
               the
               Defense
               of
               Homologation
               .
            
             It
             was
             further
             alleadged
             for
             the
             Defender
             ,
             Absolvitor
             ;
             because
             he
             offered
             him
             to
             prove
             ,
             he
             required
             his
             Money
             from
             the
             Pursuer
             ,
             before
             he
             went
             to
             Dundee
             ,
             and
             got
             not
             the
             same
             ;
             and
             it
             was
             his
             fault
             he
             took
             it
             to
             Dundee
             ,
             being
             a
             place
             of
             hazard
             .
             The
             Pursuer
             replyed
             ,
             that
             after
             the
             said
             Requisition
             ,
             he
             made
             offer
             of
             the
             Money
             ,
             and
             Fiddes
             would
             not
             receive
             the
             same
             ,
             but
             continued
             it
             upon
             his
             hazard
             ,
             as
             it
             was
             before
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             :
             and
             because
             the
             Defense
             and
             Reply
             were
             consistent
             ,
             ordained
             the
             Parties
             to
             prove
             ,
             
               hinc
               inde
            
             ;
             the
             Pursuer
             his
             Libel
             ,
             and
             Reply
             ;
             and
             the
             Defender
             his
             Defense
          
        
         
           
             Weymes
             ,
             contra
             Lord
             Torphiohan
             Iuly
             25.
             1661.
             
          
           
             LADY
             
               M●ray
               ,
               Iean
               ,
               Elizabeth
            
             and
             
               Katharine
               ●●ymes
            
             ,
             pursue
             the
             Lord
             Torphichane
             ,
             alleadging
             that
             their
             Deceased
             Sister
             ,
             Dam
             
               Anna
               〈◊〉
            
             ,
             having
             a
             Wodset
             of
             20000.
             
             Merks
             ,
             upon
             the
             Barrony
             of
             Errot
             ,
             granted
             a
             Bond
             of
             Provision
             thereof
             to
             her
             Daughter
             
               Iean
               Lindsay
            
             ,
             thereafter
             Lady
             Torphichane
             ,
             and
             to
             the
             Heirs
             of
             her
             Body
             ,
             which
             failzing
             ,
             to
             return
             to
             the
             saids
             Pursuers
             ,
             with
             an
             obliegement
             ,
             that
             her
             said
             Daughter
             should
             do
             nothing
             to
             prejudge
             the
             saids
             Heirs
             of
             Tailzie
             ;
             which
             Bond
             was
             delivered
             by
             the
             Earl
             of
             Weymes
             to
             the
             Defender
             ,
             then
             Husband
             to
             the
             said
             
               Iean
               Lindsay
            
             ,
             who
             oblieged
             himself
             to
             make
             the
             same
             forth-coming
             to
             all
             Parties
             having
             interest
             ,
             as
             accords
             :
             Yet
             thereafter
             ,
             during
             the
             Marriage
             ,
             the
             said
             
               Iean
               Lindsay
            
             entred
             Heir
             to
             her
             Mother
             ;
             and
             she
             and
             the
             Defender
             uplifted
             the
             Wodset
             sum
             ,
             passing
             by
             the
             Bond
             of
             Provision
             :
             which
             sum
             being
             in
             place
             of
             the
             Wodset
             ,
             and
             unwarrantably
             uplifted
             by
             the
             Defender
             ,
             contrair
             the
             Bond
             of
             Provision
             ,
             known
             to
             himself
             ,
             which
             he
             was
             oblieged
             to
             make
             forth-coming
             ;
             he
             ought
             to
             refound
             the
             sum
             .
             The
             Defender
             answered
             ,
             that
             the
             Libel
             is
             no
             wayes
             relevant
             :
             for
             if
             his
             Deceast
             Lady
             
               Iean
               Lindsay
            
             ,
             being
             Feear
             of
             the
             Wodset
             ,
             did
             uplift
             the
             same
             ,
             and
             contraveened
             the
             Bond
             of
             Provision
             ,
             
               nihilad
               eum
            
             ,
             who
             is
             but
             a
             singular
             Successor
             ,
             having
             Right
             from
             his
             Lady
             ,
             by
             Contract
             of
             Marriage
             ,
             whereof
             there
             was
             a
             minute
             at
             the
             time
             of
             his
             Marriage
             ,
             expresly
             disponing
             this
             sum
             ,
             without
             any
             mention
             ,
             ●●knowledge
             of
             the
             Bond
             of
             Provision
             ;
             and
             albeit
             he
             knew
             the
             fame
             after
             his
             Right
             ,
             
               nihil
               est
            
             .
             And
             as
             for
             his
             Ticket
             ,
             it
             can
             work
             nothing
             ;
             
             though
             the
             Band
             of
             Provision
             were
             now
             produced
             ,
             it
             being
             but
             a
             Personal
             Oblidgment
             ,
             can
             oblidge
             none
             but
             his
             Ladies
             Curators
             ,
             or
             Successors
             ,
             and
             if
             they
             will
             alleadge
             ,
             that
             he
             is
             either
             Heir
             or
             Successor
             Relevant
             ,
             and
             his
             Ticket
             to
             make
             it
             forthcoming
             as
             accords
             ,
             
               nihil
               novi
               Iuris
               tribuit
            
             .
             The
             Pursuer
             Replyed
             ,
             That
             albeit
             a
             singular
             Successor
             ,
             for
             an
             
               onerous
               cause
            
             might
             have
             uplifted
             the
             Wodset
             ,
             and
             been
             free
             ,
             yet
             the
             Defender
             being
             as
             the
             same
             Person
             with
             his
             Ladie
             ,
             and
             having
             no
             
               onerous
               cause
            
             ,
             but
             his
             Contract
             of
             Marriage
             ,
             wherein
             there
             was
             a
             plentiful
             Tochar
             of
             20000.
             lib.
             provided
             to
             him
             besides
             this
             ,
             and
             having
             known
             the
             Band
             of
             Provision
             ,
             before
             the
             uplifting
             of
             the
             Sum
             ,
             and
             so
             
               particeps
               fraudis
            
             he
             is
             lyable
             to
             make
             the
             Sums
             received
             by
             him
             forthcoming
             ,
             by
             the
             Act
             of
             Parliament
             ,
             1621.
             
             And
             also
             by
             the
             Common
             Law
             ,
             
               in
               quantum
               est
               accratus
               alterius
               dispendio
               .
            
          
           
             The
             Lords
             found
             the
             Lybell
             and
             Reply
             relevant
             and
             approven
             ,
             and
             therefore
             decerned
             Torphichine
             to
             refound
             the
             Sum.
             
          
        
         
           
             William
             Ker
             ,
             contra
             Parochiners
             of
             Cardine
             .
             Iuly
             26.
             1661.
             
          
           
             
               WILLIM
               KER
            
             ,
             as
             Executor
             confirmed
             to
             Umquhile
             Mr.
             
               Andrew
               Ker
            
             his
             Father
             ,
             pursues
             the
             Minister
             ,
             and
             Parochiners
             of
             Cardine
             ,
             for
             intrometting
             with
             his
             Fathers
             Steipend
             of
             the
             Kirk
             of
             Cardine
             ,
             in
             Anno
             1652.
             and
             1653.
             
             And
             for
             the
             Annatine
             1654
             ,
             Because
             his
             Father
             died
             on
             the
             22
             of
             November
             ,
             1653.
             
             The
             Defenders
             alleadged
             absolvitor
             ,
             because
             he
             being
             Collegue
             Minister
             ,
             placed
             with
             the
             Defuncts
             consent
             ,
             and
             the
             Defunct
             being
             Suspended
             by
             the
             Presbetrie
             ,
             he
             got
             Right
             to
             these
             Years
             Stepends
             ,
             and
             obtained
             Decreet
             against
             the
             Heritors
             ,
             and
             uplifted
             conform
             ,
             and
             so
             was
             
               bona
               fidei
            
             possessor
             
               cum
               titulo
            
             .
             2.
             
             He
             offered
             him
             to
             prove
             ,
             by
             an
             Act
             of
             Presbytrie
             ,
             that
             at
             the
             time
             of
             his
             entrie
             he
             was
             provided
             to
             eight
             hundred
             merks
             of
             the
             Defuncts
             Steipend
             ,
             by
             the
             Defuncts
             own
             consent
             .
             And
             as
             for
             the
             Annat
             ,
             it
             was
             not
             confirmed
             ,
             and
             could
             be
             extended
             to
             no
             more
             but
             the
             half
             of
             1654.
             
             The
             Pursuer
             answered
             to
             the
             First
             ,
             That
             the
             Presbytrie
             had
             no
             power
             to
             dispose
             of
             that
             Steipend
             ,
             by
             the
             Act
             of
             Parliament
             1644.
             because
             the
             Defunct
             was
             only
             Suspended
             
               ab
               officio
            
             ,
             which
             makes
             not
             the
             Kirk
             Vaick
             ,
             maxime
             ,
             seeing
             the
             Defunct
             was
             Reponed
             by
             the
             Synode
             ,
             and
             never
             desposed
             ,
             and
             as
             to
             the
             Decreet
             ,
             at
             the
             Defenders
             Instance
             ,
             it
             was
             given
             without
             calling
             the
             Defunct
             ,
             whom
             he
             was
             
               in
               mala
               fide
            
             to
             misken
             .
             To
             the
             second
             ,
             That
             the
             
               Act
               of
               Prisbytrie
            
             cannot
             prove
             ,
             unless
             it
             had
             been
             subscribed
             by
             the
             Defuncts
             ,
             own
             hand
             ,
             matters
             of
             Steipend
             not
             being
             the
             proper
             work
             of
             Presbitries
             ,
             but
             proper
             for
             civil
             Judges
             ,
             especially
             ,
             seeing
             the
             Defunct
             was
             Suspended
             for
             Preaching
             for
             the
             Engagement
             ,
             1648.
             
             Against
             which
             that
             Presbytrie
             protested
             ;
             and
             so
             the
             Act
             being
             Eairtester
             ,
             is
             the
             more
             suspect
             .
             To
             the
             Third
             ,
             The
             Annat
             not
             being
             
               in
               bonis
               defuncti
            
             ,
             but
             indulged
             by
             the
             Law
             ,
             to
             the
             Wife
             ,
             Bairns
             ,
             and
             nearest
             of
             Kin
             to
             the
             Defunct
             Minister
             ,
             and
             so
             originally
             their
             Right
             ,
             though
             upon
             occasion
             of
             his
             Service
             ,
             the
             same
             needs
             no
             Confirmation
             ,
             and
             the
             Defunct
             having
             right
             
               proprio
               jure
            
             to
             the
             
             whole
             Year
             ,
             1653.
             
             Surviving
             both
             Terms
             Anne
             signifying
             a
             Year
             further
             must
             be
             the
             heal
             Year
             ,
             one
             thousand
             six
             hundred
             fifty
             and
             four
             .
          
           
             The
             Lords
             Repelled
             the
             first
             Defense
             ,
             and
             found
             the
             Suspension
             of
             the
             Minister
             not
             to
             make
             the
             Steipend
             Vaccand
             ,
             and
             had
             no
             respect
             to
             the
             said
             Decreet
             ,
             whereto
             the
             Defunct
             was
             not
             called
             .
             They
             found
             also
             the
             second
             Defense
             not
             probable
             by
             the
             Act
             of
             Presbytrie
             ,
             and
             found
             that
             the
             Anne
             needed
             no
             Confirmation
             ,
             but
             that
             the
             Anne
             did
             only
             extend
             to
             half
             a
             Year
             more
             then
             the
             Defunct
             had
             right
             to
             
               proprio
               jure
            
             .
          
        
         
           
             Laird
             of
             Lamirtoun
             contra
             Alexander
             Kennedy
             Farl
             of
             Levin
             .
             Eodem
             die
          
           
             
               EOdem
               die
            
             ,
             The
             Laird
             of
             Lamertoun
             ,
             upon
             the
             Improbation
             mentioned
             ,
             Iuly
             24.
             
             Did
             then
             desire
             that
             
               Alexander
               Kennedy
            
             producer
             of
             the
             six
             Bonds
             quarrelled
             ,
             might
             be
             examined
             
               in
               presentia
            
             ,
             and
             his
             Person
             Sequestrated
             and
             Secured
             ,
             and
             warrand
             granted
             to
             examine
             new
             Witnesses
             .
          
           
             The
             Lords
             superceided
             to
             give
             answer
             till
             they
             considered
             the
             Process
             ,
             and
             now
             having
             considered
             the
             same
             ,
             and
             finding
             ,
             that
             the
             direct
             manner
             of
             Improbation
             was
             not
             Competent
             ,
             because
             the
             Witnesses
             were
             dead
             ;
             and
             that
             the
             Pursuer
             had
             insisted
             in
             the
             Indirect
             manner
             ,
             and
             had
             obtained
             warrand
             for
             Inspection
             of
             the
             Dispositions
             taken
             in
             the
             Cause
             ,
             both
             of
             
               Alexander
               Kennedy
            
             himself
             ,
             and
             of
             the
             Witnesses
             then
             adduced
             ,
             and
             had
             given
             in
             Articles
             of
             Improbation
             ,
             and
             the
             Defenders
             Articles
             of
             Approbation
             ,
             Replyes
             and
             Duplyes
             both
             which
             being
             considered
             by
             the
             Lords
             ,
             they
             found
             grounds
             of
             Suspition●
             and
             therefore
             granted
             all
             the
             desires
             of
             the
             Supplication
             ,
             and
             Ordained
             Alexander
             Kennedy
             to
             be
             keeped
             close
             Prisoner
             in
             the
             Tolbooth
             ,
             till
             he
             were
             re-examined
             ,
             and
             Witnesses
             
               hinc
               inde
            
             ,
             to
             be
             examined
             by
             some
             of
             the
             Lords
             in
             the
             Vaccancy
             ,
             upon
             what
             either
             Parties
             should
             desire
             ,
             which
             seemed
             peri●ent
             to
             the
             saids
             Lords
             Examinators
             .
          
        
         
           
             Dame
             Elizabeth
             Fleming
             contra
             her
             Children
             November
             14.
             1661.
             
          
           
             DAme
             
               Elizabeth
               Flemming
            
             Relict
             and
             Executrix
             to
             Umquhile
             
               Malcome
               Flemming
            
             Merchant
             in
             Edinburgh
             ,
             and
             
               Tutrix
               dative
            
             to
             his
             Bairns
             ,
             having
             formerly
             pursued
             an
             Action
             of
             Exoneration
             against
             her
             Children
             ,
             in
             which
             she
             gave
             up
             as
             an
             Article
             of
             her
             Accompt
             a
             hundred
             pounds
             Sterling
             ,
             payed
             by
             her
             to
             
               Patrick
               Scot
            
             of
             Langshaw
             ,
             whereupon
             she
             had
             retired
             her
             Husbands
             Bond
             ,
             and
             taken
             a
             discharge
             upon
             the
             back
             thereof
             ,
             and
             had
             taken
             her
             Husbands
             name
             therefrom
             ,
             whereanent
             the
             Defenders
             alleadged
             ,
             That
             this
             being
             a
             cancelled
             Paper
             ,
             could
             establish
             no
             Debt
             against
             them
             ,
             neither
             could
             
               Patrick
               Scots
            
             discharge
             prove
             against
             them
             
             that
             it
             was
             a
             debt
             restand
             by
             their
             ,
             Father
             and
             payed
             since
             his
             death
             ,
             as
             Patrick's
             Testimony
             and
             Oath
             could
             not
             prove
             ,
             much
             less
             his
             Declaration
             in
             wri
             ;
             whereupon
             ,
             the
             Lords
             had
             ordained
             
               Patrick
               Scots
            
             Oath
             to
             be
             taken
             
               ex
               officio
            
             ;
             upon
             the
             truth
             of
             the
             Debt
             ;
             and
             when
             it
             was
             payed
             to
             him
             ,
             and
             by
             whom
             ;
             who
             having
             D●poned
             ,
             that
             it
             was
             payed
             by
             this
             Pursuer
             after
             her
             Husbands
             Death
             .
             
               The
               Lords
               did
               allow
               the
               Article
               :
            
             Now
             the
             Cause
             being
             wakened
             at
             the
             Pursuers
             instance
             ,
             and
             Sir
             
               Iohn
               Gibson
            
             now
             her
             Husband
             ,
             one
             of
             the
             Clerks
             :
             The
             Defenders
             further
             alleadged
             ,
             that
             
               Patrick
               Scots
            
             oath
             ought
             not
             to
             have
             been
             taken
             ,
             and
             could
             not
             be
             sufficient
             to
             prove
             against
             them
             ,
             that
             this
             was
             a
             true
             Debt
             ,
             and
             payed
             by
             their
             Mother
             ,
             but
             it
             behoved
             to
             be
             presumed
             ,
             if
             it
             was
             a
             Debt
             at
             all
             ,
             to
             have
             been
             payed
             by
             their
             Father
             ,
             and
             the
             Bond
             cancelled
             by
             him
             ,
             and
             left
             amongst
             his
             writs
             ,
             and
             found
             by
             their
             Mother
             there
             ;
             and
             now
             after
             her
             second
             Marriage
             made
             use
             of
             against
             her
             own
             Children
             ;
             albeit
             she
             made
             no
             mention
             of
             it
             before
             :
             And
             therefore
             the
             cancelled
             Bond
             being
             no
             Writ●
             subscribed
             by
             the
             Defunct
             ,
             cannot
             prove
             ,
             nor
             can
             
               Patrick
               ,
               Scot's
            
             Discharge
             ,
             or
             his
             Oath
             make
             it
             up
             ;
             nor
             any
             other
             thing
             ,
             except
             the
             Defenders
             own
             Oath
             ,
             or
             Writ
             ;
             seeing
             Witnesses
             are
             not
             admitted
             in
             cases
             of
             this
             Importance
             .
             Secondly
             ,
             though
             it
             were
             Evidently
             ,
             and
             Legally
             Instructed
             and
             Proven
             ,
             yet
             the
             Debt
             was
             payed
             by
             the
             Mother
             ,
             she
             can
             have
             no
             allowance
             of
             it
             ,
             because
             she
             payed
             Voluntarly
             ,
             not
             being
             Tutrix
             nor
             Executrix
             at
             that
             time
             ,
             and
             cancelled
             it
             ,
             and
             took
             a
             discharge
             of
             it
             ;
             and
             so
             it
             is
             both
             unwarrantably
             done
             ,
             and
             must
             be
             presumed
             to
             have
             been
             of
             purpose
             ,
             to
             gift
             it
             to
             her
             Children
             out
             of
             her
             opulent
             Fortune
             ,
             having
             given
             above
             fourty
             thousand
             pounds
             to
             the
             second
             Husband
             .
             The
             Pursuer
             answered
             .
             That
             the
             alleadgances
             were
             most
             Irrelivant
             ,
             for
             as
             to
             the
             first
             ,
             anent
             the
             Probation
             of
             the
             truth
             of
             the
             Debt
             ,
             and
             payment
             by
             the
             Executrix
             ;
             It
             is
             sufficiently
             proven
             by
             the
             cancelled
             Bond
             ,
             at
             which
             the
             Witnesses
             Names
             are
             yet
             standing
             ;
             by
             
               Patrick
               Scot's
            
             Discharge
             and
             Oath
             ,
             already
             taken
             ,
             who
             is
             a
             Person
             inconcerned
             ;
             and
             above
             all
             exception
             ,
             and
             if
             need
             bees
             ,
             it
             is
             offered
             to
             be
             proven
             by
             many
             Witnesses
             above
             exception
             ,
             who
             saw
             the
             Bond
             un-cancelled
             after
             the
             Defuncts
             Death
             ,
             which
             is
             abundantly
             sufficient
             ,
             to
             take
             away
             the
             Presumption
             ,
             that
             it
             was
             retired
             ,
             and
             cancelled
             ,
             by
             the
             Defunct
             himself
             ,
             and
             that
             such
             Probation
             was
             Legal
             ,
             and
             Warrantable
             ;
             was
             formerly
             found
             by
             the
             Lords
             of
             Session
             ,
             upon
             the
             7th
             of
             March
             ,
             one
             thousand
             six
             hundred
             twentie
             nine
             ,
             betwixt
             Falconer
             and
             Blair
             ,
             where
             an
             Executor
             pursuing
             the
             Hetr
             ,
             for
             relief
             of
             a
             moveable
             Debt
             ,
             produced
             only
             the
             Defuncts
             cancelled
             Bond
             ,
             without
             a
             discharge
             ,
             and
             these
             same
             points
             being
             alleadged
             ;
             The
             Lords
             found
             ,
             that
             the
             Action
             ought
             to
             be
             sustained
             ,
             and
             the
             truth
             of
             the
             Debt
             ,
             and
             the
             Payment
             after
             the
             Defuncts
             decease
             ,
             to
             be
             proven
             by
             the
             Creditors
             Oath
             ;
             or
             after
             his
             decease
             by
             the
             Heirs
             Oath
             ;
             and
             it
             is
             unquestionable
             ,
             That
             the
             Lords
             ,
             in
             matters
             obscure
             ,
             as
             to
             the
             Probation
             ,
             may
             
               ex
               ●ob●li
               officio
            
             take
             all
             manner
             of
             Tryal
             ,
             for
             finding
             out
             the
             Truth
             ,
             by
             Oaths
             of
             Parties
             ,
             Witnesses
             ,
             or
             any
             other
             manner
             of
             way
             ,
             in
             matters
             of
             greatest
             moment
             ,
             which
             being
             here
             already
             done
             ,
             and
             the
             Testimony
             so
             clear
             ,
             and
             of
             so
             unquestionable
             a
             Person
             as
             
               Patrick
               Scot
            
             ,
             there
             remaines
             no
             doubt
             ,
             but
             the
             Debt
             was
             truely
             owand
             ,
             and
             payed
             by
             the
             Relict
             ,
             after
             her
             Husbands
             decease
             .
             As
             to
             the
             second
             Point
             ,
             there
             is
             no
             necessity
             in
             Law
             for
             Executors
             ,
             or
             Tutor●
             to
             have
             Sentence
             ,
             unlesse
             it
             be
             in
             Cases
             of
             Competition
             ,
             to
             secure
             themselves
             ,
             against
             other
             Creditors
             ,
             pursuing
             afterwards
             ;
             or
             Cases
             dubious
             ,
             where
             the
             Probation
             is
             not
             clear
             ,
             but
             to
             pay
             a
             clear
             Debt
             without
             burdening
             Pupils
             with
             unnecessary
             expenses
             of
             Law
             ,
             against
             which
             
             the
             Pupils
             can
             now
             alleadge
             nothing
             ,
             wherein
             they
             were
             prejudged
             ,
             by
             voluntar
             payment
             ,
             such
             payments
             were
             never
             Repelled
             :
             Especially
             in
             the
             Case
             of
             a
             Woman
             paying
             so
             soon
             after
             her
             Husbands
             death
             ,
             nor
             can
             it
             be
             presumed
             a
             Donation
             ,
             because
             Donations
             are
             never
             presumed
             ,
             but
             must
             be
             clearly
             proven
             ;
             and
             it
             is
             very
             ordinar
             to
             those
             who
             have
             Interest
             to
             pay
             the
             Debts
             ,
             and
             Confirm
             afterwards
             .
          
           
             The
             Lords
             considering
             the
             whole
             Circumstances
             ,
             found
             the
             Article
             not
             to
             be
             allowed
             ,
             a
             be●t
             they
             were
             clear
             ,
             that
             the
             Debt
             was
             true
             ,
             and
             really
             payed
             by
             the
             Executrix
             ;
             yet
             seeing
             she
             payed
             ,
             not
             being
             then
             Executrix
             ,
             nor
             Tutrix
             ;
             and
             cancelled
             the
             Bond
             ,
             without
             taking
             Assignation
             ;
             they
             thought
             she
             could
             not
             distresse
             her
             Children
             with
             it
             ,
             but
             that
             it
             was
             a
             Donation
             in
             their
             favour
             .
          
        
         
           
             Dame
             Elizabeth
             Flemming
             contra
             Iohn
             ●ibson
             and
             Flemming
             .
             November
             19.
             1661.
             
          
           
             
               INter
               eosdem
            
             ,
             There
             was
             another
             Article
             of
             the
             said
             accompt
             ,
             whereby
             the
             said
             Dame
             
               Elizabeth
               Flemming
            
             ,
             having
             lent
             out
             a
             sum
             of
             money
             ,
             in
             the
             Name
             of
             Mal●ome
             and
             
               Andrew
               Flemming's
            
             ,
             two
             of
             her
             Bairns
             ,
             she
             craved
             ,
             that
             the
             said
             Sum
             should
             be
             taken
             in
             part
             of
             payment
             ,
             of
             the
             Portions
             of
             the
             whole
             Bairns
             ;
             or
             at
             least
             ,
             in
             so
             far
             as
             was
             more
             nor
             the
             Portions
             of
             these
             two
             Bairnes
             ,
             might
             be
             declared
             ,
             to
             belong
             to
             her self
             .
             It
             was
             answered
             for
             the
             Bairns
             ,
             that
             this
             Bond
             was
             a
             Donation
             by
             the
             Mother
             ,
             out
             of
             her
             own
             means
             ,
             in
             favours
             of
             her
             Children
             ;
             and
             could
             not
             be
             imputed
             as
             a
             part
             of
             their
             means
             ,
             because
             ,
             First
             The
             Bond
             did
             bear
             the
             Money
             to
             be
             lent
             by
             her
             in
             her
             Childrens
             name
             ,
             and
             not
             in
             her
             own
             ;
             Neither
             did
             it
             bear
             to
             be
             as
             a
             part
             of
             the
             Bairns
             means
             ,
             nor
             in
             satisfaction
             thereof
             ,
             as
             she
             had
             specially
             taken
             other
             Bonds
             in
             these
             same
             Bairns
             names
             ,
             and
             so
             presumed
             consideratly
             ,
             to
             gift
             the
             Sum
             to
             these
             two
             Bairns
             ,
             of
             whom
             one
             was
             
               a
               pocthmus
            
             Child
             ,
             born
             eight
             moneths
             after
             his
             Fathers
             Death
             ,
             and
             so
             was
             not
             thought
             upon
             by
             his
             Father
             ,
             nor
             provided
             with
             Legacies
             as
             the
             rest
             were
             ,
             Secondly
             ,
             The
             Tenor
             of
             the
             Bond
             bears
             expresly
             ,
             the
             Sum
             to
             be
             payable
             to
             the
             Mother
             ,
             in
             Liferent
             ;
             and
             one
             of
             the
             Children
             is
             substitute
             Heir
             to
             another
             ,
             in
             case
             they
             had
             not
             Children
             of
             their
             own
             ,
             (
             Whereas
             another
             would
             have
             fallen
             Heir
             of
             Lyne
             to
             them
             ,
             viz.
             An
             intervenient
             Brother
             )
             and
             to
             them
             both
             the
             Mother
             her self
             ,
             and
             her
             Heirs
             were
             substitute
             .
             The
             Pursuer
             answered
             ,
             That
             supposing
             this
             were
             a
             Donation
             ;
             yet
             it
             being
             a
             free
             gift
             ,
             the
             mother
             might
             do
             it
             upon
             what
             Terms
             ,
             and
             Conditions
             ,
             and
             what
             way
             she
             pleased
             .
             
               Ita
               est
            
             ,
             by
             the
             Tenor
             of
             the
             Bond.
             It
             is
             provided
             ,
             that
             she
             shall
             uplift
             the
             Sum
             ,
             during
             her
             Life
             ,
             and
             the
             Children
             after
             her
             decease
             ;
             by
             which
             Clause
             ,
             she
             is
             more
             nor
             a
             naked
             Life-renter
             ;
             and
             seeing
             this
             Clause
             must
             be
             interpret
             
               cum
               effectu
            
             ,
             the
             only
             meaning
             of
             it
             can
             be
             ,
             That
             during
             her
             own
             Lifetime
             ,
             she
             might
             uplift
             the
             Sum
             ,
             and
             dispose
             of
             it
             at
             her
             pleasure
             :
             and
             so
             evacuat
             the
             fee
             in
             her
             Childrens
             Persons
             ,
             seeing
             there
             is
             nothing
             to
             oblidge
             her
             to
             re-imploy
             it
             for
             the
             Bairns
             use
             ,
             if
             she
             should
             once
             uplift
             it
             ,
             
             it
             ,
             as
             when
             a
             Father
             Infeft
             his
             Son
             in
             his
             Lands
             ,
             reserving
             his
             own
             Liferent
             ,
             with
             power
             to
             Dispone
             ,
             during
             his
             own
             life
             ;
             there
             the
             Father
             is
             Liferenter
             ,
             yet
             by
             that
             Reservation
             ,
             he
             may
             annull
             and
             evacuat
             the
             Sons
             Fee
             ,
             even
             so
             here
             :
             For
             which
             two
             Practicks
             of
             Dury
             was
             adduced
             ,
             that
             a
             Father
             providing
             a
             Sum
             to
             himself
             and
             his
             Wife
             ,
             and
             the
             longest
             liver
             of
             them
             two
             ;
             and
             failzing
             of
             them
             by
             Decease
             ,
             to
             his
             Son
             ,
             the
             Son
             being
             Infeft
             in
             Fee
             :
             and
             in
             the
             other
             Practick
             ,
             the
             Father
             being
             expresly
             infeft
             in
             an
             Annualrent
             for
             his
             Lifetime
             ;
             Yet
             the
             Lords
             found
             ,
             that
             the
             Father
             ,
             during
             his
             lifetime
             ,
             might
             uplift
             the
             sum
             ,
             and
             Dispose
             of
             it
             at
             his
             pleasure
             .
             The
             Lords
             found
             ,
             by
             the
             Tenor
             of
             the
             Bond
             ,
             that
             the
             Mother
             had
             Constitute
             her self
             expresly
             Liferenter
             ,
             and
             the
             Children
             Feears
             :
             And
             that
             the
             power
             to
             Charge
             for
             the
             Money
             ,
             did
             bear
             nothing
             of
             a
             power
             to
             her
             to
             Dispose
             of
             it
             ;
             but
             was
             only
             the
             ordinar
             Reservation
             adjected
             after
             the
             Clause
             of
             Annualrent
             ,
             in
             these
             words
             ,
             
               but
               prejudice
               of
               the
               said
               Annualrent
               to
               her
               ,
               during
               her
               life
               ,
               and
               after
               her
               Decease
               ,
               to
               ●he
               Bairns
               to
               uplist
               the
               money
            
             ;
             and
             so
             ,
             that
             albeit
             she
             was
             not
             expresly
             oblieged
             to
             re-imploy
             it
             ;
             yet
             she
             Constituting
             her self
             Liferenter
             ,
             without
             a
             power
             to
             Dispose
             of
             the
             Fee
             ,
             did
             sufficiently
             obliege
             her
             to
             re-imploy
             the
             sum
             .
             And
             as
             to
             the
             Practicks
             ,
             the
             case
             clearly
             differed
             ,
             in
             this
             ;
             that
             there
             the
             Father
             and
             Mother
             were
             not
             Constitute
             Liferenters
             in
             the
             sum
             ,
             though
             the
             Father
             was
             mentioned
             Liferenter
             ,
             of
             an
             Annualrent
             ,
             accessory
             to
             the
             sum
             :
             But
             the
             Clause
             being
             to
             the
             Father
             and
             Mother
             ,
             and
             after
             their
             Decease
             to
             the
             Son.
             It
             was
             clear
             by
             the
             common
             Practicks
             ,
             that
             the
             Son
             was
             not
             Feear
             ,
             but
             Heir
             Substitute
             ;
             so
             that
             the
             Father
             was
             Feear
             ,
             and
             might
             Dispose
             at
             his
             pleasure
             .
          
           
             November
             20.
             1661.
             
             In
             the
             foresaid
             Cause
             ,
             It
             was
             further
             alleadged
             for
             the
             Tutrix
             ,
             that
             the
             Bond
             in
             question
             could
             not
             be
             accounted
             a
             Donation
             ,
             notwithstanding
             the
             Reasons
             before
             adduced
             ,
             in
             so
             far
             as
             she
             was
             Debitor
             to
             the
             saids
             two
             Bairns
             ,
             for
             their
             Portion
             ,
             
               quia
               debitor
               non
               presumitur
               donare
            
             ;
             and
             therefore
             ,
             Provisions
             granted
             by
             Husbands
             to
             their
             Wives
             ,
             albeit
             they
             mention
             not
             the
             Contract
             of
             Marriage
             ,
             but
             
               love
               and
               favour
            
             :
             And
             so
             in
             the
             Terms
             of
             a
             Donation
             ,
             yet
             it
             is
             alwayes
             interpret
             ,
             to
             be
             in
             satisfaction
             of
             a
             prior
             obliegement
             in
             the
             Contract
             of
             Marriage
             ,
             and
             not
             ,
             that
             both
             the
             posterior
             and
             former
             Provision
             ,
             are
             due
             to
             the
             Wife
             .
             It
             was
             answered
             for
             the
             Bairns
             ,
             that
             though
             Donation
             be
             not
             presumed
             ,
             yet
             when
             by
             the
             Nature
             of
             the
             Deed
             done
             ,
             it
             appeareth
             to
             be
             
               animo
               donandi
            
             ;
             I
             it
             is
             truly
             such
             ,
             albeit
             it
             bear
             not
             the
             name
             of
             a
             Donation
             ,
             especially
             in
             this
             case
             :
             Which
             Law
             excepteth
             from
             that
             general
             Rule
             ,
             that
             Parents
             bestowing
             sums
             for
             the
             use
             of
             their
             Bairns
             ,
             from
             their
             natural
             affection
             ,
             are
             alwayes
             presumed
             to
             gift
             ,
             and
             not
             to
             satisfie
             any
             former
             Provision
             ,
             unless
             it
             were
             so
             exprest
             :
             Upon
             which
             ground
             an
             Infeftment
             granted
             by
             a
             Father
             to
             his
             Son
             ,
             though
             but
             a
             Bastard
             ,
             Redeemable
             upon
             a
             sum
             of
             Money
             ,
             was
             not
             found
             in
             satisfaction
             of
             a
             former
             Bond
             ,
             granted
             by
             him
             to
             that
             natural
             Son
             ,
             as
             is
             observed
             by
             Dury
             ,
             upon
             the
             24.
             of
             
               Iuly
               1623.
               
               Stuart
            
             contra
             Fleming
             :
             But
             here
             ,
             not
             only
             is
             this
             Bond
             ,
             not
             in
             satisfaction
             of
             the
             former
             Portion
             ;
             but
             bears
             a
             Clause
             of
             a
             Liferent
             ,
             and
             of
             a
             return
             to
             the
             Mother
             ,
             which
             are
             incompatible
             with
             an
             intention
             of
             satisfaction
             .
          
           
             The
             Lords
             found
             the
             Bond
             to
             be
             in
             satisfaction
             of
             the
             Bairns
             Portions
             ,
             
               pro
               tanto
            
             ,
             and
             a
             Donation
             
               pro
               reliquo
            
             ;
             which
             many
             thought
             strange
             ,
             seeing
             
             a
             Bond
             of
             100.
             
             Sterling
             ,
             mentioned
             14th
             .
             Instant
             ,
             re●eired
             and
             payed
             by
             the
             Mother
             ,
             and
             being
             proven
             by
             
               Patrick
               Scots
            
             oath
             ,
             so
             to
             have
             been
             done
             ,
             to
             the
             satisfaction
             of
             most
             of
             the
             Lords
             ,
             which
             was
             clogged
             with
             no
             Provision
             ,
             was
             not
             allowed
             to
             be
             in
             Satisfaction
             of
             these
             Bairns
             Portions
             .
          
        
         
           
             Bosewel
             contra
             Bosewel
             .
             November
             22.
             1661.
             
          
           
             
               JOHN
               Bosewel
            
             Pursues
             Bosewel
             of
             Abden
             ,
             as
             representing
             
               Henry
               Bosewel
            
             his
             Father
             ,
             for
             payment
             of
             a
             1000.
             pounds
             ,
             due
             to
             the
             Pursuer
             ,
             by
             the
             said
             umquhil
             Henry
             ,
             and
             insisted
             against
             the
             Defender
             ,
             as
             lucrative
             Successour
             ,
             by
             accepting
             a
             Disposition
             of
             Lands
             ,
             and
             Heritage
             ,
             from
             the
             said
             umquhil
             Henry
             ,
             whereunto
             he
             would
             have
             succeeded
             ,
             and
             was
             therein
             his
             appearing
             Heir
             .
             The
             Defender
             alleadged
             ,
             he
             was
             not
             lucrative
             Successor
             ;
             because
             the
             Disposition
             was
             for
             Causes
             onerous
             .
             The
             Pursuer
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             it
             were
             alleadged
             for
             Causes
             onerous
             ,
             equivalent
             to
             the
             worth
             of
             the
             Land
             ;
             as
             was
             formerly
             found
             in
             the
             Case
             of
             
               Elizabeth
               Sinclar
            
             contra
             E●phingst●●●
             of
             Cardo●●
             .
             The
             Defender
             answered
             
               maxime
               relevat
            
             ,
             to
             purge
             this
             odious
             ,
             passive
             Title
             ,
             of
             lucrative
             Successor
             ,
             which
             is
             no
             whe●e
             sustained
             ,
             but
             in
             Scotland
             ;
             specially
             ,
             seeing
             the
             Pursuer
             hath
             a
             more
             favourable
             remeid
             ,
             by
             Reduction
             of
             the
             Disposition
             upon
             the
             Act
             of
             Parliament
             ,
             1621.
             if
             the
             price
             be
             not
             equivalent
             ,
             and
             there
             it
             is
             sufficient
             ,
             to
             say
             it
             was
             for
             a
             considerable
             sum
             ,
             or
             at
             least
             ,
             it
             exceeded
             the
             half
             of
             the
             worth
             ,
             for
             there
             is
             latitude
             in
             buying
             and
             selling
             ,
             and
             as
             an
             inconsiderable
             Sum
             could
             not
             purge
             this
             Title
             ;
             so
             the
             want
             of
             an
             inconsiderable
             part
             of
             the
             full
             price
             ,
             could
             as
             litle
             incur
             it
             .
          
           
             The
             Lords
             before
             answer
             ,
             ordained
             the
             Defender
             ,
             to
             produce
             his
             Dispositior
             ,
             and
             all
             Instructions
             of
             the
             Cause
             onerous
             thereof
             ,
             that
             they
             might
             consider
             if
             there
             was
             a
             considerable
             want
             of
             the
             equivalence
             of
             the
             price
             ;
             here
             the
             Defender
             pleaded
             not
             ,
             that
             he
             was
             not
             
               alioqui
               successurus
            
             ,
             the
             time
             of
             the
             Disposition
             ,
             being
             but
             Consing
             German
             to
             the
             Defunct
             ,
             who
             might
             have
             had
             Children
             .
          
        
         
           
             Dowglasse
             contra
             Iohnstoun
             .
             Eodem
             die
             .
          
           
             
               EODEM
               die
            
             ,
             In
             the
             Competition
             between
             Dowglass
             in
             Abernethie
             ,
             who
             Confirmed
             himself
             Executor
             Creditor
             to
             
               Gilbert
               Weymes
            
             in
             Dumblane
             ,
             where
             Gilbert
             dwelled
             ;
             and
             
               Iohn
               Iohnstoun
            
             as
             Executor
             ,
             Confirmed
             to
             the
             said
             Gilbert
             ,
             by
             the
             Commissars
             of
             Edinburgh
             ;
             because
             Gilbert
             in
             a
             Voyage
             from
             Scotland
             to
             Holland
             ,
             died
             at
             Sea.
             
          
           
             The
             Lords
             found
             the
             Commissars
             of
             Edinburgh
             to
             have
             no
             Right
             ,
             unless
             the
             Defunct
             had
             died
             abroad
             ,
             
               animo
               remanendi
            
             ,
             This
             Interlocutor
             was
             stayed
             ,
             till
             the
             Commissars
             were
             further
             heard
             .
          
        
         
           
           
             Marjory
             Iamison
             contra
             Rodorick
             Mccleud
             .
             December
             3.
             1661.
             
          
           
             
               MARIORI
               Iamison
            
             ,
             Relict
             of
             umquhil
             Mr.
             
               Iohn
               Alexander
            
             Advocat
             ,
             pursues
             
               Rodorick
               Mccleud
            
             ,
             for
             payment
             of
             a
             Bond
             of
             Pension
             ,
             of
             200.
             merks
             yearly
             ,
             granted
             to
             her
             Husband
             ,
             bearing
             ,
             
               For
               Service
               done
               and
               to
               be
               done
               .
            
             The
             Defender
             alleadged
             the
             Libel
             is
             not
             relevant
             ,
             unless
             it
             were
             alleadged
             ,
             that
             Mr.
             Iohn
             had
             done
             Service
             constantly
             ,
             after
             granting
             of
             the
             of
             the
             Pension
             ,
             which
             the
             Lords
             Repelled
             .
             The
             Defender
             alleadged
             further
             ,
             that
             he
             offered
             him
             to
             prove
             ,
             that
             Mr.
             Iohn
             did
             desist
             from
             his
             imployment
             as
             Advocat
             ,
             after
             the
             Pension
             ,
             and
             became
             Town
             Clerk
             of
             Aberdeen
             ;
             and
             the
             Pension
             being
             granted
             to
             him
             ,
             who
             exerced
             the
             Office
             of
             an
             Advocat
             at
             that
             time
             ,
             must
             be
             persumed
             for
             his
             Service
             ,
             as
             Advocat
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             ,
             in
             respect
             of
             the
             Bond
             of
             Pension
             ,
             bearing
             ,
             
               For
               Services
               done
               and
               to
               be
               done
               ,
            
             generally
             .
          
        
         
           
             Sir
             Robert
             Farquhar
             contra
             Lyon
             of
             Muiresk
             .
             Eodem
             die
             .
          
           
             SIR
             
               Robert
               Farquhar
            
             ,
             pursuing
             a
             Reduction
             of
             a
             Disposition
             ,
             against
             
               Iohn
               Lyon
            
             of
             Muiresk
             ,
             upon
             Circumvention
             .
          
           
             The
             Lords
             granted
             Certification
             ,
             
               unless
               not
               only
               the
               Extract
               ,
               but
               the
               Principal
               Disposition
               were
               produced
               ,
            
             in
             respect
             they
             were
             registrate
             at
             that
             time
             ,
             when
             the
             Principals
             were
             given
             back
             to
             the
             Parties
             .
          
        
         
           
             Thomas
             White
             contra
             Crocket
             .
             December
             4.
             1661.
             
          
           
             
               THOMAS
               White
            
             pursues
             
               Patrick
               Crocket
            
             in
             Eliot
             ,
             to
             make
             payment
             of
             the
             sum
             of
             600.
             merks
             ,
             which
             the
             Pursuer
             alleadged
             he
             had
             in
             a
             Leather-Girdle
             ,
             when
             he
             lodged
             with
             Crocket
             ,
             being
             in
             an
             In-keepers
             House
             ,
             and
             that
             the
             Defender
             promised
             that
             the
             Pursuer
             should
             want
             nothing
             ,
             after
             the
             Pursuer
             had
             shown
             him
             the
             said
             Girdle
             ;
             yet
             the
             Defender
             came
             ordinarly
             in
             the
             Chamber
             ,
             where
             the
             Pursuer
             lay
             that
             night
             ,
             and
             he
             wanted
             his
             money
             from
             under
             his
             head
             ,
             which
             he
             declared
             ,
             and
             shew
             to
             the
             Defender
             the
             next
             morning
             :
             and
             therefore
             ,
             according
             to
             the
             Law
             ,
             
               nautae
               caupones
               stabularij
               &c.
            
             (
             which
             is
             observed
             in
             our
             Custom
             )
             the
             Defender
             as
             Keeper
             ,
             ought
             to
             be
             Decerned
             to
             restore
             .
             The
             question
             was
             here
             only
             ,
             of
             the
             manner
             of
             Probation
             .
          
           
           
             The
             Lords
             found
             all
             the
             Libel
             Relevant
             to
             be
             proven
             ,
             
               pro
               ut
               de
               jure
            
             ,
             and
             declared
             ,
             that
             these
             being
             proven
             ,
             they
             would
             take
             the
             Pursuers
             oath
             ,
             
               in
               litem
            
             ,
             upon
             the
             quantity
             .
          
        
         
           
             Baillie
             of
             Dunnean
             contra
             Town
             of
             Inverness
             .
             Eodem
             die
             .
          
           
             BAILLIE
             of
             Dunnean
             pursues
             the
             Town
             of
             Inverness
             ,
             for
             violent
             Intromission
             in
             his
             Moss
             ,
             and
             molesting
             him
             therein
             ,
             both
             Parties
             were
             content
             to
             Dispute
             ,
             as
             in
             a
             Molestation
             .
             The
             Defenders
             alleadged
             Absolvitur
             ;
             because
             the
             Town
             of
             Inverness
             was
             Infeft
             in
             their
             B●rgh
             and
             Burrow-lands
             ,
             with
             common
             Pasturage
             in
             Montkapl●ch
             ,
             and
             offered
             them
             to
             prove
             ,
             the
             Moss
             contraverted
             ,
             was
             a
             part
             of
             Montka●loch
             ,
             and
             that
             they
             have
             been
             in
             constant
             Possession
             thereof
             accordingly
             .
             The
             Pursuer
             Replyed
             ,
             the
             Defense
             ought
             to
             be
             Repelled
             ;
             because
             he
             offered
             him
             to
             prove
             ,
             that
             he
             was
             Infeft
             in
             his
             Lands
             of
             Dunnean
             ,
             with
             Parts
             and
             Pertinents
             ;
             and
             that
             the
             Moss
             contraverted
             ,
             was
             proper
             Part
             and
             Pertinent
             of
             his
             said
             Lands
             ,
             and
             that
             he
             was
             in
             use
             to
             debar
             the
             Defenders
             therefrom
             ,
             and
             to
             get
             Moss
             Mail
             for
             tollerance
             ,
             to
             cast
             therein
             ,
             and
             produced
             the
             same
             ,
             under
             the
             hand
             of
             nine
             of
             the
             Citizens
             ,
             and
             one
             by
             their
             Clerk
             ;
             and
             therefore
             ,
             being
             
               in
               libello
            
             ,
             ought
             to
             be
             preferred
             in
             Probation
             .
             The
             Lords
             before
             answer
             ,
             granted
             Commission
             to
             Examine
             Witnesses
             ,
             
               hinc
               inde
            
             ,
             upon
             the
             Possession
             of
             either
             Party
             :
             Which
             being
             Reported
             ,
             the
             Defenders
             craved
             the
             same
             ,
             with
             the
             Dispute
             ,
             to
             be
             Advised
             .
             The
             Pursuers
             Procurators
             alleadged
             ,
             there
             was
             yet
             no
             Litiscontesta●ion
             ,
             and
             they
             were
             not
             Insisting
             ,
             and
             the
             Defenders
             could
             not
             compell
             them
             to
             Insist
             ,
             without
             a
             Process
             to
             Insist
             ,
             with
             certification
             :
             in
             which
             case
             ,
             they
             would
             get
             a
             day
             to
             Insist
             .
          
           
             The
             Lord
             found
             ,
             that
             the
             Probation
             being
             taken
             before
             Answer
             ,
             was
             equivalent
             to
             Litiscontestation
             ,
             as
             to
             the
             Points
             Proposed
             ,
             and
             that
             they
             mi●ht
             proceed
             ,
             both
             to
             Advise
             the
             Points
             of
             Probation
             ,
             and
             Relevancy
             together
             ,
             and
             might
             instantly
             Decern
             accordingly
             ;
             albeit
             it
             hindred
             not
             the
             Parties
             to
             Propone
             other
             Alleadgences
             ,
             
               in
               jure
            
             ,
             then
             it
             were
             in
             the
             Dispute
             ,
             as
             in
             ordinary
             Litiscontestation
             :
             and
             therefore
             the
             Lords
             considered
             the
             Parties
             Infeftments
             ,
             specially
             that
             of
             the
             Town
             of
             Inverness
             ,
             bearing
             ,
             
               with
               liberty
               to
               them
               to
               cast
               Fail
               and
               Divote
               ,
               in
               the
               Month
               of
            
             Kaploch
             ,
             
               and
               several
               other
               Months
               ,
               according
               as
               they
               were
               accustomed
               of
               before
               .
            
             Which
             Clause
             the
             Lords
             found
             to
             be
             Qualified
             and
             Taxative
             ,
             and
             not
             to
             give
             an
             absolute
             Right
             of
             Commonly
             ,
             but
             only
             such
             as
             they
             had
             before
             ,
             which
             behoved
             to
             be
             cleared
             by
             Posterior
             long
             Possession
             ;
             and
             found
             by
             the
             Depositions
             of
             the
             Witnesses
             ,
             that
             that
             part
             of
             the
             Town
             of
             Inverness
             ,
             on
             the
             North●side
             of
             the
             Water
             ,
             only
             had
             been
             in
             Possession
             ,
             by
             casting
             Peats
             in
             the
             Moss
             contraverted
             ,
             and
             that
             the
             same
             is
             a
             part
             of
             Month
             Kaplock
             ,
             and
             that
             the
             Pursuer
             had
             proven
             the
             Right
             of
             Property
             therein
             :
             And
             therefore
             ordained
             the
             Town
             of
             Inverness
             ,
             on
             the
             other
             side
             of
             the
             Water
             ,
             to
             desist
             from
             the
             Moss
             contraverted
             ,
             and
             granted
             Commission
             to
             se●tle
             the
             Parties
             ,
             anent
             their
             place
             ,
             in
             casting
             in
             the
             Moss
             ,
             or
             in
             case
             of
             variance
             ,
             to
             Report
             .
          
        
         
           
           
             Iean
             Dalmahoy
             contra
             Hamiltoun
             of
             Binnie
             .
             December
             6.
             1661.
             
          
           
             
               JEan
               Dalmahoy
            
             Charges
             
               Alexandee
               Hamiltoun
            
             ,
             of
             Binnie
             ,
             for
             a
             Tack-Duty
             of
             2000.
             merks
             ,
             due
             to
             her
             for
             her
             Liferent-lands
             ;
             he
             Suspends
             on
             this
             Reason
             ,
             that
             he
             has
             taken
             the
             benefit
             of
             the
             late
             Act
             of
             Parliament
             ,
             between
             Debitor
             and
             Creditor
             and
             this
             Sum
             being
             above
             2000.
             merks
             ,
             stands
             thereby
             Suspended
             for
             six
             years
             .
             The
             Charger
             Answers
             ,
             
               non
               relevat
            
             ,
             because
             the
             Act
             extends
             not
             to
             Rents
             ,
             or
             Tack-Duties
             of
             Lands
             ,
             albeit
             exceeding
             1000.
             
             Pounds
             ;
             but
             only
             to
             borrowed
             Sums
             ,
             and
             other
             money
             bearing
             Annualrent
             ;
             which
             in
             Recompence
             of
             that
             forbearance
             ,
             are
             accumulat
             with
             the
             Principal
             Sums
             .
          
           
             The
             Lords
             found
             the
             Act
             not
             to
             extend
             to
             Rents
             ,
             or
             Tack-duties
             ,
             and
             therefore
             repelled
             the
             Reason
             .
          
        
         
           
             Iames
             Hoom
             contra
             Abraham
             Hoom.
             Eodem
             die
             .
          
           
             
               JAmes
               Hoom
            
             as
             Assigney
             to
             a
             Reversion
             ,
             and
             order
             of
             Redemption
             used
             by
             the
             Earl
             of
             Hoom
             ,
             against
             
               Abraham
               Hoom
            
             ,
             pursues
             Declarator
             of
             Redemption
             ,
             and
             Removing
             in
             the
             same
             Process
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Reversion
             expressed
             not
             Assigneys
             ;
             and
             therefore
             ,
             the
             Defender
             cannot
             be
             oblieged
             to
             renounce
             to
             the
             Pursuer
             ,
             an
             Assigney
             .
             Secondly
             ,
             At
             the
             time
             of
             the
             Confignation
             ,
             the
             Earl
             required
             the
             Wodsetter
             to
             Subscribe
             the
             Renounciation
             ,
             to
             a
             blank
             Person
             ,
             upon
             a
             back
             Bond
             ,
             declaring
             the
             same
             to
             the
             Earls
             behove
             ,
             which
             he
             was
             not
             oblieged
             to
             do
             by
             the
             Tenor
             of
             the
             Reversion
             .
             Thirdly
             ,
             No
             Declarator
             ,
             till
             the
             Earl
             produce
             the
             Sum
             at
             the
             Bar
             ,
             seeing
             he
             lifted
             it
             himself
             .
          
           
             The
             Lords
             found
             ,
             that
             albeit
             the
             Reversion
             expressed
             not
             Assigneys
             ;
             yet
             seeing
             the
             Order
             of
             Redemption
             was
             used
             ,
             by
             the
             Earl
             himself
             ,
             the
             Assigney
             had
             sufficient
             Right
             ,
             but
             Decerned
             the
             Defender
             to
             Renounce
             only
             in
             favour
             of
             the
             Earl
             and
             his
             Heirs
             ,
             but
             not
             to
             Dispone
             to
             any
             other
             Person
             ,
             as
             the
             Earl
             desired
             ;
             and
             Declared
             ,
             there
             should
             be
             no
             Decreet
             extracted
             ,
             till
             the
             Consigned
             Money
             were
             produced
             ,
             and
             given
             up
             ,
             neither
             did
             they
             decern
             in
             the
             removing
             ,
             till
             the
             Parties
             were
             further
             heard
             thereupon
             .
          
        
         
           
             Alexander
             Tailzifer
             contra
             Sornebeg
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Tailzifer
            
             ,
             as
             Heir
             appearand
             to
             umquhil
             Tailzifer
             of
             Redheus
             ,
             Pursues
             Mistresse
             
               Margaret
               Forrester
            
             ,
             his
             Uncles
             Relict
             ,
             and
             
               Iohn
               Schaw
            
             of
             Sornebeg
             ,
             her
             Husband
             ,
             for
             Exhibition
             ,
             
               ad
               deliberandum
            
             ,
             
             of
             all
             Writs
             granted
             ,
             not
             only
             to
             the
             Defunct
             ,
             but
             also
             granted
             by
             the
             Defunct
             ,
             to
             his
             said
             Relict
             ,
             or
             any
             other
             Person
             .
             The
             Defender
             alleadged
             ,
             
               non
               relevat
            
             ;
             for
             Writs
             granted
             by
             the
             Defunct
             to
             the
             Defender
             ,
             or
             other
             Persons
             ;
             because
             ,
             albeit
             the
             Pursuer
             were
             entered
             Heir
             ,
             he
             had
             no
             interest
             for
             Exhibition
             thereof
             ,
             unlesse
             there
             were
             Clauses
             in
             his
             favour
             therein
             ,
             &
             
               nemo
               tenetur
               edere
               instrumenta
               contra
               se
            
             ;
             and
             if
             this
             were
             sustained
             ,
             it
             were
             the
             way
             to
             make
             patent
             ,
             all
             the
             Charter
             Chists
             in
             Scotland
             ,
             at
             the
             Instance
             of
             appearand
             Heirs
             ,
             under
             pretence
             to
             Deliberat
             ,
             but
             in
             effect
             to
             pick
             Quarrels
             ,
             and
             find
             the
             weaknesse
             thereof
             .
             The
             Pursuer
             answered
             ,
             
               maxime
               relevat
            
             ;
             for
             seeing
             the
             Law
             gives
             Heirs
             the
             benefit
             of
             Deliberation
             ,
             they
             must
             have
             the
             necessary
             means
             thereof
             ,
             by
             Inspection
             ,
             not
             only
             of
             the
             benefite
             ,
             but
             also
             of
             the
             burden
             of
             the
             Defunct
             ,
             without
             which
             they
             cannot
             know
             ,
             
               num
               sit
               damnosa
               haereditas
            
             :
             Especially
             in
             this
             case
             ,
             against
             a
             Relict
             ,
             who
             probably
             might
             have
             had
             Influence
             upon
             the
             Defunct
             Husband
             ,
             to
             grant
             Right
             to
             her
             ,
             that
             might
             Evacuat
             the
             Heritage
             :
             And
             in
             this
             case
             ,
             the
             appearand
             Heir
             had
             a
             more
             large
             Interest
             to
             crave
             Exhibition
             ,
             nor
             the
             Heir
             Entered
             ,
             who
             could
             only
             crave
             Exhibition
             for
             Delivery
             ,
             Transumpt
             ,
             or
             Registration
             ,
             and
             so
             behoved
             to
             Libel
             a
             peculiar
             Interest
             ;
             but
             the
             appearand
             Heirs
             Interest
             ,
             is
             only
             
               ad
               deliberandum
            
             :
             And
             therefore
             ,
             the
             Exhibition
             ,
             as
             medium
             thereto
             ,
             must
             reach
             to
             all
             ,
             whereupon
             he
             ought
             to
             Deliberat
             .
             Especially
             the
             Defuncts
             Debt
             ;
             and
             albeit
             it
             be
             true
             ,
             
               nemo
               tenetur
               edere
               instrumenta
               contra
               se
               ,
            
             to
             found
             ,
             or
             give
             Title
             to
             the
             Pursuers
             Action
             :
             Yet
             he
             having
             Title
             by
             the
             Law
             ,
             to
             crave
             Inspection
             for
             Deliberation
             ,
             hath
             good
             Interest
             :
             Yea
             ,
             if
             he
             produce
             a
             Title
             in
             himself
             ,
             he
             may
             even
             force
             the
             Defender
             to
             Exhibite
             Writes
             ,
             
               ad
               probandum
            
             ,
             by
             an
             incident
             ,
             as
             well
             as
             third
             Parties
             ,
             to
             whose
             Writ
             he
             hath
             no
             Right
             ,
             save
             only
             to
             bear
             testimony
             for
             him
             .
          
           
             The
             Lords
             having
             heard
             this
             Case
             in
             their
             Presence
             ,
             because
             the
             Point
             had
             been
             variously
             Decided
             ,
             as
             to
             Writs
             granted
             by
             Defuncts
             ,
             found
             the
             Libel
             Relevant
             ;
             not
             only
             for
             all
             Writs
             ,
             granted
             to
             the
             Defunct
             ;
             but
             also
             granted
             by
             the
             Defunct
             ,
             to
             his
             Relict
             Bairns
             ,
             or
             Servants
             ,
             in
             his
             Family
             ,
             at
             the
             time
             of
             his
             Death
             ,
             being
             such
             Writs
             ,
             upon
             which
             no
             Infeftment
             followed
             ;
             for
             as
             to
             these
             ,
             they
             thought
             the
             Registers
             may
             give
             as
             much
             Evidence
             ,
             as
             was
             sufficient
             to
             Deliberate
             ,
             and
             would
             not
             upon
             this
             ground
             ,
             open
             Charter
             Chists
             ,
             for
             shewing
             real
             Rights
             ,
             and
             the
             plurality
             carryed
             ,
             that
             even
             Personal
             Rights
             ,
             granted
             to
             strangers
             ,
             should
             not
             be
             produced
             ,
             
               hoc
               modo
            
             ;
             severals
             being
             of
             the
             opinion
             ,
             that
             Debts
             ,
             Discharges
             and
             Personal
             Rights
             ,
             should
             be
             thus
             Exhibite
             .
             In
             respect
             that
             Heirs
             in
             Scotland
             were
             lyable
             simpliciter
             ,
             for
             all
             the
             Defuncts
             Debts
             :
             And
             therefore
             ,
             should
             have
             Inspection
             ,
             as
             well
             of
             his
             Debts
             ,
             as
             of
             his
             Estate
             ,
             as
             was
             found
             before
             ,
             between
             the
             Lairds
             of
             Swintoun
             and
             West-nisbit
             ,
             observed
             by
             
               Dury
               ,
               February
            
             26.
             1633.
             
          
        
         
           
           
             Katharine
             Kinross
             contra
             Laird
             of
             Nunthil
             .
             December
             10.
             1661.
             
          
           
             
               KAtharine
               Kinross
            
             ,
             having
             Charged
             the
             Laird
             of
             Nunthil
             ,
             for
             payment
             of
             a
             Bond
             ,
             granted
             to
             her
             first
             Husband
             ,
             and
             the
             longest
             liver
             of
             them
             two
             ,
             and
             their
             Heirs
             ;
             which
             failzing
             ,
             his
             Heirs
             ;
             he
             Suspends
             on
             this
             Reason
             ,
             that
             she
             is
             but
             Liferenter
             ,
             and
             the
             Defunct
             being
             Infeft
             in
             Fee
             ,
             she
             would
             not
             Renounce
             ,
             but
             the
             Heir
             :
          
           
             Which
             the
             Lords
             Sustained
             ,
             and
             found
             the
             Letters
             only
             orderly
             proceeded
             for
             the
             Annualrent
             .
          
        
         
           
             The
             Earl
             of
             Roxburgh
             contra
             Mcdowal
             of
             Stodrick
             .
             December
             11.
             1661.
             
          
           
             THE
             Deceased
             Earl
             of
             Roxburgh
             ,
             having
             obtained
             Decreet
             of
             the
             Commission
             ,
             for
             the
             valuation
             of
             Teinds
             ,
             in
             Anno
             1635.
             against
             Mcdowal
             of
             Stodrick
             ;
             this
             Earl
             having
             Right
             from
             the
             Deceast
             Earl
             ,
             pursues
             Stodrick
             for
             payment
             of
             the
             valued
             Duty
             .
             The
             Defender
             alleadged
             ,
             no
             Process
             ,
             because
             he
             had
             intented
             Reduction
             of
             the
             said
             Decreet
             ,
             and
             Improbation
             of
             a
             Procuratory
             mentionated
             therein
             ,
             to
             have
             been
             produced
             by
             Mr.
             
               Robert
               Trotter
            
             ,
             warranding
             him
             to
             consent
             for
             Stodrick
             ,
             to
             that
             Valuation
             ;
             which
             is
             the
             only
             ground
             of
             the
             Decreet
             ,
             without
             either
             Dispute
             or
             Probation
             .
             In
             which
             Reduction
             ,
             Terms
             are
             taken
             to
             produce
             ;
             and
             being
             prejudicial
             to
             this
             Action
             ,
             it
             must
             be
             first
             Discussed
             .
             The
             Pursuer
             answered
             ,
             that
             there
             can
             be
             here
             no
             prejudiciallity
             ,
             which
             is
             only
             betwixt
             two
             Principal
             Actions
             :
             but
             here
             ,
             
               res
               est
               judicata
            
             ,
             by
             a
             Decreet
             ,
             
               &
               stat
               sententia
               ,
               &
               dubius
               est
               eventus
               litis
            
             ;
             neither
             can
             Reduction
             ,
             which
             is
             a
             petitory
             Judgement
             ,
             sist
             the
             Pursuers
             Process
             ,
             which
             is
             a
             possessory
             Judgement
             ,
             upon
             pretence
             of
             prejudiciallity
             ;
             otherwise
             Possession
             might
             still
             be
             inverted
             upon
             such
             pretences
             ;
             Nor
             can
             the
             Earl
             be
             put
             from
             his
             Possession
             thereby
             :
             Especially
             for
             the
             years
             preceeding
             the
             intenting
             of
             the
             Reduction
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             as
             to
             the
             years
             ,
             
               ante
               litem
               motam
            
             ,
             by
             the
             Reduction
             ,
             but
             Sustained
             it
             for
             the
             years
             since
             ,
             in
             respect
             the
             Earls
             Possession
             was
             not
             clear
             ,
             and
             that
             the
             Valuation
             was
             exorbitant
             ,
             near
             as
             great
             as
             the
             Stock
             .
          
        
         
           
             Hellen
             Hepburn
             contra
             Hamiltoun
             of
             Orbestoun
             .
             December
             12.
             1661.
             
          
           
             
               HEllen
               Hepburn
            
             ,
             as
             Executrix
             to
             her
             Father
             Humbie
             ,
             Pursues
             Sir
             
               Iames
               Hamiltoun
            
             of
             Orbestoun
             ,
             for
             payment
             of
             a
             1000.
             merks
             ,
             due
             to
             her
             Father
             by
             Bond.
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             there
             being
             
             a
             Bond
             of
             10000.
             pounds
             granted
             by
             
               Balhaven
               ,
               Humby
               ,
               Prestoun
            
             ,
             and
             Orbestoun
             ,
             for
             the
             use
             of
             the
             late
             Duke
             of
             Hamiltoun
             ,
             but
             there
             being
             nothing
             to
             Instruct
             that
             it
             was
             the
             Dukes
             Debt
             :
             yet
             there
             was
             a
             Transaction
             with
             the
             Dutches
             of
             Hamiltoun
             ,
             for
             a
             lesser
             Sum
             ,
             whereof
             
               Balhaven
               ,
               Prestoun
            
             and
             the
             Defender
             ,
             had
             payed
             their
             part
             :
             by
             which
             Transaction
             ,
             the
             Pursuers
             Tutrix
             and
             Overseer
             ,
             did
             agree
             to
             quite
             this
             Bond
             ,
             in
             respect
             that
             her
             Father
             was
             acquited
             of
             any
             share
             of
             the
             Bond
             ,
             of
             10000.
             pounds
             .
             The
             Pursuer
             answered
             :
             First
             ,
             That
             the
             Defense
             ought
             to
             be
             Repelled
             ;
             because
             ,
             being
             but
             a
             Verbal
             Agreement
             ,
             before
             Writ
             was
             subscribed
             ,
             either
             Party
             might
             Resile
             .
             Secondly
             ,
             The
             Transaction
             cannot
             be
             Instructed
             ,
             there
             being
             no
             Write
             ,
             and
             Witnesses
             are
             no
             competent
             ;
             neither
             can
             the
             Tutrix
             Oath
             prove
             against
             the
             Pupil
             .
             The
             Defender
             answered
             ,
             to
             the
             first
             ,
             that
             the
             Transaction
             being
             
               pactum
               liberatorium
            
             ,
             it
             required
             no
             Write
             ,
             and
             so
             there
             was
             not
             
               locus
               penitentiae
            
             .
             And
             as
             to
             the
             Probation
             of
             the
             Transaction
             ,
             though
             Tutors
             Oath
             of
             Knowledge
             ,
             of
             any
             Debt
             of
             the
             Pupils
             Predecessors
             ,
             will
             not
             prove
             against
             the
             Pupil
             ,
             because
             the
             Tutor
             is
             
               singularis
               testis
            
             ,
             and
             not
             
               in
               officio
            
             :
             But
             a
             Tutors
             Oath
             as
             to
             Deeds
             done
             by
             himself
             ,
             
               in
               officio
            
             ,
             would
             sufficiently
             prove
             the
             same
             .
          
           
             The
             Lords
             thought
             there
             was
             not
             
               locus
               penitentiae
            
             ,
             from
             the
             Tra●saction
             ,
             though
             but
             Verbal
             :
             but
             as
             to
             the
             manner
             of
             Probation
             ,
             they
             ordained
             the
             ●utrix
             ,
             and
             overseers
             Oaths
             to
             be
             taken
             ,
             
               ex
               officio
            
             .
          
        
         
           
             Gordoun
             of
             Gight
             contra
             Abercrombie
             of
             Birkbog
             .
             Eodem
             die
             .
          
           
             SIR
             
               Alexander
               Aberc●omb●e
            
             of
             Birkbeg
             ,
             having
             obtained
             Decreet
             of
             of
             Ejection
             ,
             against
             Sir
             
               George
               Gordoun
            
             of
             Gight
             ,
             for
             Re-possessing
             him
             in
             certain
             Lands
             ,
             and
             paying
             the
             double
             Rent
             for
             the
             violent
             Profits
             .
             Gight
             Pursues
             Reduction
             of
             the
             Decreet
             ,
             on
             these
             Reasons●
             First
             ,
             because
             there
             was
             no
             Law
             nor
             Practick
             ,
             to
             make
             the
             violent
             Profits
             of
             Lands
             ,
             without
             Burgh
             ,
             to
             be
             the
             double
             of
             the
             Rent
             ;
             which
             is
             only
             competent
             by
             Custom
             ,
             
               in
               prediis
               urbanis
               .
               Secondly
            
             ,
             The
             Ejection
             was
             prescribed
             ,
             not
             being
             intented
             within
             three
             years
             ,
             conform
             to
             the
             Act
             of
             Parliament
             .
             
               Thirdly
               ,
               Gights
            
             Defense
             of
             Entring
             ,
             
               in
               vacuum
               possessionem
            
             ,
             was
             only
             found
             probable
             ,
             
               scripto
               vel
               juramento
            
             ,
             whereas
             being
             facti
             ,
             it
             was
             probable
             by
             Witnesses
             .
          
           
             The
             Lords
             Repelled
             the
             First
             and
             Second
             Reasons
             ,
             as
             Competent
             ,
             and
             emitted
             in
             the
             Decreet
             ,
             and
             as
             to
             the
             Third
             ,
             The
             Decreet
             did
             bear
             the
             alleadgence
             in
             the
             Decreet
             ,
             to
             be
             Gights
             entring
             into
             void
             possession
             ,
             with
             consent
             of
             Partie
             ,
             which
             consent
             not
             being
             qualified
             by
             any
             palpable
             fact
             was
             not
             Probable
             by
             Witnesses
             .
          
        
         
           
           
             Iames
             Hamiltoun
             contra
             the
             Tenents
             of
             Overshe●ls
             .
             December
             13.
             1661.
             
          
           
             
               JAmes
               Hamiltoun
            
             Merchant
             in
             Glasgow
             ,
             having
             right
             to
             two
             apprysings
             of
             the
             Lands
             of
             Oversheils
             ,
             Pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             ,
             and
             after
             
               Litiscontestation
               ,
               Iohn
               Rollane
            
             Writer
             Compears
             for
             his
             interest
             ,
             and
             produces
             an
             Apprysing
             ,
             at
             his
             Instance
             ;
             with
             a
             Charge
             against
             the
             Superiors
             .
             It
             was
             alleadged
             he
             could
             not
             be
             admitted
             in
             this
             state
             of
             the
             Process
             .
             The
             Lords
             admitted
             him
             ,
             in
             respect
             he
             craved
             no
             alteration
             to
             be
             in
             the
             Litiscontestation
             ,
             but
             concurred
             therein
             ,
             and
             craved
             Preference
             to
             what
             should
             be
             found
             due
             thereby
             :
             The
             said
             Iohn
             being
             admitted
             ,
             alleadged
             ,
             he
             ought
             to
             be
             Preferred
             ,
             because
             he
             had
             charged
             the
             true
             immediate
             Superiour
             ,
             whereas
             the
             other
             two
             Apprysers
             had
             taken
             Infeftment
             ,
             as
             if
             the
             Lands
             had
             holden
             immediatly
             of
             the
             KING
             .
             It
             was
             answered
             for
             
               Iames
               Hamiltoun
            
             ,
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             he
             was
             Infeft
             long
             before
             
               Iohn
               Rollane
            
             ,
             and
             supposing
             his
             Infefment
             were
             not
             of
             the
             immediate
             Superiour
             ,
             yet
             being
             in
             Possession
             ,
             by
             vertue
             thereof
             ,
             five
             or
             six
             Years
             ,
             he
             hath
             the
             benefit
             of
             a
             Possessorie
             Judgement
             ,
             and
             his
             Infeftment
             cannot
             be
             taken
             away
             without
             Reduction
             .
          
           
             The
             Lords
             preferred
             Iohn
             Rollane
             ,
             and
             granted
             not
             the
             benefit
             of
             a
             Possessorie
             Iudgement
             without
             seven
             years
             Possession
             .
          
        
         
           
             Iohn
             Boyd
             contra
             Laird
             of
             Niddrie
             and
             Edmonstoun
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Boyd
            
             ,
             as
             Assigny
             Constitute
             to
             a
             Bond
             of
             a
             thousand
             merks
             by
             Wolmet
             ,
             charged
             Niddrie
             the
             Debitor
             ,
             who
             Suspends
             on
             double
             Poynding
             :
             In
             which
             Compearance
             was
             made
             for
             
               Iohn
               Boyd
            
             ,
             who
             having
             declared
             upon
             Oath
             ,
             that
             the
             Assignation
             was
             to
             his
             behove
             ,
             for
             the
             satisfaction
             of
             the
             Sum
             of
             fourteen
             hundred
             pounds
             ,
             and
             that
             the
             remainder
             was
             to
             Wolmets
             own
             behove
             ;
             according
             to
             which
             he
             had
             granted
             back
             bond
             to
             Wolmet
             ,
             and
             thereafter
             granted
             a
             second
             back
             bond
             to
             Major
             Bigger
             ;
             oblidging
             him
             to
             make
             the
             Sum
             forthcoming
             to
             Biggar
             ,
             which
             was
             done
             before
             any
             Arrestment
             ;
             but
             depones
             ,
             that
             he
             knows
             ,
             at
             that
             time
             his
             first
             back
             bond
             was
             given
             ,
             and
             that
             a
             Discharge
             of
             his
             first
             back
             bond
             produced
             ,
             was
             by
             a
             mistake
             ,
             keeped
             up
             by
             Major
             Biggar
             ,
             and
             not
             delivered
             up
             to
             him
             till
             within
             this
             few
             days
             ;
             upon
             this
             Oath
             ,
             the
             Laird
             of
             Edmonstoun
             ,
             who
             had
             arrested
             all
             Sums
             due
             to
             Wolmet
             in
             Niddries
             the
             Suspenders
             hand
             ,
             in
             Iune
             1658.
             alleadged
             ,
             That
             the
             ought
             to
             be
             preferred
             to
             Biggar
             ,
             because
             it
             is
             clear
             ,
             by
             the
             Oath
             ,
             that
             the
             superplus
             of
             the
             Sum
             was
             to
             Wolmets
             behove
             ,
             and
             he
             having
             arrested
             it
             before
             the
             discharge
             of
             
               Iohn
               Boyds
            
             first
             back
             bond
             was
             delivered
             to
             
               Iohn
               Boyd
            
             ,
             or
             expresly
             delivered
             ,
             to
             Iohn
             Boyd's
             behove
             ,
             or
             otherwayes
             ,
             that
             the
             first
             back
             bond
             were
             re-delivered
             ,
             no
             deed
             that
             
               Iohn
               Boyd
            
             could
             do
             without
             Wolmets
             expresse
             consent
             ,
             could
             prejudge
             Wolmets
             Creditors
             .
             It
             was
             alleadged
             for
             Biggar
             ,
             that
             albeit
             the
             first
             back
             bond
             
             was
             not
             delivered
             back
             to
             
               Iohn
               Boyd
            
             before
             the
             Arrestment
             ,
             nor
             the
             discharge
             delivered
             to
             him
             ,
             yet
             Wolmet
             having
             subscribed
             the
             discharge
             ,
             and
             delivered
             it
             ,
             albeit
             it
             came
             not
             to
             
               Iohn
               Boyds
            
             hands
             ,
             it
             was
             sufficient
             to
             take
             away
             the
             first
             black
             bond
             .
          
           
             The
             Lords
             preferred
             the
             Arrester
             ,
             and
             found
             the
             discharge
             could
             operat
             nothing
             ,
             unlesse
             it
             were
             delivered
             to
             Iohn
             Boyd
             ,
             or
             some
             Person
             to
             his
             behove
             ,
             before
             the
             Arrestment
             ,
             for
             they
             thought
             if
             discharges
             by
             Creditors
             put
             in
             a
             third
             Parties
             hands
             ,
             not
             delivered
             to
             the
             Debitor
             ,
             should
             be
             sufficient
             ;
             it
             would
             e●ervart
             all
             Arrestments
             ,
             unless
             the
             deliverie
             were
             exprest
             to
             the
             Debitors
             behove
             .
          
        
         
           
             Homes
             contra
             Iohn
             Bonnar
             .
             December
             14.
             1661.
             
          
           
             MAry
             and
             Homes
             ,
             as
             Donatar
             to
             the
             Escheat
             ,
             and
             Liferent
             of
             Umquhile
             
               Iohn
               Home
            
             ,
             pursued
             
               Iohn
               Bonnar
            
             ,
             for
             Compt
             ,
             Reckoning
             ,
             and
             Payment
             of
             the
             Sum
             of
             16000.
             merks
             due
             to
             the
             Rebel
             ,
             for
             the
             price
             of
             a
             House
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             he
             had
             
               bona
               fide
            
             made
             Compt
             ,
             Reckoning
             and
             Payment
             to
             
               Mr.
               Alexander
               Home
            
             ,
             Assigny
             Constitute
             by
             the
             Rebel
             ,
             before
             any
             Citation
             ,
             or
             Diligence
             done
             against
             him
             ,
             to
             put
             him
             
               in
               mala
               fide
            
             ,
             so
             to
             do
             ,
             and
             produced
             the
             Assignies
             discharg
             ,
             bearing
             ,
             that
             the
             Defender
             had
             made
             Compt
             with
             the
             Assigny●
             and
             that
             there
             remains
             only
             the
             Sum
             of
             1100.
             merks
             ,
             which
             he
             acknowledgeds
             to
             have
             received
             ,
             and
             therefore
             discharged
             him
             of
             the
             whole
             .
             The
             Pursuers
             alleadged
             the
             discharge
             ,
             not
             bearing
             Payment
             of
             the
             whole
             Sum
             ,
             but
             only
             of
             1100.
             merks
             ;
             nor
             yet
             bearing●
             that
             the
             Instructions
             ,
             were
             given
             up
             to
             the
             Assigny
             cannot
             exoner
             the
             Defender
             ;
             but
             he
             must
             yet
             Re-produce
             the
             Accompt
             ,
             and
             Instructions
             thereof
             ,
             likeas
             he
             has
             produced
             a
             great
             part
             thereof
             in
             this
             Process
             ,
             because
             no
             discharge
             could
             be
             relevant
             ,
             to
             liberat
             this
             Defender
             ,
             but
             only
             payment
             made
             
               bona
               fide
            
             .
          
           
             
               The
               Lords
               found
               the
               Discharge
               sufficient
               ,
               to
               liberat
               the
               Defender
               ;
               mainly
               ,
               because
               ,
               albeit
               the
               Discharge
               mentions
               not
               the
               Instructions
               to
               be
               given
               up
               ,
               yet
               the
               Defenders
               was
               not
               oblidged
               to
               preserve
               the
               same
               ,
               or
               be
               at
               the
               hazard
               thereof
               .
            
             The
             Pursuer
             further
             offered
             them
             to
             prove
             ,
             that
             the
             Defender
             had
             yet
             in
             his
             hand
             ,
             the
             accompt
             and
             whole
             Instructions
             ,
             and
             therefore
             ought
             to
             repreduce
             the
             same
             ,
             that
             the
             Lords
             might
             consider
             ,
             whether
             the
             Rebells
             Assignyes
             had
             allowed
             any
             thing
             to
             him
             ,
             which
             ought
             not
             to
             be
             allowed
             ,
             and
             did
             belong
             to
             the
             Donatar
             ,
             
               which
               the
               Lords
               sustained
            
             .
          
        
         
           
             Iames
             Dewar
             contra
             Countess
             of
             Murray
             .
             December
             19.
             1661.
             
          
           
             
               JAmes
               Dewar
            
             ,
             pursues
             the
             Countess
             of
             Murray
             ,
             for
             Ejecting
             him
             out
             of
             certain
             Lands
             ,
             whereof
             he
             had
             Tack
             ,
             and
             Spuilzing
             from
             him
             certain
             Goods
             .
             The
             Defender
             alleadged
             absolvitor
             :
             because
             there
             was
             a
             Clause
             in
             the
             Pursuers
             Tack●
             providing
             that
             if
             two
             Years
             Dutie
             run
             together
             ,
             the
             
             Tack
             should
             expire
             ,
             and
             in
             that
             Case
             he
             Renunced
             the
             Tack
             ,
             and
             thereafter
             the
             Pursuer
             having
             Compted
             with
             the
             Defenders
             Chamberlain
             ,
             by
             Writ
             produced
             ;
             he
             acknowledged
             himself
             Debitor
             ,
             in
             such
             Sums
             ,
             and
             such
             Duties
             for
             bygone
             Years
             ,
             with
             this
             Provision
             ,
             that
             if
             he
             Failzied
             in
             payment
             thereof
             ,
             my
             Lady
             should
             ,
             (
             at
             her
             own
             hand
             ,
             )
             intromet
             with
             the
             Corns
             ,
             and
             others
             lybelled
             ,
             which
             were
             disponed
             to
             her
             ,
             for
             satisfaction
             of
             the
             Rent
             ;
             and
             likewise
             ,
             it
             should
             be
             leisum
             ,
             to
             my
             Lady
             to
             set
             the
             Lands
             to
             any
             other
             Tenent
             thereafter
             ,
             at
             the
             Term
             of
             Mertimess
             ,
             and
             to
             Dispose
             thereof
             ,
             at
             her
             pleasure
             .
             The
             Pursuer
             answered
             ,
             
               non
               relevat
            
             ,
             unlesse
             by
             Authority
             of
             a
             Judge
             ,
             the
             Failzie
             had
             been
             Declared
             .
             The
             Defender
             answered
             ,
             
               maxime
               relevat
            
             ,
             because
             Declarators
             are
             only
             necessar
             ,
             in
             Reversions
             ,
             Back-tacks
             ,
             or
             Infeftments
             ,
             being
             of
             great
             Importance
             ;
             but
             not
             in
             ordinar
             Tacks
             ,
             betwixt
             Master
             and
             Tenent
             .
          
           
             The
             Lords
             found
             the
             Defense
             relevant
             ,
             founded
             upon
             the
             Accompt
             ,
             and
             Bond
             ;
             in
             respect
             of
             the
             Tenor
             thereof
             as
             a
             foresaid
             ;
             but
             would
             not
             have
             so
             done
             upon
             the
             Clause
             of
             the
             Tack
             ,
             unless
             it
             had
             born
             expresly
             a
             power
             to
             enter
             to
             the
             Possession
             at
             any
             time
             
               brevi
               manu
            
             .
          
           
             The
             Pursuer
             further
             Replyed
             ,
             That
             the
             Defense
             ought
             to
             be
             repelled
             ;
             because
             he
             offered
             to
             prove
             ,
             before
             the
             Ejection
             ,
             he
             had
             payed
             a
             great
             part
             ,
             and
             offered
             the
             rest
             .
          
           
             The
             Lords
             having
             considered
             the
             Instructions
             of
             Offence
             produced
             ,
             found
             ,
             that
             it
             was
             not
             Speciall
             ,
             bearing
             any
             Sum
             of
             money
             produced
             ,
             or
             offered
             ,
             and
             that
             there
             was
             no
             Consignation
             following
             thereupon
             ;
             and
             therefore
             sustained
             the
             Defense
             ,
             notwithstanding
             the
             Reply
             .
          
        
         
           
             Earl
             of
             Rothes
             contra
             Countess
             of
             Buck●leuch
             .
             December
             20.
             1661
          
           
             THE
             Earle
             of
             Rothes
             ;
             as
             Donatar
             to
             the
             Waird
             of
             the
             Countess
             of
             Buckcleugh
             ,
             and
             the
             said
             Countess
             ,
             for
             her self
             ,
             pursued
             the
             Tutors
             of
             Buckcleugh
             ,
             for
             Exibition
             of
             the
             Charter
             Chist
             ,
             and
             heal
             Evidences
             ,
             and
             Writs
             therein
             ,
             that
             the
             Donatar
             may
             have
             Inspection
             thereof
             ,
             to
             the
             effect
             he
             may
             know●
             what
             Lands
             are
             Waird
             .
             The
             Tutors
             Compeared
             ,
             and
             disclaimed
             the
             Pursuit
             ,
             at
             the
             Pupils
             Instance
             ,
             and
             alleadged
             .
             First
             ,
             No
             Process
             ,
             till
             the
             Countess
             were
             called
             2dly
             ,
             The
             Lybel
             is
             not
             Relevant
             ,
             to
             conclude
             Inspection
             of
             all
             Writs
             whereunto
             the
             Donator
             can
             pretend
             no
             interest
             3dly
             .
             
               Non
               relevat
            
             for
             any
             Writs
             ,
             because
             no
             body
             is
             oblidged
             
               edere
               Instrumenta
               contra
               se.
            
             4thly
             ,
             If
             there
             were
             any
             ground
             for
             this
             Pursuit
             ,
             the
             Lands
             holden
             in
             Waird
             ,
             behoved
             to
             be
             particularly
             Lybelled
             .
          
           
             The
             Lords
             Repelled
             the
             first
             Defense
             ,
             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
             
             ●●●●prove
             the
             Qualitie●
             thereof
             ,
             and
             so
             found
             the
             Reply
             not
             to
             acknow●●ge
             the
             Defense
             ,
             but
             reserve
             it
             to
             either
             Partie
             to
             alleadge
             
               contra
               ●oducenda
            
             ,
             and
             found
             the
             Personal
             Obligdement
             sufficient
             to
             d●bar
             the
             Pur●●●●
             albeit
             the
             Defender
             had
             no
             other
             Real
             Right
             ,
             seeing
             thereby
             she
             was
             oblidged
             to
             grant
             a
             Real
             Right
             to
             the
             Defender
             .
          
        
         
           
             Alexander
             Barns
             contra
             Applegirth
             .
             Ianuary
             1.
             1662.
             
          
           
             
               ALexander
               Barns
            
             having
             (
             Conform
             to
             the
             Act
             made
             by
             the
             Iudges
             ,
             )
             obtained
             Letters
             of
             Horning
             Summarily
             ,
             at
             his
             Instance
             ,
             as
             Heir
             to
             his
             Brother
             
               Iames
               B●rns
            
             ,
             upon
             production
             of
             his
             Retour
             ,
             and
             a
             Bond
             granted
             by
             Iohnstoun
             of
             Applegirth
             ;
             and
             thereupon
             ,
             having
             Denunced
             him
             ,
             and
             Apprized
             his
             Lands
             ;
             Applegirth
             Suspends
             ,
             on
             this
             Reason
             ,
             because
             the
             foresaid
             Act
             of
             the
             Iudges
             was
             now
             Void
             ,
             and
             by
             the
             late
             Act
             of
             Parliament
             ,
             confirming
             their
             Judicial
             Proceedings
             ,
             liberty
             is
             granted
             to
             quarrel
             and
             reduce
             them
             upon
             Iniquity
             ,
             and
             this
             was
             Iniquitie
             to
             charge
             him
             Summarily
             ,
             contrair
             to
             Law.
             The
             Charger
             answered
             
               non
               Relevat
            
             ,
             because
             he
             followed
             the
             Order
             in
             use
             at
             that
             time
             ;
             and
             the
             liberty
             of
             Quarrelling
             is
             ,
             for
             Unjustice
             in
             the
             Matter
             ,
             and
             not
             in
             the
             Order
             of
             Procedor
             ;
             for
             then
             all
             their
             Debates
             would
             be
             null
             ,
             because
             they
             proceeded
             not
             upon
             Continuation
             ,
             and
             Letters
             .
          
           
             The
             Lords
             sustained
             the
             Charge
             ,
             as
             a
             Libel
             ,
             to
             the
             effect
             ,
             the
             Suspender
             might
             have
             his
             Defenses
             ,
             (
             if
             he
             any
             had
             )
             to
             be
             proven
             not
             i●stantlie
             ,
             but
             upon
             Terms
             ,
             but
             declared
             the
             Apprysing
             should
             stand
             valid
             ,
             for
             whatsomever
             was
             found
             due
             ,
             but
             prejudice
             to
             the
             Horning
             ,
             as
             accords
             .
          
        
         
           
             Sir
             Alexander
             Hoom
             of
             St.
             Bathanes
             contra
             Orr
             and
             Pringle
             .
             Ianuary
             3.
             1662.
             
          
           
             SIr
             
               Alexander
               Hoom
            
             of
             
               Saint
               Bathanes
            
             ,
             having
             pursued
             Improbation
             and
             Reduction
             ,
             upon
             Inhibition
             against
             
               Iohn
               Orr
            
             ,
             and
             
               Wate●
               Pringle
            
             ,
             and
             insisted
             for
             all
             Writs
             of
             the
             Lands
             in
             Question
             ,
             made
             to
             the
             Defenders
             Predecessors
             ,
             and
             Authors
             of
             the
             Lands
             in
             Question
             ,
             and
             the
             Defender
             having
             alleadged
             no
             Process
             ,
             for
             Writs
             made
             to
             his
             Authors
             ;
             unlesse
             they
             were
             called
             ;
             and
             having
             condescended
             particularly
             on
             ,
             the
             Authors
             to
             be
             called
             .
             The
             Pursuer
             offered
             him
             to
             prove
             ,
             that
             these
             Authors
             were
             fully
             denuded
             ,
             in
             favours
             of
             the
             Defender
             ,
             and
             that
             the
             Writs
             were
             in
             the
             Defenders
             own
             hands
             .
             The
             Defender
             answered
             
               non
               Relevat
            
             ,
             though
             they
             were
             in
             his
             hands
             ;
             because
             his
             Authors
             being
             lyable
             for
             warrandice
             ,
             ought
             to
             be
             called
             ,
             to
             defend
             there
             own
             Rights
             .
             The
             Pursuer
             answered
             ,
             the
             Defender
             might
             intimate
             to
             them
             the
             Plea.
             The
             Defender
             answered
             ,
             he
             was
             not
             oblidged
             to
             Intimate
             the
             Plea
             ;
             but
             the
             Pursuers
             to
             call
             the
             Authors
             ,
             in
             this
             Case
             ,
             the
             Summonds
             was
             sustained
             ,
             for
             his
             Authors
             Writs
             ,
             in
             Anno
             one
             thousand
             six
             hundred
             fiftie
             nine
             Years
             .
             And
             now
             the
             Pursuer
             
             insisting
             ,
             for
             the
             Defender
             ,
             taking
             a
             second
             time
             to
             produce
             .
             The
             Defender
             having
             a
             reviewe
             of
             the
             said
             Act
             ,
             and
             Interlocutor
             .
          
           
             The
             Lords
             reponed
             the
             Defender
             ,
             and
             would
             not
             sustain
             the
             Pursuit
             ,
             or
             Act
             ,
             as
             to
             the
             Authors
             Rights
             uncalled
             .
          
        
         
           
             Tippertie
             contra
             his
             Creditors
             .
             Eodem
             die
             .
          
           
             Innes
             of
             Tippertie
             ,
             being
             charged
             by
             several
             of
             his
             Creditors
             ;
             Suspends
             ,
             and
             alleadged
             payment
             made
             by
             the
             Suspenders
             Son
             to
             them
             .
             The
             Chargers
             answered
             ,
             
               non
               Relevat
            
             ;
             because
             they
             declare
             the
             Charge
             to
             be
             to
             that
             Sons
             behove
             ,
             who
             payed
             them
             ,
             so
             that
             they
             must
             alleadge
             ,
             it
             was
             payed
             by
             his
             means
             .
             The
             Suspender
             Replyed
             ,
             That
             seeing
             they
             declared
             it
             to
             be
             to
             his
             Sons
             behove
             ,
             the
             payment
             was
             sufficient
             ,
             because
             he
             offered
             him
             to
             prove
             ,
             by
             a
             Transaction
             ,
             the
             Son
             was
             oblidged
             to
             pay
             his
             Debts
             .
             The
             Charger
             answered
             (
             denying
             any
             Transaction
             ,
             )
             if
             it
             were
             proven
             ,
             the
             Suspender
             behoved
             to
             instruct
             his
             part
             of
             it
             performed
             .
          
           
             The
             Lords
             found
             the
             Reasons
             and
             Reply
             relevant
             ,
             reserving
             the
             said
             alleadgance
             against
             the
             Transaction
             ,
             when
             produced
             .
          
        
         
           
             James
             Seaton
             contra
             Anothonie
             Rosewall
             .
             Jannuary
             4.
             1662.
             
          
           
             
               JAmes
               Seaton
            
             and
             others
             ,
             pursue
             
               Anthonie
               Rosewall
            
             ,
             to
             hear
             it
             found
             and
             declared
             ,
             That
             two
             Apprysings
             ,
             to
             which
             he
             had
             right
             ,
             were
             fully
             Satisfied
             ,
             by
             his
             ,
             and
             his
             Authors
             Intromission
             ,
             within
             the
             Legalls
             respective
             ,
             in
             the
             Compt.
             The
             Defender
             alleadged
             ,
             he
             was
             only
             comptable
             ,
             according
             to
             his
             intromission
             ,
             conform
             to
             the
             Act
             of
             Parliament
             one
             thousand
             six
             hundred
             twenty
             one
             ,
             anent
             Apprysings
             ,
             and
             not
             according
             to
             a
             Rental
             of
             the
             Lands
             ;
             as
             they
             payed
             ,
             when
             he
             entred
             .
             The
             Pursuers
             answered
             that
             ,
             that
             they
             could
             not
             charge
             him
             by
             his
             Yearly
             Intromissions
             ,
             which
             they
             could
             not
             know
             ,
             but
             he
             behoved
             to
             charge
             himself
             with
             the
             Rent
             of
             the
             Lands
             ,
             as
             they
             payed
             at
             his
             entrie
             thereto
             ,
             and
             if
             any
             Deductions
             ,
             or
             Defalcations
             were
             in
             subsequent
             Years
             ;
             by
             necessary
             setting
             of
             the
             Lands
             ,
             at
             a
             lower
             Rate
             ,
             poverty
             of
             the
             Tennents
             ,
             or
             waste
             ,
             he
             behoved
             to
             condescend
             there
             upon
             ,
             and
             their
             the
             Reasons
             ,
             and
             Veri●ty
             thereof
             ,
             for
             in
             Law
             ,
             an
             Appryzing
             giving
             
               jus
               pignoris
               pratorij
            
             ,
             the
             Appryser
             is
             comptable
             for
             his
             Diligence
             ,
             having
             once
             entered
             in
             Possession
             ,
             and
             thereby
             excluded
             the
             Debitor
             ,
             and
             Con-creditors
             from
             the
             Possession
             .
             It
             were
             against
             Law
             and
             Conscience
             ,
             to
             say
             ,
             That
             if
             he
             should
             abstain
             ,
             and
             suffer
             the
             Tennents
             to
             keep
             the
             Rent
             ,
             or
             Depauperat
             ,
             or
             the
             Lands
             to
             be
             waste
             ,
             without
             any
             Diligence
             ,
             that
             his
             Legall
             should
             thereby
             expire
             ,
             and
             the
             Debitor
             and
             Creditor
             should
             be
             excluded
             ;
             as
             was
             found
             in
             the
             Case
             of
             the
             Earl
             of
             Nithisdale
             ,
             and
             Countess
             of
             Buckcleugh
             ,
             and
             was
             several
             times
             so
             found
             ,
             be
             the
             Lords
             before
             .
             The
             Lords
             found
             the
             Defender
             comptable
             by
             a
             Rental
             ,
             as
             the
             Lands
             payed
             the
             time
             of
             his
             Entry
             ,
             but
             
             Prejudice
             of
             his
             just
             Defalcations
             ,
             he
             clearing
             a
             reasonable
             Cause
             thereof
             ,
             and
             proving
             the
             truth
             of
             the
             same
             ;
             for
             they
             thought
             ,
             that
             albeit
             ,
             Apprizers
             are
             only
             comptable
             for
             their
             Intromission
             ,
             That
             is
             only
             for
             such
             parts
             of
             the
             Lands
             ,
             as
             they
             intend
             only
             to
             possesse
             ,
             and
             not
             for
             these
             they
             never
             possest
             ;
             yet
             in
             so
             far
             as
             they
             once
             entred
             to
             possesse
             ,
             they
             must
             do
             Diligence
             .
             It
             was
             further
             alleadged
             ,
             that
             no
             allowance
             ought
             to
             be
             given
             to
             the
             Defender
             ,
             of
             a
             Composition
             he
             had
             given
             to
             the
             Superiour
             ,
             in
             respect
             a
             prior
             Appryzer
             had
             given
             a
             Composition
             before
             ,
             and
             so
             he
             was
             oblidged
             for
             none
             .
             The
             Defender
             answered
             ,
             that
             both
             the
             Prior
             and
             Posterior
             Composition
             was
             within
             a
             Years
             Rent
             ,
             which
             was
             due
             to
             the
             Superiour
             ,
             
               which
               the
               Lords
               allowed
            
             ,
             seeing
             it
             was
             not
             alleadged
             that
             the
             Composition
             of
             a
             Years
             Rent
             was
             discharged
             by
             the
             Superiour
             ,
             but
             only
             according
             to
             the
             Custome
             of
             the
             Burgh
             ,
             where
             the
             Lands
             lay
             ,
             so
             much
             marked
             upon
             the
             Precept
             received
             in
             name
             of
             Composition
             .
          
        
         
           
             Earl
             of
             Lauderdail
             ,
             contra
             Tennents
             of
             Swintoun
             .
             Ianuary
             7.
             1662.
             
          
           
             EArl
             of
             Lauderdail
             ,
             as
             having
             Right
             to
             the
             Forefaulture
             of
             the
             Barony
             of
             Swintoun
             ,
             pursues
             the
             Tennents
             for
             Maills
             and
             Duties
             ,
             
               George
               Livingstou
            
             ,
             one
             of
             them
             alleadges
             ,
             that
             he
             must
             be
             assoilzied
             from
             one
             Years
             Dutie
             ;
             because
             he
             offers
             him
             to
             prove
             ,
             That
             it
             is
             the
             Custom
             of
             the
             Barony
             of
             Swintoun
             ,
             at
             least
             of
             a
             distinct
             Quarter
             thereof
             ,
             That
             the
             Tennents
             do
             always
             ,
             at
             their
             entry
             ,
             pay
             half
             a
             years
             Rent
             ,
             and
             are
             free
             of
             Rent
             at
             the
             Term
             they
             remove
             ;
             and
             so
             do
             all
             a
             long
             pay
             a
             Year
             ,
             at
             the
             least
             half
             a
             Year
             before
             the
             hand
             ,
             and
             subsumes
             ,
             that
             he
             has
             payed
             accordingly
             to
             Swintoun
             himself
             ,
             for
             a
             Terms
             Maill
             ,
             due
             for
             the
             Crop
             which
             is
             after
             the
             pursuers
             Right
             .
             The
             Pursuer
             alleadged
             
               non
               Rel●●at
            
             ,
             against
             him
             a
             singular
             Successor
             ,
             or
             against
             the
             KING
             his
             Author
             ;
             because
             ,
             that
             Partie
             that
             hath
             Right
             to
             the
             Land
             ,
             hath
             Right
             to
             the
             Fruits
             ,
             and
             so
             to
             the
             Rents
             ,
             which
             is
             payable
             for
             the
             fruits
             ,
             which
             were
             extent
             upon
             the
             Land
             ,
             or
             growand
             after
             that
             Parties
             Right●
             and
             no
             payment
             before
             the
             hand
             ,
             can
             liberat
             the
             Possessor
             ,
             from
             the
             Pursuite
             of
             a
             Singular
             Successor
             ;
             Therefore
             it
             hath
             been
             frequently
             found
             ,
             that
             payment
             before
             the
             hand
             is
             not
             Relevant
             against
             an
             Appryzer
             ,
             yea
             even
             against
             an
             Arrester
             ,
             so
             that
             the
             KING
             and
             his
             Donatar
             (
             since
             their
             Right
             was
             established
             and
             known
             )
             cannot
             be
             excluded
             ,
             by
             payment
             before
             the
             hand
             ,
             to
             a
             partie
             who
             had
             no
             Right
             to
             the
             Land
             ,
             or
             to
             the
             Fruits
             ,
             that
             Year
             ,
             otherwayes
             both
             the
             KING
             ,
             and
             Creditors
             might
             be
             defrauded
             ,
             by
             Fore-maills
             ,
             or
             by
             Tacks
             appointing
             the
             Fore-mail
             to
             be
             payed
             ,
             the
             first
             Term
             ,
             (
             whatsoever
             length
             the
             Tack
             be
             ,
             )
             Secondly
             ,
             Any
             such
             alleadgances
             were
             only
             probable
             
               scripto
               vel
               juramenio
            
             .
             The
             Defender
             answered
             ,
             that
             the
             Case
             here
             is
             not
             like
             the
             Fore-maills
             instanced
             ,
             because
             every
             Year
             is
             payed
             within
             it self
             ,
             and
             so
             the
             first
             Year
             ,
             the
             half
             at
             the
             beginning
             thereof
             ,
             and
             the
             half
             at
             the
             middle
             thereof
             ,
             and
             subsequent
             Years
             conform
             ,
             which
             must
             be
             sufficient
             to
             the
             Tennent
             
             otherways
             Tennents
             paying
             at
             Whitsonday
             and
             Martinmess
             ,
             should
             not
             be
             liberat
             ,
             because
             the
             whole
             Year
             is
             not
             run
             out
             ,
             or
             a
             Tennent
             paying
             his
             Ferms
             at
             Candlesmass
             should
             not
             be
             secure
             ,
             against
             Singular
             Possessors
             for
             the
             profit
             of
             Grasse
             thereof
             ,
             till
             Whitsonday
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             and
             the
             Custome
             of
             the
             Barony
             to
             be
             proven
             by
             Witnesses
             ,
             and
             likewise
             the
             payment
             of
             the
             Dutie
             in
             so
             far
             as
             in
             Victual
             ;
             and
             also
             for
             the
             money
             not
             exceeding
             an
             hundred
             pounds
             Termlie
             .
          
        
         
           
             Iames
             Stewart
             ,
             contra
             Feuars
             of
             Aberbadenoch
             .
             Ianuary
             8.
             1662.
             
          
           
             
               JAmes
               Stewart
            
             ,
             as
             being
             Heritably
             infeft
             in
             the
             Milne
             of
             Aberbadenoch
             ,
             pursues
             the
             Feuars
             of
             the
             Barony
             ,
             for
             abstract
             Multures
             of
             their
             Corns
             ,
             growing
             within
             the
             Barony
             ;
             or
             which
             tholed
             Fire
             and
             Water
             within
             the
             same
             .
             The
             Defenders
             alleadged
             absolvitor
             ;
             because
             they
             are
             Infeft
             in
             their
             Lands
             ,
             feu
             of
             the
             KING
             ,
             long
             before
             the
             Pursuers
             Infeftment
             ;
             which
             Infeftment
             bears
             ,
             
               cum
               Molendiuis
               &
               Multuris
            
             ,
             in
             the
             tenendas
             .
             The
             Pursuer
             Replyed
             ,
             that
             albeit
             that
             Clause
             were
             sufficient
             Liberation
             amongst
             Subjects
             ,
             yet
             this
             is
             a
             Milne
             of
             the
             KINGS
             Propertie
             ,
             whereunto
             Thirlage
             is
             sufficently
             Constitute
             ,
             by
             long
             Possession
             ,
             of
             coming
             to
             the
             Milne
             ,
             and
             paying
             in
             Towns
             Multures
             ,
             and
             Services
             ;
             (
             as
             is
             
             Craig's
             opinion
             ,
             )
             and
             hath
             been
             so
             found
             by
             the
             
               Lords
               ,
               February
            
             5.
             one
             thousand
             six
             hundred
             thirty
             five
             ,
             Dog
             contra
             Mushet
             .
             The
             Defender
             answered
             ,
             That
             albeit
             Thirlage
             to
             the
             KINGS
             Milnes
             may
             be
             Constitute
             without
             Writ
             ;
             yet
             cannot
             take
             away
             an
             expresse
             Exemption
             granted
             by
             the
             KING
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             ;
             because
             they
             though●
             that
             this
             Clause
             being
             but
             in
             the
             tenendas
             ,
             past
             of
             Course
             ,
             and
             when
             Sig●a●●●●
             are
             past
             the
             KINGS
             hand
             ,
             or
             Exchequar's
             ,
             they
             bear
             only
             ten●ndas
             ,
             &c.
             without
             expressing
             the
             Particular
             Clause
             ,
             which
             is
             afterwards
             extended
             at
             the
             Seals
             .
          
           
             The
             Defenders
             alleadged
             further
             absolvitor
             ,
             from
             the
             Multure
             of
             the
             Teind
             ,
             because
             that
             was
             not
             Thirled
             ;
             nor
             had
             the
             KING
             any
             Right
             thereto
             ,
             when
             he
             granted
             the
             Infeftment
             of
             the
             Milne
             .
             The
             Pursuer
             Replyed
             ,
             the
             Defense
             ought
             to
             be
             Repelled
             ,
             in
             respect
             of
             the
             long
             Possession
             
               in
               Mol●ndo
               Regio
            
             ,
             because
             the
             Defenders
             ,
             and
             their
             Tennents
             past
             fourty
             years
             ,
             payed
             Multures
             of
             all
             their
             Corns
             ,
             promiscuously
             ,
             without
             exception
             of
             Teind
             ;
             likeas
             there
             are
             several
             Decreets
             produced
             ,
             for
             abstract
             Multures
             of
             all
             the
             Corns
             without
             exception
             .
             The
             Defender
             answered
             ,
             That
             the
             Reply
             
               non
               Relevat
            
             ;
             for
             albeit
             long
             Possession
             may
             make
             a
             Thirlage
             of
             the
             KINGS
             own
             Baronie
             ,
             yet
             that
             cannot
             be
             extended
             to
             other
             mens
             Rights
             ,
             of
             their
             Lands
             and
             Teinds
             ,
             which
             cannot
             be
             Thirled
             without
             their
             own
             Consent
             ,
             or
             Decreets
             against
             themselves
             called
             ,
             nor
             do
             the
             Decreets
             bear
             Teind
             
               per
               expressum
            
             .
          
           
           
             The
             Lords
             found
             the
             Defeuse
             Relevant
             ,
             notwithstanding
             of
             the
             Reply
             ,
             except
             such
             Teinds
             that
             thole
             Fire
             and
             Water
             within
             the
             Barony
             ;
             and
             likewise
             s●stai●●ed
             the
             Defense
             for
             the
             Corns
             ,
             e●ten
             by
             the
             Defenders
             upon
             the
             Ground
             ,
             in
             the
             Labouring
             ,
             &c.
             
          
        
         
           
             Earl
             of
             Murray
             contra
             Laird
             of
             Grant.
             January
             9.
             1662.
             
          
           
             THE
             Earl
             of
             Murray
             Pursues
             the
             Laird
             of
             Grant
             ,
             to
             Re-dispone
             him
             certain
             Lands
             ,
             which
             the
             Earls
             Father
             had
             Disponed
             to
             the
             Defender
             ,
             and
             had
             taken
             his
             Back-bond
             ,
             that
             if
             the
             Earls
             Friends
             should
             find
             it
             prejudicial
             to
             the
             Earl
             ,
             then
             upon
             payment
             of
             2800.
             merks
             ,
             precisely
             at
             Whitsonday
             ,
             he
             should
             Re-dispone
             ,
             
               ita
               est
            
             :
             the
             Earls
             Friends
             by
             a
             Testificat
             produced
             ,
             found
             the
             Bargain
             to
             his
             loss
             ;
             therefore
             he
             offered
             the
             sum
             to
             the
             Defender
             ,
             in
             his
             own
             House
             ,
             which
             he
             refused
             ;
             and
             now
             offers
             to
             Re-produce
             it
             ,
             
               cum
               omni
               causa
            
             .
             The
             Defender
             alleadged
             Absolvitor
             .
             First
             ,
             Because
             the
             Back-bond
             is
             
               pactum
               de
               retro
               vendendo
            
             :
             And
             so
             a
             Reversion
             ,
             which
             is
             
               strictissimi
               juris
            
             ,
             and
             not
             to
             be
             extended
             beyond
             the
             express
             Terms
             thereof
             ;
             which
             are
             ,
             that
             if
             Iames
             Earl
             of
             Murray
             ,
             should
             re-pay
             the
             Sum
             at
             Whitsonday
             ,
             1653.
             precisely
             ,
             the
             Defender
             should
             Re-dispone
             :
             But
             there
             is
             no
             mention
             of
             the
             Earls●
             Heirs
             ,
             and
             so
             cannot
             extend
             to
             this
             Earl
             ,
             though
             he
             were
             Heir
             ,
             as
             he
             was
             not
             served
             Heir
             the
             time
             of
             the
             offer
             .
             The
             Pursuer
             answered
             ,
             that
             when
             Reversions
             are
             meaned
             to
             be
             Personal
             ,
             and
             not
             to
             be
             extended
             to
             Heirs
             ,
             they
             do
             bear
             ,
             
               That
               if
               the
               Reverser
               in
               his
               own
               time
               ,
               or
               at
               any
               time
               during
               his
               life
               ,
            
             &c.
             or
             some
             such
             Expression
             ;
             but
             there
             is
             nothing
             such
             here
             ;
             and
             the
             Pursuer
             was
             Retoured
             Heir
             to
             his
             Father
             ,
             who
             died
             shortly
             before
             the
             Term
             of
             Redemption
             ;
             and
             having
             used
             all
             Diligence
             ,
             he
             cannot
             be
             excluded
             ,
             by
             such
             an
             accident
             ,
             which
             he
             could
             not
             help
             .
          
           
             The
             Lords
             Repelled
             both
             the
             Defenses
             ,
             albeit
             there
             was
             only
             an
             offer
             ,
             without
             Consignation
             ,
             seeing
             the
             Back-bond
             did
             not
             bear
             ,
             
               Premonition
               ,
               or
               Consignation
               ,
               but
               only
               payment
               ,
            
             which
             the
             Pursuer
             now
             offered
             .
          
        
         
           
             Baird
             contra
             Baird
             .
             Eodem
             die
             .
          
           
             BAird
             in
             Saint
             Andrews
             ,
             having
             taken
             the
             Gift
             of
             his
             Brothers
             Escheat
             ,
             upon
             his
             Adultery
             ,
             Pursues
             Declarator
             thereupon
             .
             The
             Defender
             alleadged
             no
             Processes
             ,
             till
             the
             Crime
             were
             Cognosced
             in
             the
             Criminal
             Court
             ,
             or
             at
             least
             ,
             he
             were
             declared
             Fugitive
             and
             Denunced
             ,
             for
             then
             by
             the
             Horning
             ,
             his
             Escheat
             would
             fall
             ,
             but
             there
             is
             no
             Law
             ,
             nor
             Statute
             ,
             making
             the
             Penalty
             of
             Adultery
             ,
             to
             be
             the
             Adulterers
             Escheat
             ;
             for
             Queen
             
               Maries
               Statute
            
             ,
             anent
             Adultery
             ,
             is
             only
             making
             nottour
             Adultery
             Capital
             ;
             but
             nothing
             as
             to
             other
             Adulteries
             .
             The
             Pursuer
             answered
             ,
             that
             Custome
             
             had
             made
             the
             Penalty
             of
             Adultery
             ,
             to
             be
             the
             single
             Escheat
             ;
             and
             for
             Probation
             of
             the
             Adultery
             ,
             in
             this
             case
             ,
             the
             Defender
             had
             publickly
             confessed
             it
             ,
             and
             had
             stood
             in
             Sack-cloth
             for
             it
             a
             year
             ,
             and
             had
             taken
             Remission
             from
             the
             King.
             The
             Defender
             answered
             ,
             that
             Confession
             in
             the
             Kirk
             ,
             was
             necessary
             to
             purge
             Scandel
             ,
             when
             such
             Probation
             was
             Adduced
             ,
             as
             Church-men
             allowed
             to
             infer
             Confession
             ,
             which
             is
             but
             
               extra
               judicialis
               confessio
            
             ,
             and
             cannot
             prove
             ,
             
               ad
               ●viles
               aut
               criminales
               effectus
            
             ,
             neither
             can
             the
             taking
             of
             the
             Kings
             Remission
             ,
             instruct
             these
             Crimes
             ;
             seeing
             Remissions
             are
             frequently
             taken
             to
             prevent
             accusations
             or
             trouble
             .
          
           
             The
             Lords
             found
             the
             Libel
             not
             Relevant
             ,
             and
             that
             no
             Declarator
             could
             passe
             unless
             the
             Defender
             had
             compeared
             judicially
             in
             a
             Criminal
             Court
             ,
             and
             there
             Confessed
             ,
             or
             had
             been
             Condemned
             by
             Probation
             ;
             but
             that
             the
             Confession
             in
             the
             Church
             ,
             or
             taking
             Remission
             ,
             was
             no
             sufficient
             Probation
             .
          
        
         
           
             Andrew
             Barclay
             contra
             Laird
             of
             Craigivar
             .
             Ianuary
             10.
             1662.
             
          
           
             
               ANdrew
               Barclay
            
             Pursues
             the
             Lairds
             of
             Craigivar
             ,
             as
             representing
             his
             Father
             upon
             all
             the
             passive
             Titles
             ,
             to
             pay
             a
             Bond
             due
             by
             his
             Father
             ,
             and
             insists
             against
             him
             ,
             as
             behaving
             himself
             as
             Heir
             ,
             by
             intromission
             with
             the
             Mails
             and
             Duties
             of
             the
             Lands
             of
             Craigivar
             and
             F●ntrie
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             if
             any
             Intromission
             he
             had
             (
             not
             granting
             the
             same
             )
             it
             was
             by
             vertue
             of
             a
             singular
             Title
             ,
             viz.
             an
             Appryzing
             led
             against
             himself
             ,
             upon
             a
             Bond
             due
             by
             his
             Father
             .
             The
             Pursuer
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             the
             legal
             had
             been
             expired
             ;
             for
             if
             the
             appearand
             Heir
             In●romet
             within
             the
             Legall
             ,
             during
             which
             ,
             the
             right
             of
             Reversion
             is
             unextinct
             ,
             
               immiscuit
               se
               haereditati
            
             :
             and
             it
             is
             
               gestio
               pro
               haerede
            
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             albeit
             the
             Appryzing
             was
             not
             expired
             ,
             unless
             the
             Pursuer
             alleadge
             ,
             that
             the
             Defenders
             Intromission
             was
             more
             then
             satisfied
             the
             whole
             Appryzing
             .
          
        
         
           
             Laird
             of
             Rentoun
             contra
             Mr.
             Mark
             Ker.
             Eodem
             die
             .
          
           
             THe
             Laird
             of
             Rentoun
             having
             obtained
             Decreet
             against
             Mr.
             
               Mark
               Ker
            
             ,
             for
             the
             Teinds
             of
             Ferniside
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             he
             ought
             to
             have
             retention
             of
             the
             Annuity
             of
             the
             Teind
             ,
             which
             he
             had
             payed
             ,
             and
             whereto
             he
             had
             Right
             .
             The
             Charger
             answered
             ,
             that
             there
             was
             no
             Annuity
             due
             out
             of
             their
             Teinds
             ,
             because
             he
             was
             Infeft
             ,
             
               cum
               decimis
               inclusis
            
             ,
             which
             are
             not
             lyable
             for
             Annuity
             .
             The
             Suspender
             Answered
             ,
             that
             there
             was
             no
             exception
             in
             the
             Act
             of
             Parliament
             ,
             1623.
             of
             Teinds
             included
             .
          
           
             The
             Lords
             Recommended
             the
             matter
             to
             be
             settled
             ,
             this
             being
             a
             leading
             Case
             ,
             in
             relation
             to
             the
             Annuity
             of
             Teinds
             included
             ;
             but
             they
             thought
             that
             Annuity
             was
             
             not
             due
             of
             Tei●ds
             included
             ;
             because
             such
             Lands
             never
             having
             had
             the
             Teinds
             drawn
             ,
             there
             is
             nothing
             to
             Constitute
             Teind
             due
             for
             them
             ,
             either
             by
             Law
             ,
             Paction
             ,
             or
             Possession
             ;
             and
             so
             where
             no
             Teind
             is
             ,
             there
             can
             be
             no
             Annuity
             .
             And
             also
             ,
             because
             the
             Ground
             granting
             Annuity
             to
             the
             King
             ,
             was
             because
             the
             King
             having
             an
             Interest
             in
             the
             Teinds
             ,
             after
             the
             Reformation
             and
             the
             Titulars
             pretending
             also
             Right
             ,
             did
             surrender
             the
             same
             in
             the
             Kings
             favours
             ,
             and
             submitted
             to
             Him
             ,
             who
             Confirmed
             the
             Titulars
             questionable
             Rights
             ,
             and
             gave
             the
             Heretors
             the
             benefite
             of
             drawing
             their
             own
             Teinds
             ,
             upon
             a
             Valuation
             :
             and
             therefore
             the
             Annuity
             was
             appointed
             to
             be
             payed
             out
             of
             the
             Teinds
             to
             the
             King
             ,
             but
             the
             surrender
             did
             not
             bear
             ,
             
               Teinds
               included
            
             .
          
        
         
           
             Lord
             Carnagie
             .
             contra
             Ianuary
             11.
             1662.
             
          
           
             LAdy
             
               Anna
               Hamiltoun
            
             ,
             eldest
             Daughter
             to
             the
             Deceast
             William
             D●ke
             of
             Hamiltoun
             ,
             having
             obtained
             Charter
             of
             the
             Lands
             of
             
               innerw
               ●ik
            
             from
             the
             King
             ,
             as
             becoming
             in
             his
             hand
             by
             Recognition
             ,
             in
             so
             far
             as
             the
             Lands
             being
             holden
             Ward
             ;
             the
             late
             Earl
             of
             Dirletoun
             Disponed
             the
             same
             to
             
               Iames
               Cicil
            
             ,
             second
             Son
             to
             his
             second
             Daughter
             ,
             whereupon
             the
             said
             Lady
             Anna
             ,
             and
             Lord
             Carnagie
             her
             Husband
             ,
             for
             his
             Interest
             ,
             Pursues
             Declarator
             of
             Recognition
             ,
             against
             the
             said
             
               Iames
               Ci●il
            
             ,
             and
             against
             
               Iames
               Maxwels
            
             Heirs
             of
             Line
             ,
             and
             Heir-Male
             to
             hear
             and
             see
             them
             Secluded
             for
             ever
             ,
             and
             that
             the
             Lands
             were
             fallen
             in
             to
             the
             Kings
             hands
             ,
             and
             belonged
             to
             the
             Pursuer
             ,
             as
             his
             Donatar
             by
             Recognition
             ,
             through
             the
             Ward-vassals
             alienation
             thereof
             ,
             without
             the
             consent
             of
             the
             King
             as
             Superiour
             .
             The
             Defender
             alleadged
             no
             Processes
             ;
             because
             all
             Parties
             having
             Interest
             ,
             are
             not
             called
             ,
             viz.
             Sir
             
               Robert
               Fle●cher
            
             ,
             who
             stands
             publickly
             Infeft
             in
             the
             Lands
             Libelled
             .
          
           
             The
             Lords
             Repelled
             the
             Alleadgence
             ,
             as
             
               super
               juretertii
            
             ,
             in
             respect
             it
             was
             not
             proponed
             by
             Sir
             Robert
             ,
             a●d
             that
             his
             Right
             could
             not
             be
             prejudged
             by
             any
             Sentence
             ,
             whereto
             he
             was
             not
             called
             .
          
           
             Secondly
             ,
             The
             Defenders
             alleadged
             no
             Process
             ,
             because
             the
             Heirs
             of
             Line
             are
             not
             lawfully
             Called
             ,
             in
             so
             far
             as
             three
             of
             them
             are
             Resident
             in
             the
             Abbey
             ,
             and
             are
             Minors
             ,
             and
             their
             Tutors
             and
             Curators
             are
             only
             called
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ;
             whereas
             they
             Reside
             within
             the
             Regality
             of
             Brughtoun
             ,
             and
             their
             Curators
             should
             have
             been
             Cited
             at
             the
             Cross
             of
             the
             Canongate
             ,
             as
             head
             Burgh
             of
             that
             Regality
             .
             The
             Pursu●rs
             answered
             ,
             that
             the
             Defenders
             Reside
             in
             the
             Kings
             Palace
             ,
             which
             is
             exempt
             from
             all
             Regalities
             ,
             and
             must
             be
             a
             part
             of
             the
             Royalty
             ,
             being
             the
             Kings
             own
             House
             ,
             by
             his
             Royal
             Regative
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             ,
             and
             found
             the
             Kings
             House
             to
             be
             Royalty
             ,
             and
             so
             in
             the
             Shire
             ,
             and
             not
             in
             the
             Regality
             .
          
        
         
           
           
             Iohn
             Nicolson
             contra
             Feuars
             of
             Tillicutry
             .
             Ianuary
             14.
             1662.
             
          
           
             
               JOhn
               Nicolson
            
             ,
             as
             Baron
             of
             the
             Barony
             of
             Tillicutry
             ,
             and
             Miln
             thereof
             ,
             pursues
             the
             Feuars
             of
             Tillicutry
             ,
             for
             a
             certain
             quantity
             of
             Serjant
             Corns
             ,
             and
             for
             their
             abstracted
             Multures
             ,
             for
             which
             he
             had
             obtained
             Decreet
             in
             his
             Barony-court
             ,
             which
             was
             Suspended
             .
             The
             Defenders
             alleadged
             ,
             that
             his
             Decreet
             is
             null
             ,
             as
             being
             in
             vacant
             time
             .
             Secondly
             ,
             As
             being
             by
             the
             Baron
             ,
             who
             is
             not
             Competent
             to
             Decern
             in
             Multures
             ,
             or
             Thirlage
             against
             his
             Vassals
             .
             Thirdly
             ,
             The
             Decreet
             was
             without
             Probation
             :
             The
             Baron
             neither
             producing
             Title
             ,
             nor
             proving
             long
             Possession
             :
             and
             as
             to
             the
             Serjant
             Corn
             ,
             nothing
             could
             Constitute
             that
             Servitude
             but
             Writ
             .
             The
             Charger
             answered
             ,
             that
             Barons
             needs
             no
             Dispensation
             ,
             in
             Vacance
             ,
             and
             that
             Baron
             Courts
             use
             to
             sit
             in
             all
             times
             ,
             even
             of
             Vacance
             ,
             by
             their
             Constant
             Priviledge
             :
             And
             that
             the
             Baron
             is
             Competent
             Judge
             to
             Multures
             ,
             or
             any
             other
             Duty
             whereof
             he
             is
             in
             Possession
             .
             And
             as
             to
             the
             Serjant
             Corn
             ,
             in
             satisfaction
             of
             his
             Decreet
             ,
             he
             hath
             produced
             his
             Infeftment
             ,
             as
             Baron
             of
             the
             Barony
             ;
             which
             gives
             him
             Right
             of
             Jurisdiction
             ,
             and
             so
             to
             have
             Serjants
             ,
             whose
             Fees
             may
             be
             Constitute
             ,
             and
             liquidat
             by
             long
             Possession
             .
          
           
             The
             Lords
             found
             the
             Reply
             Relevant
             ,
             the
             Charger
             having
             40.
             years
             possession
             as
             to
             the
             Multures
             ,
             and
             the
             Pursuer
             declared
             he
             insisted
             not
             for
             the
             Kings
             Feu-duties
             in
             kind
             ,
             but
             for
             the
             Teind
             ,
             Seed
             ,
             and
             Horse
             Corn.
             
          
           
             The
             Defenders
             alleadged
             Absolvitor
             ,
             for
             as
             much
             of
             the
             Corns
             as
             would
             pay
             the
             Feu-duties
             ,
             Ministers
             Stipends
             ,
             and
             all
             publick
             Burdens
             ,
             because
             they
             behoved
             to
             sell
             Corns
             for
             satisfying
             of
             these
             ,
             and
             in
             so
             far
             the
             Corns
             were
             not
             their
             own
             ,
             and
             so
             they
             could
             pay
             for
             no
             more
             Corns
             then
             their
             own
             ,
             neither
             could
             they
             be
             lyable
             for
             dry
             Multure
             ,
             unless
             it
             were
             Constitute
             by
             Writ
             ;
             especially
             seeing
             the
             Charger
             Libels
             not
             upon
             the
             Defenders
             Infeftment
             ,
             or
             Bonds
             of
             Thirlage
             ,
             but
             upon
             his
             own
             Infeftment
             ,
             only
             generally
             ,
             as
             Infeft
             in
             the
             Miln
             of
             the
             Barony
             .
          
           
             The
             Lords
             Repelled
             these
             Alleadgences
             ,
             and
             Sustained
             the
             Decreet
             ,
             for
             all
             the
             Corns
             except
             Seed
             ,
             Horse-corn
             and
             Teind
             ,
             which
             tholled
             not
             Fire
             and
             Water
             within
             the
             Thirle
             .
          
        
         
           
             Nicol
             Harper
             contra
             Hoom
             of
             Plandergaist
             .
             Eodem
             die
             .
          
           
             
               NIcol
               Harper
            
             pursues
             Collonel
             
               Iohn
               Hoom
            
             of
             Plandergaist
             ,
             for
             payment
             of
             a
             Debt
             of
             umquhil
             Hoom
             of
             Plandergaist
             his
             Brother
             ,
             and
             condescends
             ,
             that
             the
             Defender
             hath
             behaved
             himself
             as
             Heir
             ,
             at
             least
             Successor
             Lucrative
             to
             his
             Brother
             ,
             in
             so
             far
             as
             his
             Brother
             Disponed
             the
             Lands
             of
             Plandergaist
             to
             
               William
               Hoom
            
             of
             Linthil
             ,
             to
             the
             behove
             of
             the
             Defender
             ,
             
             then
             his
             appearand
             Heir
             ,
             whereupon
             the
             Defender
             is
             now
             in
             possession
             .
             The
             Defender
             al●eadged
             ,
             
               non
               relevat
            
             ,
             to
             infer
             this
             passive
             Title
             ,
             unless
             the
             Disposition
             had
             been
             to
             the
             Defender
             himself
             ,
             or
             that
             he
             had
             thereupon
             been
             Infeft
             ,
             but
             a
             third
             Party
             being
             only
             in
             the
             real
             Right
             ,
             and
             the
             Defunct
             denuded
             before
             his
             death
             ,
             albeit
             there
             was
             a
             personal
             obliegment
             of
             Trust
             in
             Favours
             of
             the
             appearand
             Heir
             ,
             if
             that
             cannot
             make
             him
             Lucrative
             Successour
             ,
             but
             the
             Pursuer
             may
             reduce
             the
             same
             ,
             if
             it
             was
             without
             Cause
             onerous
             .
          
           
             The
             Lords
             found
             the
             Defence
             relevant
             ,
             to
             Liberat
             the
             Defender
             from
             this
             passive
             Title
             ,
             but
             would
             not
             put
             the
             Pursuer
             to
             Reduction
             ,
             but
             admitted
             it
             by
             Reply
             ,
             
               ad
               hunc
               effectum
            
             ,
             that
             the
             Defender
             should
             be
             countable
             according
             to
             his
             Intromission
             ;
             and
             that
             the
             Pursuer
             as
             a
             lawful
             Creditor
             ,
             should
             be
             preferred
             upon
             his
             legal
             Diligence
             ,
             to
             the
             said
             Disposition
             .
          
           
             But
             the
             question
             arising
             ,
             whether
             the
             Disposition
             ,
             if
             in
             trust
             ,
             was
             Lucrative
             or
             not
             ?
             and
             what
             to
             be
             Lucrative
             imported
             ,
             whether
             without
             any
             price
             ,
             or
             within
             the
             half
             or
             third
             of
             the
             just
             price
             ?
          
           
             The
             Lords
             before
             answer
             ,
             ordained
             the
             Disposition
             to
             be
             produced
             ,
             and
             such
             Admin●●les
             ,
             for
             instructing
             of
             the
             ●nerous
             Cause
             ,
             as
             the
             Defender
             would
             make
             use
             of
             ,
             reserving
             to
             themselves
             ,
             what
             the
             samine
             should
             work
             .
          
        
         
           
             Robert
             Dickie
             contra
             Theoder
             Montgomery
             .
             Eodem
             die
             .
          
           
             
               RObert
               Dickie
            
             ,
             as
             Assigney
             Constitute
             by
             
               Robert
               Montgomery
            
             ,
             to
             a
             Contract
             betwixt
             
               Theoder
               Montgomerie
            
             and
             the
             said
             Robert
             ,
             Charges
             Theoder
             to
             pay
             700.
             merks
             :
             He
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Debt
             was
             Discharged
             before
             the
             Assignation
             ,
             or
             Intimation
             ,
             conform
             to
             the
             Discharge
             produced
             .
             The
             Charger
             answered
             ,
             that
             the
             Discharge
             is
             null
             ,
             as
             wanting
             Witnesses
             .
             The
             Suspender
             replyed
             ,
             he
             offered
             him
             to
             prove
             Holograph
             .
             The
             Charger
             answered
             ,
             
               non
               relevat
            
             ,
             against
             him
             ,
             a
             singular
             Successor
             ,
             especially
             the
             question
             being
             of
             the
             Date
             :
             For
             if
             Writs
             proven
             Holograph
             ,
             could
             instruct
             their
             own
             Date
             ,
             no
             Assigney
             ,
             or
             any
             other
             person
             using
             legal
             Diligence
             by
             Arrestment
             ,
             Appryzing
             ,
             or
             otherwise
             could
             be
             secure
             :
             But
             that
             their
             Cedents
             ,
             and
             Authors
             might
             evacuat
             the
             Right
             by
             Discharges
             ,
             or
             Renunciatio●
             Holograph
             :
             And
             therefore
             seeing
             by
             express
             Act
             of
             Parliamen●
             ,
             Writs
             wanting
             Witnesses
             are
             declared
             null
             :
             The
             Exception
             introduced
             by
             Custom
             of
             Holographon
             ,
             ought
             not
             to
             be
             extended
             ,
             especially
             in
             relation
             to
             the
             Debitor
             against
             singular
             Successors
             .
             The
             Suspender
             alleadged
             ,
             the
             inconvenience
             was
             al●
             great
             on
             the
             other
             hand
             ,
             it
             being
             ordinar
             for
             Masters
             to
             give
             their
             Tennents
             Holograph
             Discharges
             ,
             and
             whatever
             favour
             necessar
             Assignations
             by
             legal
             Diligence
             might
             have
             ,
             yet
             this
             is
             a
             voluntar
             Assignation●
          
           
             The
             Lords
             repelled
             the
             Reason
             of
             Suspension
             and
             Reply
             ,
             in
             respect
             of
             the
             answer
             and
             dupl●
             ,
             and
             found
             the
             Holograph
             Discharge
             not
             to
             prove
             its
             own
             date
             ,
             against
             the
             Assigney
             unless
             the
             Suspender
             could
             instruct
             it
             by
             other
             Adminicles
             .
          
        
         
           
           
             George
             Grant
             contra
             Grant
             of
             Kirdels
             .
             Ianuary
             15.
             1662.
             
          
           
             
               GEorge
               Grant
            
             pursues
             Reduction
             of
             a
             Renunciation
             of
             a
             Wodset
             ,
             made
             by
             Grant
             of
             Morinsh
             to
             Grant
             of
             
               Kirdels
               ,
               ex
               capite
               inhibitionis
            
             ,
             because
             he
             had
             Inhibit
             Morinsh
             the
             Wodsetter
             ,
             before
             he
             granted
             the
             Renunciation
             .
             The
             Defender
             alleadged
             ,
             that
             he
             had
             a
             Reduction
             of
             the
             Bond
             ,
             whereupon
             the
             Pursuers
             Inhibition
             was
             raised
             ,
             depending
             ,
             and
             declared
             he
             held
             the
             production
             satisfied
             ,
             and
             repeated
             his
             Reason
             by
             way
             of
             Defense
             :
             that
             the
             Bond
             was
             null
             ,
             wanting
             a
             Date
             ,
             either
             of
             Day
             ,
             Month
             ,
             or
             Year
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Bond
             bare
             ,
             
               the
               Term
               of
               payment
               to
               be
               Whitsunday
            
             1635.
             and
             so
             instructs
             that
             the
             Bond
             was
             betwixt
             Whitsonday
             1634.
             and
             Whitsonday
             1635.
             
             The
             Defender
             answered
             
               non
               relevat
            
             ,
             unless
             the
             Month
             and
             Day
             were
             also
             exprest
             ,
             because
             otherwise
             the
             means
             of
             Improbation
             cease
             by
             proving
             alibi
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             ,
             seing
             the
             Year
             was
             exprest
             
               in
               re
               antiqua
            
             ,
             but
             if
             Improbation
             had
             been
             insisted
             on
             less
             Reasons
             in
             the
             indirect
             manner
             would
             be
             sustained
             .
          
           
             The
             Defender
             alleadged
             further
             Absolvitor
             ,
             because
             this
             Bond
             ,
             albeit
             it
             be
             assigned
             to
             
               George
               Grant
            
             the
             Pursuer
             ;
             yet
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             time
             of
             the
             Assignation
             ,
             the
             said
             George
             was
             Pupil
             ,
             within
             twelve
             years
             of
             age
             ,
             in
             his
             Fathers
             Family
             :
             And
             so
             in
             Law
             it
             is
             presumed
             ,
             that
             it
             was
             acquired
             by
             his
             Fathers
             Means
             ,
             and
             is
             all
             one
             ,
             as
             if
             his
             Father
             had
             taken
             Assignation
             in
             his
             own
             Name
             ,
             and
             granted
             translation
             to
             his
             Son
             :
             And
             it
             is
             clear
             by
             the
             Testament
             produced
             ,
             that
             grant
             of
             Ballandallochs
             Father
             was
             Tutor
             to
             the
             Wodsetter
             ;
             and
             during
             his
             Tutory
             ,
             any
             Right
             taken
             by
             him
             ,
             of
             sums
             due
             by
             the
             Pupil
             ,
             are
             presumed
             to
             be
             satisfied
             by
             the
             Pupils
             Means
             ,
             and
             to
             accresce
             to
             the
             Pupil
             ,
             against
             whom
             ,
             he
             nor
             his
             Assigney
             can
             have
             no
             Action
             ,
             for
             any
             particular
             apart
             ,
             but
             the
             whole
             must
             come
             in
             in
             the
             Tutors
             accounts
             :
             and
             offers
             to
             prove
             if
             need
             beis
             ,
             that
             the
             Tutor
             ,
             int●s
             hab●●t
             ,
             being
             Debitor
             in
             greater
             sums
             to
             the
             Pupil
             then
             this
             .
             The
             Pursuer
             answered
             ;
             First
             ,
             the
             Alleadgence
             is
             no
             way
             relevant
             ,
             upon
             such
             presumptions
             ,
             to
             take
             away
             the
             Right
             standing
             in
             the
             Defenders
             Person
             .
             Secondly
             ,
             The
             Defense
             is
             not
             liquid
             ,
             and
             so
             can
             make
             no
             compensation
             ,
             albeit
             his
             Son
             were
             expresly
             Assigney
             ,
             as
             he
             is
             not
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             unless
             the
             Pursuer
             would
             condescend
             and
             instruct
             that
             the
             Assignation
             was
             granted
             to
             him
             otherwise
             then
             by
             his
             Fathers
             Means
             .
          
        
         
           
             Thomas
             Fairholme
             contra
             Margaret
             Bisset
             .
             Ianuary
             18.
             1662.
             
          
           
             
               THomas
               Fairholm
            
             as
             Executor
             Creditor
             ,
             Confirmed
             to
             
               Andrew
               Reid
            
             ,
             pursues
             
               Margaret
               Bisset
            
             his
             Relict
             ,
             to
             deliver
             the
             Ware
             in
             his
             Chop
             ,
             contained
             in
             the
             Pursuers
             Confirmation
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             
             she
             has
             Confirmed
             the
             Ware
             in
             the
             Shop
             ,
             specially
             and
             particularly
             for
             the
             use
             of
             the
             hail
             Creditors
             ;
             and
             the
             Pursuers
             Confirmation
             is
             only
             general
             ,
             not
             condescending
             upon
             the
             particular
             Ware
             :
             And
             though
             the
             Defenders
             Confirmation
             be
             posterior
             ,
             yet
             it
             is
             special
             ,
             and
             hath
             attained
             Possession
             before
             any
             Pursuit
             ,
             at
             the
             Pursuers
             instance
             ,
             upon
             his
             prior
             Confirmation
             ;
             and
             Confirmations
             do
             not
             establish
             Property
             ,
             until
             Possession
             or
             Execution
             ;
             but
             is
             only
             as
             a
             legal
             Disposition
             incompleat
             ,
             as
             Gifts
             of
             Escheat
             ,
             where
             the
             first
             Sentence
             ,
             or
             Possession
             ,
             gives
             the
             first
             real
             Right
             of
             Property
             .
             The
             Pursuer
             answered
             ,
             that
             his
             Confirmation
             is
             special
             enough
             ,
             bearing
             
               the
               Ware
               of
               the
               Shop
               to
               be
               Silks
               ,
               Stuffs
               ,
               and
               others
               worth
               4000.
               merks
            
             ;
             and
             the
             Confirmation
             alone
             Constitutes
             the
             Property
             unto
             the
             Executor
             ,
             because
             he
             is
             
               Haeres
               mobili●m
            
             ;
             and
             the
             Property
             being
             before
             
               in
               hereditatae
               jacent●
               ,
               ipso
               facto
               ,
            
             by
             the
             Confirmation
             it
             is
             Established
             in
             the
             Executor
             .
             Secondly
             ,
             by
             the
             constant
             practice
             of
             this
             Kingdom
             ,
             there
             could
             no
             second
             principal
             Confirmation
             ,
             but
             only
             
               ad
               o●issa
            
             ,
             and
             she
             could
             never
             Confirm
             that
             which
             the
             first
             Executor
             had
             Confirmed
             .
             The
             Defender
             answered
             ,
             that
             by
             Act
             of
             Sederunt
             ,
             of
             the
             Judges
             in
             the
             Usurpers
             time
             ,
             all
             Executors
             Confirming
             within
             six
             Moneths
             after
             the
             Defuncts
             Death
             ,
             were
             ordained
             to
             come
             in
             together
             ;
             and
             therefore
             it
             was
             then
             the
             Custom
             ,
             that
             all
             Confirmed
             principally
             the
             same
             things
             ,
             seeing
             they
             could
             get
             no
             more
             then
             what
             was
             in
             their
             Confirmation
             :
             And
             the
             Defenders
             Confirmation
             being
             at
             that
             time
             ,
             must
             be
             sustained
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defender
             cannot
             have
             the
             benefit
             of
             that
             Act
             of
             Sederunt
             ,
             because
             she
             Confirmed
             not
             within
             six
             Moneths
             after
             the
             Defuncts
             Death
             .
             The
             Defender
             answered
             ,
             she
             Confirmed
             within
             six
             Moneths
             ,
             or
             six
             or
             seven
             Dayes
             more
             ,
             which
             is
             an
             inconsiderable
             difference
             .
          
           
             The
             Lords
             preferred
             the
             first
             Executor
             to
             the
             Goods
             in
             the
             Shop
             .
          
        
         
           
             Mr.
             Iohn
             Veach
             contra
             Byel
             of
             Bassinden
             .
             Eodem
             die
             .
          
           
             MR.
             
               Iohn
               Veach
            
             ,
             as
             Assigney
             by
             
               Iohn
               Edgar
            
             of
             Wedderlie
             ,
             to
             a
             Reversion
             ,
             pursues
             Declarator
             against
             Byel
             of
             Bassinden
             ,
             the
             Wodsetter
             ;
             who
             alleadged
             Absolvitor
             ,
             because
             the
             premonition
             is
             null
             ,
             being
             by
             a
             Procurator
             ,
             and
             not
             bearing
             ,
             
               the
               Procuratory
               produced
            
             ,
             neither
             the
             Pursuers
             Assignation
             to
             the
             Reversion
             .
             The
             Pursuer
             answered
             
               non
               relevat
            
             ,
             unless
             it
             were
             alleadged
             ,
             that
             they
             had
             been
             demanded
             at
             that
             time
             ,
             and
             had
             not
             been
             shown
             .
             Secondly
             ,
             If
             need
             beis
             he
             offers
             him
             to
             prove
             ,
             by
             the
             Defenders
             oath
             ,
             that
             the
             Procuratory
             was
             then
             shown
             .
             The
             Defender
             answered
             ,
             the
             Procuratory
             is
             not
             yet
             produced
             ,
             and
             the
             Pursuer
             was
             oblieged
             to
             have
             shown
             it
             then
             ,
             albeit
             not
             called
             for
             .
          
           
             The
             Lords
             sustained
             the
             Order
             ,
             the
             Pursuer
             reproducing
             the
             Procuratory
             ,
             and
             proving
             by
             the
             Defenders
             Oath
             that
             the
             Procuratory
             was
             then
             shown
             .
          
        
         
           
           
             Alexander
             Colquhoun
             contra
             his
             Creditors
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Colquhoun
            
             in
             Glasgow
             ,
             pursues
             Liberation
             ,
             
               supercessione
               bonorum
            
             .
             The
             Defenders
             alleadged
             Absolvitor
             ,
             because
             they
             offer
             them
             to
             prove
             ,
             that
             the
             Pursuer
             did
             wittingly
             deceive
             them
             ,
             in
             borrowing
             sums
             ,
             and
             taking
             of
             Ware
             from
             them
             ,
             after
             he
             knew
             that
             he
             was
             insolvendo
             ,
             and
             Bankrupt
             .
             The
             Pursuer
             answered
             ,
             nonrelevat
             ,
             against
             Liberty
             ,
             which
             is
             a
             favourable
             Cause
             ,
             and
             can
             be
             stopped
             by
             nothing
             ,
             but
             fraudulent
             Deeds
             ,
             since
             the
             Incarceration
             ,
             or
             offering
             of
             Aliment
             .
             The
             Defenders
             craved
             ,
             that
             if
             the
             Lords
             inclined
             to
             grant
             Liberty
             ,
             that
             the
             Pursuer
             might
             be
             decerned
             to
             sit
             upon
             the
             Dyver-stone
             ;
             and
             wear
             the
             habit
             .
             The
             Pursuer
             answered
             ,
             that
             was
             long
             since
             out
             of
             Custome
             .
          
           
             The
             Lords
             before
             answer
             ,
             ordained
             the
             Pursuers
             oath
             to
             be
             taken
             ,
             upon
             the
             Defense
             ,
             whether
             he
             did
             contract
             these
             Debts
             after
             he
             knew
             himself
             insolvent
             and
             bankrupt
             ,
             and
             they
             resolved
             if
             it
             was
             so
             found
             ,
             they
             would
             not
             grant
             him
             Liberty
             without
             sitting
             upon
             the
             Dyver-stone
             ,
             and
             wearing
             the
             Habite
             .
          
        
         
           
             Laird
             of
             Polwart
             contra
             Hooms
             .
             Ianuary
             21.
             1662.
             
          
           
             THe
             Laird
             of
             Polwart
             pursues
             a
             Declarator
             of
             Redemption
             against
             Hooms
             ,
             who
             alleadge
             Absolvitor
             ,
             because
             the
             Reversion
             was
             not
             fulfilled
             ,
             which
             bore
             the
             sum
             of
             a
             1000.
             merks
             ,
             and
             a
             Tack
             for
             19.
             years
             after
             the
             Redemption
             .
             The
             Pursuer
             answered
             ,
             the
             Alleadgence
             ought
             to
             be
             Repelled
             ,
             because
             the
             Lands
             Wodset
             is
             worth
             400.
             merks
             by
             year
             ;
             and
             the
             Tack-duty
             is
             only
             four
             pounds
             ,
             and
             so
             it
             is
             an
             Usurary
             Paction
             ,
             whereby
             the
             Wodsetter
             will
             have
             much
             more
             then
             his
             principal
             sum
             ,
             and
             his
             Annualrent
             ,
             and
             so
             it
             is
             null
             ,
             by
             the
             common
             Law
             ,
             and
             by
             special
             Statute
             ,
             
               Par.
               1449.
               cap.
            
             19.
             bearing
             ,
             that
             when
             Wodsetters
             take
             Tacks
             for
             long
             time
             ,
             after
             the
             Bond
             be
             out
             quite
             ;
             such
             Tacks
             shall
             not
             be
             keeped
             after
             Redemption
             ,
             unless
             they
             be
             for
             the
             very
             Mail
             ,
             or
             near
             thereby
             .
             The
             Defender
             answered
             ;
             First
             ,
             That
             Statute
             is
             but
             an
             Exception
             from
             the
             Immediat
             preceeding
             Act
             of
             parliament
             ,
             in
             favours
             of
             Tennents
             ,
             that
             their
             Tacks
             shall
             not
             be
             broken
             by
             singular
             Successors
             ,
             buying
             the
             Land
             :
             and
             therefore
             is
             only
             understood
             in
             that
             case
             ,
             when
             the
             Wodset
             Lands
             are
             bought
             from
             him
             that
             hath
             right
             to
             the
             Reversion
             ,
             by
             a
             singular
             Successor
             :
             but
             this
             Pursuer
             is
             Heir
             to
             the
             granter
             of
             the
             Wodset
             .
             2ly
             ,
             That
             Act
             is
             long
             since
             in
             
               desuetude
               .
               3ly
            
             .
             Whatever
             the
             Act
             might
             operate
             amongst
             strangers
             ,
             yet
             it
             is
             clear
             by
             the
             Contract
             of
             Wodset
             produced
             ,
             
             that
             the
             Wodset
             was
             granted
             by
             the
             Laird
             of
             Polwart
             to
             his
             own
             Brother
             ;
             and
             so
             must
             be
             Repute
             to
             be
             his
             Portion
             Natural
             ,
             and
             the
             eldest
             Brother
             might
             well
             grant
             a
             nineteen
             years
             Tack
             to
             his
             youngest
             Brother
             ,
             albeit
             there
             had
             been
             no
             Wodset
             .
             Likeas
             ,
             in
             the
             Wodset
             there
             is
             Reserved
             ,
             the
             Liferent
             of
             a
             third
             Partie
             ;
             who
             lived
             thirty
             six
             Years
             thereafter
             ,
             during
             which
             time
             the
             Wodset
             got
             no
             Rent
             .
          
           
             The
             Lords
             found
             the
             Defense
             and
             Reply
             relevant
             ,
             and
             Ordained
             no
             Declarator
             to
             be
             extracted
             ,
             till
             the
             Tack
             were
             Produced
             ,
             and
             given
             up
             to
             the
             Wodsetter
             .
          
        
         
           
             Laird
             Balvaird
             ,
             contra
             Creditors
             of
             Annandail
             .
             Eodem
             die
             .
          
           
             THE
             Laird
             Balvaird
             ,
             As
             Heir
             of
             Tailzie
             to
             David
             Viscount
             of
             Stormont
             ,
             in
             the
             Lands
             of
             Skun
             ,
             Pursues
             the
             Heirs
             of
             Line
             ,
             of
             the
             said
             David
             and
             Mungo
             Viscount
             of
             Stormont
             ,
             and
             several
             their
             Creditors
             ,
             Lybelling
             ,
             That
             by
             an
             Infeftment
             of
             Tailzie
             of
             the
             saids
             Lands
             ,
             made
             by
             the
             said
             David
             Viscount
             of
             Stormont
             .
             It
             is
             expresly
             Declared
             and
             Provided
             ,
             That
             none
             of
             the
             Heirs
             of
             Tailzie
             ,
             shall
             do
             any
             Deed
             prejudicial
             ,
             to
             the
             Tailzie
             ;
             or
             contract
             Debt
             ,
             whereby
             the
             Tailzie
             may
             be
             altered
             ,
             otherwayes
             the
             Debt
             so
             Contracted
             shall
             be
             null
             ,
             and
             the
             Contracter
             shall
             
               ipso
               facto
            
             ,
             lose
             his
             Right
             of
             Propertie
             ,
             which
             shall
             belong
             to
             the
             nearest
             Person
             of
             the
             Tailzie
             ,
             and
             subsumes
             that
             the
             late
             Earl
             of
             Annandail
             last
             Heir
             of
             Tailzie
             Contracted
             Debts
             ;
             which
             might
             effect
             the
             saids
             Tailzed
             Lands
             ,
             and
             concludes
             ;
             that
             it
             ought
             to
             be
             Declared
             ,
             that
             thereby
             he
             incurred
             the
             Clauses
             itritant
             in
             the
             Tailzie
             ,
             and
             lost
             his
             Right
             of
             Propertie
             ;
             and
             that
             all
             the
             Bonds
             Contracted
             by
             him
             ,
             and
             Appryzed
             upon
             ,
             are
             
               null
               ,
               quoad
            
             these
             Lands
             ,
             and
             that
             the
             Pursuer
             as
             nearest
             Heir
             of
             Tailzie
             ,
             may
             enter
             Heir
             in
             these
             Lands
             ,
             to
             David
             and
             Mungo
             Viscounts
             of
             Stormont
             ,
             and
             enjoy
             the
             same
             free
             of
             any
             Debt
             Contracted
             since
             the
             Tailzie
             .
             The
             Creditors
             alleadged
             no
             Process
             to
             Annul
             their
             Bonds
             ,
             and
             Apprysing
             ,
             
               hoc
               ordine
            
             ;
             by
             way
             of
             Declarator
             ,
             but
             the
             Pursuer
             must
             
               via
               ordinaria
            
             Reduce
             ;
             in
             which
             Case
             ,
             the
             Creditors
             will
             have
             Terms
             granted
             them
             to
             produce
             ,
             the
             Writs
             called
             for
             to
             be
             reduced
             :
             which
             Priviledge
             ,
             being
             in
             their
             favour
             ought
             not
             to
             be
             taken
             from
             them
             in
             this
             extraordinar
             unformal
             way
             .
             
               The
               Lords
               repelled
               the
               Defense
               ,
               and
               sustained
               the
               Summons
            
             ;
             in
             respect
             there
             was
             no
             Bond
             craved
             to
             be
             produced
             ,
             or
             simplie
             reduced
             ;
             but
             only
             that
             any
             Bonds
             granted
             to
             the
             Defenders
             since
             the
             Tailzie
             are
             null
             ,
             and
             all
             following
             thereupon
             ,
             as
             to
             the
             Lands
             in
             Tailzie
             ,
             which
             is
             no
             more
             then
             that
             they
             affect
             not
             the
             Lands
             in
             the
             Tailzie
             ,
             and
             there
             is
             no
             necessity
             of
             Reduction
             ,
             but
             where
             the
             Writs
             must
             be
             Produced
             ,
             before
             they
             can
             be
             Reduced
             ;
             and
             even
             in
             that
             case
             ;
             if
             the
             Pursuer
             satisfie
             the
             Production
             himself
             ,
             the
             Defender
             hath
             no
             delay
             ,
             and
             here
             the
             Pursuer
             produces
             all
             that
             is
             necessar
             ,
             and
             craves
             the
             rest
             to
             be
             Declared
             null
             in
             consequence
             .
          
           
             The
             Lords
             sustained
             the
             Summons
             .
          
        
         
           
           
             Glendinning
             ,
             contra
             Earl
             of
             Nithisdale
             ,
             Ianuary
             22.
             1662.
             
          
           
             
               GEorge
               Glendinning
            
             of
             Partoun
             ,
             pursues
             the
             Earl
             of
             Nithisdale
             ,
             for
             fulfilling
             of
             a
             Contract
             of
             Excambion
             betwixt
             the
             Earls
             Father
             ,
             and
             the
             Pursuers
             Grand-father
             ;
             and
             insist
             against
             the
             Earl
             ,
             as
             lawfully
             charged
             to
             enter
             Heir
             to
             his
             Father
             .
             The
             Earl
             alleadged
             absolvitor
             ,
             because
             he
             offers
             him
             to
             Renunce
             to
             be
             Heir
             :
             The
             Pursuer
             replyed
             ,
             the
             Defense
             ought
             to
             be
             repelled
             ,
             
               quia
               res
               non
               est
               intigra
            
             ;
             because
             the
             Earl
             has
             done
             a
             Deed
             prejudicial
             to
             his
             Renunciation
             ,
             viz.
             he
             granted
             a
             Bond
             for
             two
             thousand
             pounds
             sterling
             to
             the
             Earl
             of
             Dirltoun
             ,
             only
             simulatlie
             to
             his
             own
             behove
             ,
             whereupon
             his
             Fathers
             whole
             Estate
             was
             adjudged
             ,
             and
             that
             Adjudication
             assigned
             to
             the
             Earl
             himself
             ,
             and
             so
             he
             having
             intrometted
             be
             that
             Simulat
             Title
             ,
             with
             the
             Maills
             and
             Duties
             of
             his
             Fathers
             Lands
             ,
             he
             hath
             behaved
             himself
             as
             Heir
             ,
             and
             cannot
             Renunce
             :
             The
             Defender
             duplyed
             that
             the
             Reply
             ought
             to
             be
             repelled
             ;
             because
             he
             offered
             not
             only
             to
             Renunce
             ,
             but
             also
             to
             Purge
             that
             Deed
             of
             his
             ,
             and
             the
             Adjudication
             of
             two
             thousand
             pounds
             sterling
             ,
             and
             to
             declare
             that
             it
             should
             not
             prejudge
             the
             Pursuer
             ,
             nor
             his
             Fathers
             lawful
             Creditors
             ,
             and
             that
             he
             should
             be
             comptable
             for
             the
             Price
             of
             any
             Lands
             he
             had
             sold
             ,
             or
             any
             Rents
             he
             had
             uplifted
             .
             The
             Pursuer
             triplyed
             ,
             that
             the
             duply
             ought
             to
             be
             repelled
             ;
             because
             
               medio
               tempore
            
             ,
             the
             Earl
             had
             bought
             in
             expired
             Apprisings
             ,
             with
             the
             Profits
             of
             the
             Lands
             ,
             The
             Defender
             quadruplyed
             ,
             that
             he
             was
             content
             to
             restrict
             any
             such
             Rights
             ,
             to
             the
             Sums
             he
             truly
             payed
             for
             them
             ,
             and
             not
             to
             exclude
             the
             Pursuer
             by
             them
             .
             The
             Pursuer
             Answered
             ,
             That
             he
             having
             once
             behaved
             himself
             as
             Heir
             ,
             no
             Offer
             ,
             nor
             Renunciation
             could
             be
             received
             .
             The
             Defender
             Answered
             ,
             that
             his
             Intromission
             could
             not
             be
             
               gestio
               pro
               herede
            
             ,
             because
             it
             was
             
               singulari
               titulo
            
             ,
             and
             not
             as
             Heir
             ,
             and
             
               in
               gestione
            
             there
             must
             appear
             
               animus
               adeundi
               aut
               immiscendi
            
             .
             The
             contrair
             whereof
             is
             here
             ,
             for
             the
             granting
             of
             the
             Bond
             ,
             and
             the
             taking
             right
             to
             the
             Adjudication
             thereupon
             ,
             was
             of
             purpose
             ,
             that
             his
             Intromission
             might
             not
             be
             as
             Heir
             ,
             or
             as
             immixtion
             ,
             which
             can
             never
             be
             without
             an
             illegal
             ,
             and
             unwarrantable
             Deed
             ;
             but
             all
             that
             was
             here
             done
             was
             Legal
             ,
             there
             being
             no
             Law
             ,
             nor
             Custom
             to
             hinder
             the
             Earl
             ,
             to
             grant
             a
             Bond
             ,
             albeit
             gratis
             ,
             and
             after
             Dirltoun
             had
             Adjudged
             the
             Lands
             ,
             there
             was
             no
             Law
             to
             hinder
             the
             appearand
             Heir
             to
             take
             Assignation
             thereto
             ,
             and
             bruik
             thereby
             ,
             more
             then
             a
             Stranger
             ;
             and
             albeit
             there
             were
             Simulation
             ,
             or
             Fraud
             ,
             that
             might
             be
             a
             ground
             to
             Reduce
             upon
             ,
             but
             not
             to
             infer
             a
             general
             passive
             Title
             ,
             to
             make
             the
             Defender
             lyable
             to
             all
             his
             Fathers
             Debts
             ,
             from
             which
             Passive
             Title
             ,
             
               qui
               res
               colleratus
               titulus
               excus●●
            
             ,
             and
             albeit
             this
             Passive
             Title
             be
             not
             any
             where
             else
             in
             the
             World
             ,
             but
             in
             Scotland
             ,
             yet
             it
             was
             never
             applyed
             to
             this
             Case
             now
             in
             question
             ,
             but
             by
             the
             contrare
             ,
             since
             the
             Act
             of
             Parliament
             one
             thousand
             six
             hundred
             twenty
             one
             ,
             by
             which
             Heirs
             may
             be
             charged
             to
             enter
             Heirs
             to
             their
             Predecessors
             ,
             not
             only
             for
             the
             Defuncts
             Debts
             ,
             but
             their
             own
             ;
             any
             Bond
             granted
             by
             the
             Appearand
             Heir
             although
             gratis
             ,
             would
             be
             valid
             ,
             to
             Apprize
             ,
             or
             Adjudge
             the
             Defuncts
             Estate
             ,
             and
             therefore
             ,
             there
             being
             many
             Cases
             ,
             in
             which
             the
             Appearand
             Heir
             could
             not
             probably
             know
             whether
             the
             Heretage
             would
             be
             Hurtful
             ,
             or
             Profitable
             .
             This
             hath
             been
             ofttimes
             advised
             ,
             as
             the
             remeid
             ,
             
             be
             Sir
             
               Thomas
               Hope
            
             ,
             and
             many
             since
             ;
             That
             the
             Heir
             Appearand
             might
             grant
             a
             Bond
             ,
             and
             thereupon
             the
             Lands
             being
             Adjudged
             ,
             might
             take
             Right
             thereto
             .
             The
             Pursuer
             answered
             ,
             the
             Defender
             had
             intrometted
             with
             the
             Rents
             of
             his
             Predicessors
             Land
             ,
             which
             albeit
             not
             
               animo
               adeundi
            
             ,
             yet
             
               animo
               Immiscendi
               &
               Lucrandi
            
             ,
             which
             cannot
             be
             maintained
             by
             a
             
               simulat
               null
               Bond
            
             ,
             by
             himself
             to
             his
             own
             behove
             ,
             and
             Adjudication
             thereupon
             ;
             and
             if
             this
             were
             sustained
             ,
             no
             Person
             would
             ever
             after
             enter
             Heir
             to
             his
             Predecessor
             ,
             but
             take
             this
             indirect
             way
             ,
             to
             the
             Defraud
             ,
             and
             Vexation
             of
             Creditors
             ;
             and
             entring
             so
             to
             possesse
             ,
             would
             buy
             in
             other
             Rights
             ,
             and
             maintain
             his
             Possession
             ;
             as
             this
             Defender
             hath
             done
             ,
             and
             would
             not
             be
             oblieged
             ,
             or
             willing
             to
             restrict
             these
             Rights
             ,
             as
             he
             doth
             .
          
           
             The
             Lords
             ,
             after
             long
             Consideration
             and
             debate
             in
             the
             matter
             ,
             found
             the
             Earls
             offers
             relevant
             ,
             but
             resolved
             to
             make
             and
             publish
             an
             Act
             of
             Sederunt
             ,
             against
             any
             such
             courses
             in
             time
             coming
             ,
             and
             declared
             ,
             that
             it
             should
             be
             
               gestio
               pro
               haerede
            
             ,
             to
             intromet
             upon
             such
             simulat
             Titles
             .
          
        
         
           
             Adam
             Hepburn
             contra
             Hellen
             Hepburn
             .
             Eodem
             die
             .
          
           
             
               ADam
               Hepburn
            
             ,
             Brother
             to
             the
             Deceast
             
               Thomas
               Hepburn
            
             of
             Humbie
             Pursues
             Reduction
             ,
             and
             Improbation
             against
             
               Hellen
               Hepburn
            
             his
             Brother
             Daughter
             ,
             of
             a
             Disposition
             made
             by
             him
             to
             his
             Daughter
             on
             Death
             Bed.
             
          
           
             The
             Lords
             granted
             a
             third
             Term
             for
             Production
             ,
             in
             respect
             of
             the
             Improbation
             ,
             albeit
             there
             was
             but
             a
             Writ
             or
             two
             called
             for
             Nominatim
             .
          
        
         
           
             Laird
             of
             Rentoun
             .
             contra
             Mr.
             Mark
             Ker.
             Ianuary
             24.
             1662.
             
          
           
             THE
             Laird
             of
             Rentoun
             having
             obtained
             Decreet
             before
             the
             Commissaries
             of
             Berwick
             ,
             against
             Mr.
             
               Mark
               Ker
            
             ,
             compearing
             for
             three
             Chalders
             of
             Victual
             of
             Teind
             ,
             Mr.
             Mark
             Suspends
             ,
             upon
             iniquity
             ;
             because
             he
             having
             proponed
             a
             Relevant
             Defense
             ,
             that
             he
             ought
             to
             have
             allowance
             of
             the
             Annuitie
             which
             he
             had
             payed
             ,
             which
             affected
             the
             Teinds
             .
             It
             was
             repelled
             .
             The
             Charger
             Answered
             ,
             
               non
               relevat
            
             ,
             by
             way
             of
             Suspension
             ,
             without
             there
             were
             a
             Reduction
             .
             The
             Suspender
             Answered
             ,
             the
             Reason
             was
             instantly
             verified
             ,
             by
             inspection
             of
             the
             Decreet
             .
          
           
             The
             Lords
             found
             the
             Reason
             not
             competent
             by
             Suspension
             without
             Reduction
             .
          
        
         
           
             Mr.
             Iames
             Ramsay
             contra
             Earl
             of
             Wintoun
             .
             Eodem
             die
             .
          
           
             
               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
             ,
             
             because
             the
             time
             of
             the
             Assignation
             taken
             by
             Sir
             
               George
               Seatoun
            
             ,
             he
             was
             one
             of
             the
             Defenders
             Tutors
             ,
             and
             so
             it
             is
             presumed
             ,
             that
             the
             Assignation
             was
             purchased
             by
             the
             Pupils
             Means
             ,
             and
             as
             the
             Tutor
             could
             have
             no
             Process
             thereupon
             against
             the
             Pupil
             ,
             till
             he
             had
             made
             his
             Tutor
             accompts
             ,
             so
             neither
             can
             his
             Assigney
             ;
             seeing
             
               in
               Person
               alibus
            
             ,
             all
             exceptions
             competent
             against
             the
             Cedent
             are
             competent
             against
             the
             Assigney
             .
          
           
             The
             Lords
             found
             the
             Defense
             relevant
             ,
             unlesse
             the
             Pursuer
             would
             find
             Caution
             to
             pay
             what
             should
             be
             found
             due
             by
             Sir
             George
             ,
             by
             the
             Tutors
             Accompts
             ,
             as
             they
             had
             done
             before
             ,
             betwixt
             Grant
             and
             
               Grant
               ,
               January
            
             15.
             1662.
             
          
        
         
           
             Laird
             of
             Lamingtoun
             contra
             Sir
             Iohn
             Chiesly
             .
             Ianuary
             29.
             1662.
             
          
           
             THE
             Laird
             of
             Lamingtoun
             pursues
             Sir
             
               Iohn
               Chiesly
            
             ,
             upon
             the
             late
             Act
             of
             Parliament
             1661.
             betwixt
             Debitor
             and
             Creditor
             ,
             to
             restrict
             a
             proper
             Wodset
             ,
             granted
             by
             Lamingtoun
             to
             him
             ,
             of
             the
             Lands
             of
             Symontoun
             ,
             to
             his
             Annualrent
             .
             The
             Defender
             excepted
             upon
             a
             Back-bond
             granted
             by
             Lamingtoun
             ,
             whereby
             he
             expresly
             renunced
             the
             benefit
             of
             the
             Usurpers
             Act
             ,
             betwixt
             Debitor
             and
             Creditor
             ,
             and
             all
             such
             Acts
             ,
             made
             or
             to
             be
             made
             ;
             and
             oblidged
             himself
             ,
             upon
             Honour
             and
             Conscience
             ,
             not
             to
             prejudge
             Sir
             John
             of
             his
             bargain
             ,
             to
             which
             no
             subsequent
             Law
             could
             derogat
             ,
             unless
             it
             had
             been
             specially
             ,
             notwithstanding
             any
             such
             Paction
             .
             Secondly
             ,
             The
             foresaid
             Act
             has
             an
             express
             exception
             :
             That
             where
             such
             Acts
             ,
             made
             and
             to
             be
             made
             are
             Renounced
             ;
             the
             benefit
             of
             that
             Act
             shall
             not
             be
             competent
             to
             such
             .
             The
             Pursuer
             Answerd
             to
             the
             first
             ,
             That
             Pactions
             ,
             or
             Renunciation
             of
             Parties
             cannot
             operat
             ,
             against
             a
             posterior
             Law.
             Secondly
             .
             The
             persu●t
             here
             ,
             is
             ,
             for
             restricting
             of
             a
             Wodset
             to
             the
             true
             Annualrent
             ;
             for
             all
             that
             was
             done
             in
             the
             Usurpers
             Act
             ,
             was
             to
             take
             Land
             in
             satisfaction
             ,
             and
             to
             delay
             payment
             ,
             but
             this
             Clause
             of
             the
             Act
             is
             nothing
             such
             ,
             and
             so
             is
             
               Casus
               Incogitatus
            
             ,
             which
             could
             not
             be
             held
             to
             be
             Renunced
             ,
             unless
             it
             had
             been
             exprest
             ,
             as
             to
             the
             exception
             in
             the
             Act
             it
             is
             not
             an
             Exception
             general
             to
             the
             whole
             Act
             ,
             but
             to
             the
             Antecedent
             part
             of
             the
             Act
             ;
             and
             this
             Clause
             ,
             anent
             Restricting
             of
             Wodsets
             ,
             is
             posterior
             to
             the
             Exception
             ,
             and
             not
             derogat
             thereby
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             ,
             and
             found
             the
             Exception
             not
             to
             Derogat
             to
             the
             Posterior
             Clause
             concerning
             Wodsets
             .
          
        
         
           
             Lord
             Burly
             contra
             Iohn
             Sime
             .
             Ianuary
             30.
             1662.
             
          
           
             THE
             
               Lord
               Burly
            
             pursues
             
               Iohn
               Sime
            
             ,
             for
             intruding
             himself
             in
             a
             Coal-heugh
             ,
             wherein
             the
             Pursuers
             Author
             was
             infeft
             severally
             ,
             and
             not
             in
             the
             Land
             ,
             but
             only
             in
             the
             Coal
             ,
             with
             power
             to
             set
             down
             Pits
             through
             all
             the
             bounds
             of
             the
             Land.
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             he
             stood
             Infeft
             in
             the
             Lands
             lybelled
             ,
             with
             Parts
             and
             Pertinents
             ,
             and
             be
             vertue
             thereof
             ,
             was
             seven
             Years
             in
             Possession
             ,
             which
             must
             Defend
             
             him
             in
             Possession
             ,
             until
             his
             Right
             be
             reduced
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defender
             could
             have
             no
             benefite
             of
             a
             possessory
             Judgement
             ,
             not
             being
             expresly
             Infeft
             with
             the
             benefite
             of
             the
             Coal
             ,
             in
             prejudice
             of
             the
             Pursuer
             ,
             who
             was
             expresly
             Infeft
             ,
             and
             Seased
             in
             the
             Coal
             ,
             and
             in
             possession
             of
             the
             Coals
             past
             memory
             .
             The
             Defender
             answered
             ,
             there
             was
             no
             necessity
             of
             an
             express
             Infeftment
             of
             the
             Coal
             ,
             which
             is
             carried
             as
             part
             and
             pertinent
             ,
             as
             Craig
             observes
             in
             
               dieg
               .
               de
               investituturis
               impropriis
               ,
               ,
            
             to
             have
             been
             decided
             betwixt
             the
             Sheriff
             of
             Air
             and
             Chalmers
             of
             
               Garthgirth
            
             ,
             and
             so
             being
             Infeft
             ,
             and
             in
             possession
             seven
             years
             ,
             he
             has
             the
             benefite
             of
             a
             possessory
             Judgement
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             but
             Repelled
             the
             same
             ,
             in
             respect
             of
             Interruption
             within
             seven
             years
             ,
             which
             was
             proponed
             .
          
        
         
           
             Halbert
             Irwing
             contra
             Mckartney
             .
             Eodem
             die
             .
          
           
             
               HAlbert
               Irwing
            
             pursues
             Mckartney
             for
             Spuilzie
             of
             ten
             Oxen.
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             he
             Intrometted
             with
             the
             Oxen
             by
             Warrant
             from
             Mr.
             
               Robert
               Ferguson
            
             ,
             to
             whom
             the
             Pursuer
             had
             given
             a
             Disposition
             of
             all
             his
             moveable
             Goods
             ,
             for
             relief
             of
             a
             Cautionry
             ,
             for
             which
             Mr.
             Robert
             first
             ,
             and
             now
             this
             Defender
             is
             Distrest
             .
             Secondly
             ,
             He
             offers
             him
             to
             prove
             voluntar
             Delivery
             of
             the
             Oxen
             ,
             by
             the
             Pursuer
             to
             him
             for
             the
             cause
             foresaid
             .
             But
             because
             the
             Pursuer
             hath
             summoned
             several
             other
             persons
             as
             Complices
             ,
             which
             are
             necessary
             Witnesses
             ,
             of
             purpose
             ,
             that
             he
             might
             exclude
             them
             from
             being
             Witnesses
             ,
             he
             desires
             they
             may
             be
             admitted
             Witnesses
             ,
             or
             otherwise
             Discust
             .
             First
             ,
             that
             if
             they
             be
             Assoilzied
             ,
             they
             may
             be
             Witnesses
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             
               non
               relevat
            
             ,
             a
             Disposition
             unless
             there
             had
             been
             Delivery
             ;
             and
             albeit
             there
             had
             been
             an
             Instrument
             of
             Delivery
             ,
             yet
             it
             being
             
               dispositio
               omnium
               bonorum
            
             ,
             two
             years
             before
             the
             medling
             ,
             could
             be
             no
             Warrant
             for
             summar
             medling
             ,
             without
             Sentence
             of
             a
             Judge
             ,
             and
             gave
             only
             
               jus
               ad
               rem
            
             .
             But
             specially
             the
             medling
             with
             the
             Plough
             Goods
             in
             time
             of
             Labourage
             ,
             when
             the
             Pursuer
             put
             other
             Goods
             before
             the
             Defender
             .
          
           
             The
             Lords
             found
             the
             first
             Defense
             Relevant
             ,
             founded
             upon
             the
             general
             Disposition
             and
             Instrument
             of
             Possession
             ;
             and
             that
             the
             Disposition
             alone
             ,
             though
             without
             any
             possession
             ,
             had
             been
             sufficient
             against
             the
             Disponer
             
               ad
               vitandum
               spolium
            
             ,
             unless
             the
             Defender
             had
             Intrometted
             by
             violence
             ,
             being
             resisted
             by
             force
             .
          
           
             But
             they
             proceeded
             not
             to
             the
             second
             Defense
             ,
             which
             doubtless
             was
             Relevant
             ,
             and
             the
             desire
             reasonable
             of
             Discussing
             the
             remnant
             Defenders
             ;
             First
             ,
             that
             they
             might
             be
             Witnesses
             if
             Assoilzied
             :
             Yea
             ,
             it
             seems
             they
             could
             not
             be
             hindred
             to
             be
             Witnesses
             ,
             used
             for
             the
             Defender
             ,
             though
             they
             might
             be
             suspect
             Witnesses
             against
             him
             ,
             as
             being
             Interest
             ,
             to
             put
             the
             Spuilzie
             upon
             him
             for
             their
             own
             relief
             .
          
        
         
           
           
             Sir
             Iames
             Cunninghame
             contra
             Thomas
             Dalmahoy
             .
             February
             1.
             1662.
             
          
           
             SIr
             
               Iames
               Cunninghame
            
             pursues
             
               Thomas
               Dalmahoy
            
             ,
             and
             the
             Tennents
             of
             Pollomount
             ,
             to
             make
             payment
             to
             him
             of
             the
             Mails
             and
             Duties
             of
             the
             Lands
             of
             Pollomount
             ,
             resting
             at
             the
             Death
             of
             the
             late
             Dutches
             of
             Hamiltoun
             ,
             because
             she
             had
             granted
             Bond
             of
             500.
             pound
             Sterling
             to
             the
             Pursuer
             ,
             to
             be
             payed
             after
             her
             Death
             ;
             and
             for
             security
             thereof
             ,
             had
             assigned
             the
             Mails
             and
             Duties
             of
             her
             Liferent
             Lands
             of
             Pollomount
             ,
             which
             should
             happen
             to
             be
             due
             at
             the
             time
             of
             her
             Death
             .
             It
             was
             alleadged
             for
             
               Thomas
               Dalmahoy
            
             her
             second
             Husband
             ,
             Absolvitor
             ,
             because
             these
             Mails
             and
             Duties
             belonged
             to
             him
             
               jure
               mariti
            
             ,
             neither
             can
             he
             be
             lyable
             for
             this
             Debt
             
               jure
               mariti
            
             ,
             because
             it
             was
             not
             Established
             against
             him
             during
             the
             Ladies
             Life
             ;
             neither
             could
             be
             ,
             because
             the
             term
             of
             payment
             was
             after
             her
             Death
             .
             The
             Pursuer
             answered
             ,
             that
             he
             did
             not
             insist
             against
             
               Thomas
               Dalmahoy
            
             as
             Husband
             ,
             but
             as
             Intrometter
             with
             the
             Rents
             of
             Pollomount
             ,
             due
             at
             the
             Dutches
             Death
             ,
             wherewith
             he
             hath
             medled
             since
             :
             which
             could
             not
             belong
             to
             him
             ,
             
               jure
               mariti
            
             ,
             being
             assigned
             before
             the
             Marriage
             ;
             and
             if
             they
             could
             belong
             to
             him
             
               jure
               mariti
            
             ,
             yet
             it
             must
             be
             with
             the
             burding
             of
             this
             Debt
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             ,
             for
             they
             thought
             a
             Husband
             ,
             albeit
             he
             was
             not
             lyable
             simply
             for
             his
             Wifes
             Debt
             ,
             
               post
               solutum
               matrimonij
            
             ;
             yet
             that
             he
             should
             have
             no
             more
             of
             the
             Wifes
             Means
             ,
             
               jure
               mariti
            
             ,
             but
             what
             was
             free
             of
             Debt
             ,
             and
             so
             behoved
             to
             pay
             her
             Debt
             ,
             so
             far
             as
             he
             enjoyed
             of
             her
             Means
             ,
          
        
         
           
             Belshes
             contra
             Belshes
             .
             Eodem
             die
             .
          
           
             IN
             an
             Account
             and
             Reckoning
             betwixt
             Belshes
             and
             Belshes
             ,
             concerning
             Executry
             ;
             The
             Lords
             found
             that
             the
             prices
             ,
             given
             up
             by
             the
             Defunct
             in
             his
             Testament
             ,
             of
             his
             own
             Goods
             ,
             should
             stand
             ,
             and
             the
             Executor
             be
             accountable
             accordingly●
             seing
             there
             was
             no
             enorm
             prejudice
             alleadged
             ,
             as
             if
             the
             Defunct
             had
             prized
             the
             Goods
             ,
             within
             a
             half
             or
             third
             of
             the
             true
             avail
             ,
             to
             the
             advantage
             of
             the
             Executor
             ,
             and
             prejudice
             of
             the
             Wife
             ,
             Bairns
             ,
             or
             Creditors
             .
          
           
             The
             Lords
             did
             also
             allow
             Aliment
             to
             the
             Wife
             ,
             out
             of
             her
             Husbands
             Moveables
             to
             the
             next
             Term
             ,
             albeit
             she
             Liferented
             an
             Annualrent
             ,
             payable
             at
             the
             next
             Term.
             
          
        
         
           
           
             Lord
             Melvil
             contra
             Laird
             of
             Fairin
             .
             February
             4.
             1662.
             
          
           
             THe
             Lord
             Melvil
             pursues
             the
             Laird
             of
             Fairin
             ,
             for
             Warrandice
             of
             a
             Disposition
             of
             certain
             Lands
             aud
             Teinds
             ,
             sold
             to
             my
             Lord
             by
             him
             ,
             with
             absolute
             Warrandice
             ,
             and
             condescends
             that
             the
             Teinds
             were
             affected
             with
             13.
             
             Bolls
             by
             a
             Locality
             to
             the
             Minister
             in
             Anno
             1641.
             
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             this
             Distress
             was
             known
             ,
             or
             might
             have
             been
             known
             to
             the
             Pursuer
             the
             time
             of
             the
             Bargain
             ,
             at
             least
             to
             his
             Tutors
             who
             made
             the
             Bargain
             .
             Secondly
             ,
             there
             is
             no
             legal
             Distress
             but
             voluntar
             payment
             made
             all
             the
             years
             bygone
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             ,
             that
             seeing
             the
             Distress
             by
             the
             Stipend
             was
             unquestionable
             ;
             payment
             made
             thereof
             without
             Processes
             ,
             prejudged
             not
             ,
             and
             that
             the
             Pursuers
             knowledge
             could
             work
             nothing
             ,
             being
             then
             a
             Pupil
             .
          
        
         
           
             Laird
             of
             Elphingstoun
             contra
             Sir
             Mungo
             Murray
             .
             Eodem
             die
             .
          
           
             THe
             Laird
             of
             Elphingstoun
             having
             Charged
             Sir
             
               Mungo
               Murray
            
             ,
             for
             the
             price
             of
             some
             Lands
             ,
             bought
             from
             him
             ,
             he
             Suspends
             ,
             and
             alleadges
             ,
             that
             by
             the
             Disposition
             the
             Charger
             is
             oblieged
             to
             relieve
             him
             ,
             of
             all
             Inhibitions
             ;
             and
             now
             produces
             several
             Inhibitions
             .
             The
             Charger
             answered
             
               non
               relevat
            
             ,
             unless
             there
             were
             a
             Distress
             ,
             seeing
             the
             Disposition
             bears
             not
             to
             purge
             but
             only
             to
             relieve
             ,
             or
             to
             warrant
             against
             Inhibitions
             .
          
           
             The
             Lords
             considering
             that
             the
             Chaeger
             
               vergebat
               ad
               inopiam
            
             ,
             found
             the
             Reasons
             Relevoan
             ,
             till
             Cauton
             were
             found
             to
             warrant
             the
             Suspender
             from
             these
             Inhibitions
             .
             They
             found
             also
             ,
             that
             where
             the
             Charger
             was
             oblieged
             to
             pay
             to
             the
             Suspender
             ,
             the
             Composition
             for
             his
             Entry
             to
             the
             Lands
             .
             That
             the
             Suspender
             should
             have
             no
             Composition
             if
             he
             got
             it
             Gratis
             ;
             albeit
             he
             alleadged
             he
             got
             it
             for
             other
             good
             Services
             .
          
        
         
           
             Skeen
             contra
             Lumsdean
             .
             Eodem
             die
             .
          
           
             
               ANdrew
               Skeen
            
             having
             Charged
             
               Alexander
               Lumsdean
            
             for
             payment
             of
             a
             sum
             ,
             for
             which
             he
             was
             Cautioner
             for
             his
             Brother
             Mr.
             
               Thomas
               Lumsdean
            
             ;
             he
             Suspends
             upon
             this
             Reason
             ,
             that
             the
             cause
             of
             the
             Bond
             was
             two
             Bills
             of
             Exchange●
             which
             was
             Protested
             .
             The
             Suspender
             
             answered
             ,
             he
             offered
             him
             to
             prove
             they
             were
             payed
             ,
             after
             the
             Protest
             ,
             by
             him
             who
             drew
             the
             Bills
             ,
             or
             by
             Mr.
             
               Thomas
               Lumsdean
            
             ,
             in
             whose
             Favour
             the
             Bills
             were
             drawn
             .
             The
             Suspender
             replyed
             ,
             that
             the
             Alleadgence
             ought
             to
             be
             Repelled
             ,
             because
             he
             was
             assigned
             to
             the
             protested
             Bills
             ,
             for
             relief
             of
             this
             Cautionry
             ,
             and
             intimat
             his
             Assignation
             to
             Skeen
             ,
             who
             delivered
             the
             Bills
             ,
             and
             got
             the
             Bond
             Charged
             on
             .
             The
             Charger
             offered
             him
             to
             prove
             payment●
             before
             that
             Assignation
             ,
             or
             Intimation
             ,
             and
             
               ad
               modum
               probationis
            
             ,
             produced
             an
             Instrument
             under
             the
             Seal
             of
             Camphire
             ,
             and
             a
             Declaration
             of
             the
             Conservator
             there
             ,
             bearing
             ,
             
               that
               upon
               inspection
               of
               Mr.
            
             Thomas
             Lumsdeans
             
               Compt
               Books
            
             ;
             they
             found
             that
             he
             had
             acknowledged
             two
             or
             three
             sums
             payed
             ,
             in
             part
             of
             these
             Bills
             ,
             and
             exprest
             the
             Dates
             thereof
             ,
             prior
             to
             the
             Assignation
             .
             The
             Suspender
             alleadged
             the
             Compt
             Books
             could
             not
             prove
             ,
             unless
             they
             were
             produced
             ,
             Cognosced
             and
             Proven
             to
             be
             Lumsdeans
             Compt
             Books
             .
             Secondly
             ,
             they
             could
             not
             prove
             
               contra
               tertium
               ,
               Thirdly
            
             ,
             the
             Question
             being
             
               de
               data
            
             ,
             and
             they
             holograph
             ,
             they
             could
             not
             prove
             their
             Date
             .
             Fourthly
             ,
             these
             Testificats
             can
             prove
             nothing
             ,
             unless
             they
             had
             been
             taken
             upon
             Processes
             ,
             or
             by
             Commission
             .
          
           
             The
             Lords
             found
             the
             Testificats
             could
             not
             prove
             ,
             but
             that
             the
             Compt
             Book
             being
             Cognosced
             ,
             might
             prove
             against
             the
             Assigney
             ,
             being
             Brother
             to
             Lumsdean
             ,
             and
             the
             Books
             out
             of
             his
             hand
             ,
             since
             he
             was
             broken
             ,
             for
             amongst
             Merchants
             Compt
             Books
             or
             Writs
             without
             Witnesses
             ,
             by
             their
             Custom
             ,
             are
             sufficient
             ,
             and
             ordained
             Lumsdean
             and
             his
             Brother
             to
             Depone
             ,
             upon
             the
             having
             of
             the
             Books
             ,
             to
             produce
             them
             if
             they
             had
             them
             ,
             and
             if
             not
             ,
             granted
             Commission
             to
             the
             Magistrats
             of
             Camphire
             ,
             and
             Conservator
             ,
             to
             Cognosce
             the
             Books
             ,
             and
             to
             report
             what
             they
             find
             of
             this
             matter
             in
             them
             .
          
        
         
           
             Marjory
             Gray
             contra
             Dalgardno
             .
             February
             7.
             1662.
             
          
           
             
               MAjory
               Gray
            
             pursues
             Dalgardno
             ,
             as
             vitious
             Intromettor
             with
             the
             Goods
             of
             a
             Defunct
             ,
             to
             pay
             his
             Debt
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Defunct
             Died
             Rebel
             ,
             and
             at
             the
             Horn
             ,
             and
             so
             
               nihil
               fuit
               in
               bonis
               defuncti
            
             ,
             seing
             by
             the
             Rebellion
             ,
             all
             his
             Moveables
             belonged
             to
             the
             Fisk
             ,
             
               ipso
               jure
            
             ,
             without
             necessity
             of
             tradition
             ,
             for
             the
             King
             
               jure
               coronae
            
             ,
             hath
             the
             right
             of
             Lands
             without
             Infeftment
             ,
             and
             the
             right
             of
             Moveables
             forefaulted
             ,
             or
             fallen
             in
             Escheat
             ,
             without
             Tradition
             or
             Possession
             .
             The
             Pursuer
             answered
             ,
             
               non
               relevat
            
             ,
             because
             the
             Defender
             Intrometting
             without
             any
             warrand
             from
             the
             Fisk
             ,
             is
             
               quassi
               prodo
            
             ,
             and
             Moveables
             are
             not
             
               ipso
               facto
            
             ,
             in
             the
             Property
             of
             the
             Fisk
             ,
             by
             the
             Rebellion
             :
             But
             if
             they
             be
             Disponed
             by
             the
             Rebel
             for
             an
             onerous
             Cause
             ;
             the
             Disposition
             before
             Rebellion
             will
             be
             valid
             ,
             or
             if
             they
             be
             arrested
             for
             the
             Defuncts
             Debts
             ,
             and
             recovered
             by
             Sentence
             ,
             making
             forth-coming
             ;
             or
             if
             a
             Creditor
             Confirm
             himself
             Executor
             Creditor
             to
             the
             Defunct
             Rebel
             ,
             he
             will
             be
             preferred
             to
             the
             Fisk
             ;
             by
             all
             which
             it
             appears
             ,
             that
             the
             Rebellion
             transmits
             not
             the
             Property
             .
             The
             Defender
             answered
             ,
             that
             these
             Instances
             do
             only
             show
             that
             the
             King
             prefereth
             Creditors
             ,
             and
             takes
             but
             the
             benefit
             of
             what
             the
             Rebel
             had
             
               deductis
               debitis
            
             ,
             or
             what
             was
             Contracted
             with
             him
             
               bona
               fide
            
             ,
             but
             doth
             not
             say
             ,
             that
             the
             Property
             of
             the
             Goods
             were
             not
             in
             the
             Fisk
             ,
             but
             in
             the
             Rebel
             .
          
           
           
             The
             Lords
             repelled
             the
             Defense
             .
             The
             Defender
             further
             alleadged
             ,
             that
             not
             only
             was
             the
             Defunct
             Rebel
             ,
             but
             that
             he
             had
             a
             Gift
             of
             his
             Escheat
             .
             The
             Pursuer
             answered
             
               non
               relevat
            
             ,
             unless
             it
             had
             been
             before
             the
             vitious
             intromission
             ,
             or
             at
             least
             
               ante
               motam
               litem
            
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             unless
             the
             Defender
             would
             alleadge
             that
             the
             Gift
             was
             
               ante
               motam
               litem
            
             ;
             for
             they
             thought
             that
             the
             Taking
             of
             the
             Gift
             was
             like
             the
             Confirmation
             of
             an
             Executor
             ,
             which
             purged
             vitious
             Intromission
             ,
             being
             
               ante
               motam
               litem
            
             .
          
        
         
           
             Iohn
             Bonnar
             contra
             Robert
             Foulis
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Bonnar
            
             pursues
             
               Robert
               Foulis
            
             ,
             to
             pay
             the
             Debt
             of
             a
             Person
             Incarcerat
             by
             
               Act
               of
               Warding
            
             ,
             whom
             the
             Bailzie
             set
             at
             Liberty
             without
             Warrant
             .
             The
             Defender
             alleadged
             no
             Processes
             ,
             because
             the
             Person
             Incarcerat
             was
             not
             Called
             ,
             who
             might
             have
             proponed
             Exceptions
             against
             the
             Debt
             ,
             that
             it
             was
             payed
             ,
             
               &c.
               
               Secondly
            
             ,
             that
             thereafter
             the
             Pursuer
             had
             taken
             himself
             to
             the
             Incarcerat
             Person
             ,
             and
             gotten
             part
             of
             payment
             from
             him
             .
          
           
             The
             Lords
             Repelled
             the
             Defenses
             and
             decerned
             :
             but
             because
             there
             was
             a
             Reduction
             depending
             of
             the
             Decreet
             ,
             whereupon
             the
             Person
             was
             Incarcerat
             ,
             and
             that
             he
             was
             set
             at
             Liberty
             in
             Anno
             1659.
             when
             there
             was
             no
             Iudicatory
             sitting
             ,
             they
             superceeded
             Extracting
             for
             the
             time
             ,
             till
             the
             Reduction
             was
             Discust
             .
          
        
         
           
             Countess
             of
             Buckcleugh
             .
             contra
             Earl
             of
             Tarras
             .
             Eodem
             die
             .
          
           
             THe
             Countess
             of
             Buckcleugh
             pursuing
             Reduction
             of
             a
             Contract
             of
             Marriage●
             betwixt
             her
             Sister
             and
             the
             Earl
             of
             Tarras
             .
          
           
             The
             Lords
             would
             not
             Sustain
             incident
             for
             the
             Earl
             of
             Tarras
             ,
             albeit
             he
             was
             minor
             ,
             that
             Contract
             being
             his
             own
             Writ
             ,
             and
             not
             his
             Predecessors
             .
          
        
         
           
             Lockerbie
             contra
             Applegirth
             .
             Eodem
             die
             .
          
           
             JOhnstoun
             of
             Lockerbie
             ,
             having
             obtained
             Decreet
             against
             Ierdine
             of
             Applegirth
             ,
             for
             a
             Sum
             payed
             by
             the
             Pursuers
             author
             ,
             as
             Cautioner
             for
             the
             Defenders
             Father
             .
          
           
           
             The
             Lords
             found
             Annualrent
             due
             by
             the
             Principal
             to
             the
             Cautioner
             ,
             by
             an
             Act
             of
             Sederunt
             1613.
             and
             that
             from
             the
             year
             1619.
             until
             now
             in
             respect
             the
             Cautioner
             had
             payed
             upon
             distress
             ,
             by
             Decreet
             of
             Transferrence
             ,
             and
             a
             Charge
             of
             Horning
             thereon
             .
          
        
         
           
             Acheson
             contra
             Mcclean
             .
             Eodem
             die
             .
          
           
             DAm
             
               Iean
               Acheson
            
             pursues
             the
             Laird
             of
             Mcclean
             ,
             as
             representing
             their
             Predecessors
             ,
             who
             was
             Cautioner
             in
             a
             Suspension
             .
             The
             Defender
             alleadged
             nothing
             produced
             to
             prove
             the
             Suspension
             Discussed
             ,
             but
             Letters
             of
             Horning
             upon
             a
             Protestation
             ,
             which
             cannot
             instruct
             the
             Protestation
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             absence
             of
             the
             Register
             ,
             and
             the
             oldness
             of
             the
             Horning
             .
          
        
         
           
             Achinbeck
             contra
             Mccleud
             .
             Eodem
             die
             .
          
           
             IN
             an
             Improbation
             at
             the
             Instance
             of
             the
             Laird
             of
             Achinbeck
             ,
             against
             Mccleud
             .
          
           
             The
             Lords
             found
             that
             the
             Improbation
             behoved
             to
             be
             continued
             ,
             albeit
             the
             samine
             had
             an
             ordinar
             priviledge
             to
             pass
             upon
             six
             dayes
             ,
             for
             the
             first
             Summonds
             ,
             past
             of
             course
             
               periculo
               penitentis
            
             .
          
        
         
           
             Acheson
             contra
             Earl
             of
             Errol
             .
             Eodem
             die
             .
          
           
             ACheson
             pursues
             the
             Earl
             of
             Errol
             ,
             as
             presenting
             his
             Father
             ,
             to
             pay
             a
             Debt
             wherein
             his
             Father
             was
             Cautioner
             for
             the
             Earl
             of
             Mar
             ;
             and
             for
             instructing
             thereof
             ,
             produced
             the
             Extract
             of
             a
             Bond
             ,
             Registrate
             by
             consent
             in
             the
             Books
             of
             Session
             .
             The
             Defender
             alleadged
             no
             Processe
             against
             him
             ;
             because
             the
             Bond
             was
             not
             Registrat
             by
             any
             Procurator
             for
             his
             Father
             ,
             because
             he
             was
             Dead
             before
             the
             Registration
             ,
             and
             so
             cannot
             prove
             against
             him
             ,
             neither
             being
             a
             principal
             Writ
             Subscribed
             by
             his
             hand
             ,
             nor
             being
             a
             Decreet
             of
             Registration
             ,
             by
             consent
             of
             his
             Procurator
             ,
             nor
             upon
             Citation
             .
             The
             Pursuer
             alleadged
             that
             it
             was
             an
             authentick
             Evident
             ,
             and
             bare
             expresly
             
               Sic
               subscribitur
            
             Errol
             :
             and
             seing
             by
             Law
             and
             Custom
             ,
             the
             Pursuer
             was
             necessitat
             to
             leave
             the
             Principal
             at
             the
             Register
             ,
             when
             the
             Registrat
             the
             same
             ,
             and
             that
             the
             Registers
             are
             now
             lost
             without
             his
             fault
             .
          
           
           
             The
             Lords
             refused
             to
             sustain
             the
             Extract
             against
             the
             Earl
             of
             Errol
             ,
             but
             yet
             would
             not
             put
             the
             Party
             to
             an
             Action
             of
             proving
             the
             Tenor
             ,
             but
             would
             receive
             Admini●les
             to
             instruct
             that
             Earl
             was
             Cautioner
             ;
             and
             therefore
             
               ex
               officio
            
             ,
             ordained
             the
             other
             Subscribers
             of
             the
             Bond
             ,
             or
             any
             other
             person
             that
             could
             be
             adduced
             ,
             for
             instructing
             the
             Truth
             to
             be
             required
             
               ex
               officio
            
             .
          
        
         
           
             Thomas
             Crawford
             contra
             Earl
             of
             Murray
             .
             February
             8.
             1662.
             
          
           
             
               THomas
               Crawford
            
             as
             Executor
             Creditor
             ,
             Confirmed
             to
             Umquhil
             
               Robert
               Ing●is
            
             ;
             as
             Assigney
             by
             his
             Relict
             ,
             for
             satisfaction
             of
             her
             Contract
             of
             Marriage
             ,
             pursues
             the
             Earl
             of
             Murray
             for
             payment
             of
             the
             Sums
             Confirmed
             ,
             addebted
             by
             him
             to
             the
             said
             umquhil
             Robert.
             The
             Defender
             alleadged
             compensation
             ;
             because
             he
             had
             Assignation
             to
             a
             Debt
             due
             by
             the
             said
             umquhil
             Robert
             ,
             which
             as
             it
             would
             have
             been
             relevant
             against
             Robert
             himself
             ;
             so
             must
             it
             be
             against
             his
             Executor
             .
             The
             Pursuer
             replyed
             :
             
               First
               ,
               non
               relevat
            
             ,
             unless
             the
             Assignation
             had
             been
             Intimat
             before
             the
             Confirmation
             :
             but
             an
             Executor
             Creditor
             having
             done
             Diligence
             by
             Confirmation
             ;
             it
             is
             not
             in
             the
             power
             of
             any
             of
             the
             Defuncts
             Debitors
             ,
             by
             taking
             Assignation
             from
             any
             of
             his
             Creditors
             ,
             to
             prefer
             that
             Creditor
             to
             any
             other
             Creditor
             ,
             which
             is
             no
             ways
             
               legittimus
               modus
               preferendi
            
             :
             But
             the
             Creditors
             must
             be
             preferred
             ,
             only
             according
             to
             their
             Diligence
             .
             Secondly
             ,
             This
             Pursuit
             being
             for
             Implement
             of
             the
             Relicts
             Contract
             of
             Marriage
             ,
             and
             pursued
             to
             their
             behove
             ,
             hath
             by
             our
             Law
             and
             Custome
             preference
             to
             all
             other
             personal
             Creditors
             ,
             though
             having
             done
             more
             Diligence
             .
          
           
             The
             Lords
             found
             either
             of
             these
             two
             Replys
             Relevant
             to
             elide
             the
             Defense
             ,
             albeit
             the
             Assignation
             was
             before
             any
             Pursuit
             ,
             moved
             upon
             the
             Pursuers
             Confirmation
             .
          
        
         
           
             Lord
             Torphichan
             contra
             Eodem
             die
             .
          
           
             THe
             Lord
             Torphichan
             and
             certain
             of
             his
             Feuars
             ,
             pursue
             a
             Reduction
             of
             a
             Decreet
             of
             the
             Sheriff
             ,
             whereby
             he
             set
             down
             Marches
             betwixt
             their
             Lands
             and
             others
             ,
             upon
             this
             Ground
             ,
             that
             he
             did
             not
             proceed
             by
             an
             Inquest
             conform
             to
             the
             Act
             of
             Parliament
             ,
             but
             by
             Witnesses
             .
             Secondly
             ,
             That
             he
             as
             Superiour
             was
             not
             Called
             .
             Thirdly
             ,
             That
             the
             Sheriff
             had
             unwarrantably
             Sustained
             the
             setting
             down
             of
             Marches
             foamerly
             by
             Arbiters
             ,
             to
             be
             proven
             by
             Witnesses
             .
             The
             Defenders
             answered
             ,
             the
             first
             Reason
             was
             not
             objected
             ,
             and
             the
             Defenders
             Compearance
             it
             was
             competent
             and
             omitted
             :
             To
             the
             second
             ,
             the
             Superour
             could
             have
             no
             Detriment
             .
             To
             the
             third
             ,
             that
             the
             setting
             down
             of
             March-stones
             ,
             being
             a
             palpable
             Fact
             ,
             might
             be
             proven
             by
             Witnesses
             ,
             whether
             done
             by
             the
             Parties
             themselves
             ,
             or
             by
             Friends
             chosen
             in
             their
             presence
             ,
             their
             being
             neither
             Decreet-arbitral
             ,
             nor
             Submission
             in
             Writ
             .
          
           
           
             The
             Lords
             Repelled
             the
             Reasons
             in
             respect
             of
             the
             Answer
             ,
             and
             declared
             ,
             that
             if
             the
             Land
             fell
             in
             the
             Superiours
             hands
             ,
             by
             Recognition
             ,
             Non-entry
             ,
             or
             otherwise
             ,
             The
             Decreet
             should
             not
             prejudge
             him
             if
             he
             were
             not
             Called
             .
          
        
         
           
             Ramsay
             of
             Torbanie
             contra
             Mcclellane
             .
             February
             11.
             1662.
             
          
           
             
               DAvid
               Ramsay
            
             of
             Torbanie
             having
             raised
             Suspension
             ,
             and
             Reduction
             of
             a
             Decreet
             against
             him
             ,
             at
             the
             I●stan●e
             of
             
               Thomas
               Mcclellane
            
             ,
             in
             Anno
             1658.
             
             Insists
             upon
             this
             Reason
             ,
             that
             he
             being
             pursued
             as
             Heir
             to
             his
             Father
             ,
             at
             the
             Instance
             of
             
               Thomas
               Mcclellane
            
             ,
             he
             proponed
             this
             Relevant
             Defense
             ,
             absolvitor
             ,
             because
             the
             Bond
             pursued
             upon
             ,
             was
             granted
             by
             his
             Father
             after
             he
             was
             Interdicted
             ,
             without
             consent
             of
             the
             Interdictors
             ,
             and
             so
             could
             not
             affect
             the
             Person
             Interdicted
             Heir
             ,
             albeit
             he
             had
             succeeded
             in
             his
             Estate
             .
             The
             Defender
             answered
             ,
             that
             the
             said
             alleadgence
             was
             justly
             Repelled
             ,
             in
             respect
             of
             this
             relevant
             Reply
             ,
             that
             the
             Interdiction
             hath
             no
             effect
             as
             to
             Moveables
             ,
             and
             Personal
             Execution
             ;
             neither
             as
             to
             any
             other
             Lands
             ,
             then
             such
             as
             lay
             in
             the
             Shires
             or
             Jurisdictions
             where
             the
             Interdiction
             was
             puplished
             and
             Registrat
             ,
             conform
             to
             the
             Act
             of
             
               Parliament
               ,
               ita
               est
            
             :
             this
             Interdiction
             was
             published
             and
             Registrate
             only
             at
             Linlithgow
             ;
             and
             therefore
             if
             the
             Defender
             hath
             succeeded
             to
             any
             Lands
             ,
             not
             lying
             in
             Linlithgow
             Shire
             ,
             or
             if
             he
             hath
             medled
             with
             Heirship
             ,
             Moveable
             ,
             or
             be
             vitious
             Intromettor
             with
             his
             Fathers
             Moveables
             ;
             he
             is
             lyable
             for
             this
             Sum
             ,
             albeit
             after
             the
             Interdiction
             ,
             
               ita
               est
            
             ,
             he
             succeeded
             to
             Lands
             in
             the
             Stewartry
             of
             Kirkcudburgh
             ,
             and
             Moveables
             ,
             &c.
             and
             therefore
             the
             Defense
             was
             justly
             Repelled
             .
          
           
             The
             Lords
             found
             the
             Decreet
             just
             ,
             and
             therefore
             Repelled
             the
             Reasons
             of
             Suspension
             and
             Reduction
             .
          
        
         
           
             Bells
             contra
             Wilkie
             .
             February
             12.
             1662.
             
          
           
             GRissel
             and
             Bells
             raise
             a
             Reduction
             against
             
               Iames
               Wilkie
            
             ,
             of
             a
             Decreet
             obtained
             at
             his
             Instance
             against
             them
             ,
             in
             Anno
             1659.
             whereby
             the
             said
             
               Iames
               Wilkie
            
             being
             Executor
             ,
             Confirmed
             to
             his
             Mother
             ,
             who
             was
             one
             of
             the
             Sisters
             ,
             and
             Executors
             of
             umquhil
             
               Patrick
               Bell
            
             their
             Brother
             ,
             in
             which
             Confirmation
             the
             said
             Iames
             gave
             up
             the
             third
             of
             the
             said
             Patricks
             Goods
             ,
             and
             thereupon
             obtained
             Decreet
             against
             these
             Pursuers
             ,
             as
             the
             two
             surviving
             Executors
             ,
             to
             pay
             to
             the
             said
             Iames
             ,
             his
             Mothers
             third
             Part
             of
             her
             Brothers
             Means
             .
             The
             Reason
             of
             Reduction
             was
             ,
             that
             the
             Decreet
             was
             unjust
             ,
             and
             contrair
             to
             the
             Law
             and
             Custom
             of
             this
             Kingdom
             ,
             whereby
             there
             is
             no
             right
             
             of
             Representation
             in
             Moveables
             ,
             as
             in
             Heretage
             ,
             neither
             doth
             the
             Confirmation
             of
             the
             Executors
             ,
             establish
             in
             the
             Executors
             ,
             a
             compleat
             Right
             ,
             untill
             the
             Testament
             be
             execute
             ,
             either
             by
             obtaining
             payment
             ,
             or
             Decreet
             ;
             and
             if
             the
             Executor
             die
             before
             Execution
             ,
             the
             Right
             ceases
             ,
             and
             is
             not
             Transmitted
             to
             the
             Executors
             Executor
             ,
             but
             remains
             
               in
               bonis
               defuncti
            
             of
             the
             first
             Defunct
             ,
             and
             therefore
             Executors
             
               ad
               non
               Executa
            
             must
             be
             confirmed
             ,
             to
             the
             first
             Defunct
             ,
             which
             being
             a
             constant
             and
             unquestionable
             custome
             ,
             one
             of
             the
             three
             Executors
             deceasing
             before
             Executing
             the
             Testament
             ,
             her
             Right
             fully
             ceases
             ;
             and
             both
             the
             Office
             of
             Executrie
             ,
             and
             Benefit
             ,
             accres●es
             to
             the
             surviving
             Sisters
             ;
             as
             if
             the
             deceased
             Sister
             had
             never
             been
             Confirmed
             Executrix
             .
             The
             Defender
             in
             the
             Reduction
             ,
             Answered
             ,
             That
             this
             Reason
             was
             most
             justly
             Repelled
             ,
             because
             ,
             albeit
             it
             be
             true
             ,
             that
             the
             naked
             Office
             of
             Executry
             ,
             doth
             not
             compleat
             the
             Right
             in
             the
             Executors
             Person
             ,
             and
             doth
             not
             transmit
             ,
             yet
             it
             is
             as
             true
             ,
             that
             by
             the
             Law
             of
             God
             ,
             and
             of
             this
             Land
             (
             which
             is
             cleared
             by
             the
             express
             Statute
             ,
             Parliament
             1617.
             anent
             Executors
             )
             Children
             surviving
             their
             Parents
             ,
             had
             always
             a
             distinct
             Right
             ,
             from
             the
             Office
             of
             Executry
             ,
             of
             their
             bairns
             part
             of
             gear
             ,
             which
             belonged
             to
             them
             ,
             without
             any
             Confirmation
             ,
             and
             could
             not
             be
             prejudged
             by
             the
             Defunct
             ,
             and
             was
             sufficiently
             established
             in
             their
             Person
             
               jure
               legittime
            
             ,
             if
             they
             survive
             their
             Defunct
             Parent
             ,
             especially
             if
             they
             owned
             the
             same
             by
             any
             Legal
             D●ligence
             ;
             Therefore
             ,
             after
             which
             ,
             if
             a
             Child
             die
             ,
             the
             Child
             of
             that
             Bairn
             will
             come
             in
             with
             the
             Survivers
             ;
             and
             yet
             there
             is
             no
             Right
             of
             Representation
             ,
             because
             
               Iure
               legittime
            
             ;
             it
             was
             established
             in
             the
             Bairns
             Person
             ,
             by
             surviving
             ,
             and
             owning
             the
             same
             ;
             as
             well
             as
             the
             Goods
             ,
             are
             e●●ablished
             in
             the
             Person
             of
             a
             Stranger
             Executor
             ,
             by
             executing
             the
             Testament
             :
             and
             by
             the
             said
             Act
             of
             Parliament
             ,
             that
             benefit
             is
             extended
             ,
             not
             only
             as
             to
             the
             Bairns
             Part
             ,
             but
             to
             the
             Bairns
             ;
             in
             relation
             to
             Deads
             Part
             ,
             whereinto
             they
             succeed
             ,
             as
             nearest
             of
             Kine
             ,
             and
             therefore
             they
             have
             right
             to
             the
             Moveables
             ,
             not
             by
             vertue
             of
             the
             Conformation
             ,
             or
             Office
             of
             Executry
             ,
             which
             before
             that
             Act
             carried
             the
             whole
             benefit
             ;
             as
             is
             clear
             ,
             by
             the
             Act
             ,
             but
             by
             a
             several
             Right
             ,
             
               jure
               agnationis
            
             ,
             as
             nearest
             of
             Kine
             ;
             and
             therefore
             ,
             though
             the
             nearest
             of
             Kine
             be
             not
             Confirmed
             Executor
             ,
             but
             others
             be
             Nominat
             ,
             or
             Datives
             Confirmed
             ,
             the
             Executors
             are
             comptable
             to
             the
             nearest
             of
             Kine
             ,
             who
             may
             pursue
             them
             therefor●
             ,
             and
             therefore
             ,
             if
             the
             nearest
             of
             Kine
             do
             any
             Legal
             Diligence
             ,
             either
             by
             Confirmation
             ,
             or
             Process
             ,
             yea
             ,
             though
             they
             did
             none
             ,
             but
             only
             survive
             ,
             the
             Right
             of
             nearest
             of
             Kine
             
               ipso
               facto
            
             ,
             establishes
             the
             Goods
             in
             their
             Person
             ,
             and
             so
             transmits
             ;
             and
             whereas
             it
             was
             alleadged
             ,
             that
             the
             contrare
             was
             found
             by
             the
             Lords
             ,
             in
             Anno
             one
             thousand
             six
             hundred
             thirty
             six
             ,
             observed
             by
             Durie
             :
             it
             is
             also
             marked
             by
             him
             ,
             that
             it
             being
             so
             found
             by
             Interlocutor
             ,
             it
             was
             stopped
             to
             be
             heard
             again
             ,
             and
             never
             discused
             ;
             neither
             can
             it
             be
             shown
             by
             Custome
             ,
             or
             Decision
             ,
             that
             the
             Executors
             of
             Children
             ,
             or
             nearest
             of
             Kine
             were
             excluded
             ,
             from
             recovering
             the
             part
             of
             their
             Parent
             ,
             which
             survived
             ,
             and
             owned
             the
             benefit
             of
             the
             Succession
             .
          
           
             The
             Lords
             assoilzie
             from
             the
             Reduction
             ,
             and
             adhered
             to
             the
             former
             Decreet
             .
          
        
         
           
           
             Kirktouns
             contra
             Laird
             of
             Hunthil
             .
             Eodem
             die
             :
          
           
             ISobel
             and
             Kirktouns
             pursues
             the
             Laird
             of
             Hunthill
             ,
             their
             Tutor
             ,
             for
             a
             Tutor
             Compt
             ,
             and
             payment
             of
             all
             that
             belonged
             to
             their
             Father
             ,
             who
             alleadged
             absolvitor
             ;
             because
             nothing
             alleadged
             ,
             nor
             produced
             ,
             to
             instruct
             his
             acceptance
             of
             the
             Office
             of
             Tutory
             .
             The
             Pursuers
             opponned
             their
             Fathers
             Testament
             Confirmed
             ,
             bearing
             the
             same
             to
             have
             been
             Confirmed
             by
             the
             Defender
             ,
             and
             other
             three
             Tutors
             ,
             and
             that
             the
             Tutors
             gave
             their
             Oaths
             
               de
               fideli
               administratione
            
             ,
             in
             the
             Office
             of
             Tutrie
             .
             The
             Defender
             answered
             ,
             
               non
               relevat
            
             ,
             to
             instruct
             ,
             that
             the
             Tutors
             made
             faith
             ,
             because
             this
             Confirmation
             is
             but
             the
             Assertion
             of
             a
             Nottour
             ,
             the
             Commissary
             Clerk
             ,
             without
             a
             warrant
             in
             writ
             ,
             subscribed
             by
             the
             Tutors
             ,
             and
             can
             prove
             in
             nothing
             ,
             but
             what
             is
             ordinary
             the
             Style
             of
             the
             Court
             ,
             in
             Judicial
             Process
             ,
             but
             the
             Acceptance
             ,
             and
             making
             Faith
             of
             Tutors
             ,
             is
             altogether
             Extranious
             ,
             and
             is
             neither
             necessar
             ,
             nor
             ordinar
             to
             be
             done
             by
             the
             Commissars
             .
             The
             Lords
             sustained
             the
             Reply
             ,
             especially
             ,
             in
             respect
             ,
             that
             the
             Commissarie
             Clerk
             ,
             was
             this
             Defenders
             Uncle
             ,
             and
             there
             was
             no
             ground
             of
             Suspition
             ,
             that
             he
             would
             adject
             that
             point
             without
             warrant
             ,
             otherways
             this
             were
             a
             dangerous
             preparative
             .
             Secondly
             ,
             The
             Defender
             further
             alleadged
             absolvitor
             ,
             from
             a
             Sum
             contained
             in
             the
             said
             Testament
             as
             due
             to
             him
             ,
             because
             there
             was
             nothing
             to
             instruct
             it
             ,
             but
             the
             Defuncts
             Assertion
             in
             his
             Testament
             ,
             giving
             up
             his
             Debts
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defender
             hath
             Homologat
             ,
             by
             Confirming
             the
             Testament
             ,
             bearing
             the
             same
             ,
             and
             not
             protesting
             against
             it
             ,
             which
             is
             an
             acknowledgment
             thereof
             .
             The
             Defender
             answered
             ,
             that
             there
             being
             four
             Tutors
             it
             could
             not
             be
             constant
             ,
             that
             they
             were
             all
             present
             ,
             at
             the
             Act
             of
             Confirmation
             ,
             and
             saw
             and
             knew
             the
             Inventar
             ;
             but
             as
             it
             is
             ordinar
             in
             such
             Cases
             ,
             they
             might
             have
             come
             at
             several
             times
             ,
             and
             made
             Faith.
             The
             Pursuer
             answered
             ,
             that
             some
             of
             the
             four
             Tutors
             behoved
             to
             do
             it
             ,
             and
             these
             were
             thereby
             bound
             to
             have
             done
             Diligence
             for
             it
             ,
             and
             consequently
             ,
             all
             the
             Tuttors
             being
             lyable
             
               in
               solidum
            
             ;
             this
             Tutor
             is
             lyable
             therefore
             .
          
           
             The
             Lords
             found
             the
             Reply
             and
             Triply
             relevant
             ,
             that
             the
             Testament
             so
             confirmed
             instructed
             the
             Debt
             .
          
        
         
           
             Robert
             Lockheart
             contra
             William
             Kennedy
             February
             13.
             1662.
             
          
           
             
               RObert
               Lockheart
            
             ,
             pursues
             a
             Declarator
             of
             the
             Redemption
             of
             some
             Lands
             ,
             against
             
               William
               Kennedy
            
             of
             Achtefardel
             ,
             who
             alleadged
             absolivtor
             ;
             because
             ,
             before
             the
             order
             was
             used
             .
             The
             Reversion
             was
             discharged
             ,
             and
             the
             Discharge
             Registrat
             .
             The
             Pursuer
             Replyed
             ,
             ought
             to
             be
             repelled
             ,
             because
             the
             Granter
             of
             the
             Discharge
             was
             Interdicted
             ,
             before
             the
             granting
             thereof
             ,
             and
             the
             same
             not
             granted
             with
             the
             Interdicters
             consent
             .
             The
             Defender
             answered
             ,
             
               non
               competit
            
             by
             way
             of
             Reply
             ,
             but
             only
             
             by
             way
             of
             Action
             of
             Reduction
             ,
             as
             is
             Ordinar
             ,
             in
             the
             Case
             of
             Inhibition
             and
             Interdiction
             .
          
           
             The
             Lords
             sustained
             the
             Reply
             ,
             in
             respect
             that
             it
             was
             not
             proponed
             ,
             by
             defense
             to
             delay
             the
             Pursuite
             ,
             but
             by
             Reply
             ,
             which
             did
             only
             delay
             the
             Pursuer
             himself
             ,
             and
             also
             ,
             that
             they
             thought
             it
             hard
             ,
             to
             cause
             the
             Pursuer
             quite
             his
             Possession
             ,
             and
             then
             go
             to
             a
             Reduction
             .
          
        
         
           
             Antonia
             Birnie
             contra
             Liferenters
             of
             Rossie
             :
             Eodem
             die
             .
          
           
             
               ANtonia
               Birnie
            
             ,
             as
             Heir
             appearant
             ,
             and
             having
             Right
             to
             the
             Fee
             of
             the
             Estate
             of
             Rossie
             ,
             and
             Fordel
             ,
             pursues
             her
             Mother
             and
             Grand-father
             ,
             Liferenters
             thereof
             ,
             for
             a
             modification
             of
             Aliment
             .
             The
             Grand-father
             made
             no
             opposition●
             It
             was
             alleadged
             ,
             for
             the
             Mother
             ,
             that
             the
             whole
             Inheretance
             was
             not
             Liferented
             .
             The
             Pursuer
             Answered
             ,
             that
             what
             was
             not
             Liferented
             ,
             was
             affected
             with
             Apprizings
             for
             the
             Defuncts
             Debts
             ,
             led
             after
             his
             Death
             .
             The
             Defender
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             the
             Appryzings
             had
             been
             before
             the
             Defuncts
             Death
             ,
             but
             being
             against
             the
             Appearand
             Heir
             her self
             ,
             she
             ought
             to
             sell
             Land
             ,
             and
             pay
             the
             Debt
             and
             live
             upon
             the
             remainder
             .
             The
             Pursuer
             offered
             her
             to
             prove
             the
             Appryzings
             and
             Debts
             equivalent
             to
             the
             Value
             of
             all
             the
             Land●
             not
             Liferented
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Iames
             Maxwell
             contra
             Adam
             Maxwell
             .
             Eodem
             die
             .
          
           
             
               JAmes
               Maxwell
            
             ,
             pursues
             
               Adam
               Maxwell
            
             ,
             for
             declaring
             a
             Disposition
             of
             Lands
             ,
             granted
             by
             the
             said
             Iames
             his
             Wife
             to
             the
             said
             Adam
             ,
             to
             have
             been
             in
             trust
             to
             her
             behove
             ,
             and
             after
             her
             decease
             ,
             to
             her
             Husband
             ,
             and
             for
             adminicle
             lybelled
             a
             Bond
             granted
             by
             the
             said
             Adam
             ,
             some
             Moneths
             after
             the
             Disposition
             ,
             whereby
             he
             oblidged
             himself
             to
             grant
             a
             Back-bond
             to
             the
             Lady
             ,
             by
             the
             advice
             of
             Lawyers
             ,
             conform
             to
             the
             Disposition
             made
             to
             him
             ,
             and
             oblidged
             him
             to
             deliver
             the
             said
             Back-bond
             to
             the
             Lady
             ,
             or
             to
             the
             Ladyes
             Husband
             after
             her
             Death
             ,
             whereupon
             it
             was
             alleadged
             ,
             that
             the
             Back-bond
             being
             to
             be
             made
             by
             the
             Advice
             of
             both
             their
             Lawyers
             ,
             the
             Disposition
             behoved
             to
             be
             in
             trust
             .
             The
             Defender
             opponned
             the
             Tickit
             ,
             bearing
             the
             Back-bond
             ,
             to
             be
             conform
             to
             the
             Disposition
             ,
             in
             which
             there
             was
             an
             expresse
             Reservation
             of
             the
             Ladyes
             Liferent
             ;
             so
             that
             the
             Back-bond
             could
             import
             no
             more
             ,
             then
             securing
             of
             that
             Liferent
             .
             The
             Pursuer
             answered
             ,
             these
             words
             ,
             conform
             to
             the
             Disposition
             ,
             were
             set
             upon
             the
             Margin
             of
             the
             Tickit
             ,
             which
             was
             all
             written
             by
             the
             Defenders
             hand
             ,
             and
             might
             have
             been
             added
             ,
             
               ex
               post
               facto
            
             ,
             2.
             
             The
             Tickit
             behoved
             to
             import
             more
             then
             the
             Liferent
             ,
             because
             the
             Liferent
             was
             fullie
             and
             clearly
             reserved
             ,
             and
             oftimes
             repeated
             in
             the
             Disposition
             ,
             so
             that
             Clause
             had
             been
             frustrat
             .
             Thirdly
             ,
             The
             oblidgment
             to
             deliver
             the
             Back-bond
             to
             the
             Ladies
             Husband
             after
             her
             Death
             ,
             could
             not
             be
             understood
             ,
             to
             be
             only
             in
             relation
             to
             
             her
             Liferent
             ,
             which
             and
             the
             Husbands
             interest
             should
             cease
             by
             her
             Death
             .
          
           
             The
             Lords
             found
             the
             Tickit
             sufficient
             to
             instruct
             Trust
             ,
             but
             because
             the
             Terms
             of
             the
             Trust
             were
             not
             clear
             .
             They
             before
             answer
             ,
             in
             Relation
             to
             the
             Probation
             of
             the
             Terms
             thereof
             ,
             Ordain
             the
             Parties
             to
             Compt
             and
             Reckon
             upon
             all
             Sums
             ,
             due
             by
             the
             Lady
             to
             the
             Defender
             ,
             in
             contemplation
             of
             the
             Trust
             ,
             that
             the
             same
             might
             be
             allowed
             and
             satisfied
             to
             the
             Defender
             ,
             before
             he
             be
             denuded
             .
          
        
         
           
             Iames
             Slumond
             contra
             Wood
             of
             Grange
             Eodem
             die
             .
          
           
             
               JAmes
               Slumond
            
             ,
             having
             charged
             
               Iames
               Wood
            
             of
             Grange
             ,
             to
             pay
             a
             Sum
             wherein
             he
             was
             Cautioner
             for
             the
             Laird
             of
             Balcaskie
             ,
             to
             
               Williiam
               Smith
            
             merchant
             in
             Edinburgh
             ,
             who
             constitute
             
               Richard
               Potter
            
             Assigny
             ,
             who
             transferred
             the
             same
             ,
             to
             the
             said
             
               Iames
               Slumond
            
             ,
             and
             Suspends
             .
             The
             reason
             of
             Suspension
             was
             ,
             because
             this
             Bond
             was
             payed
             ,
             and
             retired
             by
             Balscaskie
             ,
             the
             principal
             Debitor
             ;
             who
             took
             a
             blank
             Translation
             thereto
             ,
             from
             Potter
             the
             Assigny
             ;
             which
             Translation
             ;
             with
             the
             Bond
             it self
             ,
             were
             surreptitiously
             taken
             out
             of
             his
             Coffer
             ,
             by
             
               Iames
               Hay
            
             ,
             who
             filled
             up
             this
             Chargers
             name
             therein
             ,
             likeas
             ,
             the
             Suspender
             produced
             a
             Declaration
             of
             Potter
             ,
             that
             the
             Sum
             was
             payed
             ●o
             him
             ,
             by
             Balcaskie
             ,
             and
             therefore
             the
             Suspender
             craved
             ,
             that
             the
             Oaths
             of
             this
             Charger
             ,
             the
             said
             
               Iames
               Hay
            
             ,
             and
             Potter
             ,
             and
             also
             the
             Witnesses
             ,
             who
             were
             present
             at
             the
             payment
             of
             the
             Sum
             might
             be
             taken
             before
             Answer
             .
          
           
             Which
             the
             Lords
             granted
             ,
             albeit
             the
             Charger
             had
             the
             Translation
             for
             an
             one●rous
             cause
             .
          
        
         
           
             Children
             of
             Monsual
             .
             contra
             Laurie
             of
             Naxweltoun
             .
             February
             14.
             1662.
             
          
           
             THE
             Children
             of
             the
             Laird
             Monsuel
             ,
             as
             Executor
             to
             their
             Father
             ,
             pursues
             Laurie
             of
             Maxwelltoun
             ,
             for
             a
             Sum
             due
             by
             him
             to
             the
             Defunct
             ,
             who
             alleadged
             Compensation
             ,
             upon
             a
             Debt
             due
             by
             the
             Defunct
             ,
             Assigned
             to
             the
             Defender
             ,
             by
             the
             Defuncts
             Creditor
             ,
             after
             the
             Defuncts
             Death
             ,
             and
             intimat
             before
             any
             Citation
             ,
             or
             Diligence
             ,
             at
             the
             instance
             of
             any
             other
             Creditor
             .
             The
             Pursuer
             replyed
             ,
             that
             Debt
             compensed
             on
             ,
             cannot
             take
             away
             this
             Debt
             pursued
             for
             solidum
             ;
             because
             the
             Defender
             ,
             as
             Assigny
             can
             be
             in
             no
             better
             Case
             then
             his
             Cedent
             ,
             and
             if
             he
             were
             now
             pursuing
             ;
             he
             would
             not
             be
             preferred
             fore
             his
             whole
             Sum
             ,
             but
             only
             in
             so
             far
             as
             the
             Testament
             is
             not
             yet
             exhausted
             ,
             or
             other
             prior
             Diligence
             done
             ,
             for
             an
             Executor
             ,
             having
             but
             an
             Office
             ,
             can
             prefer
             no
             Creditor
             ,
             but
             according
             to
             his
             Diligence
             ,
             much
             less
             can
             any
             of
             the
             Defuncts
             Debitors
             ,
             by
             taking
             Assignation
             from
             any
             of
             the
             Defuncts
             Creditors
             ,
             prefer
             that
             Creditor
             whose
             intimation
             is
             no
             Legal
             Diligence
             .
          
           
             The
             Lords
             found
             that
             the
             Defender
             could
             be
             in
             no
             better
             Case
             then
             the
             Cedent
             ,
             and
             could
             have
             only
             compensation
             ,
             in
             so
             far
             as
             the
             Inventar
             was
             not
             Exhausted
             ,
             
             or
             prior
             Diligence
             used
             ,
             they
             found
             also
             ,
             that
             a
             Decreet
             against
             a
             Defender
             for
             making
             arrested
             Sums
             forthcoming
             ,
             at
             the
             Instance
             of
             an
             of
             the
             Defuncts
             Creditors
             ,
             was
             null
             ,
             because
             the
             Executor
             Creditor
             was
             not
             called
             thereto
             ,
             albeit
             Decreet
             was
             obtained●
             at
             the
             Instance
             of
             that
             Creditor
             ,
             against
             another
             Executor
             in
             a
             former
             Process
             .
          
        
         
           
             Lady
             Muswal
             Elder
             contra
             Lady
             Muswal
             Younger
             .
             February
             15.
             1662.
             
          
           
             IN
             a
             Contention
             ,
             betwixt
             the
             Lady
             Muswall
             Elder
             ,
             and
             Younger
             ,
             upon
             two
             Annualrents
             out
             of
             one
             Barony
             .
          
           
             The
             Lords
             Ordained
             the
             first
             Annualrenter
             to
             do
             Diligence
             ,
             within
             twenty
             days
             after
             each
             Term
             ;
             that
             after
             that
             time
             ,
             the
             second
             Annualrenter
             might
             do
             Diligence
             ,
             or
             otherwise
             ,
             at
             her
             option
             Ordained
             the
             Lands
             to
             be
             divided
             ,
             conform
             to
             the
             Rents
             Proportionably
             ,
             as
             the
             two
             Annualrents
             .
             The
             second
             Annualrent
             and
             the
             first
             to
             take
             her
             choise
             .
          
        
         
           
             Laird
             of
             Pitfoddels
             contra
             Laird
             of
             Glenkindy
             .
             Eodem
             die
             .
          
           
             IN
             the
             Revieu
             of
             a
             Decreet
             in
             one
             thousand
             six
             hundred
             fiftie
             nine
             ,
             at
             the
             Instance
             of
             the
             Laird
             of
             Pitfoddels
             ,
             against
             the
             Laird
             of
             Glenkindy●
             in
             which
             Decreet
             ,
             Glenkindy
             Cedents
             Oath
             ,
             having
             been
             taken
             ,
             that
             the
             Cause
             of
             the
             Bond
             was
             ,
             for
             an
             Assignation
             to
             a
             Wodset
             ,
             which
             was
             excluded
             by
             Apprizing
             ,
             after
             Report
             whereof
             ,
             Glenkindy
             the
             Assigny
             alleadged
             ,
             that
             his
             Cedents
             Oath
             could
             not
             prejudge
             him
             ;
             and
             it
             being
             Answered
             ,
             that
             he
             made
             no
             Objection
             before
             the
             Oath
             taken
             ,
             neither
             could
             make
             any
             Just
             Objection
             ,
             because
             the
             Oath
             of
             the
             Cedent
             any
             time
             ,
             before
             Intimation●
             is
             sufficient
             against
             the
             Assigny
             ,
             Glenkindy
             Answered
             ,
             that
             his
             being
             called
             in
             that
             Process
             as
             Assigny
             ,
             and
             compearing
             ;
             and
             Insisting
             as
             Assigny
             was
             an
             intimation
             ,
             which
             was
             before
             taking
             of
             the
             Oath
             ,
             which
             was
             found
             Relevant
             in
             the
             said
             Decreet
             ,
             and
             now
             rescinded
             by
             the
             Lords
             ,
             upon
             this
             consideration
             ,
             that
             the
             Citation
             being
             
               ad
               hunc
               offectum
            
             ,
             to
             instruct
             the
             cause
             of
             the
             Bond
             ,
             the
             insisting
             in
             that
             pursuite
             could
             not
             be
             such
             an
             intimation
             ,
             as
             to
             exclude
             the
             Cedents
             Oath
             .
          
        
         
           
             Earl
             of
             Bedfoord
             contra
             Lord
             Balmirino
             .
             February
             18.
             1662.
             
          
           
             THE
             Earl
             of
             Bedfoord
             ,
             for
             satisfaction
             of
             his
             Tocher
             ,
             due
             by
             his
             Father
             in
             Law
             ;
             the
             deceast
             Earl
             of
             Sommerset
             ,
             caused
             Adjudge
             ,
             in
             the
             name
             of
             a
             Person
             intrusted
             ,
             all
             Right
             compent
             to
             the
             Earl
             of
             Summerset
             ,
             of
             the
             Estate
             of
             Iedburgh
             ,
             and
             being
             Assigned
             to
             the
             Adjudication
             ,
             pursues
             the
             
             Lord
             Balmirino
             ,
             for
             denuding
             himself
             of
             two
             Apprisings
             of
             the
             Estate
             of
             Jedburgh
             ,
             conform
             to
             three
             Back-bonds
             produced
             ;
             granted
             by
             umquhile
             Balmirino
             ,
             to
             Summerset
             ,
             acknowledging
             ,
             that
             he
             had
             acquired
             Right
             to
             these
             Apprysings
             ,
             with
             Summersets
             own
             Money
             ,
             and
             therefore
             oblidged
             him
             to
             denude
             himself
             thereof
             .
             The
             Defender
             alleadged
             ,
             that
             his
             Father
             being
             intrusted
             by
             the
             late
             Earl
             of
             Summerset
             ,
             to
             acquire
             the
             Estate
             of
             Iedburgh
             ,
             and
             having
             the
             Fee
             thereof
             in
             his
             Person
             ,
             the
             Defender
             is
             not
             oblidged
             to
             denude
             himself
             ,
             untill
             he
             be
             Re-imbursed
             ,
             and
             satisfied
             of
             all
             Sums
             of
             Money
             ,
             which
             after
             the
             said
             Back-bonds
             he
             payed
             for
             Summerset
             ,
             or
             advanced
             to
             Summerset
             ,
             which
             can
             only
             be
             accompted
             ,
             to
             have
             been
             in
             Contemplation
             of
             the
             Trust
             ,
             and
             is
             particularly
             so
             exprest
             ,
             in
             Summersets
             Letters
             produced
             ,
             bearing
             ,
             that
             Balmirino
             should
             be
             satisfied
             ,
             of
             what
             was
             due
             to
             him
             ,
             out
             of
             Tiviotdale
             ,
             whre
             the
             said
             Estate
             of
             Iedburgh
             lyes
             .
             The
             Pursuer
             answered
             ,
             
               non
               rel●vat
            
             ,
             against
             him
             ,
             as
             a
             singular
             Successor
             .
             2dly
             .
             
               Non
               competit
            
             ,
             by
             way
             of
             Exception
             ;
             but
             the
             Defender
             hath
             only
             Action
             therefore
             :
             especially
             this
             Trust
             being
             fidei-comissum
             ;
             which
             is
             a
             kind
             of
             Deposition
             ,
             in
             which
             there
             is
             neither
             Compensation
             ,
             nor
             Retentation
             competent
             .
             3dly
             .
             there
             can
             be
             here
             no
             Compensation
             ,
             because
             the
             Debt
             is
             not
             Liquid
             .
             The
             Defender
             answered
             ,
             his
             Defense
             stands
             must
             Relevant
             ,
             which
             he
             founds
             not
             upon
             Compensation
             ,
             but
             upon
             the
             Exception
             of
             Retentation
             ,
             which
             is
             competent
             in
             all
             Mandats
             ,
             and
             Trusts
             ,
             by
             which
             ,
             as
             there
             is
             a
             Direct
             Action
             ,
             in
             favour
             of
             the
             Mandator
             ,
             against
             the
             Mandatar
             ,
             or
             Person
             intrusted
             ;
             so
             there
             is
             a
             contrare
             Action
             ,
             in
             favours
             of
             the
             Mandatar
             ;
             for
             satisfying
             of
             all
             ,
             that
             he
             hath
             expended
             ,
             by
             Reason
             of
             the
             Trust
             ;
             and
             which
             he
             may
             make
             use
             of
             ,
             beway
             of
             Exception
             of
             Retention
             ,
             if
             he
             be
             pursued
             and
             whatsomever
             by
             in
             Relation
             to
             Compensation
             ,
             
               in
               deposito
            
             ,
             by
             the
             civil
             Law
             ,
             or
             of
             the
             difference
             of
             Action
             ,
             and
             Exception
             ;
             yet
             ,
             thereby
             they
             ,
             and
             by
             our
             un
             contraverted
             Custom
             ,
             whatever
             is
             competent
             by
             way
             of
             Action
             ,
             is
             Competent
             by
             Exception
             ,
             and
             if
             this
             be
             not
             receavable
             by
             Exception
             ,
             it
             is
             utterly
             lost
             ,
             because
             there
             is
             none
             to
             represent
             Summerset
             .
          
           
             The
             Lords
             considering
             ,
             that
             Balmirino's
             Estate
             was
             disponed
             ,
             and
             Apprysed
             ,
             by
             his
             Vncle
             ,
             the
             Lord
             Couper
             ,
             and
             
               William
               Purvis
            
             ,
             the
             Reversion
             whereof
             was
             shortly
             to
             expire
             ,
             which
             they
             would
             not
             lengthen
             ,
             and
             that
             by
             an
             accompt
             running
             ,
             to
             the
             expire
             of
             these
             Reversions
             ,
             the
             Pursuer
             being
             a
             Stranger
             ,
             might
             be
             frustrat
             ;
             therefore
             they
             Repelled
             the
             Defense
             ,
             but
             declared
             ,
             that
             Estate
             ,
             or
             benefit
             that
             Bedfoord
             should
             make
             thereby
             ,
             should
             be
             lyable
             to
             Balmirino
             ,
             for
             what
             Debt
             he
             should
             instruct
             to
             be
             due
             by
             Sommerset
             ,
             and
             withall
             supers●●eded
             the
             Extract
             f●r
             a
             time
             ,
             that
             if
             in
             the
             meane
             time
             ,
             Balmirino
             should
             cause
             Couper
             and
             Purvis
             Restrict
             their
             Rights
             ,
             to
             as
             much
             Rents
             as
             would
             pay
             their
             Annualrents
             ,
             and
             secure
             Bedfoord
             in
             the
             rest
             of
             his
             Estate
             ,
             and
             in
             a
             certain
             Bond
             produced
             ,
             for
             what
             should
             be
             found
             due
             ,
             They
             would
             sustain
             the
             Defense
             by
             Exception
             ,
             and
             Ordain
             Compt
             and
             Reckoning
             .
          
        
         
           
           
             Lord
             Carnagy
             contra
             Lord
             Cranburn
             .
             February
             19.
             1662.
             
          
           
             THE
             Lord
             Carnagie
             being
             Infeft
             in
             the
             Barony
             of
             Dirltoun
             ,
             upon
             a
             Gift
             of
             Recognition
             by
             the
             KING
             ;
             pursues
             a
             Declarator
             of
             Recognition
             ,
             against
             the
             Lord
             Cranburn
             ,
             because
             the
             late
             Earl
             of
             Dirltoun
             ,
             holding
             the
             said
             Barony
             Ward
             of
             the
             KING
             ,
             had
             without
             the
             KING'S
             consent
             ,
             alienat
             the
             same
             to
             Cranburn
             ,
             and
             thereby
             the
             Lands
             had
             Re-cognized
             .
             The
             Defender
             alleadged
             ,
             First
             ,
             No
             Process
             ,
             because
             he
             is
             minor
             ,
             
               &
               non
               tenetur
               placitare
               super
               haereditate
               paterna
               .
               Secondly
               ,
            
             The
             Re-cognition
             is
             incurred
             by
             the
             ingratitude
             ,
             and
             Delinquence
             of
             the
             Vassal
             ,
             yet
             
               delicta
               morte
               extinguntur
            
             ,
             so
             that
             there
             being
             no
             other
             Sentence
             ,
             nor
             Litiscontestation
             against
             Dirltoun
             ,
             in
             his
             own
             Life
             ,
             it
             is
             now
             extinct
             ,
             which
             holds
             in
             all
             Criminal
             and
             Penal
             Cases
             ,
             except
             in
             Treason
             only
             ,
             by
             a
             special
             Act
             of
             Parliament
             .
          
           
             The
             Lords
             Repelled
             both
             the
             Defenses
             :
             The
             First
             ,
             in
             respect
             that
             the
             Defender
             is
             not
             Heir
             ,
             but
             singular
             Successor
             ,
             and
             that
             there
             is
             no
             question
             of
             the
             validity
             of
             his
             Predecessors
             Right
             in
             competition
             with
             any
             other
             Right
             ,
             but
             the
             Superiours
             .
             The
             other
             ,
             because
             Recognition
             befalls
             not
             as
             a
             Crime
             ,
             but
             as
             a
             Condition
             ,
             implyed
             in
             the
             nature
             of
             the
             Right
             ,
             that
             if
             the
             Vassal
             alienat
             ,
             his
             Fee
             becomes
             void
             .
          
        
         
           
             Children
             of
             Wolmet
             contra
             Mr.
             Mark
             Ker.
             Eodem
             die
             .
          
           
             IN
             a
             Declarator
             of
             Redemption
             ,
             at
             the
             the
             Instance
             of
             the
             Children
             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
             
             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
             al
             's
             effectual
             as
             a
             Reduction
             ,
             when
             all
             was
             produced
             that
             was
             necessar
             to
             be
             produced
             before
             the
             ground
             of
             Nullity
             were
             Discussed
             ,
             with
             which
             all
             the
             rest
             will
             fall
             in
             consequence
             ,
             and
             that
             Reduction
             was
             only
             necessar
             to
             force
             tho
             Defenders
             to
             produce
             by
             the
             Certification
             ,
             but
             if
             the
             Defender
             would
             produce
             himself
             ,
             he
             might
             proceed
             by
             way
             of
             Declarator
             of
             Nullity
             .
          
           
             Secondly
             ,
             The
             Defender
             alleadged
             no
             Processes
             ,
             because
             by
             the
             Co-ception
             of
             the
             Clauses
             irritant
             ,
             the
             Rights
             is
             declared
             to
             belong
             to
             the
             nearest
             Heir
             of
             the
             Contraveener
             ;
             and
             therefore
             the
             Pursuer
             as
             served
             Heir-male
             general
             to
             Andrew
             Lord
             Balvaird
             ,
             hath
             no
             Interest
             till
             he
             be
             served
             Heir-male
             to
             Iames
             Earl
             of
             Annandale
             the
             Contraveener
             ,
             in
             which
             case
             he
             cannot
             quarrel
             his
             Deeds
             or
             Debts
             .
             The
             Pursuer
             answered
             ,
             that
             by
             Heir
             here
             cannot
             be
             understood
             the
             Heir
             actually
             served
             ,
             but
             the
             Person
             only
             that
             might
             be
             Heir
             ,
             for
             the
             Pursuer
             insisted
             in
             this
             same
             Processes
             against
             the
             Earl
             of
             Annandale
             ,
             when
             he
             was
             living
             ,
             and
             could
             not
             have
             been
             then
             excluded
             ,
             because
             he
             was
             not
             his
             heir
             ;
             and
             therefore
             as
             is
             ordinar
             in
             all
             Clauses
             in
             relation
             to
             Heirs
             ,
             which
             cannot
             be
             effectual
             ,
             if
             Heirs
             served
             be
             understood
             ,
             their
             Heirs
             appearing
             are
             understood
             ,
             
               verba
               sumenda
               sunt
               cum
               effectu
            
             .
          
           
             The
             Lords
             also
             Repelled
             this
             Defense
             .
          
           
             Thirdly
             ,
             The
             Defenders
             alleadged
             absolvitor
             :
             Because
             ,
             first
             ,
             Clauses
             
               de
               non
               alienando
            
             ,
             are
             never
             understood
             to
             extend
             to
             necessary
             alienations
             ,
             as
             for
             provision
             of
             the
             Feears
             Wife
             and
             Children
             ,
             for
             Redemption
             of
             him
             from
             Captivity
             ,
             or
             any
             other
             accident
             ,
             without
             his
             Fault
             .
             Secondly
             ,
             Clauses
             
               de
               non
               Contrahendo
               debitum
            
             are
             against
             Commerce
             ,
             and
             utterly
             rejected
             .
             Thirdly
             ,
             Clauses
             irritant
             are
             resolutive
             ,
             albeit
             contained
             in
             the
             Infeftment
             ,
             are
             but
             personal
             obliegements
             ,
             and
             the
             ground
             of
             an
             Action
             against
             the
             contraveener
             ;
             but
             if
             the
             Contraveener
             be
             denuded
             ,
             are
             not
             effectual
             against
             singular
             Successors
             ;
             Especially
             Creditors
             Contracting
             bonafide
             ,
             with
             one
             standing
             Infeft
             ,
             before
             the
             matter
             became
             litigious
             by
             Processes
             ,
             upon
             that
             Clause
             ,
             seing
             no
             Inhibition
             was
             used
             :
             
               ita
               est
            
             ,
             thir
             Creditors
             had
             Apprized
             and
             were
             Infeft
             
             before
             any
             such
             Processes
             upon
             this
             Clause
             ,
             or
             Inhibition
             used
             ,
             and
             no
             personal
             provision
             could
             transmit
             the
             Right
             from
             Annandale
             to
             Stormount
             ,
             upon
             contraveening
             the
             Clausses
             ,
             nor
             could
             hinder
             the
             transmission
             thereof
             from
             Annandale
             ,
             who
             had
             the
             only
             real
             Right
             to
             the
             Creditors
             ,
             by
             vertue
             of
             their
             Appryzings
             and
             Infeftments
             ,
             which
             denuded
             Annandale
             of
             the
             real
             Right
             ,
             and
             which
             real
             Right
             stands
             now
             only
             in
             the
             Person
             of
             the
             Creditors
             Infeft
             ,
             so
             that
             there
             can
             be
             no
             more
             in
             Stormounts
             Person
             ,
             but
             a
             Personal
             Provision
             ,
             for
             the
             being
             within
             the
             body
             of
             the
             Infeftment
             ,
             will
             not
             make
             this
             Clause
             real
             ,
             and
             to
             affect
             the
             Right
             ,
             
               quo
               ad
               singulares
               successores
            
             ,
             more
             then
             the
             Clause
             of
             Warrandice
             in
             the
             Infeftment
             ,
             which
             without
             question
             ,
             reaches
             not
             singular
             Successors
             ;
             and
             albeit
             some
             Provisions
             in
             themselves
             Personal
             ,
             may
             aff●ct
             singular
             Successors
             ,
             as
             the
             Provision
             ,
             that
             if
             two
             years
             run
             together
             ,
             the
             Feu
             shall
             become
             void
             ,
             or
             the
             Clauses
             of
             Reversion
             ,
             or
             the
             Inherent
             Clauses
             ,
             or
             quality
             in
             Ward
             holding
             ,
             but
             these
             become
             real
             by
             Law
             and
             Statute
             ;
             for
             we
             have
             a
             particular
             Act
             of
             Parliament
             anent
             Reversions
             ,
             to
             be
             effectual
             against
             singular
             Successors
             ;
             and
             another
             anent
             Feus
             ,
             
               ●b
               non
               solutum
               canonem
            
             :
             and
             there
             is
             no
             other
             case
             that
             such
             Provisions
             are
             real
             .
             The
             Pursuer
             answered
             to
             the
             fi●st
             ;
             albeit
             alienations
             do
             not
             comprehend
             judicial
             Alienations
             by
             Appryzing
             in
             Recognition
             ,
             and
             are
             oftimes
             not
             extended
             to
             necessar
             Alienations
             :
             Yet
             here
             the
             Clause
             bears
             expresly
             
               not
               to
               altenat
               ,
               and
               also
               to
               do
               no
               Deed
               whereby
               the
               Laws
               may
               be
               Evicted
               and
               Apprized
            
             ;
             without
             which
             the
             Clauses
             
               de
               alienando
            
             ,
             were
             utterly
             ineffectual
             ,
             and
             repeats
             the
             same
             to
             t●e
             second
             .
             As
             to
             the
             third
             ,
             albeit
             
               de
               facto
            
             ,
             the
             real
             Right
             be
             in
             the
             Appryzers
             Infeftment
             ,
             yet
             it
             is
             in
             them
             effected
             ,
             with
             that
             quality
             in
             the
             condition
             and
             bosome
             of
             it
             ,
             that
             gives
             good
             ground
             ,
             not
             only
             against
             the
             Earl
             of
             Annandale
             Contraveener
             ,
             to
             annul
             his
             Right
             ;
             But
             also
             the
             Apprizer
             in
             consequence
             ,
             
               quia
               resoluto
               jure
               dantis
               ,
               resolvitur
               jus
               accipientis
               ,
            
             Especially
             in
             Feudal-rights
             ,
             where
             
               provisionis
               investiturae
               ,
               sunt
               legis
               feudi
               ,
            
             as
             all
             Feudists
             agree
             ,
             and
             therefore
             all
             such
             Pactions
             and
             Provisions
             are
             equivalent
             to
             Law.
             2d
             .
             This
             Clause
             of
             the
             Infeftment
             is
             not
             only
             resolutive
             ,
             but
             also
             is
             an
             Interdiction
             Prohibiting
             the
             Feear
             for
             the
             time
             ,
             to
             alienat
             ,
             or
             do
             any
             Deed
             prejudicial
             ,
             without
             consent
             of
             such
             other
             Persons
             of
             the
             Tailzie
             ,
             were
             Majors
             for
             the
             time
             ;
             and
             therefore
             ,
             though
             the
             Pursuer
             should
             enter
             Heir
             to
             Annandale
             ,
             he
             might
             annul
             these
             Rights
             ,
             just
             as
             in
             the
             Case
             of
             an
             Heir
             of
             an
             Interdicted
             Person
             ,
             who
             may
             annul
             all
             Rights
             by
             his
             Predecessors
             after
             the
             Interdiction
             .
             The
             Defenders
             answered
             ,
             that
             as
             to
             this
             Point
             concerning
             the
             Interdiction
             ,
             it
             cannot
             be
             effectual
             ;
             because
             by
             a
             particular
             Act
             of
             Parliament
             ,
             all
             Interdictions
             are
             appointed
             to
             be
             published
             ,
             and
             to
             be
             Registrat
             in
             the
             Registers
             of
             Inhibitions
             ,
             otherways
             they
             are
             null
             :
             This
             Interdiction
             is
             neither
             published
             nor
             Registrat
             in
             that
             Register
             .
             The
             Pursuer
             answered
             ,
             it
             is
             al
             's
             publick
             ,
             because
             it
             is
             not
             only
             in
             his
             Infeftment
             ,
             at
             the
             great
             Seal
             ,
             but
             it
             is
             verbatum
             in
             the
             first
             Seasine
             ,
             and
             repeated
             in
             the
             Earl
             of
             Annandales
             Retour
             and
             Seasine
             ,
             so
             as
             that
             the
             Creditors
             ought
             to
             have
             considered
             his
             condition
             when
             they
             lent
             him
             Money
             ,
             and
             known
             that
             he
             was
             Infeft
             ,
             otherwise
             their
             mistake
             ,
             though
             it
             might
             be
             alleadged
             to
             be
             
               bona
               fidae
            
             ;
             yet
             if
             Annandale
             hade
             never
             been
             Infeft
             ,
             their
             
               bona
               fides
            
             would
             have
             wrought
             nothing
             ,
             seing
             therefore
             they
             did
             it
             on
             their
             peril
             ,
             unless
             they
             knew
             he
             was
             Infeft
             ,
             and
             they
             could
             not
             know
             he
             was
             Infeft
             by
             inspection
             of
             his
             Seasine
             ,
             or
             of
             the
             Register
             ,
             but
             they
             behoved
             to
             know
             this
             Clause
             ,
             which
             is
             verbatum
             in
             it
             .
          
           
           
             The
             Lords
             did
             also
             Repel
             this
             Defense
             and
             Duply
             ,
             in
             respect
             of
             the
             Reply
             and
             Triply
             ,
             and
             found
             the
             resolutive
             Clause
             effectual
             against
             singular
             Successours
             ,
             especially
             considering
             it
             was
             so
             publick
             and
             verbatim
             in
             the
             Seasine
             ,
             and
             that
             it
             was
             equivalent
             to
             an
             Interdiction
             .
          
           
             Thirdly
             .
             The
             Defender
             further
             alleadged
             absolvitor
             ,
             because
             the
             pursuer
             had●
             behaved
             himself
             as
             Heir
             to
             the
             Earl
             of
             Annandale
             ,
             by
             Intromission
             with
             the
             Mails
             and
             Duties
             of
             the
             same
             Lands
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             ,
             because
             the
             Pursuer
             having
             intented
             Declarator
             against
             Annandale
             in
             his
             own
             life
             ,
             they
             thought
             the
             provision
             was
             equivalent
             to
             an
             Interdiction
             ,
             which
             purged
             that
             passive
             Title
             .
          
        
         
           
             Creditors
             of
             Kinglassie
             .
             February
             27.
             1662.
             
          
           
             IN
             the
             Competition
             betwixt
             the
             Creditors
             of
             Kinglassie
             mentioned
             the
             former
             Day
             ,
             the
             Dispute
             anent
             the
             base
             Infeftment
             ,
             made
             publick
             by
             the
             poinding
             of
             the
             Ground
             so
             long
             before
             the
             Term
             of
             payment
             ,
             being
             reasoned
             before
             the
             Lords
             
               in
               presentia
            
             ,
             they
             sustained
             the
             same
             as
             before
             .
          
        
         
           
             Marjory
             Chalmers
             contra
             William
             Dalgardno
             .
             Eodem
             die
             .
          
           
             
               MArjory
               Chalmers
            
             pursues
             
               William
               Dalgardno
            
             as
             vitious
             Intromettor
             with
             a
             Defuncts
             Goods
             ,
             to
             pay
             his
             Debt
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             Rebel
             died
             at
             the
             Horn
             ,
             and
             so
             had
             no
             Goods
             .
             Secondly
             ,
             The
             Defender
             hath
             the
             gift
             of
             his
             Escheat
             ,
             and
             also
             is
             Executor
             Creditor
             Confirmed
             to
             him
             .
             Thirdly
             ,
             The
             Defender
             had
             a
             Disposition
             of
             all
             the
             Defuncts
             Goods
             ,
             albeit
             he
             possessed
             not
             thereby
             during
             his
             Life
             ;
             yet
             he
             might
             Enter
             in
             possession
             ,
             after
             his
             Death
             ,
             and
             not
             be
             vitious
             Intromettor
             .
          
           
             The
             Lords
             found
             this
             Defense
             Relevant
             ,
             to
             elide
             the
             passive
             Title
             ,
             but
             prejudice
             to
             either
             Party
             ,
             to
             Dispute
             their
             Rights
             ,
             as
             to
             the
             simple
             avail
             of
             the
             Goods
             ;
             and
             they
             Repelled
             the
             first
             Defense
             ,
             and
             found
             the
             second
             and
             third
             Defenses
             Relevant
             only
             ,
             if
             the
             Gift
             was
             before
             the
             Intenting
             of
             this
             Cause
          
        
         
           
           
             William
             Hamiltoun
             contra
             Mcfarlane
             of
             Kirktoun
             .
             February
             28.
             1662.
             
          
           
             
               WIlliam
               Hamiltoun
            
             pursues
             
               Iames
               Mcfarlane
            
             of
             Kirktoun
             ,
             as
             Successor
             
               titulo
               lucr●●ivo
            
             to
             his
             Father
             ,
             to
             pay
             his
             Debt
             ,
             who
             alleadged
             absolvitor
             ,
             because
             he
             was
             not
             
               alioqui
               successurus
            
             ,
             in
             respect
             that
             at
             the
             time
             of
             the
             Disposition
             ,
             he
             had
             ,
             and
             hath
             an
             Elder
             Brother
             ,
             who
             went
             out
             of
             the
             Countrey
             ,
             and
             must
             be
             presumed
             on
             life
             ,
             unless
             the
             Pursuer
             will
             offer
             to
             prove
             that
             he
             was
             Dead
             before
             this
             Disposition
             ;
             so
             that
             at
             the
             time
             thereof
             ,
             the
             Defender
             was
             not
             appearand
             Heir
             
               &
               alioqui
               successurus
            
             ,
             because
             
               vita
               presumitur
            
             .
             The
             Pursuer
             answered
             ,
             the
             Defense
             was
             not
             Relevant
             ,
             unless
             the
             Defender
             would
             be
             positive
             ,
             that
             the
             time
             of
             the
             Disposition
             his
             Elder
             Brother
             was
             on
             life
             ;
             especially
             seing
             he
             had
             been
             out
             of
             the
             Countrey
             twenty
             years
             ,
             and
             was
             commonly
             holden
             and
             repute
             to
             be
             Dead
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             that
             the
             Elder
             Brother
             was
             on
             life
             the
             time
             of
             the
             Disposition
             ,
             and
             reserved
             to
             their
             own
             consideration
             the
             Probation
             ,
             in
             which
             if
             the
             Defender
             proved
             simply
             ,
             that
             his
             Brother
             was
             actually
             living
             the
             time
             of
             the
             Disposition
             ,
             there
             would
             remain
             no
             question
             :
             and
             if
             he
             prove
             that
             he
             was
             living
             about
             that
             time
             ,
             they
             would
             consider
             ,
             whether
             in
             this
             Case
             ,
             the
             presumption
             of
             his
             being
             yet
             living
             ,
             should
             be
             probative
             .
          
        
         
           
             Pa●rick
             Herron
             contra
             Martein
             Stevenson
             .
             Iune
             17.
             1662.
             
          
           
             
               PAtrick
               Herron
            
             having
             obtained
             Decreet
             of
             Removing
             against
             
               Martein
               Stevinson
            
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Decreet
             was
             not
             upon
             Litiscontestation
             ;
             but
             a
             time
             being
             Assigned
             to
             the
             Suspender
             ,
             to
             find
             Caution
             for
             the
             violent
             Profits
             ,
             and
             he
             failing
             ,
             was
             Decerned
             without
             being
             admitted
             to
             any
             Defense
             ;
             and
             now
             alleadges
             ,
             that
             he
             ought
             not
             to
             remove
             ,
             because
             he
             obtained
             Decreet
             of
             Adjudication
             of
             the
             Lands
             in
             question
             ,
             against
             the
             common
             Author
             ,
             and
             thereupon
             charged
             the
             Superiour
             long
             before
             the
             Chargers
             Decreet
             of
             Adjudication
             or
             Infetment
             .
             The
             Charger
             answered
             ,
             that
             the
             Reason
             ought
             to
             be
             Repelled
             ,
             because
             the
             Decreet
             was
             given
             against
             the
             Defender
             ,
             compearing
             and
             failing
             as
             said
             is
             .
             Secondly
             ,
             The
             Charger
             stands
             Infeft
             upon
             his
             Adjudication
             .
             The
             Pursuer
             was
             never
             Infeft
             ,
             neither
             did
             he
             use
             all
             Diligence
             to
             get
             himself
             Infeft
             ,
             not
             having
             Denunced
             the
             Superiour
             ,
             and
             in
             case
             he
             had
             Suspended
             ,
             Discussing
             the
             Suspension
             .
          
           
           
             The
             Lords
             found
             the
             Reason
             Relevant
             and
             Proven
             ,
             and
             Suspended
             ;
             because
             they
             found
             no
             necessity
             for
             an
             Appryzer
             to
             use
             further
             Diligence
             against
             the
             Superiour
             ,
             then
             the
             Charge
             of
             Horning
             ,
             unless
             the
             Superiour
             had
             Suspended
             both
             ,
             and
             that
             in
             competition
             the
             other
             Party
             had
             done
             greater
             Diligence
             .
          
        
         
           
             Earl
             of
             Marischal
             contra
             Charles
             Bray
             .
             Iune
             18.
             1662.
             
          
           
             THe
             Earl
             of
             Marischal
             having
             obtained
             Decreet
             in
             his
             own
             Baron
             Court
             ,
             against
             Bray
             ,
             compearing
             for
             a
             years
             Rent
             of
             his
             Maines
             of
             Dunnottor
             ,
             herein
             he
             had
             been
             possest
             by
             the
             
               English
               ,
               Bray
            
             Suspends
             ,
             and
             alleadges
             compensation
             upon
             a
             Bond
             assigned
             to
             him
             ,
             due
             by
             the
             Charger
             ,
             who
             answered
             competent
             and
             omitted
             ,
             and
             so
             not
             receivable
             in
             the
             second
             Instance
             ;
             especially
             being
             Compensation
             ,
             which
             by
             special
             Act
             of
             Parliament
             ,
             is
             not
             to
             be
             admitted
             in
             the
             second
             Instance
             .
          
           
             The
             Lords
             Sustained
             the
             Reason
             of
             Compensation
             ,
             and
             found
             that
             a
             Baron
             Court
             was
             not
             such
             a
             Iudicature
             ,
             as
             that
             Alleadgences
             competent
             and
             omitted
             ,
             that
             should
             be
             Repelled
             in
             the
             second
             Instance
             .
          
        
         
           
             Mr.
             Iohn
             Wallace
             contra
             Forbes
             Iune
             19.
             1662.
             
          
           
             RObert
             and
             
               William
               Forbeses
            
             and
             
               Heugh
               Wallace
            
             ,
             being
             bound
             in
             a
             Bond
             as
             Co-principals
             ,
             
               Heugh
               Wallace
            
             being
             Distressed
             for
             all
             ,
             consigned
             the
             Sum
             to
             this
             Chargers
             Son
             ,
             Forbes
             Suspends
             on
             this
             Reason
             ,
             that
             there
             is
             no
             Clause
             of
             Relief
             in
             the
             Bond
             ,
             and
             Wallace
             being
             Debitor
             
               in
               solidum
            
             ,
             and
             having
             gotten
             Assignation
             
               confusione
               tollitur
               obligatio
            
             .
             The
             Charger
             answered
             ,
             that
             though
             there
             was
             no
             Clauses
             of
             Relief
             ,
             
               hoc
               i●est
            
             ,
             where
             many
             Parties
             are
             bound
             conjunctly
             and
             severally
             ,
             that
             each
             is
             oblieged
             to
             relieve
             others
             .
          
           
             The
             Lords
             Repelled
             the
             Reason
             of
             Suspension
             for
             the
             Suspenders
             part
             ,
             and
             found
             them
             lyable
             therefore
             ,
             but
             not
             for
             the
             other
             Co-principal
             Parties
             .
          
        
         
           
             Isobel
             Drummond
             contra
             Iean
             Skeen
             .
             Eodem
             die
             .
          
           
             
               ISobel
               Drummond
            
             pursues
             
               Iean
               Skeen
            
             as
             behaving
             her self
             as
             Heir
             to
             her
             Brother
             
               Iames
               Skeen
            
             ,
             by
             uplifting
             the
             Mails
             of
             the
             Lands
             ,
             wherein
             he
             Dyed
             Infeft
             ,
             to
             fulfill
             her
             Contract
             of
             Marriage
             with
             Iames.
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             uplifted
             those
             Duties
             by
             vertue
             of
             her
             Infeftment
             ,
             being
             Served
             Heir
             to
             
               Iohn
               Skeen
            
             ,
             Son
             to
             
               Iames
               Skeen
            
             ,
             the
             Pursuers
             
             Debitor
             ,
             who
             was
             Infeft
             ,
             not
             as
             Heir
             to
             his
             Father
             Iames
             ,
             but
             as
             Heir
             to
             her
             Good-sire
             .
             The
             Pursuer
             answered
             ,
             in
             respect
             to
             the
             Defenders
             Seasine
             ,
             or
             to
             
               Iohn
               Skeens
            
             ,
             which
             were
             evidently
             null
             ,
             seing
             
               Iames
               Skeen
            
             was
             Infeft
             ,
             and
             so
             John
             could
             not
             pass
             over
             him
             to
             his
             Goodsire
             ;
             and
             if
             any
             regard
             were
             to
             such
             Infeftment
             ,
             it
             would
             open
             a
             Door
             to
             all
             Fraud
             ,
             and
             abstracting
             of
             Defuncts
             Creditors
             Evidents
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             to
             purge
             this
             viticus
             passive
             Title
             ,
             seing
             the
             f●●●zie
             was
             not
             in
             this
             Defender
             ,
             but
             in
             
               John
               Skeen
            
             his
             Brother
             Son
             ,
             but
             prejudice
             to
             Reduce
             as
             accords
             ,
             but
             ordained
             her
             to
             Renunce
             to
             be
             Heir
             to
             James
             ,
             that
             Adjudications
             might
             be
             obtained
             .
          
        
         
           
             Mr.
             Alexander
             Vernor
             contra
             George
             Allan
             .
             June
             24.
             1662.
             
          
           
             MR.
             Alexander
             Vernor
             as
             Executor
             to
             Mr.
             David
             Calderwood
             ,
             Charges
             George
             Allane
             ,
             to
             pay
             a
             part
             of
             the
             Defuncts
             Stipend
             ,
             as
             he
             who
             intrometted
             with
             the
             Teinds
             of
             the
             Lands
             lyable
             therefore
             ,
             whereupon
             he
             had
             obtained
             Decreet
             .
             The
             Suspender
             alleadged
             that
             the
             Decreet
             was
             in
             absence
             ,
             and
             any
             intromission
             he
             had
             ,
             was
             only
             as
             a
             Merchant
             having
             bought
             from
             Sir
             Alexander
             Auchmutty
             the
             Heretor
             ,
             to
             whom
             he
             made
             payment
             
               bona
               fida
            
             ,
             before
             any
             Arrestment
             ,
             or
             Pursuit
             against
             him
             .
             The
             Charger
             answered
             
               non
               Relevat
            
             ,
             because
             the
             Suspender
             is
             oblieged
             to
             know
             ,
             that
             by
             Law
             ,
             the
             Teinds
             are
             lyable
             for
             the
             Ministers
             Stipend
             .
             Secondly
             ,
             He
             offers
             him
             to
             prove
             that
             the
             Suspender
             did
             not
             make
             his
             Bargain
             for
             so
             many
             Bolls
             of
             Victual
             ;
             but
             that
             he
             took
             Disposition
             of
             the
             Corns
             
               ipsa
               corpora
            
             ,
             before
             they
             were
             drawn
             .
          
           
             The
             Lords
             found
             the
             answer
             Relevant
             ,
             to
             elide
             the
             Reason
             ,
             and
             found
             the
             Defender
             lyable
             for
             the
             tenth
             part
             of
             the
             Cornes
             he
             bought
             .
          
        
         
           
             Robert
             Hay
             contra
             Hoom
             of
             Blackburn
             .
             Eodem
             die
             .
          
           
             RObert
             Hay
             Tailzior
             pursues
             Hoom
             of
             Blackburn
             ,
             as
             representing
             his
             Father
             upon
             all
             the
             passive
             Titles
             ,
             to
             pay
             a
             Debt
             of
             his
             Fathers
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             there
             was
             nothing
             produced
             to
             instruct
             the
             Debt
             ,
             but
             an
             Extract
             out
             of
             the
             Register
             ,
             bearing
             the
             Bond
             to
             have
             been
             Registrated
             by
             his
             Fathers
             consent
             ,
             whereas
             it
             is
             nottour
             and
             acknowledged
             by
             the
             Summons
             ,
             that
             his
             Father
             was
             Dead
             long
             before
             the
             Date
             of
             the
             Registration
             .
             The
             Pursuer
             answered
             ,
             the
             Extract
             is
             sufficient
             to
             instruct
             the
             verity
             of
             the
             Bond
             ,
             being
             in
             a
             publick
             Register
             of
             the
             Session
             ;
             alb
             it
             the
             Defunct
             was
             Dead
             the
             time
             of
             the
             Registration
             ,
             which
             might
             have
             been
             the
             Creditors
             mistake
             ,
             and
             cannot
             prejudge
             them
             ,
             seing
             vitapresumitur
             ,
             
             especially
             now
             ,
             when
             through
             the
             loss
             of
             the
             Registers
             ,
             principal
             Writs
             cannot
             be
             gotten
             .
             The
             Defender
             opponed
             his
             Defense
             ,
             and
             the
             Decisions
             of
             the
             Lords
             ,
             lately
             in
             the
             like
             case
             concerning
             the
             Earl
             of
             Errol
             ,
             because
             nothing
             can
             instruct
             against
             any
             man
             ,
             but
             either
             a
             Writ
             Subscribed
             by
             him
             ,
             or
             the
             Sentence
             of
             a
             Judge
             upon
             Citation
             or
             consent
             ,
             and
             this
             is
             neither
             .
          
           
             The
             Lords
             refused
             the
             Extract
             simply
             ,
             but
             ordained
             the
             Pursuer
             to
             condescend
             upon
             Adminicles
             for
             instructing
             thereof
             ,
             either
             by
             Writ
             or
             Witnesses
             ,
             who
             saw
             the
             Bond
             ,
             &c.
             
          
        
         
           
             of
             Woodhead
             contra
             Barbara
             Nairn
             .
             Eodem
             die
             .
          
           
             WOodhead
             pursues
             
               Barbara
               Nairn
            
             ,
             for
             the
             Mails
             and
             Duties
             of
             certain
             Lands
             .
             The
             Pursuer
             alleadged
             absolvitor
             ,
             because
             she
             Defender
             stands
             Infeft
             in
             Liferent
             of
             these
             Lands
             .
             It
             was
             Replyed
             ,
             The
             Defenders
             Husband
             Disponed
             these
             Lands
             to
             the
             Pursuer
             with
             her
             consent
             ,
             Subscribing
             the
             Disposition
             .
             It
             was
             Duplyed
             ,
             The
             Defenders
             Subscription
             and
             Consent
             was
             Extorted
             ,
             
               metus
               causa
            
             ,
             whereupon
             she
             has
             Action
             of
             Reduction
             depending
             ,
             and
             holds
             the
             production
             satisfied
             with
             the
             Writs
             produced
             ,
             and
             repeates
             her
             Reason
             by
             way
             of
             Duply
             ,
             viz.
             if
             she
             was
             compelled
             by
             her
             Husband
             it
             was
             by
             just
             fear
             ;
             because
             she
             offered
             to
             prove
             by
             Witnesses
             ,
             that
             he
             threatned
             her
             to
             consent
             ,
             or
             else
             he
             should
             do
             her
             a
             mischief
             ,
             and
             that
             he
             was
             a
             fierce
             man
             ,
             and
             had
             many
             times
             beaten
             her
             ,
             and
             shut
             her
             out
             of
             Doors
             ,
             and
             offered
             to
             prove
             by
             the
             Nortar
             and
             Witnesses
             Insert
             ,
             that
             at
             the
             time
             of
             the
             Subscription
             ,
             she
             declared
             her
             unwillingness
             .
          
           
             The
             Lords
             found
             the
             Defense
             and
             Duply
             Relevant
             .
          
        
         
           
             David
             Wilkie
             contra
             Sir
             Andrew
             Ker.
             Eodem
             die
             .
          
           
             
               DAvid
               Wilkie
            
             and
             others
             ,
             Tacks-men
             of
             the
             Castoms
             ,
             Charged
             Sir
             
               Andrew
               Ker
            
             for
             the
             Tack-Duty
             of
             the
             Customs
             of
             the
             Border
             ,
             Anno
             1650.
             
             Set
             by
             them
             to
             him
             ,
             he
             Suspends
             ,
             and
             alleadges
             by
             the
             publick
             Calamity
             of
             the
             English
             Entry
             ,
             in
             Anno
             1650.
             in
             Iuly
             ,
             Traffick
             was
             hindered
             ,
             and
             by
             the
             Kings
             Proclamation
             ,
             against
             Commerce
             with
             these
             .
             The
             Charger
             answered
             ,
             it
             was
             a
             Casuallity
             
               ex
               natura
               rei
            
             ,
             and
             that
             they
             had
             payed
             without
             Defalcation
             ,
             and
             the
             Suspender
             had
             profit
             in
             former
             years
             .
          
           
           
             The
             Lords
             before
             answer
             Ordained
             the
             Suspender
             to
             Compt
             upon
             what
             benefit
             he
             got
             in
             Anno
             1650.
             and
             what
             Profite
             above
             the
             Tack-duty
             in
             former
             years
             .
          
        
         
           
             Adamsons
             contra
             Lord
             Balmerino
             .
             Iune
             26.
             1662.
             
          
           
             ADamsons
             being
             Infeft
             in
             an
             old
             Annualrent
             out
             of
             two
             Tenements
             in
             Leith
             ,
             and
             having
             thereupon
             obtained
             Decreet
             of
             Poynding
             the
             Ground
             in
             Anno
             1661.
             and
             insisting
             for
             poinding
             one
             of
             the
             Tennents
             Goods
             ,
             now
             belonging
             to
             the
             Lord
             Balmerino
             ,
             for
             the
             whole
             Annualrent
             ;
             Balmerino
             Suspends
             on
             these
             Reasons
             ;
             First
             ,
             The
             Heretor
             against
             whom
             the
             Decreet
             of
             poinding
             was
             obtained
             ,
             and
             all
             the
             Tennents
             were
             Dead
             ;
             and
             therefore
             it
             can
             receive
             no
             summar
             Execution
             ,
             against
             the
             present
             Heretor
             and
             his
             Tennents
             ,
             but
             there
             must
             be
             a
             new
             Decreet
             against
             them
             .
             Secondly
             ,
             Balmerino
             hath
             peaceably
             possessed
             this
             Tenement
             twenty
             or
             thirty
             years
             ,
             and
             thereby
             hath
             the
             Benefit
             of
             a
             possessory
             Judgement
             ,
             by
             which
             his
             Infeftment
             cannot
             be
             questioned
             without
             Reduction
             and
             Declarator
             .
             Thirdly
             ,
             The
             Englishes
             possessed
             this
             Tenement
             several
             years
             by
             the
             publick
             Calamity
             of
             War
             ;
             and
             therefore
             there
             must
             be
             Deduction
             of
             these
             years
             Annualrents
             ,
             as
             is
             frequently
             done
             in
             Feu-duties
             .
             Fourthly
             ,
             The
             two
             Tenements
             being
             now
             in
             the
             hands
             of
             different
             singular
             Successors
             ,
             Balmerino's
             Tenement
             can
             only
             be
             poinded
             for
             a
             part
             of
             the
             Annualrent
             .
             The
             Pursuer
             answered
             ,
             that
             Poinding
             of
             the
             ground
             is
             actorialis
             ,
             chiefly
             against
             the
             Ground
             ;
             and
             therefore
             during
             the
             Obtainers
             Life
             ,
             it
             is
             valued
             not
             only
             against
             the
             ground
             ,
             while
             it
             belonged
             to
             these
             Heretors
             and
             Possessors
             ,
             but
             against
             the
             same
             in
             whosoever
             hands
             it
             be
             ,
             that
             the
             Moveable
             Goods
             therein
             ,
             or
             the
             Ground
             Right
             thereof
             may
             be
             Apprized
             .
             To
             the
             second
             ,
             Annualrents
             are
             
               debita
               fundi
            
             ,
             and
             a
             Possessory
             Judgement
             takes
             neither
             place
             for
             them
             ,
             nor
             against
             them
             .
             To
             the
             third
             ,
             though
             in
             some
             cases
             Feu-duties
             ceass
             by
             Devestation
             ,
             that
             was
             never
             extended
             to
             Annualrents
             ,
             due
             for
             the
             profit
             of
             a
             Stock
             of
             Money
             .
             To
             the
             fourth
             ,
             the
             Annualrent
             being
             out
             of
             two
             Tenements
             promiscuously
             .
             The
             Annualrenter
             may
             Distress
             any
             part
             for
             the
             whole
             ,
             in
             whosoever
             hands
             the
             Tenement
             may
             be
             .
          
           
             The
             Lords
             Repelled
             all
             these
             Defenses
             ,
             but
             superceded
             Execution
             for
             one
             half
             of
             the
             Annualrent
             for
             a
             time
             ,
             and
             Ordained
             the
             Suspender
             to
             give
             Commission
             to
             Balmerino
             to
             put
             the
             Decreet
             in
             Execution
             against
             the
             other
             Tenements
             for
             its
             proportion
             ,
             for
             his
             relief
             ,
             
               medio
               tempore
            
             .
          
        
         
           
           
             Wilson
             contra
             Thomson
             .
             Eodem
             die
             .
          
           
             WIlson
             having
             obtained
             Decreet
             against
             Thomson
             ,
             for
             poinding
             of
             the
             Ground
             of
             a
             Tenement
             of
             Land
             ,
             Thomson
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Chargers
             Infeftment
             is
             base
             ,
             and
             before
             it
             was
             cled
             with
             Possession
             ,
             the
             Suspender
             was
             publickly
             Infeft
             ,
             and
             thereby
             excludes
             the
             base
             Infeftment
             though
             prior
             .
             The
             Charger
             answered
             ,
             that
             the
             Reason
             ought
             to
             be
             repelled
             ,
             because
             he
             had
             used
             Citation
             upon
             the
             base
             Infeftment
             ,
             before
             the
             publick
             Infeftment
             ,
             by
             which
             Citation
             ,
             
               res
               fuit
               letigiosa
            
             .
          
           
             The
             Lords
             Repelled
             the
             Reason
             in
             respect
             of
             the
             Answer
             ,
             and
             found
             the
             base
             Infeftment
             validat
             by
             the
             Citation
             ,
             whereupon
             the
             Decreet
             followed
             .
          
        
         
           
             Ruthven
             contra
             Laird
             of
             Gairn
             .
             Iune
             27.
             1662.
             
          
           
             THe
             Laird
             of
             Gairn
             having
             Infeft
             his
             Son
             in
             his
             Estate
             ,
             reserving
             his
             own
             Liferent
             ;
             after
             his
             Sons
             Death
             ,
             his
             Oye
             pursues
             him
             for
             an
             Aliment
             out
             of
             the
             Estate
             ,
             conform
             to
             the
             Act
             of
             Parliament
             ,
             appointing
             the
             Heir
             to
             be
             Entertained
             by
             the
             Donatars
             to
             the
             Ward
             ,
             Conjunct-feears
             ,
             or
             Liferenters
             thereof
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             Act
             of
             Parliament
             cannot
             be
             extended
             to
             his
             case
             ,
             who
             voluntarly
             Infeft
             his
             Son
             in
             his
             Estate
             ,
             with
             the
             burden
             of
             his
             Liferent
             .
             Secondly
             ,
             If
             any
             Aliment
             were
             due
             ,
             the
             Mother
             who
             is
             Liferenter
             must
             bear
             her
             part
             .
             Thirdly
             ,
             Aliment
             is
             only
             due
             where
             the
             Heir
             hath
             no
             other
             means
             ;
             But
             here
             the
             Heir
             hath
             a
             Stock
             of
             Money
             ,
             which
             though
             Liferented
             by
             his
             Mother
             ,
             yet
             he
             may
             Entertain
             himself
             out
             of
             the
             Stock
             .
             The
             Pursuer
             answered
             :
             First
             ,
             That
             the
             Act
             of
             Parliament
             anent
             Alimenting
             of
             Heirs
             ,
             is
             generally
             against
             Liferenters
             without
             exception
             .
             Secondly
             ,
             The
             Disposition
             by
             the
             Defender
             to
             the
             Son
             ,
             was
             for
             a
             Tocher
             worth
             all
             the
             Estate
             he
             then
             had
             ;
             wherefore
             no
             part
             was
             Liferented
             by
             the
             Son
             ,
             or
             his
             Wife
             ,
             the
             Pursuers
             Mother
             ,
             but
             only
             a
             sum
             of
             Money
             which
             came
             by
             her self
             ,
             and
             there
             is
             no
             reason
             that
             the
             Stock
             thereof
             should
             be
             exhausted
             for
             the
             Pursuers
             Aliment
             ,
             the
             Defender
             having
             now
             succeeded
             to
             a
             plentiful
             Estate
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             in
             respect
             of
             the
             Replyes
             .
          
        
         
           
           
             Mr.
             David
             Watson
             contra
             Mr.
             Iames
             Ellies
             .
             Eodem
             die
             .
          
           
             MR.
             
               David
               Watson
            
             having
             acquired
             Right
             to
             the
             Superiority
             of
             
               Stenhouse
               milne
            
             ,
             pursues
             the
             Feuers
             ,
             for
             their
             Feu-duties
             ,
             who
             alleadge
             ,
             First
             ,
             no
             Process
             ,
             the
             Lands
             in
             Question
             ,
             being
             Kirk-lands
             ,
             Disponed
             to
             a
             Lord
             of
             Erection
             ;
             and
             it
             is
             declared
             ,
             that
             the
             Lords
             of
             Erection
             ,
             having
             only
             right
             to
             the
             Feu-duty
             ,
             till
             they
             be
             Redeemed
             by
             the
             KING
             ,
             at
             ten
             Years
             purchase
             ,
             by
             the
             Act
             of
             Parliament
             thereanent
             ,
             in
             Anno
             1633.
             
             And
             thereby
             none
             have
             Right
             ,
             but
             such
             as
             subscribed
             the
             submission
             ,
             surrendring
             their
             Interest
             in
             the
             KING'S
             hands
             ,
             untill
             the
             Pursuer
             Instruct
             ,
             that
             his
             Author
             did
             subscribe
             the
             said
             submission
             ,
             he
             hath
             no
             Interest
             .
             Secondly
             ,
             absolvitor
             ,
             from
             the
             Feu-duties
             ,
             1650.
             and
             1651.
             
             Because
             the
             Lands
             were
             wasted
             these
             Years
             ,
             by
             publik
             calamity
             of
             War.
             Thirdly
             ,
             absolvitor
             from
             Harrage
             and
             Carrage
             ;
             because
             all
             Services
             are
             reserved
             to
             the
             KING
             ,
             by
             the
             said
             Act
             of
             Parliament
             .
          
           
             The
             Lords
             assoilzied
             from
             Harrage
             and
             Carrage
             ,
             but
             differed
             for
             the
             Feu-duty
             ,
             being
             smal
             ,
             and
             found
             no
             necessity
             for
             the
             Pursuer
             to
             instruct
             ,
             that
             this
             Author
             did
             subscribe
             the
             Surrender
             ,
             after
             so
             long
             time
             ,
             but
             that
             the
             same
             was
             presumed
             for
             his
             so
             long
             bruiking
             the
             Fee.
             
          
        
         
           
             Sir
             William
             Wilson
             contra
             Sir
             William
             Murray
             .
             Eodem
             die
             .
          
           
             WIlson
             having
             Apprysed
             Sir
             
               William
               Murrays
            
             Estate
             ,
             pursues
             him
             and
             his
             Tenents
             ,
             for
             Mails
             and
             Duties
             ,
             who
             alleadged
             ,
             that
             by
             the
             Act
             of
             Parliament
             1661.
             anent
             Debitor
             and
             Creditor
             ,
             the
             Lords
             are
             impowred
             to
             restrict
             Apprysers
             ,
             to
             a
             part
             of
             their
             Lands
             Apprysed
             ,
             sufficient
             for
             the
             Annualrent
             ,
             and
             to
             leave
             the
             rest
             to
             the
             Debitor
             .
          
           
             The
             Lords
             did
             accordingly
             restrict
             ,
             but
             give
             the
             Appryser
             his
             option
             of
             any
             of
             the
             Apprysed
             Lands
             ,
             
               (
               except
               the
               Debitors
               House
               and
               Mains
               )
            
             paying
             eight
             per
             cent
             .
             effeiring
             to
             the
             Sum
             Apprysed
             for
             ;
             the
             Appryser
             being
             comptable
             for
             the
             superplus
             above
             the
             Annualrent
             ,
             and
             publick
             burdens●
          
        
         
           
             Dame
             Margret
             Hay
             contra
             George
             Seaton
             of
             Barnes
             .
             Iune
             28.
             1662.
             
          
           
             UMquhile
             Sir
             
               Iohn
               Seatoun
            
             of
             Barnes
             ,
             having
             provided
             
               George
               Seaton
            
             his
             son
             ,
             by
             his
             Contract
             of
             Marriage
             ,
             to
             his
             lands
             of
             Barnes
             ,
             some
             diferences
             rose
             amongst
             them
             ,
             upon
             the
             fulfilling
             of
             some
             Conditions
             in
             the
             Contract
             ,
             for
             
             setling
             thereof
             ,
             there
             was
             a
             minute
             extended
             by
             a
             Decreet
             of
             the
             Judges
             ,
             in
             Anno
             1658.
             by
             which
             the
             said
             Dame
             
               Margaret
               Hay
            
             ,
             second
             Wife
             to
             the
             said
             Sir
             Iohn
             ,
             was
             provided
             to
             an
             hundred
             pound
             sterling
             in
             Liferent
             ,
             and
             it
             was
             provided
             ,
             that
             Sir
             John
             might
             burden
             the
             Estate
             with
             ten
             thousand
             merks
             to
             any
             Person
             he
             pleased
             ,
             to
             which
             George
             his
             Son
             did
             consent
             ,
             and
             oblidged
             himself
             ,
             to
             be
             a
             principal
             Disponer
             ,
             Sir
             Iohn
             assigned
             that
             Clause
             ,
             and
             destinat
             that
             Provision
             ,
             for
             
               Hendrie
               Seaton
            
             his
             Son
             ,
             in
             Fee
             ,
             and
             for
             the
             said
             
               Dame
               Margaret
               Hay
            
             in
             Liferent
             ,
             whereupon
             she
             obtained
             Decreet
             before
             the
             Lords
             ,
             the
             last
             Session
             ,
             George
             suspends
             the
             Decreet
             ,
             and
             raises
             Reduction
             ,
             on
             this
             Reason●
             that
             the
             foresaid
             Clause
             ,
             gave
             only
             power
             to
             Sir
             Iohn
             ,
             to
             burden
             the
             Estate
             with
             a
             10000.
             merks
             ,
             in
             which
             case
             George
             was
             to
             Consent
             ,
             and
             Dispone
             ,
             which
             can
             only
             be
             understood
             of
             a
             valid
             Legal
             and
             Effectual
             burden
             thereof
             ,
             but
             this
             Assignation
             is
             no
             such
             burden
             ,
             because
             it
             is
             done
             in
             
               lecto
               egreditudinis
            
             ,
             and
             so
             cannot
             prejudge
             George
             ,
             who
             is
             Heir
             ,
             at
             least
             appearand
             Heir
             to
             his
             Father
             .
             The
             Charger
             answered
             ,
             that
             the
             Reason
             was
             no
             way
             relevant
             .
             First
             ,
             because
             this
             Provision
             was
             in
             favours
             of
             the
             Defuncts
             Wife
             ,
             and
             Children
             ,
             and
             so
             is
             not
             a
             voluntar
             Deed
             ,
             but
             an
             Implement
             of
             the
             natural
             obligation
             of
             providing
             these
             .
             2dly
             .
             This
             Provision
             ,
             as
             to
             the
             Substance
             of
             it
             ,
             is
             made
             in
             the
             Minute
             ,
             and
             extended
             Contract
             in
             the
             Fathers
             health
             ;
             and
             there
             is
             nothing
             done
             on
             Death-bed
             ,
             but
             the
             Designation
             of
             the
             Person
             ,
             which
             is
             nothing
             else
             ,
             then
             if
             a
             Parent
             should
             in
             his
             life
             time
             give
             out
             Sums
             payable
             to
             his
             Bairns
             ,
             leaving
             their
             names
             blank
             ,
             and
             should
             on
             Death-bed
             fill
             up
             their
             names
             .
             The
             Suspender
             answered
             ,
             that
             he
             opponed
             the
             Clause
             ,
             not
             bearing
             
               de
               presenti
            
             ,
             a
             burden
             of
             the
             Land
             ,
             but
             a
             Power
             to
             his
             Father
             to
             burden
             ,
             neither
             having
             any
             mention
             of
             Death-bed
             ,
             or
             in
             
               articulo
               mortis
            
             ,
             or
             at
             any
             time
             during
             his
             life
             ,
             and
             though
             the
             Dead
             ,
             on
             Death-bed
             be
             in
             favours
             of
             Wife
             ,
             and
             Children
             ,
             it
             hath
             never
             been
             sustained
             by
             the
             Lords
             in
             no
             time
             ,
             though
             some
             have
             thought
             it
             the
             most
             favourable
             Case
             .
          
           
             The
             Lords
             sustained
             the
             Provision
             ,
             and
             Repelled
             the
             Reason
             of
             Reduction
             assoilzied
             therefrom
             ,
             and
             found
             the
             Letters
             Orderly
             proceeded
             .
          
        
         
           
             Dorathie
             Gray
             contra
             Oswald
             .
             Eodem
             die
             .
          
           
             UMquhile
             Mr
             
               Iohn
               Oswald
            
             ,
             having
             Married
             
               Dorathie
               Gray
            
             ,
             in
             England
             ,
             did
             at
             the
             time
             of
             their
             Contract
             ,
             grant
             an
             English
             Bond
             of
             a
             1000
             
               lib.
               Sterling
            
             to
             the
             said
             Dorathies
             Mother
             ,
             and
             on
             
               Wilson
               ,
               ad
               opus
               &
               usum
               dictae
               Doratheae
               ,
            
             the
             Condition
             of
             which
             Obligation
             ,
             is
             ,
             that
             if
             Mr.
             Iohn
             shal
             pay
             the
             saids
             intrusted
             Person
             ,
             the
             Sum
             of
             600
             
               lib.
               Sterling
            
             ,
             or
             shall
             secure
             the
             said
             Dorathie
             in
             Lands
             ,
             or
             Cattels
             ,
             worth
             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
             
             preferred
             to
             the
             Stock
             of
             the
             Sum
             ,
             because
             the
             Clause
             ,
             
               ad
               opus
               &
               usum
            
             ,
             could
             only
             be
             understood
             to
             be
             for
             Dorathies
             Liferent
             use
             ,
             and
             not
             in
             Fee
             ,
             and
             as
             for
             the
             Assignation
             ,
             it
             was
             on
             Death-bed
             ,
             and
             so
             could
             operat
             nothing
             in
             their
             prejudice
             .
             It
             was
             ;
             answered
             ,
             for
             the
             said
             Dorathie
             ,
             that
             she
             opponned
             the
             Clause
             .
             The
             meaning
             thereof
             was
             no
             other
             ,
             but
             that
             her
             Mother
             and
             Wilson
             ,
             were
             Creditors
             in
             trust
             to
             the
             use
             ,
             and
             behove
             of
             her
             ,
             and
             could
             not
             be
             a
             Liferent
             Right
             ,
             because
             it
             was
             provided
             to
             her
             ,
             her
             Heirs
             ,
             Executors
             ,
             and
             Assigneys
             ;
             and
             as
             to
             the
             Assignation
             ,
             though
             on
             Death-bed
             ,
             yet
             it
             may
             very
             well
             be
             used
             ,
             as
             an
             Adminacle
             ,
             to
             clear
             the
             meaning
             of
             the
             Parties
             .
          
           
             The
             Lords
             found
             the
             Clause
             to
             carrie
             the
             Stock
             of
             the
             Money
             ,
             and
             preferred
             Dorathie
             ,
             and
             it
             being
             thereafter
             offered
             to
             be
             proven
             ,
             that
             by
             the
             Custom
             of
             England
             ,
             such
             Clauses
             signifie
             only
             the
             Liferent
             use
             .
             The
             Lords
             repelled
             the
             alleadgance
             ;
             in
             respect
             of
             the
             Clause
             ,
             being
             provided
             to
             Dorathies
             Heirs
             and
             Assignies
             ,
             and
             in
             respect
             of
             the
             clearing
             meaning
             thereof
             by
             the
             Testament
             ,
             would
             not
             delay
             ,
             the
             Process
             ,
             upon
             the
             proving
             the
             Custome
             of
             England
             ,
             the
             matter
             being
             clear
             in
             the
             contrair
             .
          
        
         
           
             William
             Baillie
             contra
             Margaret
             Henderson
             and
             Ianet
             Iameson
             .
             Iuly
             1.
             1662.
             
          
           
             BY
             Minute
             of
             Contract
             ,
             betwixt
             Umquhile
             Iameson
             ,
             and
             
               Baillie
               ,
               Baillie
            
             oblidged
             himself
             to
             Infeft
             Iameson
             in
             a
             Tenement
             ,
             for
             which
             Iameson
             oblidged
             himself
             to
             pay
             three
             thousand
             merks
             of
             price
             ,
             Iameson
             being
             dead
             ,
             without
             any
             further
             progress
             upon
             the
             Minute
             .
             Baillie
             pursues
             the
             said
             Margaret
             Henderson
             ,
             as
             Executrix
             to
             him
             ,
             and
             the
             said
             
               Ianet
               Iameson
            
             ,
             as
             Heir
             to
             pay
             him
             the
             price
             .
             It
             was
             alleadged
             ,
             for
             the
             Executor
             ,
             absolvitor
             ,
             because
             ,
             the
             bargain
             being
             incompleat
             ,
             the
             Heir
             must
             perfit
             it
             ,
             and
             dispone
             the
             Tenement
             ,
             and
             so
             can
             only
             be
             lyable
             for
             the
             price
             ;
             for
             by
             the
             performance
             of
             mutual
             Minute
             ,
             the
             Heir
             will
             only
             get
             the
             Land
             ,
             and
             therefore
             the
             Executor
             should
             not
             be
             lyable
             for
             the
             price
             ,
             or
             at
             least
             if
             the
             Executrix
             be
             decerned
             to
             pay
             the
             price
             ;
             The
             Pursuer
             must
             dispone
             to
             her
             the
             third
             part
             of
             the
             Tenement
             in
             Fee
             ,
             and
             the
             two
             part
             to
             the
             Heir
             ,
             she
             being
             the
             only
             Child
             ,
             and
             having
             Right
             to
             the
             two
             third
             parts
             of
             the
             Moveables
             ,
             which
             Moveables
             being
             exhausted
             ,
             by
             the
             Price
             of
             the
             Tenement
             ;
             the
             Tenement
             ought
             to
             come
             in
             place
             of
             the
             price
             .
             The
             Pursuer
             answered
             ,
             that
             he
             could
             dispone
             no
             otherwise
             ,
             then
             according
             to
             the
             Minute
             ,
             but
             the
             Executrix
             might
             betake
             her
             recourse
             against
             the
             Heir
             ,
             as
             she
             pleased
             ,
             but
             both
             as
             representing
             the
             Defunct
             ,
             were
             lyable
             to
             him
             .
          
           
             The
             Lords
             decerned
             the
             Executrix
             to
             make
             payment
             ,
             and
             would
             not
             bring
             the
             Debitor
             ,
             betwixt
             the
             Heir
             and
             her
             in
             this
             Process
             ,
             for
             the
             third
             of
             the
             Tenement
             ,
             or
             for
             her
             Terce
             thereof
             ,
             but
             reserved
             the
             same
             ,
             as
             accords
             .
          
        
         
           
           
             Breidy
             contra
             Breidy
             and
             Muire
             .
             Eodem
             die
             .
          
           
             A
             Contract
             of
             Marriage
             was
             sustained
             ,
             both
             against
             Principal
             and
             Cautioner
             ,
             albeit
             subscribed
             ,
             but
             by
             one
             Nottar
             ,
             and
             by
             one
             subscribing
             Witness
             ,
             there
             being
             more
             Witnesses
             insert
             ,
             in
             respect
             ,
             that
             Marriage
             followed
             thereupon
             .
          
        
         
           
             Lord
             Couper
             .
             contra
             Lord
             Pitsligo
             .
             Iuly
             3
             1662.
             
          
           
             THE
             Lord
             Couper
             alleadging
             ,
             That
             being
             sitting
             in
             Parliament
             ,
             and
             taking
             out
             his
             Watch
             ,
             to
             see
             what
             hours
             it
             was
             ;
             he
             gave
             it
             to
             my
             Lord
             Pitsligo
             in
             his
             hand
             ,
             and
             that
             he
             refuses
             to
             restore
             it
             ;
             therefore
             craves
             to
             be
             restored
             ,
             and
             that
             he
             may
             have
             the
             Value
             of
             it
             ,
             
               pretio
               affectionis
            
             ,
             by
             his
             own
             Oath
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             lybell
             is
             not
             relevant
             ,
             not
             condescending
             ,
             
               quo
               modo
            
             ,
             the
             Defender
             is
             oblidged
             to
             restore
             ,
             for
             if
             the
             Pursuer
             insist
             upon
             his
             Real
             Right
             of
             the
             Watch
             ,
             as
             proprietar
             ,
             the
             Lybel
             is
             not
             relevant
             ;
             because
             he
             subsumes
             not
             that
             the
             Defender
             is
             possessor
             ,
             or
             haver
             of
             the
             Watch
             ,
             at
             the
             time
             of
             the
             Citation
             ,
             or
             since
             ,
             or
             at
             least
             
               dolo
               desijt
               poisidere
            
             ;
             or
             if
             the
             Pursuer
             insist
             upon
             a
             personal
             obligation
             ,
             he
             ought
             to
             subsume
             ,
             that
             the
             Defender
             borrowed
             the
             Watch
             ,
             or
             ●ook
             the
             custody
             thereof
             ,
             and
             thereby
             is
             Personally
             oblidged
             to
             keep
             and
             restore
             .
             Secondly
             ,
             albeit
             the
             Lybel
             were
             relevant
             ,
             absolvitor
             ,
             because
             the
             Defender
             offers
             him
             to
             prove
             ,
             that
             the
             Pursuer
             having
             put
             his
             Watch
             in
             his
             hand
             ,
             as
             he
             conceives
             ,
             to
             see
             what
             hours
             it
             was
             .
             The
             Defender
             ,
             according
             to
             the
             Ordinar
             Civillity
             ,
             they
             being
             both
             sitting
             in
             Parliament
             .
             The
             Lord
             Sinclar
             putting
             forth
             his
             hand
             ,
             for
             a
             sight
             of
             the
             Watch
             ;
             The
             Defender
             did
             ,
             in
             the
             Pursuers
             presence
             ,
             put
             it
             in
             his
             hand
             ,
             without
             the
             Pursuers
             opposition
             ,
             or
             contradiction
             ,
             which
             must
             necessarily
             import
             his
             consent
             ,
             and
             liberat
             the
             Defender
             .
             The
             Pursuer
             answered
             ,
             that
             he
             did
             now
             condescend
             ,
             that
             he
             lent
             his
             Watch
             to
             the
             Defender
             ,
             and
             that
             there
             was
             betwixt
             them
             ,
             
               Contractus
               commodati
            
             ,
             because
             the
             Defender
             having
             put
             forth
             his
             hand
             ,
             signifying
             his
             desire
             to
             call
             for
             the
             Watch.
             The
             Pursuer
             put
             the
             same
             in
             his
             hand
             ,
             and
             though
             there
             was
             no
             words
             ,
             yet
             this
             Contract
             may
             be
             celebrat
             ,
             by
             intervention
             of
             any
             signe
             of
             the
             Parties
             meaning
             ,
             which
             here
             could
             be
             no
             other
             then
             that
             which
             is
             Ordinar
             ,
             to
             lend
             the
             Defender
             the
             Watch
             ,
             to
             see
             what
             hours
             it
             was
             ,
             which
             importeth
             the
             Defenders
             oblidgment
             to
             restore
             the
             same
             .
             To
             the
             second
             Defense
             ,
             
               non
               relevat
            
             ,
             because
             the
             Defenders
             giving
             of
             the
             Watch
             to
             the
             Lord
             Sinclar
             ,
             was
             so
             subit
             an
             Act
             ,
             that
             the
             Pursuer
             could
             not
             prohibite
             ,
             specially
             they
             being
             sitting
             in
             Parliament
             in
             the
             time
             :
             and
             therefore
             in
             that
             Case
             his
             silence
             cannot
             import
             a
             Consent
             ,
          
           
             The
             Lords
             sustained
             the
             Lybel
             ,
             and
             repelled
             the
             Defence
             ,
             but
             would
             not
             suffer
             the
             price
             of
             the
             Watch
             to
             be
             proven
             by
             the
             Pursuers
             Oath
             ,
             but
             
               pro
               ut
               de
               jure
            
          
        
         
           
           
             Agnes
             Peacock
             contra
             Mathew
             Baillie
             .
             Eodem
             die
             .
          
           
             
               AGnes
               Peacock
            
             ,
             as
             Executrix
             to
             her
             Husband
             ,
             having
             pursued
             
               Mathew
               Baillie
            
             ,
             for
             payment
             of
             a
             Sum
             of
             Money
             ;
             he
             offered
             to
             prove
             payment
             ,
             and
             at
             the
             Term
             produced
             a
             Discharge
             ,
             whereupon
             the
             Pursuer
             took
             Instruments
             of
             the
             Production
             ,
             and
             offered
             to
             improve
             the
             same
             ;
             and
             craved
             that
             the
             Defender
             might
             be
             Ordained
             to
             Compear
             Personally
             ,
             and
             bide
             by
             the
             same
             ,
             and
             a
             Term
             being
             Assigned
             for
             that
             effect
             ;
             and
             the
             Pursuer
             Ordained
             to
             consigne
             a
             Pand
             ,
             in
             case
             she
             secumb
             ,
             in
             the
             Improbation
             ;
             and
             an
             Act
             Extracted
             thereupon
             .
             The
             Defender
             coming
             from
             the
             Country
             ,
             and
             appearing
             Personally
             .
             The
             Pursuer
             alleadged
             ,
             the
             Discharge
             is
             null
             ,
             wanting
             Witnesses
             .
             The
             Defender
             alleadged
             
               non
               Competit
            
             in
             this
             state
             of
             the
             Process
             ,
             after
             the
             exception
             of
             Falshood
             ,
             
               quae
               est
               exceptoinum
               ultima
            
             ;
             but
             if
             the
             Defender
             had
             alleadged
             the
             same
             at
             the
             production
             .
             The
             Defender
             would
             have
             replyed
             ,
             that
             it
             was
             Holographon
             ,
             and
             excluded
             any
             Improbation
             .
          
           
             The
             Lords
             found
             the
             Exception
             of
             nullitie
             not
             competent
             in
             this
             state
             of
             the
             Process
             .
          
        
         
           
             Allison
             Kello
             contra
             Paxtoun
             .
             Eodem
             die
             .
          
           
             IN
             a
             Process
             betwixt
             these
             Parties
             ,
             an
             exception
             having
             been
             proponed
             .
             The
             Lords
             before
             answer
             ,
             Ordained
             the
             Proponer
             to
             produce
             the
             Writs
             ,
             with
             certification
             ,
             that
             the
             Defense
             should
             be
             holden
             as
             not
             proponed
             ,
             
               in
               termino
               certificatione
            
             ,
             being
             craved
             ,
             an
             Incident
             was
             produced
             ,
             because
             the
             Writs
             were
             the
             Proponders
             Authors
             Writs
             ,
             and
             in
             their
             hands
             .
             It
             was
             answered
             ,
             that
             the
             Incident
             was
             not
             competent
             ,
             there
             being
             no
             litiscontestation
             It
             was
             answered
             ,
             that
             it
             was
             most
             competent
             ,
             wherever
             there
             was
             a
             certification
             ,
             as
             in
             Acts
             in
             Reduction
             ,
             and
             Improbation
             .
          
           
             The
             Lords
             found
             the
             meaning
             of
             such
             Acts
             ,
             and
             Certifications
             to
             be
             only
             ,
             that
             the
             Parties
             should
             produce
             their
             own
             Writs
             ,
             they
             would
             make
             use
             of
             ,
             and
             such
             of
             their
             Authors
             Writs
             ,
             as
             they
             had
             the
             time
             of
             the
             Act
             ,
             and
             that
             the
             other
             Partie
             might
             have
             their
             Oath
             thereupon
             ,
             if
             they
             pleased
             ,
             and
             therefore
             refused
             the
             Incident
             .
          
        
         
           
             Rentoun
             of
             Lambertoun
             contra
             Earl
             of
             Levin
             .
             Eodem
             die
             .
          
           
             LAmbertoun
             having
             intented
             an
             Improbation
             of
             Lands
             ,
             alleadged
             ,
             subscribed
             by
             his
             Father
             in
             Favours
             of
             the
             Umquhile
             Countess
             of
             Levin
             ,
             and
             her
             Daughters
             ,
             and
             others
             :
             and
             having
             proceeded
             to
             the
             indirect
             manner
             
             Articles
             of
             Probation
             ,
             and
             Improbation
             were
             given
             in
             Writ
             
               hinc
               inde
            
             ,
             and
             a
             full
             Dispute
             thereupon
             ,
             and
             all
             such
             Witnesses
             examined
             ,
             as
             either
             Partie
             craved
             .
             The
             Lords
             having
             Perused
             ,
             and
             Read
             the
             whole
             Process
             ,
             did
             ,
             upon
             the
             Defenders
             desire
             ,
             allow
             them
             to
             be
             heard
             
               viva
               voce
            
             ,
             and
             both
             Parties
             compearing
             .
             The
             Pursuer
             referred
             the
             Dispute
             to
             the
             Lords
             ,
             without
             saying
             any
             further
             .
             And
             the
             Defenders
             having
             related
             the
             Case
             ,
             and
             Debated
             in
             General
             ,
             anent
             the
             taking
             away
             of
             Writs
             ,
             by
             Presumptions
             and
             Conjectures
             ,
             and
             having
             entred
             to
             Repeat
             all
             that
             was
             in
             the
             written
             Dispute
             ,
             and
             to
             answer
             every
             alleadgance
             .
          
           
             The
             Lords
             declared
             ,
             that
             it
             was
             not
             their
             meaning
             ,
             that
             the
             Dispute
             should
             be
             repeated
             ,
             but
             the
             material
             ,
             and
             weighty
             points
             ,
             which
             the
             Defender
             thought
             of
             most
             importance
             ,
             to
             have
             been
             resumed
             ,
             and
             urged
             shortly
             ;
             Referring
             to
             the
             rest
             the
             Lords
             .
          
           
             Therefore
             ,
             they
             Ordained
             the
             Defenders
             ,
             to
             order
             their
             alleadgences
             ,
             as
             they
             might
             ,
             for
             all
             that
             they
             had
             to
             say
             betwixt
             ten
             and
             twelve
             ,
             the
             nixt
             day
             ,
             without
             any
             further
             ,
             unlesse
             the
             Pursuer
             answered
             .
          
        
         
           
             Thomson
             contra
             Mackitrick
             .
             Eodem
             die
             .
          
           
             THomson
             and
             Mackitrick
             having
             Apprysed
             some
             Tenements
             in
             
               Drumfriese
               ,
               Mackitrick
            
             the
             first
             Appryser
             insists
             for
             Mails
             and
             Duties
             .
             Thomson
             alleadged
             ,
             Mackitrick's
             Seasin
             was
             null
             ,
             as
             being
             within
             Burgh
             Royal
             ,
             and
             not
             given
             by
             the
             Baillies
             ,
             and
             Town
             Clerk
             of
             the
             Burgh
             ,
             conform
             to
             the
             Act
             of
             Parliament
             .
             The
             Pursuer
             answered
             ,
             that
             his
             Seasin
             was
             given
             by
             the
             Provost
             ,
             and
             by
             a
             Nottar
             ,
             whom
             he
             imployed
             as
             Town
             Clerk
             ;
             not
             only
             in
             that
             ,
             but
             in
             several
             other
             Acts
             :
             and
             that
             because
             the
             Town
             Clerk
             was
             excluded
             from
             his
             Office
             ,
             for
             not
             taking
             of
             the
             Tender
             ;
             and
             upon
             the
             same
             accompt
             there
             was
             no
             Baillie
             ;
             so
             that
             to
             compleat
             this
             Legal
             Diligence
             ,
             he
             was
             necessitat
             to
             take
             Infeftment
             by
             the
             Provost
             ,
             which
             is
             sufficient
             in
             such
             Cases
             ;
             because
             ,
             though
             the
             Act
             of
             Parliament
             mention
             the
             Baillies
             of
             the
             Burgh
             ,
             that
             it
             is
             in
             opposition
             to
             Baillies
             in
             that
             part
             ,
             but
             cannot
             be
             understood
             in
             opposition
             to
             the
             Provost
             ,
             who
             has
             
               Major●m
               Iurisdictionem
               ,
               quia
               majori
               inest
               minus
               ,
            
             and
             offers
             them
             to
             prove
             ,
             that
             he
             was
             Provost
             ,
             at
             least
             
               habitus
               &
               reputatus
            
             Provost
             and
             that
             he
             did
             imploy
             his
             Nottar
             ,
             as
             Town
             Clerk
             for
             the
             time
             .
          
           
             The
             Lords
             sustained
             the
             alleadgeance
             to
             prefer
             Mackitrick
             .
          
        
         
           
             The
             Executors
             Mr.
             Iames
             Fairly
             Minister
             of
             Leswald
             .
             contra
             the
             Parochiners
             .
             Iuly
             5.
             1662.
             
          
           
             THE
             Executors
             of
             Mr.
             
               Iames
               Fairly
            
             ,
             having
             obtained
             Decreet
             ,
             before
             the
             Comissaries
             ,
             against
             the
             Parochiners
             ,
             for
             the
             Ann
             ,
             as
             being
             the
             hail
             Year
             ,
             1658.
             
             In
             respect
             the
             Minister
             died
             in
             February
             ,
             in
             the
             Year
             1658.
             
             The
             Decreet
             was
             Suspended
             ,
             on
             this
             Reason
             ,
             that
             the
             Ann
             could
             only
             be
             half
             a
             Year
             ;
             seeing
             the
             Minister
             died
             before
             the
             Sowing
             of
             the
             
             Cropt
             ,
             or
             Whitsonday
             ;
             because
             ,
             if
             a
             Minister
             serve
             after
             Whitsonday
             ,
             he
             has
             the
             half
             of
             that
             years
             Stipend
             ,
             albeit
             he
             be
             Transported
             ,
             or
             Deposed
             ;
             otherwayes
             ,
             if
             a
             Minister
             should
             serve
             the
             whole
             Year
             till
             Michalmass
             day
             ,
             and
             then
             be
             Transported
             ,
             or
             Deposed
             ,
             he
             should
             get
             nothing
             ;
             so
             that
             the
             Ann
             being
             half
             a
             years
             Stipend
             ,
             more
             then
             the
             Minister
             served
             for
             ,
             he
             having
             only
             survived
             till
             Michalmes
             1657.
             
             Has
             only
             the
             right
             to
             the
             
               Michalmes
               proprio
               jurae
            
             ,
             and
             half
             a
             Year
             thereafter
             ,
             as
             the
             Ann.
             The
             Charger
             answered
             ,
             That
             in
             Teinds
             and
             Stipends
             ,
             there
             are
             not
             two
             Terms
             ,
             but
             Michalmes
             for
             all
             ,
             and
             therefore
             ,
             if
             the
             Incumbent
             be
             disposed
             or
             transported
             before
             Michalmes
             ,
             he
             has
             nothing
             that
             Year
             ,
             but
             if
             he
             die
             after
             Michalmes
             any
             time
             before
             the
             beginning
             of
             the
             nixt
             Year
             
               proprio
               jure
            
             ,
             he
             has
             the
             Year
             he
             died
             in
             ,
             and
             the
             half
             of
             the
             next
             ,
             as
             his
             Ann
             ,
             but
             if
             he
             live
             till
             Ianuary
             in
             the
             year
             ensuing
             ,
             he
             has
             that
             whole
             year
             ,
             as
             his
             Ann.
             
          
           
             Which
             the
             Lords
             found
             relevant
             ;
             and
             therefore
             the
             Lords
             found
             the
             Letters
             orderly
             proceeded
             .
          
        
         
           
             Duncan
             Drummond
             contra
             Colline
             Campbel
             .
             Eodem
             die
             .
          
           
             
               DVncan
               Drummond
            
             pursues
             
               Colline
               Campbel
            
             ,
             for
             payment
             of
             a
             Debt
             of
             his
             Fathers
             ,
             because
             in
             a
             Writ
             betwixt
             his
             Father
             and
             him
             .
             The
             Father
             had
             Disponed
             all
             his
             moveables
             to
             him
             ,
             and
             he
             had
             undertaken
             his
             Fathers
             Debt
             ,
             whereby
             the
             Pursuer
             ,
             as
             Creditor
             ,
             had
             interest
             to
             pursue
             him
             ,
             to
             pay
             this
             Debt
             .
             The
             Defender
             having
             alleadged
             ,
             that
             the
             Band
             and
             Disposition
             was
             never
             a
             delivered
             Evident
             ,
             either
             to
             the
             Father
             or
             to
             the
             Son
             ;
             but
             two
             blanks
             subscribed
             by
             them
             ,
             both
             were
             put
             in
             the
             hands
             of
             a
             Nottar
             ;
             to
             fill
             up
             the
             Bond
             and
             Disposition
             ;
             but
             before
             delivery
             ,
             both
             Parties
             resyled
             ,
             and
             desired
             the
             Nottar
             to
             Cancell
             and
             Destroy
             them
             ,
             yet
             Eight
             or
             Nine
             Years
             after
             the
             Nottar
             gave
             them
             up
             to
             this
             Pursuer
             ;
             and
             neither
             to
             the
             Father
             nor
             to
             the
             Son
             ,
             and
             the
             Question
             being
             how
             this
             should
             be
             proven
             .
          
           
             
               The
               Lords
               before
               answer
               Ordained
               the
               Nottar
               ,
               and
               Witnesses
               insert
               to
               be
               examined
            
             ex
             Officio
             ,
             
               which
               being
               done
               their
               Testimonies
               proved
               ,
               as
               is
               alleadged
               before
               .
            
             Then
             the
             Question
             was
             
               in
               jure
            
             ,
             whether
             the
             Depositation
             of
             Writs
             could
             be
             proven
             any
             other
             way
             ,
             then
             by
             the
             Oath
             of
             the
             Partie
             in
             whose
             favours
             the
             Writs
             were
             conceived
             ,
             he
             having
             the
             same
             in
             his
             hands
             .
          
           
             The
             Lords
             found
             ,
             that
             seeing
             these
             two
             Writs
             were
             not
             produced
             by
             the
             Father
             ,
             nor
             the
             Son
             ,
             by
             and
             to
             whom
             they
             were
             mutually
             granted
             ,
             but
             by
             a
             third
             Partie
             ,
             in
             whose
             favours
             a
             Clause
             therein
             was
             conceived
             ,
             in
             that
             case
             ,
             the
             deposition
             probable
             by
             the
             Writer
             and
             Witnesses
             insert
             ,
             and
             by
             the
             saids
             Testimonies
             found
             the
             Writs
             null
             .
          
        
         
           
           
             Robert
             Bones
             .
             contra
             Barclay
             of
             Iohnstoun
             .
             Iuly
             9.
             1662.
             
          
           
             
               RObert
               Bones
            
             having
             arrested
             certain
             Goods
             ,
             and
             Bestial
             ,
             as
             belonging
             to
             
               Iohn
               Wood
            
             ,
             his
             Debitor
             ,
             in
             the
             hands
             of
             Barclay
             ;
             pursues
             for
             making
             the
             same
             forthcoming
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             Goods
             Lybelled
             the
             time
             of
             the
             Arrestment
             ,
             were
             the
             Defender
             proper
             Goods
             ,
             Disponed
             to
             him
             ,
             by
             the
             said
             
               Iohn
               Wood
            
             ,
             for
             anterior
             Rests
             and
             Debts
             ,
             and
             delivered
             also
             before
             the
             Arrestment
             .
             It
             was
             Replyed
             ,
             The
             Defense
             ought
             to
             be
             repelled
             ;
             because
             Wood
             the
             Disponer
             was
             Rebell
             ,
             and
             at
             the
             Horn
             ,
             before
             the
             delivery
             of
             the
             Goods
             ,
             at
             the
             Pursuers
             instance
             ,
             and
             whereby
             the
             Tradition
             being
             after
             the
             Horning
             ,
             the
             Disposition
             is
             null
             ,
             as
             being
             incompleat
             before
             the
             Horning
             ,
             and
             after
             the
             Horning
             the
             Rebel
             could
             do
             nothing
             to
             prejudge
             the
             KING
             ,
             or
             his
             Donatar
             ,
             or
             the
             Pursuer
             ,
             for
             the
             Debt
             ,
             whereupon
             he
             was
             denuded
             ,
             which
             by
             the
             Act
             of
             Parliament
             one
             thousand
             six
             hundred
             twenty
             one
             ,
             affects
             the
             Escheat
             Goods
             ubicunque
             .
             The
             Defender
             answered
             ,
             That
             the
             Reply
             is
             not
             Relevant
             ,
             unless
             it
             were
             alleadged
             ,
             that
             the
             Horning
             had
             been
             before
             the
             Disposition
             ;
             for
             it
             is
             lawful
             for
             Creditors
             ,
             either
             to
             Poynd
             ,
             Arrest
             or
             take
             Dispositions
             of
             their
             Debitors
             Goods
             though
             Rebel
             ,
             being
             for
             Debts
             anterior
             to
             the
             Horning
             ,
             if
             the
             Disposition
             and
             Delivery
             be
             prior
             to
             Declarator
             ,
             neither
             can
             the
             Act
             of
             Parliament
             ,
             one
             thousand
             six
             hundred
             twenty
             one
             ,
             against
             Dispositions
             ,
             in
             defraud
             of
             Creditors
             operat
             here
             ;
             because
             the
             Disposition
             is
             anterior
             to
             the
             Horning
             ,
             and
             for
             an
             onerous
             cause
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             notwithstanding
             the
             Reply
             .
          
        
         
           
             Laird
             of
             Lamertoun
             contra
             Hume
             of
             Kaimes
             .
             Iuly
             10.
             1662.
             
          
           
             HOom
             of
             Kaimes
             being
             Infeft
             upon
             an
             Appryzing
             of
             the
             Lands
             of
             Northfield
             ,
             led
             against
             Lamertoun
             ,
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             ,
             and
             obtains
             Decreet
             ,
             which
             was
             Suspended
             ,
             and
             Reduction
             thereof
             raised
             on
             this
             Reason
             ,
             that
             it
             was
             
               spreta
               authoritate
               judicis
            
             ,
             there
             being
             an
             Advocation
             judicially
             produced
             ,
             before
             the
             Sheriff
             ,
             before
             pronouncing
             ,
             at
             least
             before
             the
             Extracting
             of
             this
             Decreet
             ,
             in
             so
             far
             as
             the
             Suspender
             came
             to
             the
             Sheriff
             Court
             ,
             at
             the
             ordinar
             time
             of
             the
             Court
             Day
             ,
             at
             eleven
             hours
             ,
             and
             produced
             the
             Advocation
             ,
             but
             the
             Sheriff
             had
             fitten
             down
             that
             Day
             contrair
             his
             Custom
             ,
             at
             ten
             hours
             ,
             and
             had
             pronounced
             the
             Decreet
             before
             eleven
             hours
             .
             The
             Charger
             answered
             
               non
               Relevat
            
             ,
             that
             the
             Advocation
             was
             
             produced
             before
             Extract
             ,
             not
             being
             before
             Sentence
             pronounced
             ,
             because
             albeit
             inferiour
             Judges
             are
             accustomed
             sometimes
             to
             stop
             their
             own
             Decreets
             ,
             after
             they
             are
             pronounced
             ,
             before
             Extracting
             ,
             yet
             
               sententia
               definitiva
               ,
               est
               ultimus
               actus
               judicis
               ,
            
             and
             the
             Extract
             is
             but
             the
             Clerks
             part
             ,
             so
             that
             it
             can
             be
             no
             contempt
             ,
             albeit
             the
             Judge
             would
             not
             prohibite
             the
             Extract
             ,
             and
             as
             to
             the●
             other
             Member
             ,
             that
             the
             Sheriff
             sat
             his
             Court
             an
             hour
             before
             the
             ordinar
             time
             ,
             
               non
               Relevat
            
             ,
             unless
             he
             did
             it
             of
             purpose
             ,
             to
             anticipat
             this
             Advocation
             .
          
           
             The
             Lord●
             found
             the
             first
             member
             ,
             of
             the
             Reason
             ,
             that
             the
             Advocation
             was
             produced
             before
             Extract
             ,
             after
             Sentence
             ,
             non
             Relevat
             ;
             and
             as
             to
             the
             other
             member
             ,
             they
             found
             it
             relevant
             ,
             as
             it
             is
             circumstantiat
             ,
             to
             infer
             that
             it
             was
             done
             of
             purpose
             to
             anticipat
             the
             Advocation
             ,
             without
             necessity
             to
             prove
             ,
             otherwayes
             the
             purpose
             ,
             and
             in
             that
             case
             declared
             ,
             if
             the
             same
             were
             proven
             ,
             they
             would
             turn
             the
             Decreet
             in
             a
             Libel
             .
          
        
         
           
             Iohn
             Ker
             contra
             Ker
             of
             Fernilee
             and
             others
             .
             Eodem
             die
             .
          
           
             
               IOhn
               Ker
            
             having
             granted
             a
             Bond
             ,
             whereupon
             he
             being
             Charged
             to
             Enter
             Heir
             to
             several
             persons
             his
             Predecessors
             ,
             and
             having
             renounced
             ,
             their
             Lands
             were
             adjudged
             ,
             John
             took
             Assignation
             to
             the
             Adjudication
             himself
             ,
             and
             pursues
             the
             Defenders
             for
             exhibition
             of
             the
             Rights
             and
             Evidents
             of
             the
             Lands
             ,
             and
             Delivery
             thereof
             .
             The
             Defender
             alleadged
             absolvitor
             :
             First
             ,
             Because
             the
             pursuit
             being
             upon
             the
             Pursuers
             own
             Bond
             ,
             now
             again
             Assigned
             to
             himself
             ,
             
               confusione
               tollitur
               obligatio
            
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             .
          
           
             Secondly
             ,
             absolvitor
             ,
             because
             the
             Pursuer
             can
             have
             no
             Interest
             upon
             these
             Rights
             proceeding
             against
             him
             ,
             as
             appearand
             Heir
             to
             these
             predecessors
             ,
             and
             now
             assigned
             to
             him
             ,
             because
             there
             were
             other
             appearand
             Heirs
             ,
             specially
             condescended
             on
             ,
             nearer
             of
             Blood.
             The
             Pursuer
             answered
             ,
             
               non
               Relevat
            
             ,
             to
             take
             away
             his
             Infeftment
             ,
             which
             behoved
             to
             be
             Reduced
             .
             Secondly
             ,
             
               Non
               competit
            
             to
             the
             Defenders
             ,
             unless
             these
             nearer
             appearand
             Heirs
             ,
             were
             compearing
             for
             their
             Interest
             .
             The
             Defender
             Replyed
             ,
             that
             the
             Infeftments
             having
             obtained
             no
             Possession
             ,
             and
             having
             proceeded
             only
             upon
             a
             Charge
             to
             Enter
             Heir
             ,
             against
             the
             Pursuer
             ,
             by
             Collusion
             :
             It
             was
             competent
             by
             Exception
             ,
             seing
             there
             was
             no
             Service
             ,
             nor
             Possession
             ,
             nor
             any
             thing
             done
             that
             the
             nearer
             Heirs
             were
             oblidged
             to
             know
             ,
             and
             it
             was
             also
             competent
             to
             the
             Defenders
             ,
             not
             to
             deliver
             the
             Writs
             to
             any
             having
             no
             Right
             thereto
             ,
             they
             being
             lyable
             to
             deliver
             them
             to
             the
             nearest
             Heir
             of
             the
             true
             owner
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             against
             the
             Exhibition
             ,
             reserving
             it
             to
             the
             Delivery
             ,
             in
             which
             they
             found
             it
             competent
             to
             the
             nearer
             appearing
             Heirs
             ,
             without
             Reduction
             .
          
        
         
           
           
             Rentoun
             of
             Lamertoun
             contra
             Earl
             of
             Levin
             and
             Alexander
             Kennedy
             .
             July
             11.
             1662.
             
          
           
             
               JOhn
               Rentoun
            
             of
             Lamertoun
             ,
             as
             Heir
             to
             his
             Father
             ,
             having
             charged
             the
             Deceast
             Earl
             of
             Levin
             ,
             for
             the
             Sum
             of
             due
             by
             him
             to
             umquhil
             Lamertoun
             :
             The
             Earl
             suspended
             upon
             Compensation
             ,
             by
             six
             Bonds
             granted
             by
             umquhil
             Lamertoun
             ,
             to
             the
             umquhil
             Countess
             of
             Levin
             ,
             four
             of
             them
             to
             her self
             ;
             and
             after
             her
             Decease
             to
             her
             Daughters
             ,
             and
             two
             of
             them
             blank
             ,
             in
             the
             Creditors
             name
             ,
             which
             being
             done
             
               stante
               Matrimonio
            
             ,
             by
             this
             Lady
             ,
             did
             belong
             to
             her
             Husband
             
               jure
               mariti
            
             ,
             and
             not
             to
             her
             or
             his
             Daughters
             .
             These
             Bonds
             were
             produced
             out
             of
             the
             hands
             of
             
               Alexander
               Kennedy
            
             ,
             sometime
             Master
             Porter
             of
             the
             Castle
             of
             Edinburgh
             ,
             who
             declared
             that
             he
             had
             the
             foresaid
             six
             Bonds
             in
             Trust
             from
             the
             umquhil
             Countess
             ,
             and
             the
             Laird
             of
             Lamertoun
             ,
             in
             
               Anno
               1649.
               
               Levin
            
             being
             then
             Captain
             of
             the
             Castle
             of
             
               Edinburgh
               ,
               Lambertoun
            
             Constable
             ,
             and
             the
             said
             Alexander
             ,
             Porter
             ,
             and
             produced
             a
             Paper
             of
             Trust
             ,
             subscribed
             by
             Lambertoun
             and
             my
             Lady
             ,
             bearing
             ,
             
               that
               the
               Bonds
               were
               put
               in
            
             Alexander
             
               's
               hands
               ,
               as
               a
               faithful
               Person
               ,
               whom
               both
               Trusted
               ,
               to
               be
               keeped
               till
               after
               the
               Ladyes
               Death
               ,
               and
               then
               delivered
               ,
               according
               to
               her
               direction
               :
            
             against
             which
             Writes
             ,
             Lambertoun
             raised
             Improbation
             ,
             and
             
               Alexander
               Kennedy
            
             abode
             by
             the
             same
             ,
             and
             the
             Earl
             of
             Levin
             declared
             ,
             he
             made
             use
             of
             them
             upon
             the
             ground
             foresaid
             ,
             in
             his
             Improbation
             ;
             The
             six
             Bonds
             being
             written
             by
             
               Alexander
               Kennedy
            
             and
             
               Iames
               Rule
            
             who
             is
             dead
             ,
             and
             the
             Witnesses
             being
             
               George
               Watson
               ,
               Spittel
            
             and
             Young
             ,
             and
             in
             some
             of
             them
             Alexander
             himself
             ,
             all
             being
             dead
             but
             Alexander
             the
             Producer
             ;
             the
             direct
             manner
             of
             Improbation
             thereof
             ceassed
             ;
             and
             therefore
             they
             proceed
             to
             the
             indirect
             manner
             ,
             and
             give
             in
             many
             Articles
             of
             Improbation
             ,
             and
             the
             Earles
             Articles
             of
             Probation
             .
             The
             Relevancy
             of
             which
             being
             Dispute
             ,
             to
             quadruplyes
             in
             Write
             ,
             and
             all
             Persons
             that
             either
             Parties
             desired
             ,
             being
             examined
             
               hinc
               inde
            
             ,
             and
             their
             Testimonies
             published
             to
             either
             Party
             ,
             and
             they
             having
             thereupon
             Dispute
             ,
             both
             as
             to
             the
             Relevancy
             and
             Probation
             ,
             in
             Write
             ,
             and
             being
             heard
             at
             last
             
               viva
               voce
            
             .
          
           
             The
             Lords
             proceeded
             to
             Advise
             the
             Cause
             .
          
           
             The
             weight
             of
             the
             whole
             matter
             lay
             in
             these
             Particulars
             mainly
             ;
             First
             ,
             For
             astriction
             of
             the
             Writs
             ;
             the
             said
             Paper
             of
             Trust
             holding
             in
             it
             ,
             
               two
               living
               Witnesses
               and
               one
               dead
               ,
            
             being
             true
             ,
             the
             Bonds
             related
             therein
             could
             not
             be
             false
             .
             This
             Paper
             could
             not
             be
             Improven
             indirectly
             ,
             because
             the
             direct
             manner
             was
             competent
             by
             two
             living
             Witnesses
             ,
             whereof
             the
             one
             Deponed
             ,
             that
             the
             Subscription
             was
             like
             his
             Subscription
             ,
             as
             he
             Subscribed
             at
             that
             time
             ,
             being
             young
             ,
             and
             the
             third
             Witness
             being
             dead
             ,
             proves
             .
             It
             was
             answered
             ,
             that
             the
             Witnesses
             insert
             ,
             proved
             not
             ;
             because
             
               comparatione
               literarum
               ,
               Crawford
            
             the
             Defunct's
             Subscription
             ,
             was
             altogether
             unlike
             his
             true
             Subscription
             produced
             ;
             Learmont
             sayes
             his
             Subscription
             was
             only
             like
             his
             :
             and
             though
             Kill
             sayes
             it
             was
             his
             Subscription
             ,
             yet
             none
             of
             them
             Depones
             to
             have
             seen
             it
             Subscribed
             by
             any
             Body
             ,
             or
             by
             any
             Witness
             ,
             nor
             to
             know
             any
             thing
             of
             the
             time
             ,
             place
             ,
             or
             truth
             of
             the
             matter
             contained
             in
             the
             Writs
             ,
             being
             but
             an
             Evidence
             to
             keep
             the
             Witnesses
             in
             remembrance
             ,
             either
             of
             the
             
             Matter
             or
             of
             the
             Subscription
             ,
             of
             the
             Principal
             or
             themselves
             ,
             albeit
             they
             need
             not
             be
             proven
             here
             as
             in
             England
             ,
             by
             the
             Witnesses
             insert
             :
             Yet
             in
             the
             case
             of
             Improbation
             ,
             if
             the
             Witnesses
             prove
             nothing
             of
             the
             Fact
             or
             Subscription
             ,
             as
             remembring
             that
             they
             or
             the
             Party
             Subscribed
             ,
             but
             only
             Deponing
             that
             it
             is
             their
             Subscription
             ,
             which
             can
             import
             no
             more
             of
             certain
             knowledge
             ,
             then
             that
             it
             is
             like
             their
             Subscription
             ,
             seeing
             none
             can
             swear
             that
             it
             may
             not
             be
             feigned
             so
             like
             that
             they
             cannot
             know
             it
             :
             and
             albeit
             that
             would
             be
             sufficient
             ,
             where
             nothing
             is
             in
             the
             contrair
             ;
             Yet
             where
             there
             is
             strong
             presumption
             in
             the
             contrair
             ,
             as
             the
             Writ
             not
             being
             in
             the
             Parties
             hands
             ,
             but
             in
             the
             hand
             of
             a
             third
             Party
             ,
             
               malae
               famae
            
             ,
             and
             who
             hath
             at
             least
             betrayed
             his
             Trust
             ,
             never
             having
             made
             these
             Bonds
             known
             ,
             till
             six
             or
             seven
             years
             after
             the
             Countess
             of
             Levins
             Death
             ;
             and
             then
             offering
             to
             sell
             some
             of
             them
             to
             others
             ,
             and
             with
             all
             the
             Paper
             of
             Trust
             ,
             the
             Body
             thereof
             being
             written
             with
             one
             hand
             ,
             and
             the
             filling
             up
             of
             the
             Witnesses
             with
             another
             ,
             which
             no
             body
             hath
             ,
             or
             can
             condescend
             upon
             ,
             nor
             are
             Designed
             therein
             ;
             so
             the
             same
             being
             null
             by
             
               Act
               of
               Parliament
            
             ,
             cannot
             sufficiently
             astruct
             the
             truth
             of
             the
             other
             Bonds
             ,
             being
             in
             themselves
             suspect
             .
          
           
             The
             Lords
             found
             the
             Paper
             of
             Trust
             not
             sufficiently
             to
             astruct
             ,
             nor
             the
             Testimonies
             not
             to
             prove
             it
             sufficient
             ,
             in
             respect
             of
             the
             grounds
             foresaid
             being
             instructed
             ,
             and
             the
             many
             presumptions
             against
             these
             Writs
             .
             Therefore
             they
             improved
             the
             said
             pretended
             Paper
             of
             Trust.
             
          
           
             There
             was
             further
             produced
             for
             astructing
             the
             Bonds
             ,
             two
             Holographs
             alleadged
             ,
             Written
             and
             Subscribed
             by
             Lamertouns
             owns
             hand
             ,
             relative
             to
             the
             Bonds
             and
             Trust
             ;
             and
             for
             proving
             these
             were
             Holograph
             ,
             they
             produced
             a
             Holograph
             Accompt
             Book
             of
             Lambertouns
             ,
             and
             six
             Witnesses
             ,
             of
             whom
             three
             or
             four
             were
             without
             exception
             ,
             and
             the
             whole
             Deponed
             that
             they
             truly
             believed
             that
             the
             Holographs
             were
             Lamertouns
             hand
             ,
             and
             Lambertoun
             and
             the
             Lady
             Levins
             Subscriptions
             .
             The
             question
             then
             was
             ,
             whether
             these
             Papers
             were
             so
             proven
             to
             be
             Holograph
             ,
             that
             they
             did
             sufficiently
             astrict
             the
             Bonds
             ,
             notwithstanding
             all
             the
             grounds
             instructed
             against
             them
             .
          
           
             The
             Lords
             found
             Negative
             ,
             upon
             this
             consideration
             ,
             that
             when
             the
             Probation
             of
             Holograph
             is
             by
             Witness
             ,
             who
             saw
             the
             Holograph
             Writ
             ,
             Written
             and
             Subscribed
             ,
             albeit
             they
             be
             not
             instruct
             ,
             it
             is
             a
             full
             probation
             ,
             admitting
             no
             contrary
             probation
             ,
             but
             when
             it
             is
             only
             
               comparatione
               literarum
            
             ;
             or
             by
             Witnesses
             ,
             Deponing
             that
             they
             believe
             ,
             or
             that
             positively
             it
             is
             the
             hand
             writ
             of
             the
             Party
             ,
             that
             can
             import
             no
             more
             ,
             but
             that
             it
             is
             so
             like
             ,
             that
             it
             is
             undecernable
             for
             no
             man
             who
             saw
             it
             not
             written
             ,
             can
             positively
             swear
             with
             knowledge
             ,
             that
             it
             is
             impossible
             to
             fenzie
             the
             hand
             so
             like
             ,
             that
             it
             is
             undecernable
             ,
             and
             therefore
             holograph
             so
             proven
             ,
             admits
             a
             stronger
             contrary
             Probation
             ;
             and
             therefore
             the
             Lords
             found
             that
             the
             Evidents
             against
             the
             Bonds
             were
             stronger
             nor
             this
             Probation
             of
             holograph
             .
          
           
             There
             was
             also
             produced
             three
             Contracts
             betwixt
             umquhil
             Lambertoun
             and
             Kennedy
             at
             Striveling
             ,
             upon
             the
             ninth
             of
             August
             1651.
             by
             the
             last
             of
             them
             ,
             Kennedy
             was
             oblieged
             to
             deliver
             Lambertoun
             the
             Bonds
             for
             such
             several
             Sums
             ,
             he
             obtaining
             the
             Lady
             Levins
             consent
             ,
             of
             all
             these
             the
             Writer
             and
             Witnesses
             were
             dead
             ,
             and
             the
             Date
             proven
             to
             be
             false
             .
          
           
           
             In
             this
             Process
             the
             Lords
             having
             considered
             all
             the
             indirect
             Articles
             of
             the
             Improbation
             ,
             in
             respect
             that
             these
             Writs
             in
             question
             were
             never
             in
             the
             alleadged
             Creditors
             hands
             ;
             and
             that
             there
             was
             not
             one
             Witness
             that
             did
             Depone
             ,
             that
             either
             they
             remembred
             to
             have
             Subscribed
             any
             of
             these
             Writs
             themselves
             ,
             or
             that
             they
             saw
             either
             the
             Parties
             ,
             or
             any
             other
             of
             the
             Witnesses
             Subscribe
             ,
             or
             any
             thing
             communed
             ,
             done
             or
             acknowledged
             by
             either
             Party
             ,
             contained
             in
             the
             Writs
             ,
             and
             that
             the
             Subscription
             of
             Watson
             ,
             one
             of
             the
             Witnesses
             in
             all
             the
             Bonds
             ,
             was
             by
             comparison
             with
             other
             contraverse
             Writs
             ,
             about
             the
             same
             time
             ,
             altogether
             unlike
             his
             Subscription
             ,
             and
             that
             the
             Word
             Witnesses
             adjoyned
             to
             the
             Subscription
             ,
             of
             all
             the
             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
             .
          
           
           
             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
             
               quocunque
               titulo
            
             ;
             but
             that
             the
             Pursuer
             ought
             to
             have
             Inhibit
             
               de
               novo
            
             ,
             or
             published
             and
             Registrat
             in
             that
             Shire
             ,
             seeing
             all
             Parties
             count
             themselves
             secure
             ,
             if
             no
             Inhibitions
             be
             Registrat
             in
             the
             Shire
             where
             the
             Lands
             ly
             ,
             without
             inquiring
             further
             .
          
        
         
           
             Lord
             Frazer
             contra
             Laird
             of
             Phillorth
             .
             Eodem
             die
             .
          
           
             THe
             Lord
             Frazer
             pursues
             Declarator
             of
             Property
             of
             the
             Barony
             of
             Cairnbuilg
             against
             the
             Laird
             of
             Phillorth
             ,
             as
             being
             Infeft
             as
             Heir
             to
             his
             Father
             ,
             who
             was
             Infeft
             as
             heir
             to
             his
             Grand-father
             ,
             who
             was
             Infeft
             upon
             the
             Resignation
             of
             Frazer
             of
             Doors
             ;
             and
             also
             upon
             the
             Resignation
             of
             the
             Laird
             of
             Pitsligo
             ,
             who
             was
             Infeft
             upon
             an
             Appryzing
             led
             against
             Doors
             ;
             and
             also
             as
             being
             Infeft
             upon
             an
             Appryzing
             ,
             at
             the
             instance
             of
             one
             Henderson
             ,
             led
             against
             Doors
             ,
             and
             declared
             that
             he
             insisted
             
               primo
               loco
            
             ,
             upon
             the
             two
             first
             Rights
             ,
             flowing
             from
             Doors
             and
             Pitsligo
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Defender
             in
             an
             Improbation
             against
             the
             Pursuer
             and
             his
             Father
             ,
             obtained
             Certification
             against
             Doors
             Seasine
             ;
             so
             that
             it
             being
             now
             improven
             ,
             all
             the
             Rights
             Libelled
             on
             ,
             falls
             
               in
               consequentiam
            
             ,
             because
             Doors
             is
             the
             common
             Author
             to
             them
             all
             :
             and
             if
             he
             had
             no
             real
             Right
             ,
             all
             their
             Rights
             are
             
               a
               non
               habente
               potestatem
            
             ;
             so
             that
             now
             the
             Pursuer
             has
             no
             more
             in
             his
             Person
             ,
             but
             a
             Disposition
             made
             by
             Phillorth's
             Grand-father
             to
             Doors
             ,
             and
             a
             Charter
             following
             thereupon
             ,
             and
             is
             in
             the
             same
             case
             ,
             as
             if
             Doors
             upon
             that
             ground
             were
             craving
             declarator
             of
             Property
             ,
             which
             he
             could
             not
             do
             ,
             nor
             would
             the
             Lords
             sustain
             it
             ,
             albeit
             there
             were
             no
             Defender
             ;
             because
             that
             can
             be
             no
             Right
             of
             Property
             ,
             where
             there
             is
             no
             Seasine
             .
             The
             Pursuer
             answered
             :
             1.
             
             That
             the
             Defense
             is
             no
             ways
             Relevant
             ,
             nor
             is
             the
             Pursuer
             in
             the
             case
             of
             a
             Declarator
             ,
             upon
             a
             Disposition
             or
             Charter
             without
             a
             Seasine
             ,
             
             because
             he
             produces
             a
             progress
             of
             Infeftments
             ,
             and
             is
             not
             oblieged
             
               hoc
               ordine
            
             ,
             to
             Dispute
             Doors
             his
             Authors
             Rights
             ,
             as
             being
             
               a
               non
               habente
               potestatem
            
             ,
             which
             is
             only
             competent
             by
             way
             of
             Reduction
             ;
             some
             representing
             Doors
             ,
             his
             Author
             being
             called
             .
             2ly
             .
             The
             Defense
             is
             no
             way
             competent
             to
             this
             Defender
             ,
             unless
             he
             alleadge
             upon
             a
             better
             Right
             then
             the
             Pursuers
             ;
             for
             the
             Pursuer
             hath
             done
             all
             that
             is
             requisit
             to
             instruct
             his
             Declarator
             ,
             by
             production
             of
             his
             Infeftments
             ,
             and
             his
             authors
             Rights
             are
             presumed
             ,
             and
             need
             not
             be
             instructed
             ;
             and
             albeit
             the
             Defender
             be
             called
             ,
             yet
             he
             cannot
             quarrel
             the
             Pursuers
             Authors
             Right
             ,
             or
             hinder
             his
             Declarator
             ,
             unless
             he
             alleadge
             upon
             a
             more
             valide
             Right
             in
             his
             own
             Person
             .
             3ly
             .
             The
             Defense
             ought
             to
             be
             Repelled
             ,
             as
             proponed
             by
             this
             Defender
             ;
             because
             he
             represents
             Frazer
             of
             Phillorth
             his
             Grand-father
             ,
             who
             Disponed
             the
             Lands
             in
             question
             to
             Doors
             ,
             and
             was
             oblieged
             to
             infeft
             him
             ,
             and
             did
             
               de
               facto
            
             resign
             in
             the
             Kings
             hands
             ,
             in
             his
             favour
             ,
             and
             so
             personally
             objection
             ,
             umquhil
             
               Phillorth
               ,
               Doors
            
             Author
             would
             be
             for
             ever
             excluded
             from
             objecting
             against
             Doors
             Right
             ,
             which
             flowed
             from
             him
             ;
             so
             neither
             can
             the
             Defender
             who
             represents
             him
             object
             against
             the
             Pursuer
             ,
             who
             is
             Successor
             in
             Door
             's
             Rights
             .
             The
             Defender
             answered
             ,
             that
             being
             called
             ,
             albeit
             he
             had
             no
             Right
             in
             his
             Person
             ,
             he
             might
             propone
             a
             Defense
             upon
             a
             Nullity
             in
             the
             Pursuers
             Right
             ,
             viz.
             that
             it
             is
             
               a
               non
               habente
               potesta●m●
            
             which
             is
             very
             competent
             here
             by
             exception
             .
             This
             Decla●ator
             ●eing
             
               judicium
               petitorium
            
             ,
             wherein
             he
             may
             well
             repeat
             this
             Defense
             ,
             without
             necessi●y
             to
             call
             Doors
             ,
             because
             Doors
             being
             called
             in
             the
             Improbation
             ,
             all
             Infeftments
             in
             his
             Person
             are
             Improven
             for
             not
             production
             :
             and
             so
             the
             Reason
             is
             instantly
             verified
             ;
             and
             albeit
             he
             were
             Successor
             to
             his
             Grand-father
             ;
             (
             which
             he
             denys
             )
             yet
             he
             may
             well
             alleadge
             that
             any
             Right
             flowing
             from
             his
             Grand-Father
             is
             personal
             and
             incompleat
             ,
             and
             can
             be
             no
             ground
             of
             Declarator
             of
             Property
             .
          
           
             The
             Lords
             repelled
             the
             Defenses
             ,
             and
             found
             it
             not
             competent
             to
             the
             Defender
             to
             quarrel
             the
             Pursuers
             Authors
             Right
             ,
             unless
             he
             had
             a
             better
             Right
             .
          
        
         
           
             Skeen
             contra
             Lumsdean
             .
             Iuly
             19.
             1662.
             
          
           
             SKeen
             having
             Charged
             
               Alexander
               Lumsdean
            
             ,
             upon
             a
             Bond
             granted
             by
             Mr.
             
               Thomas
               Lumsdean
            
             as
             principal
             ,
             and
             the
             said
             Alexander
             as
             Cautioner
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             the
             cause
             of
             the
             Bond
             ,
             was
             Bills
             of
             Exchange
             ,
             drawn
             by
             Verhage
             upon
             Kezar
             in
             Camphire
             ,
             to
             be
             payed
             to
             Skeen
             ,
             or
             his
             Order
             ;
             which
             Bills
             Skeen
             ordered
             to
             be
             payed
             to
             Mr.
             Thomas
             Lumsdean's
             Wife
             ;
             and
             Mr.
             Thomas
             granted
             the
             Bond
             charged
             on
             for
             the
             saids
             Bills
             ;
             which
             Bills
             were
             protested
             upon
             
             Kezar's
             not
             paying
             of
             the
             Bills
             ,
             as
             the
             Protest
             bears
             :
             To
             which
             protested
             Bills
             Mr.
             
               Thomas
               Lumsdean
            
             assigned
             the
             Suspender
             ,
             and
             whereupon
             he
             now
             alleadges
             that
             he
             must
             have
             allowance
             of
             the
             Bills
             protested
             ,
             being
             the
             cause
             of
             the
             Bond
             ,
             and
             therefore
             Skeen
             himself
             is
             lyable
             for
             the
             Bills
             which
             must
             compence
             the
             Charger
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Reason
             ought
             to
             be
             repelled
             ,
             because
             he
             offered
             him
             to
             prove
             ,
             that
             albeit
             the
             bills
             were
             protested
             ,
             for
             not
             payment
             ,
             by
             Kezar
             ,
             on
             whom
             they
             were
             drawn
             ;
             yet
             Mr.
             
               Thomas
               Lumsdean
            
             having
             gone
             back
             to
             Verhage
             who
             drew
             them
             ,
             Verhage
             payed
             Mr.
             Thomas
             ,
             and
             that
             before
             the
             Intimation
             of
             the
             Suspenders
             Assignation
             .
             2ly
             .
             That
             Mr.
             
               Thomas
               Lumsdean
            
             being
             Factor
             in
             Camphire
             ,
             in
             his
             Factor
             Book
             ,
             upon
             the
             109.
             page
             thereof
             ,
             
             there
             are
             four
             posts
             of
             Payment
             payed
             by
             the
             said
             Verhage
             to
             Mr.
             
               Thomas
               Lumsdean
            
             ,
             at
             diverse
             times
             ,
             conform
             to
             the
             Magistrates
             of
             Camphire
             their
             report
             ,
             upon
             the
             Lords
             Commission
             ,
             bearing
             that
             the
             said
             Factors
             Compt
             Book
             is
             Authentick
             and
             unvitiat
             ;
             and
             that
             Verhage
             who
             drew
             the
             Bills
             ,
             and
             Kezar
             upon
             whom
             they
             were
             drawn
             ,
             had
             both
             sworn
             before
             them
             ,
             that
             Verhage
             had
             payed
             the
             same
             to
             Lumsdean
             ,
             so
             the
             question
             was
             upon
             the
             manner
             of
             probation
             ;
             whereanent
             the
             Suspender
             alleadged
             ,
             1.
             
             That
             Compt
             Books
             not
             being
             subscribed
             ,
             were
             not
             probative
             Writs
             ,
             even
             against
             the
             Merchant
             himself
             .
             2ly
             .
             That
             at
             least
             they
             cannot
             prove
             against
             the
             Suspender
             his
             Assigney
             .
             3ly
             .
             That
             they
             could
             be
             no
             better
             then
             Holograph
             Discharges
             by
             the
             Cedent
             ,
             which
             cannot
             instruct
             their
             own
             Date
             against
             the
             Assigney
             ,
             and
             so
             cannot
             prove
             the
             same
             to
             have
             been
             before
             the
             Intimation
             ,
             as
             for
             the
             Testimonies
             of
             Verhage
             and
             Kezar
             ,
             their
             Testimonies
             cannot
             take
             away
             Writs
             and
             yet
             are
             suspected
             being
             both
             Debitors
             for
             the
             Bills
             ,
             and
             that
             it
             was
             not
             instructed
             who
             write
             the
             Book
             ,
             whether
             Lumsdean
             himself
             ,
             or
             his
             ordinar
             Book
             Keeper
             .
          
           
             The
             Lords
             found
             the
             Probation
             sufficient
             against
             the
             Assigney
             ;
             the
             Charger
             also
             proving
             that
             the
             Books
             were
             written
             by
             Lumsdean
             himself
             ,
             or
             by
             his
             ●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
             .
          
           
           
             The
             Lords
             before
             answer
             ,
             having
             ordained
             Witnesses
             to
             be
             examined
             ,
             
               hinc
               inde
            
             ,
             and
             having
             advised
             the
             same
             ,
             found
             ,
             that
             the
             Pursuer
             did
             desire
             his
             Money
             ,
             and
             at
             that
             same
             time
             the
             Defender
             told
             him
             it
             was
             at
             Dundee
             ,
             and
             said
             he
             might
             have
             it
             when
             the
             pleased
             to
             send
             for
             it
             ;
             and
             Witnesses
             also
             proved
             that
             he
             was
             at
             Dundee
             ,
             and
             was
             in
             esteem
             as
             a
             man
             of
             good
             means
             then
             ,
             and
             that
             he
             was
             there
             a●the
             plunder
             of
             Dundee
             ,
             and
             ever
             since
             was
             in
             a
             poor
             miserable
             condition
             ;
             and
             some
             of
             them
             deponed
             that
             he
             had
             a
             considerable
             sum
             of
             Money
             ,
             far
             above
             this
             in
             question
             there
             .
          
           
             The
             Question
             was
             ,
             whether
             this
             probation
             was
             sufficient
             to
             assoilzie
             ,
             albeit
             none
             of
             the
             Witnesses
             did
             particularly
             Depone
             ,
             that
             they
             knew
             the
             Pursuers
             Money
             to
             have
             been
             at
             Dundee
             ,
             and
             lost
             there
             .
          
           
             T●e
             Lords
             found
             that
             the
             probation
             was
             sufficient
             ,
             the
             Pursuer
             giving
             his
             oath
             in
             Supplement
             ,
             that
             it
             was
             there
             ,
             and
             lost
             there
             ;
             for
             they
             considered
             ,
             that
             at
             the
             time
             of
             the
             Pursuers
             Requisition
             ,
             the
             Witnesses
             proved
             ,
             the
             Defender
             declared
             it
             was
             there
             ;
             and
             that
             
               ex
               natura
               rei
            
             ,
             it
             was
             hard
             to
             prove
             particularly
             ,
             this
             Mony
             being
             a
             Fungible
             ,
             to
             have
             been
             lost
             there
             ,
             but
             that
             it
             behoved
             to
             be
             presumed
             so
             ,
             seing
             the
             man
             lost
             his
             whole
             means
             there
             ,
             and
             hath
             been
             poor
             ever
             since
             .
          
        
         
           
             Montgomery
             of
             contra
             Eodem
             die
             .
          
           
             MR.
             
               William
               Wallace
            
             having
             obtained
             a
             Disposition
             of
             the
             Lands
             of
             Hagburn
             from
             
               Thomas
               Hunter
            
             ,
             he
             gave
             a
             Back-bond
             oblieging
             him
             to
             sell
             the
             same
             at
             the
             best
             avail
             ,
             and
             as
             a
             part
             of
             the
             price
             to
             pay
             a
             Bond
             of
             Provision
             to
             Thoma's
             Sisters
             and
             Brother
             ,
             granted
             by
             their
             Father
             ,
             and
             having
             retained
             his
             own
             Sums
             ,
             and
             such
             as
             he
             was
             Cautioner
             for
             ,
             was
             oblieged
             to
             count
             for
             the
             rest
             ;
             and
             being
             first
             pursued
             before
             the
             Englishes
             ,
             and
             now
             before
             the
             Lords
             ,
             he
             was
             decerned
             to
             take
             the
             Lands
             at
             sixteen
             years
             purchase
             ,
             and
             a
             half
             ,
             and
             to
             count
             accordingly
             ,
             It
             was
             alleadged
             ;
             he
             could
             not
             have
             allowance
             of
             the
             sums
             payed
             to
             the
             Brother
             and
             Sister
             ,
             because
             these
             could
             not
             exclude
             lawful
             Creditors
             .
             It
             was
             answered
             for
             Mr.
             William
             ,
             he
             had
             payed
             
               bona
               fide
            
             a
             part
             ,
             and
             had
             given
             Bond
             for
             the
             rest
             ,
             and
             could
             not
             now
             be
             called
             in
             question
             .
             It
             was
             answered
             ,
             he
             was
             
               in
               mala
               fide
            
             ,
             because
             the
             payment
             was
             made
             after
             intenting
             of
             the
             Reduction
             against
             his
             Right
             ,
             at
             the
             pursuers
             Authors
             Instance
             .
             Mr.
             William
             answered
             
               non
               Relevat
            
             ,
             unless
             there
             had
             been
             a
             Reason
             Libelled
             in
             that
             Reduction
             against
             these
             Bonds
             .
             The
             Pursuer
             answered
             it
             was
             sufficient
             ,
             that
             Reduction
             was
             used
             against
             the
             whole
             Right
             ,
             to
             which
             any
             Reason
             might
             be
             added
             .
          
           
             The
             Lords
             found
             this
             alleadgence
             not
             Relevent
             to
             put
             Mr.
             
               William
               in
               mala
               fide
            
             ,
             unless
             there
             had
             been
             a
             special
             Reason
             of
             Reduction
             filled
             up
             ,
             and
             shown
             to
             Mr.
             William
             against
             these
             Bonds
             particularly
             .
          
        
         
           
           
             Margaret
             Anderson
             and
             Iohn
             Elphingstoun
             contra
             Mary
             Wachop
             .
             Iuly
             22.
             1662.
             
          
           
             
               MArgaret
               Anderson
            
             and
             
               Iohn
               Elphingstoun
            
             ,
             as
             heir
             to
             Anderson
             ,
             who
             were
             the
             two
             Daughters
             of
             umquhil
             Mr.
             
               David
               Anderson
            
             of
             Hills
             ,
             pursues
             
               Mary
               Wachop
            
             his
             Relict
             and
             Executrix
             ,
             to
             fulfil
             an
             Article
             of
             his
             Contract
             of
             Marriage
             ,
             bearing
             ,
             
               That
               if
               there
               were
               no
               Heirs-male
               of
               the
               Marriage
               ,
               he
               band
               and
               oblieged
               him
               and
               his
               Heirs-male
               and
               Successors
               whatsomever
               ,
               to
               pay
               to
               the
               Daughters
               of
               the
               Marriage
               3000.
               merks
               ,
            
             and
             craved
             that
             the
             Executrix
             as
             representing
             their
             Father
             ,
             might
             pay
             the
             same
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             it
             is
             clear
             by
             the
             Clausses
             of
             the
             Contract
             ,
             that
             the
             Father
             did
             not
             bind
             himself
             simply
             ,
             or
             himself
             and
             his
             Heirs
             ,
             but
             that
             he
             bound
             only
             himself
             and
             his
             Heirs-male
             ,
             which
             is
             the
             more
             clear
             that
             the
             Narrative
             of
             that
             Clause
             bears
             ,
             
               because
               his
               Estate
               is
               provided
               to
               his
               Heirs-male
               .
            
             The
             Pursuer
             answered
             ,
             he
             opponed
             the
             Clause
             ,
             by
             which
             he
             did
             not
             only
             obliege
             his
             Heirs-male
             ,
             but
             himself
             and
             his
             Heirs-male
             ;
             and
             so
             in
             oblieging
             himself
             ,
             he
             hath
             oblieged
             all
             that
             Represent
             him
             ,
             and
             he
             might
             have
             been
             pursued
             in
             his
             own
             lifetime
             ,
             if
             his
             Daughters
             had
             come
             to
             the
             age
             appointed
             by
             the
             provision
             .
             2ly
             .
             He
             has
             not
             only
             oblieged
             himself
             and
             his
             Heirs-male
             ,
             but
             his
             Successors
             whatsomever
             ,
             and
             therefore
             his
             Executors
             .
          
           
             The
             Lords
             found
             that
             by
             the
             Tenor
             of
             the
             Clause
             ,
             and
             Narrative
             thereof
             ,
             the
             Defuncts
             meaning
             was
             chiefly
             to
             obliege
             his
             Heir-male
             ,
             and
             albeit
             Successors
             whatsomever
             was
             added
             ;
             yet
             by
             the
             Narrative
             and
             the
             order
             of
             the
             Words
             ,
             they
             found
             the
             Heir-male
             was
             first
             burdened
             ,
             and
             behoved
             first
             to
             be
             discussed
             .
             Therefore
             ordained
             the
             Defender
             to
             condescend
             what
             the
             Heir-male
             had
             to
             succeed
             to
             ,
             and
             if
             he
             was
             not
             Entered
             Heir-male
             ,
             and
             had
             nothing
             to
             succeed
             to
             as
             Heir-male
             ,
             they
             thought
             the
             Defender
             would
             be
             lyable
             .
          
        
         
           
             William
             Montgomery
             contra
             Theoder
             Montgomery
             .
             Eodem
             die
             .
          
           
             
               WIlliam
               Montgomery
            
             as
             Donator
             to
             the
             Escheat
             of
             
               Theoder
               Montgomery●
            
             pursues
             a
             general
             and
             special
             Declarator
             in
             on
             Libel
             ;
             and
             insists
             ,
             first
             ,
             in
             the
             general
             .
             The
             Defender
             alleadges
             Absolvitor
             ,
             because
             the
             Horning
             is
             null
             ,
             the
             Denunciation
             being
             at
             the
             Cross
             of
             Edinburgh
             where
             the
             Defender
             had
             not
             his
             Domicile
             .
             The
             Pursuer
             opponed
             the
             Horning
             standing
             ,
             bearing
             ,
             
               the
               Defender
               to
               dwell
               in
            
             Edinburgh
             ,
             and
             the
             Horning
             could
             not
             be
             taken
             away
             by
             Exception
             ,
             alibi
             ,
             not
             instantly
             veryfied
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             but
             prejudice
             of
             Reduction
             thereupon
             .
          
           
           
             Secondly
             ,
             Absolvitor
             from
             the
             Rents
             and
             Duties
             of
             the
             Lands
             of
             Whyteslaid
             in
             time
             coming
             ,
             because
             these
             fell
             not
             under
             single
             Escheat
             .
             It
             was
             Replyed
             ,
             the
             Defense
             ought
             to
             be
             Repelled
             ,
             because
             the
             
               jus
               mariti
            
             ,
             falls
             under
             single
             Escheat
             of
             the
             Husband
             ,
             and
             carrys
             with
             it
             per
             consequence
             the
             Liferent
             of
             the
             Wife
             .
          
           
             The
             Lords
             was
             clear
             that
             the
             Repl●
             was
             Relevant
             ;
             but
             the
             Defense
             not
             being
             competent
             ,
             in
             the
             general
             Declarator
             ,
             which
             was
             first
             insisted
             in
             ,
             they
             give
             no
             Interlocutor
             on
             the
             Reply
             .
          
        
         
           
             Lord
             Frazer
             contra
             Phillorth
             .
             Iuly
             23.
             1662.
             
          
           
             IN
             the
             Declarator
             of
             Property
             of
             the
             Barony
             of
             Cairnbulg
             ,
             at
             the
             Instance
             of
             the
             Lord
             Frazer
             ,
             against
             the
             Laird
             of
             Phillorth
             .
             It
             was
             alleadged
             for
             the
             Defender
             Absolvitor
             ,
             because
             the
             Pursuers
             Father
             and
             Grand
             fathers
             Infeftment
             is
             upon
             the
             Resignation
             of
             Frazer
             of
             
               Doors
               ,
               Ita
               est
               ,
               Frazer
            
             of
             Doors
             had
             no
             real
             Right
             in
             his
             Person
             ,
             never
             having
             been
             Seased
             ,
             at
             least
             there
             is
             Certification
             granted
             against
             Doors
             Seasin
             ,
             in
             the
             Improbation
             at
             the
             I●stance
             of
             the
             Defender
             ,
             against
             the
             Pursuer
             and
             his
             Father
             ;
             so
             that
             Doors
             having
             no
             reall
             Right
             ,
             his
             Disposition
             ,
             Instrument
             of
             Resignation
             ,
             and
             C●arter
             granted
             by
             the
             King
             ,
             flowing
             upon
             the
             Resignation
             of
             the
             Laird
             of
             Phillorth
             and
             the
             Lord
             Lovit
             ,
             who
             had
             Right
             to
             
             Pttsligo's
             Appryzing
             ,
             of
             the
             hail
             Estate
             of
             Phillorth
             ,
             can
             give
             no
             Right
             to
             declare
             the
             Property
             ,
             especially
             against
             the
             Defenders
             ,
             who
             hath
             a
             real
             Right
             by
             Infeftment
             ,
             flowing
             from
             Phillorth
             his
             Goodsyre
             ,
             by
             Resignation
             ,
             and
             flowing
             from
             the
             Lord
             Lovit
             ,
             which
             albeit
             posterior
             ,
             yet
             having
             the
             first
             Infeftment
             ,
             is
             the
             first
             and
             only
             Right
             .
             The
             Pursuer
             answered
             ,
             the
             Defense
             ought
             to
             be
             Repelled
             ,
             because
             any
             Right
             the
             Defender
             hath
             ,
             is
             from
             his
             own
             Grand-Father
             ,
             to
             whom
             he
             was
             
               alioqui
               successurus
            
             ;
             and
             thereby
             the
             Defender
             is
             Successor
             
               titulo
               lucrativo
            
             ,
             to
             his
             Grand-father
             ,
             the
             common
             Author
             ,
             after
             the
             Disposition
             granted
             to
             Doors
             ,
             and
             as
             umquhil
             
               Phillorth
               Doors
            
             Author
             ,
             
               personali
               objectione
            
             would
             be
             excluded
             from
             opposing
             Doors
             Right
             of
             Property
             ;
             which
             Right
             he
             had
             Disponed
             to
             Doors●
             and
             was
             oblieged
             to
             warrand
             ;
             no
             more
             can
             the
             Defender
             ,
             (
             who
             by
             this
             same
             Right
             he
             Defends
             ,
             being
             successor
             Lucrative
             to
             his
             Grand-Father
             )
             be
             heard
             to
             exclude
             the
             Pursuer
             ,
             who
             is
             Successor
             to
             
               Doors
               .
               2ly
            
             .
             Albeit
             there
             be
             no
             Seasine
             ,
             yet
             umquhil
             Phillorth
             and
             Lovit
             were
             fully
             denuded
             in
             favours
             of
             Doors
             ,
             by
             the
             Resignation
             made
             in
             the
             Kings
             hands
             ,
             and
             Charter
             conform
             ,
             after
             which
             any
             Right
             granted
             by
             them
             to
             this
             Defender
             ,
             is
             a
             
               non
               ha●ente
               potestatem
               .
               3ly
            
             .
             Any
             Right
             the
             Defender
             hath
             flowing
             from
             the
             Lord
             Lovit
             cannot
             defend
             him
             ,
             because
             it
             was
             but
             an
             Appryzing
             against
             Phillorth
             the
             common
             Author
             :
             and
             it
             is
             offered
             to
             be
             proven
             that
             the
             Appryzing
             was
             satisfied
             within
             the
             Legal
             ,
             in
             so
             far
             as
             the
             Lands
             of
             Innernorth
             were
             Disponed
             by
             Phillorth
             and
             Lovit
             joyntly
             ,
             to
             Frazer
             of
             Doors
             for
             20000.
             merks
             ,
             and
             the
             Lands
             of
             Innerallothy
             were
             Disponed
             by
             them
             to
             Lovits
             own
             Sons
             ,
             irredeemable
             the
             price
             of
             which
             Lands
             being
             54000.
             merks
             ,
             was
             the
             sum
             appointed
             for
             satisfaction
             of
             the
             Appryzing
             betwixt
             the
             saids
             Parties
             ,
             and
             so
             as
             to
             the
             Lands
             of
             Cairnbulg
             ,
             and
             remnant
             Lands
             appryzed
             ,
             the
             appryzing
             is
             extinct
             .
             The
             Defender
             answered
             to
             the
             first
             ,
             that
             he
             is
             not
             Successor
             
               titulo
               lucrativo
            
             to
             his
             Goodsyre
             ,
             because
             the
             time
             of
             the
             Disposition
             by
             his
             Goodsyre
             to
             him
             ,
             and
             also
             the
             time
             of
             his
             Goodsyres
             death
             ,
             his
             Father
             was
             
             alive
             ,
             and
             served
             Heir
             to
             his
             Goodsyre
             .
             2ly
             .
             There
             was
             no
             Right
             in
             his
             Goodsyre
             when
             he
             Disponed
             ;
             but
             all
             the
             Right
             was
             in
             the
             Lord
             Lovit
             by
             Pits●igoes
             Appryzing
             ;
             neither
             was
             Lovit
             denuded
             by
             the
             Resignation
             or
             Charter
             without
             Seasine
             ,
             so
             but
             that
             the
             second
             Resignation
             with
             the
             first
             Infeftment
             is
             preferable
             .
             3ly
             .
             Satisfaction
             of
             the
             Appryzing
             as
             it
             is
             alleadged
             ,
             is
             not
             Relevant
             ,
             unless
             it
             be
             by
             Intromission
             with
             the
             Mails
             and
             Duties
             of
             the
             Lands
             Appryzed
             ,
             conform
             to
             the
             Act
             of
             Parliament
             1621.
             but
             no
             other
             payment
             or
             satisfaction
             by
             the
             Debitor
             is
             sufficient
             to
             take
             away
             an
             Infeftment
             ,
             
               contra
               singularem
               successurum
            
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             founded
             upon
             Lovits
             Appryzing
             ,
             in
             respect
             of
             the
             Reply
             of
             satisfaction
             thereof
             ,
             and
             found
             no
             necessity
             to
             alleadge
             ,
             that
             the
             Person
             having
             Right
             to
             the
             Appryzing
             ,
             was
             otherways
             denuded
             ,
             the
             by
             acknowledgement
             of
             payment
             or
             satisfaction
             ,
             and
             that
             there
             needed
             no
             form●●
             grant
             ●f
             Redemption
             or
             Renunciation
             ,
             Registrat
             conform
             to
             the
             Act
             of
             Parliam●n
             anent
             the
             Registration
             of
             Seasings
             ,
             Reversions
             ,
             &c.
             w●ich
             the
             Lords
             found
             only
             to
             extend
             to
             Wodsets
             ,
             properly
             so
             called
             ,
             and
             not
             to
             Appry●zings
             ;
             neither
             yet
             to
             an
             Infeftment
             for
             Relief
             ,
             whereunto
             the
             Rents
             were
             not
             to
             be
             only
             for
             the
             Annualrent
             of
             the
             sum
             ,
             but
             to
             satisfie
             the
             Principal
             ,
             and
             therefore
             seing
             the
             Lords
             found
             that
             the
             only
             Right
             was
             in
             the
             Defenders
             Grand-father
             ,
             and
             that
             he
             Disponed
             to
             the
             Defender
             ,
             that
             he
             could
             be
             in
             no
             better
             case
             then
             his
             Grand-father
             ,
             as
             to
             the
             Disposition
             granted
             by
             his
             Grand-father
             without
             a
             Cause
             Onerous
             ,
             being
             after
             the
             Disposition
             of
             the
             same
             Lands
             ,
             by
             that
             same
             Grand-father
             to
             the
             Pursuers
             Author
             ,
             but
             found
             it
             not
             necessar
             to
             determine
             the
             Case
             of
             lucrative
             Successor
             ,
             as
             it
             was
             here
             stated
             to
             make
             the
             Successor
             lyable
             to
             all
             his
             Predecessors
             Debts
             :
          
        
         
           
             Iames
             Birsbine
             contra
             Iohn
             Monteith
             .
             Iuly
             24.
             1662.
             
          
           
             
               JAmes
               Birsbine
            
             pursues
             
               Iohn
               Monteith
            
             ,
             as
             Cautioner
             for
             
               Iohn
               Birsbine
            
             ,
             who
             was
             Executor
             to
             the
             Pursuers
             Father
             ,
             for
             payment
             of
             the
             Pursuers
             Legacy
             .
             The
             Defender
             alleadged
             no
             Processe
             ,
             because
             the
             Executor
             himself
             is
             not
             Discussed
             ,
             and
             the
             Cautioner
             is
             only
             lyable
             subsidiary
             :
             The
             Pursuer
             Replyed
             ,
             there
             is
             a
             Decreet
             obtained
             against
             the
             Executor
             produced
             ,
             and
             there
             was
             no
             further
             Discussing
             requisite
             ,
             because
             he
             is
             broken
             ,
             and
             the
             Pursuer
             is
             content
             to
             assign
             the
             Debt
             to
             the
             Cautioner
             .
             The
             Defender
             answered
             
               non
               Relevat
            
             ,
             for
             a
             Decreet
             is
             no
             sufficient
             Discussing
             ,
             but
             there
             must
             be
             Registrat
             Horning
             at
             least
             ,
             albeit
             the
             Executor
             had
             neither
             Lands
             nor
             Moveables
             to
             Poind
             or
             Apprise
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             and
             found
             the
             Reply
             not
             Relevant
             ,
             till
             the
             Registrate
             Horning
             were
             produced
             .
          
        
         
           
             Alexander
             Shed
             contra
             Robert
             Gordon
             and
             David
             Kill
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Shed
            
             pursues
             
               Robert
               Gordon
            
             Pupil
             ,
             as
             lawfully
             Charged
             to
             enter
             Heir
             to
             his
             Father
             ,
             to
             pay
             a
             Debt
             of
             his
             Fathers
             ,
             compears
             
               David
               Kill
            
             the
             Pupils
             Uncle
             ,
             who
             was
             Tutor
             nominat
             to
             him
             ,
             but
             refused
             to
             accept
             ,
             and
             
             therefore
             shunned
             to
             propone
             any
             Defense
             in
             the
             Pupils
             own
             name●
             least
             it
             should
             be
             an
             acceptance
             ,
             or
             gestio
             ;
             and
             therefore
             produced
             a
             Bond
             of
             the
             Defuncts
             ,
             and
             as
             Creditor
             alleadged
             that
             he
             would
             not
             suffer
             his
             Debitors
             Estate
             to
             be
             affected
             in
             his
             prejudice
             ,
             and
             offered
             him
             to
             prove
             ,
             that
             the
             Debt
             pursued
             on
             was
             satisfied
             .
             The
             Question
             was
             ,
             whether
             he
             had
             Interest
             as
             Creditor
             to
             propone
             this
             Defense
             .
          
           
             The
             Lords
             having
             considered
             the
             Case
             amongst
             themselves
             ,
             found
             that
             where
             Creditors
             in
             this
             manner
             compeared
             ,
             it
             is
             not
             cnmpetent
             to
             allow
             their
             Defense
             ,
             because
             it
             may
             delay
             the
             other
             Creditors
             pursuing
             ,
             so
             that
             a
             third
             Creditor
             may
             be
             preferred
             in
             Diligence
             ;
             and
             therefore
             they
             Repelled
             the
             Defense
             
               hoc
               loco
            
             ,
             but
             declared
             that
             it
             should
             be
             receivable
             against
             the
             Pursuer
             ,
             whenever
             he
             should
             pursue
             for
             affecting
             any
             of
             the
             Defuncts
             Means
             or
             Estate
             ,
             in
             the
             same
             case
             as
             now
             .
          
        
         
           
             Mr.
             Patrick
             Weyms
             contra
             Mr.
             Iames
             Cunninghame
             .
             Eodem
             die
             .
          
           
             MR.
             
               Patrick
               Weyms
            
             having
             an
             Order
             of
             Parliament
             for
             a
             Terms
             vacant
             Stipend
             of
             the
             Paroch
             of
             Leswade
             ,
             Mr.
             
               Iames
               Cunninghame
            
             alleadged
             that
             Terms
             Stipend
             was
             not
             vacand
             ,
             but
             belonged
             to
             him
             as
             incumbent
             ,
             
               viz.
               Whitsonday
            
             1659.
             because
             he
             was
             admitted
             before
             Michalmess
             1659
             ,
             and
             shortly
             after
             Whitsonday
             ;
             and
             so
             the
             legal
             Terms
             of
             Stipends
             not
             being
             divisable
             at
             two
             Terms
             ,
             but
             at
             Michalmess
             joyntly
             ,
             he
             being
             incumbent
             before
             Michalmess
             ,
             hath
             the
             whole
             year
             .
          
           
             The
             Lords
             Repelled
             this
             alleadgence
             ,
             but
             preferred
             Weyms
             ,
             and
             found
             that
             Ministers
             had
             Right
             to
             their
             Stipend
             Termly
             ,
             and
             if
             he
             entered
             before
             Whitsonday
             ,
             he
             had
             Right
             to
             the
             whole
             year
             ,
             and
             if
             after
             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
             
             the
             remainder
             of
             free
             Goods
             .
             The
             Pursuer
             answered
             ,
             that
             this
             Destination
             being
             on
             Heretable
             Clauses
             ,
             cannot
             affect
             the
             Moveables
             ,
             2ly
             .
             The
             Bairns
             cannot
             have
             Right
             thereto
             till
             they
             be
             Heirs
             ,
             and
             so
             they
             will
             be
             both
             Debitors
             and
             Creditors
             ,
             and
             the
             Obligation
             will
             be
             taken
             away
             by
             Confusion
             .
          
           
             The
             Lords
             found
             this
             Defense
             Relevant
             notwithstanding
             of
             the
             Answer
             ;
             and
             that
             albeit
             the
             Clause
             was
             Heretable
             ,
             
               quoad
               creditorem
            
             ,
             yet
             it
             was
             Moveable
             
               quoad
               debitorem
            
             ,
             and
             so
             behoved
             to
             be
             performed
             out
             of
             the
             Defuncts
             Moveables
             ,
             and
             that
             the
             entring
             thereto
             ,
             would
             not
             take
             away
             the
             Obliegement
             by
             Confusion●
             more
             then
             one
             paying
             a
             moveable
             Debt
             ,
             wherein
             he
             is
             both
             Debitor
             and
             Creditor
             ;
             yet
             he
             will
             have
             action
             of
             Relief
             against
             the
             Executors
             out
             of
             the
             Moveables
             .
          
           
             It
             was
             further
             alleadged
             ,
             that
             in
             the
             said
             Missive
             there
             are
             two
             particular
             Legacies
             left
             to
             the
             Defuncts
             Brother
             and
             Sisters
             ,
             which
             must
             abate
             the
             general
             Legacy
             .
             The
             Pursuer
             answered
             ,
             that
             both
             Legacies
             were
             only
             left
             thus
             ,
             
               I
               wish
               ,
               &c.
            
             which
             cannot
             be
             obligator
             ,
             nor
             constitute
             an
             effectual
             Legacy
             ;
             but
             is
             only
             a
             desire
             or
             recommendation
             left
             in
             the
             Pursuers
             option
             :
             and
             for
             Magdalens
             Legacy
             ,
             it
             was
             conditional
             ,
             the
             following
             the
             Pursuers
             advice
             ,
             which
             she
             did
             not
             ,
             but
             left
             her
             contrair
             her
             will.
             The
             Defenders
             answered
             ,
             that
             
               verba
               optativa
            
             were
             sufficient
             in
             Legacies
             ,
             at
             least
             were
             sufficient
             to
             make
             
               a
               fidi
               commissari
            
             Legacy
             ;
             because
             all
             
               fidi
               commissis
            
             ,
             either
             for
             restoring
             the
             Inheritance
             ,
             or
             for
             restoring
             Legacies
             ,
             in
             the
             Civil
             Law
             were
             in
             such
             Terms
             ;
             and
             albeit
             such
             words
             would
             not
             be
             sufficient
             ,
             
               intor
               vivos
            
             ,
             yet
             
               favore
               ultimo
               voluntatis
            
             ,
             where
             the
             Defuncts
             will
             ,
             howsoever
             manifested
             ,
             is
             the
             Rule
             ,
             and
             so
             is
             most
             extended
             ,
             such
             words
             are
             sufficient
             ,
             as
             to
             the
             condition
             in
             Magdalens
             Legacy
             ,
             it
             cannot
             be
             understood
             of
             being
             under
             the
             Pursuers
             command
             all
             her
             life
             ,
             and
             so
             can
             only
             be
             meaned
             ,
             if
             Magdalen
             miscarry
             contrair
             to
             the
             Pursuers
             advice
             ,
             in
             some
             considerable
             matter
             of
             her
             carriage
             ;
             and
             however
             ,
             it
             is
             not
             a
             suspensitive
             condition
             ,
             hindring
             the
             payment
             of
             the
             Legacy
             ,
             but
             oblieging
             the
             Legatar
             thereafter
             .
          
           
             The
             Lords
             found
             the
             Legacies
             constitute
             ,
             and
             in
             terms
             for
             said
             valid
             ;
             and
             as
             for
             Magdalens
             Legacy
             ,
             declared
             ,
             that
             in
             case
             Magdalen
             miscarried
             ,
             and
             took
             not
             the
             Pursuers
             Advice
             ,
             that
             she
             should
             be
             lyable
             to
             refound
             the
             Legacy
             to
             the
             Pursuer
             ,
             but
             would
             not
             put
             her
             to
             find
             Caution
             for
             that
             effect
             ,
             the
             condition
             being
             so
             general
             .
          
        
         
           
             Katharin
             Kinross
             contra
             the
             Laird
             of
             Hunthill
             .
          
           
             THe
             Laird
             of
             Hunthill
             being
             oblieged
             by
             Bond
             to
             pay
             a
             sum
             to
             umquhil
             Mr.
             Beverly
             ,
             and
             the
             said
             Katharin
             his
             Spouse
             the
             longest
             liver
             of
             them
             two
             in
             Conjunct-fee
             ,
             and
             the
             Heirs
             betwixt
             them
             ,
             which
             failzing
             his
             Heirs
             ,
             or
             any
             person
             he
             should
             design
             ,
             whereupon
             they
             were
             infeft
             in
             an
             Annualrent
             .
             The
             said
             Katharin
             having
             charged
             for
             payment
             of
             the
             sum
             ,
             Hunthill
             suspended
             alleadging
             that
             she
             was
             but
             Liferenter
             ,
             and
             he
             could
             never
             be
             
               in
               tuto
            
             till
             the
             Feear
             were
             called
             .
             The
             Lords
             formerly
             found
             the
             Letters
             orderly
             proceeded
             for
             the
             Annualrent
             ,
             but
             superceeded
             to
             give
             answer
             for
             the
             Stock
             ,
             till
             some
             to
             represent
             Beverly
             ,
             the
             Feear
             were
             called
             ,
             who
             now
             being
             called
             and
             not
             compearing
             ,
             he
             Debitor
             alleadged
             he
             could
             not
             be
             lyable
             to
             give
             up
             the
             Stock
             to
             the
             Charger
             ,
             being
             only
             Liferenter
             ,
             neither
             would
             her
             Discharge
             ,
             or
             Renunciation
             of
             the
             Wodset
             liberat
             him
             and
             his
             Estate
             ,
             but
             only
             a
             Renunciation
             
             of
             the
             Heir
             ;
             neither
             did
             the
             Charge
             at
             the
             Liferenters
             Instance
             ,
             take
             away
             the
             Annualrent
             ,
             and
             make
             the
             principal
             sum
             moveable
             ,
             unless
             it
             had
             been
             at
             the
             Feears
             Instance
             .
             The
             Charger
             answered
             ,
             that
             she
             being
             Conjunct-feear
             ,
             was
             not
             a
             naked
             Liferenter
             ,
             albeit
             it
             resolved
             in
             a
             Liferent
             ;
             and
             therefore
             she
             craved
             that
             it
             should
             be
             declared
             by
             the
             Lords
             ,
             that
             she
             had
             power
             to
             uplift
             the
             Stock
             ,
             and
             to
             reimploy
             it
             as
             formerly
             ,
             and
             that
             her
             Discharge
             and
             Renunciation
             should
             be
             declared
             to
             be
             sufficient
             to
             liberat
             the
             Debitor
             and
             his
             Lands
             ,
             which
             being
             so
             found
             by
             the
             Lords
             .
             The
             Debitor's
             appearing
             Heir
             being
             called
             ,
             would
             be
             an
             irreduceable
             and
             sufficient
             ground
             of
             Liberation
             .
          
           
             The
             Lords
             declared
             as
             aforesaid
             ,
             but
             before
             Extract
             ,
             ordained
             the
             Conjunct-feear
             to
             give
             Bond
             for
             Reimployment
             of
             the
             sum
             to
             her self
             in
             Liferent
             ,
             and
             to
             Beverly's
             Heirs
             in
             Fee
             ;
             which
             Bond
             they
             ornained
             to
             be
             presently
             Registrat
             ,
             and
             kept
             by
             the
             Clerk
             ,
             in
             respect
             none
             appeared
             for
             the
             Heir
             .
          
        
         
           
             Lady
             Milntoun
             contra
             Laird
             of
             Milntoun
             .
             Iuly
             26.
             1662.
             
          
           
             LAdy
             Milntoun
             pursues
             probation
             of
             the
             Tenor
             of
             a
             Bond
             of
             Interdiction
             ,
             granted
             by
             her
             Husband
             young
             Calderwood
             ,
             Interdicting
             himself
             to
             her
             .
             It
             was
             alleadged
             no
             Process
             ,
             because
             there
             was
             no
             sufficient
             Adminicles
             in
             Writ
             produced
             ,
             there
             being
             no
             Writ
             relative
             to
             the
             Interdiction
             Subscribed
             by
             the
             Party
             ,
             but
             only
             the
             Extract
             of
             Letters
             of
             Inhibition
             .
          
           
             The
             Lords
             sustained
             this
             as
             a
             sufficient
             Adminicle
             ,
             in
             respect
             the
             question
             was
             not
             about
             a
             Writ
             that
             use
             to
             be
             retired
             ,
             such
             as
             Bonds
             .
             In
             this
             Case
             also
             ,
             the
             Lords
             examined
             some
             Witnesses
             ,
             
               ex
               officio
            
             ,
             before
             Litiscontestation
             ,
             being
             old
             and
             valitudinary
             .
          
        
         
           
             Margaret
             Robertson
             contra
             William
             Mcintosh
             .
             Eodem
             die
             .
          
           
             
               MArgaret
               Robertson
            
             pursues
             an
             Ejection
             against
             
               William
               Mcintosh
            
             ,
             who
             alleadged
             absolvitor
             ,
             because
             he
             offered
             him
             to
             prove
             ,
             that
             he
             had
             warned
             the
             Defenders
             umquhile
             Husband
             ,
             and
             that
             he
             dying
             shortly
             thereafter
             ,
             he
             inquired
             of
             his
             Wife
             ,
             if
             she
             would
             continue
             in
             the
             Possession
             ,
             and
             she
             declared
             she
             would
             not
             ,
             but
             willingly
             removed
             .
             It
             was
             Replyed
             ,
             
               Relevat
               scripto
               vel
               juramento
            
             ;
             but
             witnesses
             cannot
             be
             received
             to
             prove
             willingness
             of
             Removing
             ,
             being
             mentis
             .
          
           
           
             The
             Lords
             considering
             that
             the
             Defender
             alleadged
             no
             Tack
             nor
             Title
             in
             Writ
             ,
             but
             meer
             Possession
             were
             inclinable
             to
             sustain
             the
             Defense
             probable
             
               pro
               ut
               de
               jure
            
             ;
             but
             withall
             considering
             the
             Parties
             were
             Highlanders
             ,
             and
             had
             great
             advantage
             ,
             whoever
             had
             the
             benefite
             of
             probation
             ;
             therefore
             they
             ordained
             the
             Pursuer
             to
             condescend
             what
             Deeds
             of
             violence
             was
             done
             in
             ejecting
             her
             ;
             and
             both
             parties
             to
             conscend
             what
             persons
             were
             present
             at
             the
             Pursuers
             outgoing
             ,
             and
             the
             Defenders
             incoming
             ,
             being
             resolved
             to
             examine
             all
             these
             before
             answer
             ,
             so
             that
             there
             might
             be
             no
             advantage
             in
             probation
             to
             either
             party
             .
          
        
         
           
             Sir
             John
             Aiton
             contra
             Adam
             Wat.
             Eodem
             die
             .
          
           
             
               ADam
               Wat
            
             being
             first
             Infeft
             in
             an
             Annualrent
             out
             of
             Whitlands
             Estate
             ,
             Compryzed
             for
             some
             of
             the
             bygone
             Annualrents
             .
             Sir
             
               Iohn
               Aiton
            
             being
             infeft
             after
             him
             in
             an
             Annualrent
             of
             the
             same
             Lands
             ,
             alleadges
             that
             Adam
             hinders
             him
             to
             uplift
             the
             Duties
             ,
             or
             poynd
             the
             Ground
             for
             his
             Annualrent
             ,
             and
             yet
             lets
             them
             ly
             in
             the
             common
             Debtor
             ,
             or
             Tennents
             hands
             until
             his
             Appryzing
             expire
             ,
             and
             therefore
             alleadges
             that
             
               Adam
               Wat
            
             ought
             either
             to
             Intromit
             ,
             and
             do
             exact
             Diligence
             ,
             and
             impute
             the
             same
             in
             his
             Compryzing
             ,
             or
             suffer
             Sir
             Iohn
             to
             do
             Diligence
             ,
             or
             at
             least
             ,
             that
             both
             may
             do
             Diligence
             effeiring
             to
             their
             Sums
             .
          
           
             The
             Lords
             found
             that
             
               Adam
               Wat
            
             ought
             to
             be
             lyable
             for
             Diligence
             in
             time
             coming
             ,
             in
             uplifting
             the
             Rents
             to
             satisfie
             his
             Appryzing
             ;
             and
             as
             to
             the
             Annualrent
             ,
             found
             ,
             that
             after
             40
             days
             after
             each
             Term
             ,
             in
             which
             Adam
             ,
             as
             the
             first
             Annualrenter
             ,
             might
             poynd
             the
             Ground
             ;
             it
             should
             be
             leisom
             for
             Sir
             Iohn
             ,
             as
             the
             second
             Annualrenter
             ,
             to
             poynd
             the
             same
             ,
             without
             respect
             to
             
               Adam
               Wats
            
             prior
             Infeftment
             ,
             if
             he
             did
             not
             Diligence
             thereon
             ,
             within
             40
             days
             after
             ilk
             Term.
             
          
        
         
           
             Alexander
             Hamiltoun
             contra
             Thomas
             Harper
             .
             Iuly
             29.
             1662.
             
          
           
             
               ALexander
               Hamiltoun
            
             pursues
             a
             Removing
             against
             
               Thomas
               Harper
            
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuer
             invaded
             and
             beat
             the
             Defender
             ,
             in
             the
             Session-house
             ,
             during
             the
             Dependence
             of
             this
             Cause
             ;
             and
             therefore
             by
             the
             Act
             of
             Parliament
             1584.
             cap.
             219.
             renewed
             ,
             1592.
             cap.
             173.
             
             The
             Pursuer
             
               cadit
               causa
            
             ,
             and
             the
             Defender
             must
             be
             Assoilzied
             .
          
           
             The
             Lords
             having
             considered
             the
             saids
             Acts
             of
             Parliament
             ,
             and
             finding
             thereby
             that
             the
             Invasion
             must
             be
             Cognosced
             in
             a
             Criminal
             Process
             ,
             competent
             to
             the
             Justice
             ,
             and
             must
             be
             found
             summarly
             by
             an
             Inquest
             .
          
           
             The
             Question
             was
             ,
             whether
             beating
             without
             effusion
             of
             Blood
             ,
             was
             such
             a
             Criminal
             Fact
             ?
             because
             it
             seems
             to
             be
             but
             a
             Ryot
             :
             and
             next
             whether
             the
             Lords
             would
             take
             probation
             of
             it
             themselves
             ,
             or
             if
             it
             behoved
             to
             be
             Recognosced
             by
             the
             Justices
             .
          
           
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             For
             the
             Act
             of
             Parliament
             anent
             violence
             in
             the
             Kings
             presence
             ,
             or
             in
             the
             Session
             House
             ,
             when
             the
             Session
             is
             sitting
             ,
             make
             such
             deads
             to
             incur
             death
             :
             and
             therefore
             whether
             they
             would
             assign
             a
             Term
             to
             the
             Defender
             to
             prove
             ,
             that
             in
             the
             mean
             time
             he
             might
             proceed
             Criminally
             ,
             before
             the
             Iustice
             ,
             and
             instruct
             the
             Defense
             by
             the
             Sentence
             of
             the
             Iustice
             ,
             or
             whether
             they
             would
             receive
             the
             Probation
             themselves
             ,
             they
             resolved
             to
             hear
             the
             P●rties
             upon
             it
             .
          
        
         
           
             Laird
             Balnagoun
             contra
             Iuly
             30.
             1662.
             
          
           
             THe
             Laird
             of
             Balnaggoun
             having
             obtained
             a
             Gift
             of
             
               ultmus
               haeres
            
             ,
             of
             Thomas
             from
             the
             Exchequer
             ,
             in
             Anno
             1661.
             and
             being
             thereupon
             Infeft
             ,
             pursues
             Removing
             against
             Rorie
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             Defender
             stands
             Infeft
             ,
             and
             by
             vertue
             of
             his
             Infeftment
             in
             Possession
             7.
             years
             before
             the
             warning
             ,
             by
             vertue
             of
             a
             Gift
             of
             
               ultimus
               haeres
            
             ,
             granted
             by
             the
             English
             Exchequer
             .
             The
             Pursuer
             answered
             ,
             ought
             to
             be
             Repelled
             ,
             because
             the
             foresaid
             Gift
             is
             null
             ,
             
               ipso
               jure
            
             ,
             in
             so
             far
             as
             it
             is
             not
             confirmed
             by
             the
             late
             Act
             of
             Parliament
             ,
             anent
             judicial
             proceedings
             in
             the
             Usurpers
             time
             ,
             wherein
             Gifts
             of
             Bastardy
             and
             
               ultimus
               haeres
            
             were
             excepted
             .
             The
             Defendet
             answered
             ,
             1.
             
             That
             his
             Infeftment
             being
             cled
             with
             7.
             years
             Possession
             ,
             cannot
             be
             taken
             away
             by
             exception
             ,
             neither
             is
             he
             oblieged
             
               in
               hoc
               judicio
               possessorio
            
             ,
             to
             Dispute
             the
             validity
             thereof
             .
             2ly
             .
             The
             said
             Act
             of
             Parliament
             doth
             not
             declare
             it
             null
             ,
             much
             less
             null
             by
             Exception
             ,
             such
             Gifts
             but
             doth
             only
             not
             confirm
             them
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             ,
             and
             found
             the
             Infeftment
             null
             in
             it self
             ,
             seing
             it
             was
             not
             confirmed
             .
          
           
             The
             Defender
             further
             alleadged
             absolvitor
             from
             this
             warning
             ,
             because
             the
             Pursuers
             Gift
             is
             not
             yet
             decalred
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             no
             necessity
             of
             Declarator
             ,
             because
             it
             cannot
             be
             ever
             made
             appear
             that
             any
             such
             thing
             was
             required
             ,
             or
             was
             in
             Custom
             and
             Use
             ,
             more
             then
             in
             the
             case
             of
             a
             Gift
             of
             Ward
             ,
             or
             a
             Gift
             of
             Forefaultry
             .
          
           
             The
             Lords
             found
             that
             this
             Gift
             behoved
             to
             be
             declared
             in
             the
             same
             way
             as
             a
             gift
             of
             Bastardry
             .
          
        
         
           
             William
             Zeoman
             contra
             Mr
             Patrick
             Oliphant
             .
          
           
             
               WIlliam
               Zeoman
            
             as
             having
             Right
             by
             an
             Appryzing
             to
             the
             Lands
             of
             Newton
             ,
             pursues
             Mr.
             
               Patrick
               Oliphant
            
             ,
             to
             hear
             and
             see
             it
             found
             and
             declared
             this
             his
             Appryzing
             was
             satisfied
             ,
             by
             Intromission
             with
             the
             Mails
             and
             Duties
             within
             the
             Legal
             .
             The
             Defender
             alleadged
             ,
             Appryzing
             cannot
             be
             satisfied
             by
             his
             Intromission
             ,
             because
             any
             Intromission
             he
             had
             was
             by
             vertue
             of
             other
             Rights
             ,
             viz.
             Mr.
             
               Iames
               Oliphant
            
             the
             common
             Author
             ,
             having
             killed
             his
             own
             Mother
             ,
             and
             thereupon
             he
             being
             declared
             Fugitive
             ,
             not
             only
             upon
             the
             Paricide
             ,
             but
             upon
             a
             Criminal
             Dittie
             against●
             him
             ,
             upon
             committing
             Murder
             under
             Trust
             ,
             which
             is
             Treason
             .
             The
             Defender
             obtained
             Gift
             of
             his
             Forefaultry
             ,
             and
             thereupon
             stands
             Infeft
             and
             in
             Possession
             .
             The
             Pursuer
             answered
             ,
             
               non
               Relevat
            
             ,
             〈◊〉
             Because
             the
             Act
             of
             Parliament
             against
             Paricide
             ,
             doth
             not
             declare
             it
             to
             infer
             Forefaultry
             ,
             but
             only
             that
             the
             committer
             thereof
             should
             be
             excluded
             from
             Succession
             :
             and
             as
             to
             the
             committing
             of
             Slaughter
             under
             Trust
             ,
             the
             Act
             of
             Parliament
             
             expresseth
             what
             it
             meaned
             by
             Trust
             ,
             viz.
             though
             getting
             assurance
             from
             persons
             that
             had
             been
             formerly
             in
             variance
             .
             2ly
             .
             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
             
             the
             space
             of
             40
             Years
             ,
             which
             was
             sufficient
             to
             establish
             the
             Right
             of
             Communitie
             with
             Balbirnie
             ,
             notwithstanding
             his
             Infeftment
             bears
             express
             .
             It
             was
             answered
             for
             Balbirnie
             ,
             that
             not
             only
             was
             his
             Infeftment
             more
             express
             ;
             but
             Mr.
             
               Thomas
               Lands
            
             and
             his
             were
             holden
             of
             divers
             Superiours
             ,
             
               viz.
               Balbirnie
            
             of
             the
             KING
             ,
             and
             Mr.
             Thomas
             were
             Kirk-lands
             ;
             and
             albeit
             the
             Muire
             lyes
             contigue
             to
             Mr.
             Thomas
             Lands
             ,
             yet
             it
             is
             not
             of
             the
             same
             Paroch
             .
             
               The
               Lords
               repelled
               the
               Reasons
               of
               Preference
               for
               Balbirnie
               in
               respect
               of
               the
               Answer
               .
            
             It
             was
             further
             alleadged
             for
             Balbirnie
             ,
             that
             the
             Alleadgeances
             and
             Answers
             for
             Mr.
             
               Thomas
               Nicolson
            
             ought
             to
             be
             repelled
             ;
             because
             he
             offers
             him
             to
             prove
             ,
             that
             Nicolson
             was
             interrupted
             since
             the
             Year
             1610.
             and
             condescended
             ,
             by
             yearly
             turning
             his
             Cattel
             off
             the
             ground
             ,
             and
             stopping
             him
             from
             casting
             Peits
             ;
             and
             therefore
             he
             must
             say
             40
             Years
             Possession
             ,
             by
             vertue
             of
             an
             Infeftment
             preceeding
             that
             Interruption
             .
             It
             was
             answered
             for
             
               Nicolson
               ,
               non
               relevat
            
             ,
             unlesse
             either
             a
             Legal
             Interruption
             by
             Lawborres
             ,
             or
             Summons
             ;
             or
             at
             least
             a
             compleat
             and
             full
             
               Interruptio
               facti
            
             ,
             by
             debarring
             him
             on
             whole
             year
             from
             any
             deed
             of
             Community
             ,
             but
             for
             turning
             off
             his
             Goods
             ,
             which
             were
             presently
             put
             on
             again
             ,
             and
             he
             enjoying
             all
             his
             Profit
             ,
             such
             were
             Attempts
             ,
             and
             Incompleat
             Interruptions
             ,
             whereof
             he
             needed
             take
             no
             notice
             thereof
             ,
             seing
             he
             continued
             his
             Possession
             ,
             otherwayes
             there
             would
             be
             great
             inconveniences
             by
             such
             Interruptions
             ,
             which
             would
             be
             noticed
             by
             the
             Leidges
             ,
             and
             yet
             would
             cut
             off
             the
             Probation
             of
             the
             old
             Possession
             before
             the
             same
             .
          
           
             The
             Lords
             found
             that
             whatsoever
             the
             Interruption
             ,
             40
             Years
             ,
             or
             
               immemoria
               possessione
            
             before
             the
             Interruption
             behoved
             to
             be
             proven
             ,
             for
             they
             thought
             that
             what
             Servituds
             were
             introduced
             only
             by
             Possession
             ,
             by
             the
             patience
             and
             presumed
             will
             of
             the
             other
             Partie
             ,
             being
             either
             Proprietar
             ,
             or
             having
             right
             of
             Communitie
             ,
             any
             Interruption
             was
             sufficient
             to
             show
             ,
             that
             the
             other
             Party
             willed
             not
             ,
             nor
             consented
             not
             to
             the
             Right
             ;
             and
             if
             by
             such
             Interruptions
             Parties
             got
             wrong
             ,
             it
             was
             their
             own
             fault
             ,
             who
             did
             not
             either
             declare
             their
             Right
             ,
             or
             insist
             in
             a
             molestation
             
               debito
               tempore
            
             ,
             or
             use
             mutual
             Interruptions
             ;
             but
             here
             it
             was
             considered
             ,
             that
             Possession
             before
             the
             year
             1610.
             would
             be
             equivalent
             to
             Immemorial
             Possession
             ,
             albeit
             the
             Witnesses
             were
             not
             positive
             ,
             upon
             20.
             
             Years
             Possession
             before
             ,
             in
             respect
             the
             Years
             were
             50.
             
             Years
             since
             .
          
        
         
           
             Children
             of
             Wolmet
             contra
             Dowglas
             and
             Cuningham
             .
             November
             20.
             1662.
             
          
           
             IN
             a
             Persuit
             at
             the
             instance
             of
             the
             Children
             of
             Wolmet
             for
             the
             Profit
             of
             the
             Coal
             of
             Wolmet
             ,
             intrometted
             with
             by
             the
             said
             
               Iean
               Dowglas
            
             Lady
             Wolmet
             in
             her
             Viduity
             ,
             by
             vertue
             of
             a
             Tack
             of
             the
             Coal
             granted
             by
             Umqhile
             Wolmet
             to
             his
             Children
             for
             their
             Portions
             ,
             it
             was
             alleadged
             for
             the
             Defender
             .
             First
             ,
             absolvitor
             ,
             because
             the
             said
             Iean
             had
             right
             to
             the
             said
             Profit
             of
             the
             said
             Coal
             ,
             ever
             since
             her
             Husbands
             Death
             ,
             by
             vertue
             of
             the
             Wodset
             of
             the
             Lands
             and
             Coals
             of
             Wolmet
             granted
             by
             Umquhile
             
               Patrick
               Edmonstcun
            
             of
             Wolmet
             ,
             to
             
               Iames
               Loch
            
             ,
             wherein
             there
             is
             a
             Back-tack
             of
             the
             Land
             and
             Coal
             set
             to
             the
             said
             Umquhile
             Wolmet
             ,
             and
             the
             said
             Iean
             his
             Spouse
             ,
             for
             the
             Annualrent
             of
             the
             Money
             .
             It
             was
             replyed
             for
             the
             Pursuer
             ,
             that
             the
             foresaid
             Back-tack
             was
             taken
             by
             
               Wolmet
               stante
               matrimonio
            
             ,
             and
             so
             was
             
               donatio
               inter
               uirum
               &
               uxorem
            
             null
             in
             it self
             ,
             
               nisi
               morte
               confirmetur
            
             ,
             and
             was
             confirmed
             by
             
             Wolmets
             Death
             ,
             but
             Revocked
             by
             the
             Pursuers
             Tack
             granted
             to
             his
             Children
             after
             the
             said
             Back-tack
             .
             It
             was
             answered
             for
             the
             Pursuers
             ,
             that
             the
             reply
             ought
             to
             be
             repelled
             ,
             because
             the
             Back-tack
             was
             no
             Donation
             ,
             but
             a
             permutation
             ,
             in
             so
             far
             as
             the
             Lady
             by
             her
             Contract
             of
             Marriage
             was
             Infeft
             in
             the
             half
             of
             the
             Lands
             of
             Wolmet
             ;
             which
             Infeftment
             she
             renounced
             in
             favours
             of
             
               Iames
               Loch
            
             ,
             at
             the
             taking
             of
             the
             Wodset
             ,
             and
             in
             lieu
             thereof
             ,
             she
             got
             this
             Back-tack
             ,
             which
             therefore
             can
             be
             no
             Donation
             ,
             which
             must
             be
             gra●u●tus
             without
             a
             cause
             onerous
             .
             It
             was
             replyed
             by
             the
             Pursuers
             ,
             that
             the
             duply
             is
             not
             relevant
             ;
             for
             albeit
             it
             be
             not
             a
             pure
             Donation
             ,
             yet
             
               quoad
               excessum
            
             the
             superplus
             of
             the
             benefit
             of
             the
             Back-tack
             above
             the
             benefit
             of
             the
             Contract
             of
             Marriage
             is
             gratitude
             ,
             and
             a
             Donation
             ,
             and
             the
             reason
             of
             the
             Law
             against
             Donations
             betwixt
             Man
             and
             Wife
             being
             
               mutuo
               amore
               se
               spolient
            
             ,
             it
             holds
             in
             it
             ,
             and
             it
             would
             be
             easie
             to
             allude
             the
             intent
             of
             that
             good
             Law
             ,
             if
             Donations
             contrived
             under
             the
             way
             of
             permutation
             without
             any
             real
             equalitie
             were
             allowable
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             the
             duply
             stands
             relevant
             ,
             and
             the
             superplus
             of
             a
             permutation
             cannot
             be
             called
             a
             Donation
             more
             then
             the
             benefit
             of
             an
             advantagious
             Vendition
             :
             it
             is
             true
             ,
             that
             if
             the
             Donation
             of
             the
             Back-tack
             had
             been
             
               ex
               intervallo
            
             ,
             after
             the
             Ladies
             Renounciation
             ,
             it
             would
             have
             been
             
               vincus
               Contractus
            
             .
             but
             two
             distinct
             Donations
             ,
             or
             if
             the
             matter
             exchanged
             had
             been
             
               aliquid
               ejusdem
               specei
            
             ,
             as
             an
             Annualrent
             of
             500
             merk
             with
             an
             Annualrent
             of
             a
             1000
             lib.
             the
             superplus
             would
             have
             been
             a
             Donation
             ;
             or
             if
             the
             Lady
             had
             received
             a
             notable
             excess
             above
             the
             half
             ,
             yea
             ,
             above
             the
             third
             of
             what
             she
             quat
             ,
             it
             might
             have
             been
             revocable
             by
             her
             Husband
             ,
             she
             being
             reponed
             to
             her
             first
             Condition
             ,
             by
             her
             Contract
             of
             Marriage
             ,
             but
             here
             there
             is
             no
             such
             exorbitant
             excess
             ,
             she
             having
             quat
             a
             certain
             Land
             Rent
             for
             the
             profit
             of
             a
             Coal
             ,
             which
             is
             most
             uncertain
             ,
             for
             the
             hail
             Land
             Rent
             would
             not
             pay
             the
             Back-tack
             ,
             and
             it
             is
             now
             Wodset
             ,
             and
             likewise
             she
             is
             personally
             lyable
             for
             the
             Back-tack
             Dutie
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             and
             Duply
             ,
             in
             respect
             of
             the
             Reply
             and
             Triply
             ;
             and
             found
             the
             Excess
             so
             considerable
             in
             this
             case
             ,
             that
             it
             was
             as
             a
             Donation
             ,
             and
             was
             revocked
             by
             the
             Childrens
             Tack
             ,
             but
             found
             that
             before
             the
             Defender
             made
             payment
             of
             what
             should
             be
             found
             due
             by
             this
             accompt
             she
             should
             be
             reponed
             and
             put
             
               in
               statu
               quo
               prius
            
             ,
             by
             her
             Contract
             of
             Marriage
             .
          
           
             It
             was
             further
             alleadged
             for
             the
             Defender
             ,
             absolvitor
             ,
             because
             that
             albeit
             her
             Right
             by
             the
             Back-tack
             were
             revocked
             by
             the
             Childrens
             Tack
             ,
             yet
             she
             is
             
               bona
               fide
            
             possessor
             ,
             
               &
               fecit
               fructus
               consumptos
               suos
            
             ,
             according
             to
             the
             Law
             of
             this
             Kingdom
             ,
             and
             of
             most
             of
             other
             Nations
             necessarily
             introduced
             ,
             for
             the
             good
             and
             quiet
             of
             the
             People
             ,
             because
             as
             to
             and
             profits
             ,
             they
             spend
             as
             they
             have
             ,
             and
             therefore
             what
             they
             spend
             
               bona
               fide
            
             by
             a
             colourable
             Title
             ;
             they
             are
             secured
             in
             that
             ,
             albeit
             their
             Title
             be
             taken
             away
             ;
             yet
             they
             shall
             not
             be
             called
             in
             question
             for
             what
             they
             have
             injoyed
             
               bona
               fide
            
             before
             Sentence
             ,
             or
             Citation
             .
             It
             was
             answered
             ,
             for
             the
             Pursuers
             ,
             that
             the
             Defense
             was
             not
             relevant
             in
             that
             case
             ,
             where
             the
             Question
             is
             not
             of
             industrial
             fruit
             ,
             but
             of
             natural
             fruit
             ,
             such
             as
             Coal
             .
             Secondly
             ,
             it
             is
             not
             relevant
             ,
             unless
             it
             were
             
               cum
               titulo
            
             not
             
               ipso
               jure
            
             null
             ,
             but
             here
             the
             Defenders
             Title
             being
             a
             Donation
             betwixt
             Man
             and
             Wife
             ,
             is
             by
             the
             Civil
             Law
             ,
             which
             herein
             we
             follow
             null
             
               in
               se
               nisi
               morte
               confirmetur
               .
               Thirdly
               ,
            
             there
             must
             be
             
               bona
               fides
            
             which
             is
             not
             here
             ;
             because
             it
             is
             instructed
             by
             a
             minute
             of
             a
             Contract
             produced
             within
             five
             moneths
             before
             the
             Childrens
             Tack
             ,
             that
             the
             Lady
             consented
             to
             the
             providing
             of
             the
             Children
             by
             the
             profit
             of
             the
             Coal
             ,
             and
             she
             cannot
             be
             presumed
             ignorant
             of
             so
             Domestick
             an
             affair
             in
             favour
             of
             her
             own
             Children
             
             done
             by
             her
             Husband
             ,
             and
             she
             hath
             given
             up
             an
             Article
             in
             her
             accompt
             of
             the
             expense
             of
             Registrating
             the
             Childrens
             Tack
             ;
             by
             her self
             ,
             and
             so
             she
             must
             be
             presumed
             to
             have
             possessed
             as
             protutrix
             for
             her
             Children
             ,
             and
             not
             to
             Defraud
             or
             Exclude
             them
             .
             It
             was
             answered
             ,
             for
             the
             Defender
             ,
             that
             the
             defense
             stands
             yet
             relevant
             ,
             and
             the
             Law
             makes
             no
             difference
             betwixt
             Industrial
             and
             Natural
             Fruits
             ,
             he
             who
             possesses
             Lands
             
               bona
               fide
            
             is
             no
             more
             comptable
             for
             the
             Grass
             that
             growes
             of
             it self
             ,
             nor
             for
             the
             Corn
             that
             he
             labours
             for
             .
             4.
             
             And
             Coal
             is
             an
             industrial
             Fruit
             ,
             having
             as
             much
             pains
             and
             expense
             as
             Corns
             ,
             and
             other
             industrial
             Fruit
             ,
             and
             more
             uncertainty
             :
             as
             to
             the
             Title
             albeit
             be
             valid
             ,
             yet
             
               sufficit
               coloratus
               vel●putativus
               titulus
            
             ,
             and
             albeit
             in
             the
             antient
             
               Roman
               Law
            
             ,
             such
             Donations
             were
             null
             
               in
               se
               nisi
               confirmentur
               morte
            
             yet
             by
             the
             subsequent
             course
             of
             the
             Law
             ,
             
               per
               ora●ionem
               Antonij
            
             they
             are
             declared
             valid
             in
             themselves
             ,
             unless
             they
             be
             revocked
             ,
             and
             therefore
             are
             not
             null
             ,
             but
             
               Anullantur
               medio
               facto
            
             ,
             and
             there
             are
             many
             nullities
             ,
             which
             may
             consist
             with
             a
             colourable
             Title
             ,
             
               ad
               hunc
               affectum
               lucrari
               Fructus
               consumptus
               ,
            
             as
             if
             the
             nulitie
             be
             not
             
               ex
               defectu
               substantialium
            
             ,
             but
             by
             defect
             of
             some
             solemnity
             ,
             as
             the
             not
             Registration
             of
             a
             Seasine
             will
             not
             make
             it
             so
             null
             ,
             but
             that
             possessor
             
               bona
               fide
            
             thereby
             will
             imploy
             the
             Fruits
             ,
             but
             if
             it
             want
             tradition
             of
             the
             symble
             ,
             it
             will
             be
             null
             
               in
               se
            
             ,
             but
             here
             such
             Donations
             have
             all
             there
             essentials
             ,
             but
             they
             are
             only
             anullable
             by
             a
             subsequent
             fact
             ;
             and
             as
             to
             the
             Evidence
             ,
             that
             the
             Lady
             was
             in
             
               mala
               fide
            
             ;
             they
             are
             no
             wayes
             sufficient
             ,
             by
             her
             consent
             that
             the
             Children
             should
             be
             provided
             with
             the
             Coal
             ,
             was
             in
             contemplation
             of
             her
             eldest
             Sons
             Marriage
             ,
             which
             took
             no
             effect
             ,
             and
             the
             rest
             are
             meire
             presumptions
             ,
             and
             dato
             she
             had
             known
             
               privata
               notitia
               non
               nocet
            
             ,
             unlesse
             there
             had
             been
             some
             Intimation
             ,
             Citation
             or
             Judicial
             Act
             to
             put
             her
             in
             
               mala
               fide
            
             ;
             and
             especially
             private
             knowledge
             infers
             not
             
               mala
               fide
            
             ,
             unless
             it
             had
             been
             anterior
             to
             her
             possession
             .
             The
             Pursuer
             answered
             to
             the
             last
             point
             ,
             that
             albeit
             private
             knowledge
             in
             some
             cases
             would
             not
             infer
             
               mala
               fides
            
             among
             strangers
             ,
             yet
             a
             mother
             knowing
             the
             right
             of
             her
             own
             Children
             ,
             whereof
             one
             were
             in
             her
             womb
             ,
             it
             puts
             her
             in
             
               mala
               fide
            
             ,
             seing
             she
             was
             thereby
             oblidged
             to
             have
             sought
             Tutors
             ,
             and
             preserved
             their
             Right
             .
          
           
             The
             Lords
             found
             the
             Evidences
             sufficient
             to
             prove
             the
             Defender
             to
             have
             been
             in
             
               mala
               fide
            
             ,
             and
             therefore
             repelled
             this
             Defense
             also
             ,
             and
             Ordained
             the
             Defender
             to
             comp
             for
             the
             intromission
             ,
             but
             found
             that
             the
             charge
             ought
             not
             to
             be
             stated
             according
             as
             the
             profit
             of
             the
             Coal
             fell
             out
             to
             be
             ,
             but
             as
             the
             profit
             thereof
             might
             be
             
               communibus
               annis
            
             ,
             in
             regard
             she
             quat
             her
             certain
             Li●erent
             of
             the
             Lands
             for
             an
             uncertain
             Coal
             ,
             and
             therefore
             abated
             a
             fourth
             part
             of
             what
             the
             free
             Profit
             of
             the
             Coal
             was
             found
             to
             be
             by
             the
             last
             accompt
             .
          
        
         
           
             Alison
             Wardlaw
             contra
             Robert
             Gray
             .
             Eodem
             die
             .
          
           
             
               ALlison
               Wardlaw
            
             ,
             as
             Executrix
             Creditrix
             confirmed
             to
             her
             Husband
             ,
             and
             having
             confirmed
             the
             Rents
             due
             to
             him
             by
             
               Robert
               Gray
            
             Pursuer
             therefore
             .
             The
             said
             Robert
             alleadged
             absolvitor
             ,
             for
             a
             part
             of
             these
             Rents
             ,
             because
             payed
             ,
             which
             he
             offered
             to
             prove
             by
             the
             Defuncts
             Compt-book
             in
             the
             Pursuers
             hands
             ,
             which
             Compt-book
             is
             written
             with
             the
             Defuncts
             own
             hand
             ,
             and
             bears
             several
             Recepts
             payed
             by
             the
             Defender
             at
             several
             times
             .
             The
             Pursuer
             
             alleadged
             ,
             that
             the
             Compt-book
             cannot
             prove
             ,
             because
             it
             wants
             a
             subscription
             ,
             and
             Compt-books
             do
             only
             prove
             
               contra
               scribentem
            
             ,
             in
             the
             case
             of
             Merchants
             ,
             who
             keeped
             exact
             current
             Compt-books
             ,
             which
             is
             a
             special
             priviledge
             of
             theirs
             ,
             and
             was
             never
             extended
             to
             any
             other
             case
             ,
             nor
             to
             any
             other
             person
             ,
             for
             a
             discharge
             subscribed
             before
             Witnesses
             would
             not
             liberat
             ,
             if
             it
             were
             not
             delivered
             to
             the
             other
             Partie
             ,
             much
             less
             can
             a
             Compt-book
             ,
             Secondly
             ,
             Whatever
             it
             could
             work
             against
             the
             Writter
             and
             his
             Heirs
             ,
             yet
             not
             against
             Assigneys
             or
             Executors
             Creditors
             ,
             who
             are
             in
             effect
             singular
             Successors
             for
             their
             own
             payment
             ,
             otherwayes
             no
             Assigney
             could
             be
             secure
             ,
             but
             after
             the
             Assignation
             ,
             the
             Cedent
             might
             write
             Receits
             in
             his
             Book
             ;
             but
             though
             he
             should
             grant
             a
             Holograph
             Discharge
             bearing
             date●
             before
             the
             Assignation
             ,
             it
             would
             not
             prove
             against
             the
             Assigney
             ,
             The
             Defender
             answered
             ,
             that
             the
             Compt-book
             was
             sufficient
             to
             prove
             liberation
             ,
             being
             by
             a
             Judicious
             Person
             ,
             though
             not
             a
             Merchant
             ,
             for
             it
             could
             be
             done
             to
             no
             other
             intent
             ,
             then
             to
             preserve
             the
             memory
             of
             the
             payment
             made
             ,
             which
             though
             most
             ordinar
             amongst
             Merchants
             ,
             is
             no
             special
             priviledge
             of
             theirs
             ,
             and
             albeit
             an
             undelivered
             discharge
             would
             not
             be
             sufficient
             ,
             yet
             that
             being
             but
             
               unicum
               hirographum
            
             ,
             requiring
             delivery
             ,
             hath
             no
             effect
             without
             delivery
             ,
             but
             a
             Compt-book
             contains
             many
             Writs
             ,
             and
             requires
             no
             delivery
             ,
             and
             albeit
             it
             should
             not
             prove
             against
             an
             Assigny
             .
             as
             neither
             would
             an
             holograph
             discharge
             ,
             yet
             it
             is
             sufficient
             against
             an
             Executor
             Creditor
             ,
             who
             can
             leave
             no
             Right
             till
             the
             Defunct
             be
             dead
             ,
             and
             so
             their
             can
             be
             no
             hazard
             of
             Recepts
             posterior
             to
             their
             Right
             ,
             and
             therefore
             against
             Creditor
             ,
             Holograph
             discharge
             would
             prove
             .
          
           
             The
             Lords
             found
             that
             the
             alleadgeance
             of
             the
             Compt-book
             written
             with
             the
             Defuncts
             own
             hand
             sufficient
             to
             instruct
             payment
             ,
             of
             the
             Articles
             mentioned
             therein
             ,
             but
             seing
             the
             Defender
             who
             payed
             was
             on
             life
             ,
             and
             present
             ,
             Ordained
             him
             to
             make
             faith
             that
             he
             truely
             payed
             accordingly
             .
          
        
         
           
             Primrose
             contra
             Duij
             .
             November
             22.
             1662.
             
          
           
             PRimrose
             having
             pursued
             a
             Reduction
             of
             a
             Decreet
             Arbitral
             betwixt
             him
             and
             Duij
             .
             The
             said
             
               Duij
               alleadged
            
             homologation
             of
             the
             Decreet
             ,
             by
             acceptance
             and
             payment
             of
             a
             Precept
             direct
             to
             him
             by
             Primrose
             ,
             for
             payment
             of
             a
             part
             of
             the
             Sum
             contained
             in
             the
             Decreet
             ;
             bearing
             expresly
             to
             be
             in
             satisfaction
             of
             a
             part
             of
             the
             Decreet
             ,
             which
             was
             found
             relevant
             ,
             and
             admitted
             to
             Duij's
             probation
             ,
             for
             proving
             whereof
             ,
             Duij
             produced
             the
             Precept
             acceptance
             and
             Discharge
             .
             It
             was
             alleadged
             ,
             that
             the
             Writs
             produced
             proved
             not
             to
             the
             homologation
             of
             the
             Decreet
             ,
             as
             to
             the
             Article
             controverted
             ,
             being
             the
             fraught
             of
             a
             Vessel
             ;
             which
             Duij
             offered
             to
             prove
             ,
             to
             have
             been
             decerned
             to
             have
             been
             within
             the
             third
             part
             of
             the
             just
             avail
             ,
             and
             the
             Precept
             bare
             payment
             of
             five
             Dollars
             ,
             decerned
             for
             the
             deterioration
             of
             the
             Tackling
             ,
             by
             vertue
             of
             a
             promise
             .
          
           
             The
             Lords
             having
             considered
             the
             Decreet
             Arbitrall
             ,
             and
             Precept
             ,
             found
             it
             proved
             not
             the
             homologation
             ,
             as
             to
             the
             point
             in
             Question
             ,
             because
             the
             Decreet
             contained
             divers
             heads
             .
             The
             Precept
             bare
             to
             pay
             the
             deterioration
             of
             the
             Tackling
             ,
             and
             bare
             expresly
             ,
             that
             the
             same
             was
             uncon●raverse
             ,
             and
             founded
             upon
             the
             Defenders
             promise
             .
          
        
         
           
           
             Sawer
             contra
             Rutherfoord
             November
             25.
             1662.
             
          
           
             SAwer
             having
             Wodset
             some
             Tenements
             in
             Edinburgh
             ,
             to
             Rutherfoord
             ,
             wherein
             there
             was
             a
             Clause
             irritant
             ,
             bearing
             ,
             that
             if
             Sawer
             did
             not
             put
             Rutherfoord
             in
             possession
             of
             the
             hail
             Tenement
             ,
             the
             Reversion
             should
             expire
             ,
             whereupon
             Rutherfoord
             obtained
             Declarator
             ,
             of
             the
             expyring
             of
             the
             Reversion
             ,
             because
             Sawer
             had
             detained
             a
             part
             of
             the
             Tenement
             ,
             Sawer
             raised
             Suspension
             and
             Reduction
             of
             the
             Decreet
             of
             Declarator
             ,
             upon
             these
             Reasons
             .
             First
             ,
             The
             clause
             irritant
             was
             
               punctum
               legis
               Commissaria
            
             in
             reprobat
             in
             Law.
             Secondly
             ,
             Because
             ,
             by
             the
             Act
             of
             Parliament
             1661.
             betwixt
             Debitor
             and
             Creditor
             ,
             It
             was
             declared
             ,
             that
             claules
             irritant●
             for
             not
             payment
             of
             the
             Sums
             in
             Wodsets
             since
             1649.
             should
             not
             be
             effectual
             .
             The
             Defender
             answered
             to
             the
             First
             Reason
             ,
             that
             by
             Act
             of
             Sederunt
             of
             the
             Lords
             ,
             in
             Anno
             1642.
             
             Clauses
             Irritant
             ,
             and
             Failzies
             were
             declared
             effectual
             ;
             and
             albeit
             the
             Lords
             
               ex
               gratia
            
             ,
             are
             in
             use
             to
             suffer
             Parties
             failzeing
             to
             purge
             the
             failzie
             ,
             by
             satisfying
             Damnage
             and
             Interest
             at
             the
             Barr
             ;
             yet
             it
             could
             not
             now
             be
             received
             a
             Decreet
             
               in
               foro
               contradictorio
            
             .
             To
             the
             second
             Reason
             ;
             It
             was
             Answered
             ,
             that
             the
             said
             Act
             of
             Parliament
             was
             special
             ,
             in
             relation
             to
             Clauses
             Irritant
             ,
             for
             not
             payment
             of
             the
             Sum
             in
             the
             Wodset
             ,
             which
             was
             
               stricti
               juris
            
             ,
             and
             could
             not
             be
             extended
             to
             this
             wilful
             Failzie
             ,
             in
             the
             Pursuers
             not
             removing
             ,
             and
             possessing
             him
             ,
             and
             for
             the
             Decreet
             it
             was
             in
             absence
             ,
             albeit
             a
             Supplication
             was
             given
             in
             after
             the
             Decreet
             ,
             desiring
             to
             be
             heard
             ,
             whereupon
             he
             was
             not
             heard
             ,
             but
             the
             answer
             to
             the
             Suplication
             bare
             ,
             that
             his
             desire
             was
             only
             competent
             ,
             by
             way
             of
             Susppension
             and
             Reduction
             .
          
           
             The
             Lords
             found
             the
             Decreet
             not
             to
             be
             
               in
               foro
               contradictorio
            
             ;
             and
             therefore
             reponed
             the
             Pursuer
             to
             purge
             the
             Failzie
             ,
             by
             possessing
             the
             Defender
             ,
             and
             paying
             damnage
             ;
             but
             found
             that
             the
             Clause
             in
             the
             Act
             of
             Parliament
             reached
             not
             to
             this
             Case
             ,
             but
             whereas
             the
             Pursuer
             craved
             compt
             and
             reckoning
             of
             the
             profits
             of
             the
             Wodset
             Tenement
             ,
             by
             the
             said
             Act
             of
             Parliament
             bearing
             ,
             That
             Improper
             Wodsets
             ,
             where
             the
             granter
             of
             the
             Wodset
             ,
             is
             in
             the
             hazard
             of
             Publick
             Burden
             ,
             &c.
             being
             since
             1649.
             
             The
             Wodsetter
             should
             be
             comptable
             for
             the
             Profits
             more
             nor
             the
             Annualrents
             ,
             since
             the
             Date
             of
             the
             Wodset
             .
          
           
             The
             Lords
             having
             considered
             the
             Woodset
             ,
             by
             which
             the
             Wodsetter
             bare
             the
             publick
             Burden
             ,
             found
             the
             said
             Clause
             of
             the
             Act
             not
             extended
             ,
             to
             make
             the
             Defender
             comptable
             since
             the
             Date
             of
             the
             Wodset
             ,
             but
             only
             since
             the
             Date
             of
             the
             offer
             ,
             to
             secure
             the
             Wodseter
             conform
             to
             the
             Act
             of
             Parliament
             ,
             by
             vertue
             of
             an
             other
             Clauses
             of
             the
             said
             Act
             ,
             Ordaining
             all
             Wodsetters
             to
             compt
             for
             the
             superplus
             ,
             and
             to
             possesse
             the
             granter
             of
             the
             Wodset
             ,
             he
             finding
             Caution
             for
             the
             Annualrents
             ,
             or
             to
             restrict
             to
             his
             Annualrent
             .
          
        
         
           
           
             Lord
             Burghly
             contra
             Iohn
             Syme
             .
             Eodem
             die
             .
          
           
             LOrd
             Burghly
             ,
             and
             his
             Authors
             ,
             being
             Infeft
             by
             the
             Abbot
             of
             Dumfermling
             ,
             in
             the
             Coal-heugh
             of
             Keltie
             ,
             with
             power
             to
             win
             Coals
             within
             the
             bounds
             of
             the
             Lands
             of
             Cocklaw
             and
             Losodie
             ;
             pursues
             
               John
               Sime
            
             Heretor
             of
             Losodie
             ,
             for
             declaring
             his
             Right
             to
             win
             Coal
             in
             Losodie
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             he
             and
             his
             Authors
             were
             Infeft
             in
             the
             Lands
             of
             Losodie
             ,
             with
             the
             pertinents
             ,
             above
             the
             Ground
             ,
             and
             under
             the
             Ground
             ,
             long
             before
             the
             Pursuers
             Authors
             Right
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defenders
             Infeftment
             could
             not
             furnish
             him
             Right
             to
             the
             Coal
             of
             Losodie
             ;
             because
             it
             bare
             no
             power
             to
             win
             Coal
             ,
             but
             being
             only
             a
             Feu
             ,
             which
             is
             a
             perpetual
             Location
             ,
             it
             reaches
             not
             to
             Coal
             ,
             not
             being
             expressed
             :
             especially
             ,
             seing
             in
             the
             Tenendas
             all
             the
             ordinary
             priviledges
             were
             exprest
             ,
             even
             of
             Peit
             and
             Turff
             ,
             and
             Coal
             was
             omitted
             ,
             and
             because
             the
             Defenders
             Chartor
             bare
             expresly
             a
             reservation
             to
             the
             Abbot
             ,
             and
             his
             Successors
             ,
             to
             win
             Coal
             in
             Losodie
             ,
             for
             their
             own
             proper
             use
             allenarly
             .
             The
             Defender
             Answered
             ,
             that
             the
             Right
             of
             the
             Land
             being
             Feu
             ,
             with
             the
             Pertinents
             ,
             did
             extend
             to
             Coal
             ,
             albeit
             not
             exprest
             ,
             seing
             it
             was
             not
             wholly
             observed
             ;
             according
             to
             Craigs
             opinion
             ,
             and
             for
             the
             Reservation
             ,
             it
             did
             further
             clear
             the
             Defenders
             Right
             ,
             that
             seing
             the
             Abbot
             reserved
             only
             power
             to
             win
             Coal
             for
             his
             own
             use
             ,
             
               exceptio
               firma●
               regulam
               in
               non
               exceptis
               ,
            
             whereby
             the
             Defender
             had
             Right
             to
             the
             remanent
             of
             the
             Coal
             ,
             neither
             could
             the
             exception
             extend
             to
             the
             Pursuer
             ,
             but
             only
             to
             the
             Abbot
             ,
             and
             give
             to
             his
             Successors
             only
             ,
             to
             these
             Succeeding
             in
             the
             Abbacy
             ,
             viz.
             the
             Earl
             of
             Dumfermling
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defenders
             Infeftment
             was
             Confirmed
             long
             after
             the
             Pursuers
             ,
             and
             that
             the
             Defenders
             Confirmation
             was
             not
             of
             the
             first
             Feu
             ,
             but
             of
             a
             second
             Right
             ,
             from
             the
             first
             Feuar
             ,
             and
             by
             the
             Act
             of
             Parliament
             anent
             Feus
             ,
             it
             was
             declared
             ,
             that
             Feus
             since
             March
             1658.
             not
             confirmed
             by
             the
             King
             ,
             before
             1584.
             were
             ●ull
             ,
             at
             least
             another
             Act
             of
             Parliament
             bare
             expresly
             ,
             that
             where
             there
             were
             divers
             Feus
             granted
             of
             the
             same
             thing
             ,
             the
             first
             ,
             Confirmation
             with
             the
             last
             Feu
             ,
             should
             be
             preferable
             .
          
           
             The
             Lords
             found
             the
             Defense
             founded
             upon
             the
             Defenders
             Rights
             ,
             relevant
             ,
             and
             proven
             thereby
             ;
             and
             therefore
             found
             the
             Pursuer
             had
             only
             right
             to
             win
             Coals
             in
             Losodie
             ,
             for
             his
             own
             use
             ,
             and
             found
             the
             Pursuer
             Successor
             to
             the
             Abbots
             by
             his
             Infefments
             of
             the
             said
             Priviledge
             of
             wining
             Coal
             in
             Losodie
             ,
             for
             his
             own
             use
             only
             ,
             and
             found
             the
             saids
             Acts
             of
             Parliament
             ,
             that
             by
             the
             late
             Act
             ;
             the
             Right
             of
             the
             ancient
             Possessors
             ,
             and
             kindly
             Tenents
             was
             reserved
             ;
             so
             that
             if
             they
             did
             not
             Confirm
             before
             the
             Year
             1584.
             
             They
             were
             only
             lyable
             for
             a
             greater
             Feu-dutie
             ,
             wherein
             the
             Pursuer
             not
             being
             Superiour
             ,
             had
             no
             interest
             ,
             and
             found
             the
             Defenders
             Infeftment
             ,
             that
             his
             Authors
             were
             kindly
             Tenents
             ,
             and
             had
             a
             19
             year
             tack
             before
             the
             Feu
             .
          
        
         
           
           
             Patrick
             and
             Joseph
             Dowglasses
             contra
             Lindsay
             of
             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
             
             Families
             ,
             was
             ever
             a
             burthen
             on
             their
             Moveables
             ,
             and
             upon
             their
             Executry
             .
             The
             Pursuer
             answered
             ,
             though
             it
             was
             ordinarly
             retained
             off
             the
             Moveables
             ,
             yet
             the
             Heir
             was
             also
             lyable
             ,
             seing
             the
             Defunct
             was
             oblieged
             to
             entertain
             his
             Servants
             and
             Children
             ,
             at
             least
             to
             a
             Term
             ,
             but
             much
             more
             when
             there
             were
             no
             Moveables
             ,
             or
             where
             the
             Defunct
             was
             Rebel
             ,
             and
             the
             Donatar
             intrometted
             .
             The
             Defender
             answered
             ,
             that
             it
             was
             novum
             to
             conveen
             an
             Heir
             on
             this
             ground
             ,
             and
             that
             the
             Alledgiance
             of
             there
             being
             no
             Moveables
             held
             not
             here
             ;
             neither
             is
             it
             relevant
             that
             the
             Moveables
             were
             gifted
             ,
             unless
             it
             had
             been
             declared
             before
             the
             Defunct's
             Death
             and
             Possession
             obtained
             ,
             otherwayes
             the
             Relict
             ought
             to
             have
             Alimented
             the
             Family
             out
             of
             the
             Moveables
             ,
             which
             would
             have
             liberat
             her
             from
             the
             Donatar
             ,
             and
             is
             yet
             ground
             against
             the
             Donatars
             .
             The
             Pursuer
             answered
             ,
             she
             could
             not
             retain
             ,
             because
             the
             Donatar
             with
             Concourse
             of
             the
             Defender
             did
             put
             her
             
               brevi
               manu
            
             from
             the
             Defunct's
             House
             and
             all
             the
             Moveables
             .
          
           
             The
             Lords
             having
             amongst
             themselves
             considered
             this
             Process
             ,
             did
             put
             difference
             between
             the
             Aliment
             of
             the
             Appearant
             Heir
             ,
             and
             the
             rest
             of
             the
             Family
             :
             As
             to
             the
             Heir
             they
             found
             ,
             that
             albeit
             he
             was
             never
             Infeft
             ,
             yet
             as
             Appearant
             Heir
             ,
             he
             had
             Right
             to
             the
             Mails
             and
             Duties
             from
             his
             Fathers
             Death
             ,
             untill
             his
             own
             Death
             ,
             though
             the
             Terms
             had
             been
             to
             run
             before
             he
             was
             born
             ,
             being
             
               in
               utero
            
             ,
             and
             that
             the
             Defender
             ,
             in
             so
             far
             as
             medling
             with
             the
             Rents
             ,
             was
             lyable
             for
             the
             Appearant
             Heirs
             Aliment
             ;
             but
             for
             the
             rest
             of
             the
             Familie
             ,
             the
             Lords
             superceeded
             to
             give
             answer
             till
             diligence
             were
             done
             against
             the
             Donatar
             ,
             or
             other
             Intrometters
             with
             the
             Moveables
             .
          
        
         
           
             Thomas
             Dumbar
             of
             Muchrome
             contra
             The
             Vassals
             of
             the
             Barrony
             of
             Muchrome
             .
             Eodem
             die
             .
          
           
             
               THomas
               Dumbar
            
             of
             Muchrome
             ,
             pursues
             Reduction
             and
             Improbation
             against
             the
             Vassals
             of
             the
             Barrony
             of
             Mochrume
             ,
             wherein
             all
             the
             Terms
             being
             run
             ,
             reserving
             Defenses
             .
             Now
             at
             the
             last
             Term
             it
             was
             alleaged
             ,
             for
             Hay
             of
             Arriolland
             ,
             no
             Certification
             
               contra
               non
               producta
            
             against
             him
             ,
             because
             he
             had
             produced
             a
             Precept
             of
             
               clare
               constat
            
             from
             the
             Pursuers
             Father
             as
             Heir
             ,
             to
             whom
             he
             pursues
             .
             Secondly
             ,
             It
             was
             alleaged
             that
             he
             had
             produced
             sufficiently
             to
             exclude
             the
             Pursuers
             Right
             produced
             ,
             and
             so
             till
             his
             Rights
             produced
             were
             discust
             and
             taken
             away
             ,
             there
             could
             be
             no
             Certification
             
               contra
               non
               producta
            
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             the
             Precept
             of
             
               clare
               constat
            
             was
             but
             in
             obedience
             of
             a
             Precept
             out
             of
             the
             Chancellary
             .
             As
             to
             the
             Ancient
             Rights
             produced
             ,
             if
             the
             Defender
             would
             rest
             thereon
             ,
             he
             needed
             not
             stand
             that
             Certification
             should
             be
             granted
             against
             any
             others
             not
             produced
             ,
             seing
             these
             produced
             are
             sufficient
             ;
             but
             if
             the
             Certification
             should
             be
             thus
             stopped
             ,
             the
             effect
             of
             all
             Improbations
             and
             Non-entries
             should
             be
             marred
             by
             dropping
             in
             new
             Writs
             from
             time
             to
             time
             ,
             and
             still
             disputing
             thereon
             ,
             and
             so
             dispute
             the
             Reasons
             before
             the
             Production
             were
             closed
             ,
             at
             least
             the
             Defender
             ought
             to
             alledge
             that
             the
             Writs
             produced
             are
             sufficient
             ,
             and
             declare
             he
             will
             make
             use
             of
             no
             further
             in
             this
             Process
             .
          
           
             The
             Lords
             repelled
             the
             first
             Alleadgance
             on
             the
             Precept
             of
             
               clare
               constat
            
             being
             for
             obedience
             ,
             but
             found
             the
             second
             Alleadgance
             relevant
             
               hoc
               ordine
            
             ,
             and
             ordained
             the
             Defender
             to
             condescend
             upon
             his
             Rights
             by
             way
             of
             Defence
             to
             the
             Pursuer
             ,
             to
             answer
             thereto
             presently
             .
          
        
         
           
           
             Collonel
             Iohn
             Fullertoun
             contra
             Viscount
             of
             Kingstoun
             .
             Ianuary
             8.
             1663.
             
          
           
             COllonel
             
               Iohn
               Fullertoun
            
             having
             charged
             the
             Viscount
             of
             Kingstoun
             ,
             upon
             a
             Bond
             of
             borrowed
             Mony
             ,
             he
             suspends
             on
             these
             Reasons
             .
             That
             the
             Collonel
             granted
             Assignation
             to
             Umquile
             Sir
             
               Alexander
               Dowglas
            
             to
             a
             Sum
             dew
             by
             Sir
             
               William
               Thomson
            
             ;
             and
             notwithstanding
             of
             the
             Assignation
             he
             uplifted
             the
             Sum
             himself
             ,
             at
             least
             his
             Brother
             by
             his
             order
             ,
             whereupon
             the
             Lady
             Kingstoun
             ;
             Daughter
             and
             Heir
             to
             the
             said
             Sir
             Alexander
             ,
             having
             Licence
             to
             pursue
             ,
             hath
             pursued
             the
             Collonel
             upon
             the
             Warrandice
             for
             Re-payment
             ;
             which
             Action
             being
             seen
             and
             returned
             ,
             and
             ready
             to
             be
             discust
             ,
             the
             Suspender
             craves
             Compensation
             thereon
             .
             The
             Charger
             answered
             ,
             That
             the
             reason
             of
             Compensation
             is
             not
             relevant
             ,
             because
             it
             is
             not
             liquid
             ,
             the
             foresaid
             Sum
             not
             being
             confirmed
             by
             any
             Executor
             ,
             nor
             Sentence
             thereupon
             ;
             neither
             can
             it
             be
             instantly
             verified
             ,
             because
             it
             must
             abide
             Probation
             ,
             that
             the
             Collonel
             or
             his
             Brother
             by
             his
             order
             uplifted
             the
             Sum
             ,
             and
             there
             being
             only
             a
             licence
             to
             pursue
             ,
             the
             Debt
             cannot
             be
             established
             till
             a
             Confirmation
             .
             Secondly
             ,
             Albeit
             the
             Compensation
             were
             relievable
             ,
             yet
             the
             Reason
             ought
             to
             be
             repelled
             ;
             because
             ,
             that
             any
             such
             Assignation
             was
             granted
             ,
             it
             was
             in
             trust
             ,
             to
             the
             Collonels
             own
             behove
             ,
             as
             is
             instructed
             by
             a
             missive
             Letter
             to
             the
             Charger
             produced
             .
             It
             was
             answered
             for
             the
             Suspender
             ,
             that
             the
             Answers
             founded
             upon
             the
             missive
             Letter
             ought
             to
             be
             repelled
             ,
             because
             it
             was
             null
             ,
             neither
             being
             Holograph
             ,
             nor
             having
             Witnesses
             .
             Secondly
             ,
             It
             is
             most
             suspect
             ,
             being
             written
             upon
             old
             blacked
             Paper
             .
             The
             Charger
             answered
             ,
             that
             Letters
             amongst
             Merchands
             ,
             though
             not
             Holograph
             ,
             are
             sustained
             ,
             and
             ought
             much
             more
             among
             Souldiers
             ,
             especially
             between
             the
             Charger
             and
             Sir
             Alexander
             ,
             who
             then
             was
             his
             Lieutenant
             Collonel
             ;
             which
             is
             the
             more
             clear
             ,
             that
             there
             was
             never
             a
             question
             of
             it
             these
             20
             years
             ,
             neither
             was
             it
             contained
             in
             the
             Inventar
             of
             Sir
             Alexanders
             Papers
             ,
             though
             there
             were
             insert
             Papers
             of
             less
             moment
             ,
             but
             that
             it
             was
             gotten
             from
             one
             White
             ,
             for
             40.
             or
             50.
             
             Pound
             .
          
           
             The
             Lords
             repelled
             the
             Compensation
             ,
             as
             not
             being
             liquid
             ,
             and
             found
             the
             Letters
             orderly
             proceeded
             ,
             superceeding
             Execution
             till
             Whitsunday
             1663.
             
             But
             upon
             the
             other
             Process
             against
             the
             Charger
             ,
             The
             Lords
             considering
             the
             matter
             was
             old
             and
             dubious
             ,
             before
             Answer
             ,
             they
             ordained
             Witnesses
             to
             be
             examined
             
               hinc
               inde
            
             ,
             upon
             all
             Adminicles
             that
             could
             be
             adduced
             for
             ,
             or
             against
             the
             Trust.
             
          
        
         
           
             Lady
             Otter
             contra
             Laird
             of
             Otter
             .
             Eodem
             die
             .
          
           
             THe
             Umquhile
             Laird
             of
             Otter
             ,
             by
             his
             Contract
             of
             Marriage
             ,
             having
             provided
             his
             Estate
             to
             his
             Heir
             Male
             ;
             provided
             5000
             Merks
             to
             his
             eldest
             Heir
             Female
             ,
             when
             she
             should
             be
             capable
             of
             Marriage
             ;
             and
             an
             occasion
             offered
             ,
             whereupon
             the
             said
             Heir
             Female
             her
             Mother
             pursues
             the
             Heir
             Male
             
             for
             payment
             of
             the
             Sum
             ,
             and
             for
             payment
             of
             an
             Aliment
             to
             the
             Heir
             Female
             during
             the
             time
             she
             hath
             been
             with
             her
             Mother
             ,
             and
             in
             time
             coming
             ,
             till
             the
             provision
             be
             payed
             .
             The
             Defender
             alleadged
             the
             Libel
             is
             no
             way
             relevant
             ,
             for
             Aliment
             ,
             he
             not
             being
             oblidged
             by
             the
             Contract
             ,
             for
             any
             Aliment
             ,
             but
             only
             for
             the
             Sum
             ,
             at
             such
             a
             time
             ;
             neither
             is
             there
             any
             Annualrent
             due
             for
             the
             Provision
             ,
             till
             the
             Term
             of
             payment
             .
          
           
             Yet
             the
             Lords
             found
             ,
             that
             albeit
             that
             was
             no
             Annualrent
             ,
             nor
             provision
             for
             Aliment
             ,
             and
             that
             
               de
               jure
            
             Annualrent
             is
             but
             due
             ,
             
               ex
               pacto
            
             ,
             they
             would
             in
             this
             case
             allow
             an
             Aliment
             ,
             far
             within
             the
             Annualrent
             ,
             because
             it
             was
             all
             that
             the
             Daughters
             got
             for
             a
             very
             considerable
             Estate
             ,
             which
             was
             but
             a
             very
             small
             provision
             .
          
        
         
           
             Patrick
             Nicoll
             contra
             Sir
             Alexander
             Hope
             .
             Eodem
             die
             .
          
           
             
               PAtrick
               Nicoll
            
             pursues
             a
             Declarator
             of
             Propertie
             of
             his
             Lands
             ,
             of
             Grantoun
             ,
             and
             that
             he
             had
             good
             Right
             thereto
             ,
             conform
             to
             the
             Bounds
             Lybelled
             .
             It
             was
             alleadged
             ,
             for
             Sir
             
               Alexander
               Hope
               .
               First
            
             ,
             All
             Parttes
             having
             interest
             are
             not
             called
             ,
             this
             being
             an
             Action
             ,
             that
             in
             effect
             terminateth
             upon
             a
             Perambulation
             ,
             or
             Determining
             of
             the
             Marches
             .
             It
             is
             a
             Real
             Action
             ,
             and
             there
             is
             necessity
             to
             call
             the
             Heirs
             of
             Sir
             
               Iohn
               Hope
            
             ,
             who
             died
             last
             ,
             vest
             and
             seased
             ,
             in
             the
             other
             adjacent
             Lands
             .
             The
             Pursuer
             answered
             ,
             that
             he
             offered
             him
             to
             prove
             ,
             that
             Sir
             Iohn
             had
             Disponed
             in
             favour
             of
             Sir
             Alexander
             ,
             and
             resigned
             in
             his
             time
             .
             It
             was
             answered
             for
             Sir
             Alexander
             ,
             that
             Sir
             Iohn
             was
             not
             Denuded
             ;
             seing
             no
             Infeftment
             followed
             ,
             and
             the
             Disposition
             is
             but
             an
             incompleat
             Personal
             Right
             ,
             so
             that
             some
             having
             the
             Real
             Right
             must
             be
             called
             .
          
           
             
               The
               Lords
               repelled
               the
               Defense
               ,
               in
               respect
               of
               the
               Reply
               .
            
             It
             was
             further
             alleadged
             for
             Sir
             Alexander
             ,
             that
             he
             had
             builded
             a
             park
             dyke
             upon
             a
             part
             of
             the
             Ground
             in
             Question
             ,
             before
             the
             Pursuers
             Right
             ,
             
               sciente
               &
               astante
               domino
            
             :
             the
             former
             Heretor
             having
             never
             opposed
             ,
             nor
             contradicted
             ,
             which
             must
             necessarily
             infer
             his
             consent
             .
             The
             Pursuer
             answered
             ,
             that
             it
             was
             not
             relevant
             ,
             to
             take
             away
             any
             part
             of
             the
             Property
             ,
             upon
             such
             a
             presumptive
             consent
             ,
             neither
             was
             he
             oblieged
             to
             disassent
             ,
             seing
             he
             knew
             that
             which
             was
             builded
             upon
             his
             Ground
             ,
             would
             become
             his
             own
             
               in
               edificatum
               solo
               cedit
            
             .
          
           
             The
             Lords
             repelled
             this
             Defense
             also
             ,
             but
             they
             thought
             that
             the
             taciturnitie
             might
             operat
             this
             much
             ,
             that
             Sir
             Alexander
             might
             remove
             the
             materialls
             of
             his
             Wall
             ,
             or
             get
             from
             
               Patrick
               Nicol
            
             quantum
             partem
             est
             lucratus
             ,
             
               by
               the
               building
               of
               the
               Wall.
               
            
          
        
         
           
             Murray
             of
             Merstoun
             contra
             Thomas
             Hunterr
             .
             Eodem
             die
             .
          
           
             MVrray
             of
             Merstoun
             pursues
             
               Thomas
               Hunter
            
             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
             
             thus
             ,
             That
             the
             Defender
             intrusted
             a
             Messenger
             ,
             or
             Officer
             ,
             to
             execute
             a
             Precept
             of
             Poynding
             ,
             by
             delivering
             him
             the
             Precept
             ,
             and
             therefore
             the
             Precept
             ,
             with
             the
             execution
             thereupon
             is
             sufficient
             Probation
             .
             The
             Defender
             answered
             ,
             that
             the
             same
             is
             not
             sufficient
             ;
             because
             the
             Officer
             execute
             the
             Precept
             
               extra
               territorium
            
             ,
             whereby
             it
             became
             a
             Spuilzie
             ,
             which
             ought
             not
             to
             be
             imputed
             to
             the
             Defender
             ,
             unlesse
             it
             were
             offered
             to
             be
             proven
             ,
             that
             he
             ordained
             the
             Officer
             to
             Poynd
             this
             Malt
             without
             the
             Jurisdiction
             ,
             and
             that
             only
             
               scripto
               vel
               juramento
            
             .
             The
             Pursuer
             answered
             ,
             that
             as
             the
             giving
             of
             a
             Precept
             of
             Seasin
             ,
             is
             a
             sufficient
             warrant
             ,
             without
             any
             other
             Procuratry
             ,
             whatever
             the
             effect
             of
             the
             Seasin
             be
             ,
             so
             must
             the
             delivery
             of
             the
             Precept
             of
             Poynding
             be
             sufficient
             to
             instruct
             the
             warrand
             ,
             or
             command
             to
             Poynd
             ,
             where-ever
             the
             Poynding
             was
             execute
             ,
             and
             the
             user
             of
             the
             Poynding
             should
             be
             lyable
             to
             the
             deeds
             done
             by
             the
             person
             he
             intrusts
             ;
             Especially
             ,
             seing
             not
             only
             the
             Messenger
             was
             sent
             ,
             but
             other
             Servants
             ,
             and
             Messengers
             imployed
             by
             the
             user
             of
             the
             Poynding
             .
          
           
             The
             Lords
             found
             the
             giving
             of
             the
             Precept
             of
             Poynding
             to
             the
             Messenger
             ,
             and
             his
             unwarrantable
             poynding
             
               Extra
               territorium
            
             not
             sufficient
             only
             ,
             but
             found
             it
             relevant
             ,
             to
             prove
             ,
             by
             the
             Messenger
             ,
             and
             Defenders
             Servants
             imployed
             by
             him
             ,
             their
             Oaths
             ,
             that
             they
             were
             commanded
             to
             Poynd
             this
             Malt
             ,
             or
             other
             goods
             in
             this
             place
             ,
             being
             
               Extra
               territorium
            
             .
          
        
         
           
             Skeen
             contra
             Lumsdean
             .
             Eodem
             die
             .
          
           
             SKeen
             having
             charged
             
               Alexander
               Lumsdean
            
             ,
             for
             payment
             of
             a
             Bond
             ,
             for
             which
             he
             was
             Cautioner
             for
             Mr.
             
               Thomas
               Lumsdean
            
             his
             Brother
             ,
             Alexander
             Suspends
             on
             this
             Reason
             ;
             that
             the
             Bond
             was
             granted
             for
             a
             Bill
             of
             Exchange
             ,
             drawn
             by
             one
             Dutch
             man
             ,
             upon
             another
             to
             be
             payed
             to
             Skeen
             ,
             or
             his
             Order
             ,
             which
             Bill
             ,
             Skeen
             ordained
             to
             be
             payed
             to
             
               Anna
               Balty
            
             Spouse
             to
             Mr.
             
               Thomas
               Lumsdean
            
             ;
             for
             which
             this
             Bond
             was
             granted
             :
             
               Ita
               est
            
             the
             saids
             Bills
             of
             Exchange
             were
             not
             payed
             ,
             but
             protested
             ;
             and
             is
             assigned
             by
             Mr.
             
               Thomas
               Lumsdean
            
             ,
             and
             his
             Spouse
             ,
             to
             the
             Suspender
             ;
             at
             least
             ,
             if
             any
             payment
             was
             made
             to
             Mr.
             
               Thomas
               Lumsdean
            
             the
             Cedent
             ,
             it
             was
             after
             the
             Assignation
             to
             
               Alexander
               Lumsdean
            
             the
             Suspender
             ,
             and
             intimation
             thereof
             .
             It
             was
             answered
             ,
             for
             the
             Charger
             ,
             that
             the
             Reason
             ought
             to
             be
             repelled
             ,
             because
             he
             offered
             him
             to
             prove
             ,
             by
             Mr.
             
               Thomas
               Lumsdean
            
             ,
             at
             that
             time
             Factor
             at
             Campheir
             his
             Compt-book
             ;
             that
             albeit
             the
             Bills
             was
             once
             protested
             ,
             yet
             they
             were
             payed
             before
             Assignation
             ,
             or
             Intimation
             .
          
           
             The
             
               Lords
               before
               answer
               ,
               having
               granted
               several
               Commissions
               to
               the
               Magistrats
               ,
               and
               Conservitor
               at
            
             Campheir
             ,
             
               to
               view
               and
               examine
               the
               Compt-book
               which
               was
               at
            
             Campheir
             .
             They
             reported
             ,
             that
             in
             such
             a
             Page
             of
             the
             Book
             there
             was
             three
             Articles
             of
             Receipt
             ,
             in
             part
             of
             payment
             of
             the
             Bills
             ,
             after
             which
             Pages
             the
             Book
             was
             containued
             ,
             and
             several
             Compts
             written
             therein
             ,
             and
             that
             it
             was
             Authentick
             ,
             and
             Unvitiat
             ,
             and
             all
             written
             with
             the
             hand
             of
             
               Iohn
               Muire
            
             Mr.
             Thomas
             Stepson
             ,
             who
             was
             his
             Book-keeper
             ,
             and
             that
             they
             had
             been
             a
             long
             time
             since
             out
             of
             
               Mr.
               Thomas
            
             hands
             ,
             about
             the
             time
             he
             Bankerupted
             ,
             and
             that
             they
             had
             examined
             upon
             Oath
             ,
             him
             who
             drew
             the
             Bill
             ,
             amd
             him
             upon
             whom
             the
             Bill
             was
             drawn
             ,
             both
             ,
             who
             had
             sworn
             payment
             was
             made
             ,
             the
             question
             was
             ,
             whether
             Mr.
             Thomas
             Compt-book
             could
             prove
             against
             Mr
             Thomas
             his
             Assigney
             .
             It
             was
             alleadged
             ,
             It
             could
             not
             ,
             seing
             it
             had
             no
             more
             
             Effect
             then
             as
             Holograph
             Discharge
             ,
             which
             might
             be
             made
             up
             after
             the
             Assignation
             ,
             and
             therefore
             proves
             not
             against
             the
             Assigney
             .
             It
             was
             answered
             ,
             that
             though
             a
             Holograph
             Discharge
             will
             not
             prove
             alone
             ,
             yet
             if
             by
             other
             Adminicles
             ,
             Writs
             or
             Witnesses
             ,
             it
             appeas
             that
             the
             Date
             is
             true
             ,
             at
             least
             is
             prior
             to
             the
             Assignation
             ,
             or
             Intimation
             ,
             it
             will
             be
             sufficient
             against
             the
             Assigney
             ,
             so
             the
             Adminicles
             here
             are
             pregnant
             and
             strong
             ,
             to
             prove
             the
             time
             of
             payment
             contained
             in
             the
             Compt-Book
             .
          
           
             The
             Lords
             found
             the
             Compt-Book
             and
             Adminicles
             sufficient
             here
             against
             the
             Assigney
             ,
             especially
             considering
             ,
             that
             the
             Cedent
             was
             his
             Brother
             ,
             and
             that
             it
             was
             not
             presumable
             ,
             that
             he
             would
             do
             any
             Deed
             ,
             in
             making
             up
             these
             Receipts
             in
             his
             Compt-Book
             ,
             in
             prejudice
             of
             his
             Brother
             .
          
        
         
           
             Thomas
             Beg
             contra
             Sir
             Thomas
             Nicolson
             .
             Ianuary
             14.
             1663.
             
          
           
             
               THomas
               Beg
            
             charges
             Sir
             
               Thomas
               Nicolson
            
             of
             Carnock
             upon
             his
             Bond
             of
             4000
             Merk
             ;
             he
             Suspends
             on
             this
             Reason
             ,
             the
             Charger
             is
             only
             Liferenter
             ,
             and
             hath
             no
             right
             to
             lift
             the
             Sum
             ,
             because
             the
             Bond
             is
             conceived
             thus
             ,
             to
             
               Thomas
               Beg
            
             and
             his
             Spouse
             ,
             the
             longest
             Liver
             of
             them
             two
             in
             Conjunct-fee
             ,
             and
             to
             the
             Bairns
             procreat
             betwixt
             them
             ,
             which
             failzing
             ,
             to
             two
             Bairns
             of
             a
             former
             Marriage
             ,
             Thomas
             and
             
               Margaret
               Begs
            
             ,
             and
             which
             Bond
             contains
             a
             Precept
             of
             Seasife
             ,
             for
             Infefting
             the
             said
             Thomas
             and
             his
             Spouse
             ,
             and
             the
             Bairns
             of
             the
             Marriage
             ,
             which
             failzing
             ,
             the
             said
             Thomas
             and
             Margaret
             ,
             Bairns
             of
             the
             former
             Marriage
             ,
             according
             to
             which
             there
             was
             a
             Seasine
             taken
             ,
             not
             only
             to
             the
             two
             Spouses
             ,
             but
             to
             the
             two
             Bairns
             ,
             nominatim
             ,
             who
             therefore
             are
             Feears
             .
          
           
             The
             Lords
             repelled
             the
             Reason
             ;
             because
             having
             considered
             the
             Bond
             ,
             and
             Infeftment
             conceaved
             as
             aforesaid
             :
             they
             found
             the
             Husband
             ,
             by
             the
             Conjunct-fee
             to
             be
             Feear
             ,
             and
             the
             Bairns
             of
             the
             Marriage
             to
             be
             destinat
             Heirs
             of
             Provision
             ;
             and
             the
             said
             Margaret
             and
             Thomas
             ,
             to
             be
             only
             substitue
             as
             Heirs
             of
             Tailzie
             ,
             failzing
             the
             Bairns
             of
             the
             Marriage
             ;
             and
             that
             therefore
             ,
             if
             the
             Father
             had
             died
             Infeft
             in
             the
             Annualrent
             ,
             if
             there
             had
             been
             Bairns
             of
             the
             Marriage
             ,
             they
             ,
             Male
             and
             Female
             ,
             joyntly
             and
             equally
             behoved
             to
             be
             Served
             ,
             specially
             as
             Heirs
             of
             Provision
             to
             their
             Father
             ,
             and
             so
             Infeft
             ,
             and
             failzing
             Bairns
             ,
             Thomas
             and
             Margaret
             ,
             behoved
             also
             to
             be
             so
             served
             and
             Infeft
             :
             for
             albeit
             there
             needs
             no
             general
             Service
             ,
             where
             Persons
             are
             nominatim
             substitute
             in
             a
             personal
             Right
             ,
             requiring
             no
             Infeftment
             ;
             yet
             where
             there
             is
             Infeftment
             ,
             there
             must
             be
             a
             special
             Service
             .
             And
             therefore
             found
             the
             Father
             ,
             Feear
             might
             uplift
             the
             Mony
             ,
             or
             might
             change
             the
             Destination
             thereof
             ,
             as
             he
             pleased
             ;
             and
             albeit
             Thomas
             and
             Margaret
             were
             Infeft
             nominatim
             ,
             yet
             they
             found
             the
             Seasine
             was
             without
             Warrand
             ,
             bearing
             only
             to
             Infeft
             them
             ,
             in
             case
             of
             failzie
             of
             Heirs
             of
             the
             Marriage
             ,
             and
             the
             Infeftment
             could
             only
             be
             granted
             to
             the
             Conjunct-feears
             .
          
        
         
           
           
             Iohn
             Scot
             contra
             Montgomery
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Scot
            
             ,
             as
             Assigney
             to
             certain
             Bonds
             granted
             by
             Montgomery
             to
             
               Andrew
               Robertson
            
             ,
             charges
             Montgomery
             ,
             who
             Suspends
             upon
             this
             Reason
             ,
             that
             he
             instantly
             instructs
             by
             a
             Back-bond
             ,
             that
             the
             Bonds
             is
             for
             the
             price
             of
             certain
             Lands
             ,
             and
             by
             the
             Back-bond
             ,
             it
             is
             provided
             ,
             that
             these
             Sums
             should
             not
             be
             payed
             ,
             till
             the
             Writs
             of
             the
             Lands
             were
             delivered
             ,
             and
             payment
             made
             of
             some
             Duties
             thereof
             .
          
           
             The
             Lords
             found
             the
             Back-bond
             ,
             being
             before
             the
             Assingation
             relevant
             ,
             against
             the
             Assigney
             ,
             albeit
             the
             Bonds
             were
             simple
             ,
             bearing
             borrowed
             Money
             .
          
        
         
           
             Greenlaw
             contra
             〈…〉
             Ianuary
             15.
             1663.
             
          
           
             GReenlaw
             being
             pursued
             by
             〈…〉
             for
             Spuilzie
             of
             two
             Mares
             ,
             in
             May
             1654.
             alleadged
             Absolvitor
             ,
             because
             he
             was
             then
             in
             Arms
             for
             the
             King
             ;
             and
             took
             these
             Mares
             for
             the
             Service
             ,
             and
             had
             warrand
             from
             his
             Officers
             ;
             which
             he
             offered
             him
             to
             prove
             by
             his
             Pass
             ,
             and
             Capitulation
             produced
             ,
             expressly
             including
             him
             ,
             with
             his
             Officers
             ,
             who
             Capitulate
             .
             The
             Pursuer
             answered
             ,
             the
             Mares
             were
             great
             with
             Foal
             ,
             and
             altogether
             unfit
             for
             the
             Service
             ;
             and
             if
             they
             were
             specially
             commanded
             to
             be
             taken
             ,
             it
             might
             be
             instructed
             by
             Writ
             .
          
           
             The
             Lords
             considering
             this
             Capitulation
             ,
             being
             about
             that
             same
             time
             ,
             found
             ,
             that
             albeit
             there
             had
             been
             no
             Order
             ,
             yet
             the
             Defender
             being
             then
             in
             Arms
             ,
             acting
             
               modo
               militari
            
             ,
             the
             
               Act
               of
               Indemnity
            
             freed
             him
             ,
             and
             would
             not
             give
             occasion
             to
             such
             Process
             ,
             and
             therefore
             Assoilzied
             .
          
        
         
           
             Tennents
             of
             Kilchattan
             contra
             Lady
             Kilchattan
             ,
             Major
             Campbel
             ,
             and
             Baillie
             Hamilton
             .
             Ianuary
             16.
             1663.
             
          
           
             OLd
             Kilchattan
             ,
             in
             his
             Sons
             Contract
             of
             Marriage
             ,
             Dispons
             the
             Lands
             of
             Kilchattan
             to
             his
             Son
             young
             Kilchattan
             ,
             and
             his
             Lady
             in
             Conjunct-fee
             ;
             whereupon
             there
             was
             Infeftment
             taken
             ,
             in
             favours
             of
             the
             Husband
             and
             Wife
             ,
             to
             be
             holden
             from
             the
             Disponer
             ,
             and
             of
             the
             King
             ;
             but
             the
             same
             was
             not
             confirmed
             till
             the
             year
             1662.
             
             At
             which
             time
             ,
             Major
             Campbel
             procures
             a
             Confirmation
             of
             the
             Conjunct-Infeftment
             ,
             and
             Seasine
             thereon
             ;
             which
             Confirmation
             hath
             a
             Clause
             insert
             ;
             bearing
             the
             same
             to
             be
             only
             in
             so
             far
             as
             may
             confirm
             and
             establish
             the
             Right
             of
             an
             Annualrent
             granted
             by
             young
             Kilchattan
             to
             the
             Major
             :
             and
             thereafter
             the
             Lady
             Confirms
             the
             Conjunct-Infeftment
             simply
             .
             In
             Anno
             1654.
             young
             Kilchattan
             Infefts
             Major
             Campbel
             in
             an
             Annulrent
             out
             of
             the
             Lands
             :
             thereafter
             
               Heugh
               Hamilton
            
             Appryzed
             from
             young
             Kilchattan
             ,
             and
             was
             Infeft
             upon
             this
             Appryzing
             
             about
             that
             time
             .
             It
             was
             alleadged
             by
             the
             Lady
             ,
             that
             she
             ought
             to
             be
             pre-ferred
             ,
             because
             she
             being
             joyned
             with
             her
             Husband
             in
             the
             Conjunct-Fee
             ,
             and
             thereupon
             Infeft
             ;
             it
             is
             sufficient
             to
             give
             her
             the
             Right
             of
             Liferent
             ,
             which
             is
             but
             a
             personal
             servitude
             .
             It
             was
             answered
             ,
             first
             ,
             That
             Major
             Campbel
             having
             procured
             the
             first
             Confirmation
             ,
             which
             is
             expresly
             limit
             unto
             his
             Annualrent
             ,
             must
             be
             preferred
             to
             the
             Lady
             ,
             and
             that
             such
             limitations
             might
             lawfully
             be
             ,
             because
             it
             being
             free
             for
             the
             Superiour
             to
             Confirm
             ,
             or
             not
             ,
             or
             to
             Confirm
             a
             part
             ,
             and
             not
             the
             rest
             ,
             he
             might
             Confirm
             it
             to
             what
             effect
             he
             pleased
             ;
             and
             his
             Confirmation
             being
             extended
             no
             further
             ,
             the
             Lady
             cannot
             crave
             preference
             ,
             because
             she
             is
             now
             only
             Infeft
             in
             the
             Lands
             in
             question
             in
             Warrandice
             ,
             that
             her
             principal
             Lands
             shall
             be
             worth
             so
             much
             ,
             and
             it
             is
             not
             yet
             declared
             in
             what
             they
             are
             defective
             .
          
           
             The
             Lords
             ,
             in
             respect
             the
             Ladies
             Right
             was
             not
             Confirmed
             ,
             preferred
             the
             Major
             as
             to
             his
             Annualrents
             .
          
           
             It
             was
             alleadged
             for
             
               Heugh
               Hamiltoun
            
             ,
             that
             he
             must
             be
             preferred
             to
             the
             Annualrenter
             ,
             because
             he
             being
             publickly
             Infeft
             upon
             his
             Apprysing
             ,
             before
             the
             Infeftment
             of
             Annualrent
             ,
             at
             least
             before
             it
             was
             cled
             with
             Possession
             ,
             whereby
             it
             became
             a
             valid
             Right
             ,
             the
             King's
             Charter
             upon
             the
             Apprysing
             ,
             is
             virtually
             and
             equivalently
             a
             Confirmation
             of
             Kilchattans
             Infeftment
             ,
             especially
             in
             favours
             of
             a
             Creditor
             ,
             who
             could
             not
             perfectly
             know
             his
             Debitors
             condition
             ;
             which
             if
             he
             had
             known
             ;
             and
             given
             in
             expresly
             a
             Confirmation
             to
             the
             King
             ,
             it
             would
             have
             been
             accepted
             ,
             seeing
             the
             King
             respects
             none
             ,
             and
             therefore
             the
             King
             's
             granting
             of
             a
             Charter
             upon
             the
             Apprysing
             must
             be
             interpret
             equivalent
             .
          
           
             The
             Lords
             found
             that
             the
             Charter
             upon
             the
             Apprysing
             was
             not
             equivalent
             to
             a
             Confirmation
             .
          
           
             It
             was
             further
             alleadged
             for
             
               Heugh
               Hamiltoun
            
             ,
             that
             the
             Confirmation
             obtained
             by
             Major
             Campbel
             ,
             behoved
             to
             accresce
             to
             him
             ;
             who
             had
             the
             first
             compleat
             Right
             ,
             by
             publick
             Infeftment
             upon
             the
             Apprysing
             ,
             and
             albeit
             that
             base
             Infeftment
             upon
             the
             Annualrent
             granted
             by
             Kilchattan
             to
             Major
             Campbel
             ,
             was
             prior
             ,
             yet
             it
             was
             null
             till
             it
             was
             cled
             with
             Possession
             ;
             and
             therefore
             if
             it
             was
             not
             cled
             with
             Possession
             before
             
               Heugh
               Hamiltouns
            
             Infeftment
             ,
             the
             Confirmation
             must
             accresce
             to
             
               Heugh
               Hamiltouns
            
             Infeftment
             .
          
           
             The
             Lords
             found
             that
             the
             base
             Infeftment
             was
             not
             null
             for
             want
             of
             Possession
             ,
             albeit
             it
             might
             be
             excluded
             by
             a
             publick
             Infeftment
             before
             Possession
             ,
             but
             found
             that
             
               Heugh
               Hamiltouns
            
             publick
             Infeftment
             was
             not
             compleat
             in
             it self
             ,
             because
             it
             put
             
               Heugh
               Hamiltoun
            
             only
             in
             the
             place
             of
             young
             Kilchattan
             ,
             who
             had
             a
             null
             Right
             till
             Confirmation
             :
             Which
             Confirmation
             they
             found
             did
             accresce
             to
             the
             base
             Infeftment
             ,
             being
             cled
             with
             Possession
             at
             any
             time
             before
             the
             Confirmation
             ,
             for
             at
             that
             time
             it
             became
             a
             compleat
             Right
             ;
             at
             which
             time
             the
             Appryzing
             and
             Infeftment
             was
             no
             compleat
             Right
             ,
             and
             therefore
             the
             Confirmation
             ,
             albeit
             it
             had
             not
             had
             this
             restriction
             accresced
             to
             the
             base
             Infeftment
             ,
             as
             being
             the
             first
             compleat
             Right
             
               in
               suo
               genere
            
             .
          
        
         
           
           
             Earl
             of
             Roxburgh
             contra
             a
             Minister
             .
             Eodem
             Die.
             
          
           
             IN
             a
             review
             of
             a
             Decreet
             at
             the
             Instance
             of
             a
             Minister
             against
             the
             Earl
             of
             Roxburgh
             ;
             the
             point
             in
             question
             was
             ,
             whether
             or
             no
             the
             Judges
             for
             the
             time
             ,
             or
             now
             the
             Lords
             of
             Session
             ,
             were
             competent
             to
             discuss
             this
             Nullity
             ,
             of
             a
             Decreet
             of
             Locality
             ,
             by
             the
             Commission
             for
             Plantation
             ,
             in
             that
             it
             called
             the
             Earls
             Lands
             expresly
             designed
             ,
             to
             be
             his
             Lands
             ,
             and
             he
             was
             not
             called
             .
          
           
             The
             Lords
             found
             ,
             that
             albeit
             they
             would
             not
             decide
             upon
             the
             Nullities
             of
             the
             Decreets
             of
             the
             Commission
             competent
             by
             way
             of
             Reduction
             ,
             which
             behoved
             to
             be
             before
             the
             Commission
             it self
             ;
             yet
             this
             Nullity
             being
             palpable
             and
             competent
             by
             Exception
             ,
             or
             Suspension
             ,
             that
             they
             might
             thereupon
             Suspend
             simpliciter
             ,
             the
             Decreet
             of
             the
             Commission
             .
          
        
         
           
             Earl
             of
             Errol
             contra
             Parochioners
             of
             Ury
             .
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Roxburgh
             pursues
             the
             Heretors
             for
             the
             Teind
             ,
             from
             1648.
             till
             1662.
             as
             he
             who
             had
             Right
             during
             that
             tyme
             ,
             by
             the
             Act
             of
             Parliament
             ,
             1649.
             
             Establishing
             the
             Right
             of
             the
             Teinds
             in
             the
             Patron
             ,
             in
             leu
             of
             their
             Patronage
             ;
             and
             also
             as
             he
             who
             had
             Tack
             thereof
             ,
             and
             had
             since
             possessed
             be
             tacit
             relocation
             .
             The
             Defender
             alleadged
             ,
             as
             to
             the
             first
             Title
             ,
             that
             the
             Parliament
             ,
             1649.
             was
             not
             only
             annulled
             ,
             but
             declared
             void
             ,
             
               ab
               initio
            
             ,
             as
             a
             meeting
             without
             any
             Authority
             ,
             as
             to
             the
             tacit
             Relocation
             ,
             it
             could
             not
             extend
             any
             further
             then
             so
             many
             years
             as
             the
             Beneficed
             Person
             could
             set
             .
             It
             was
             answered
             for
             the
             Earl
             ,
             that
             the
             Rescissorie
             Act
             could
             not
             prejudge
             him
             ,
             as
             to
             any
             thing
             anterior
             to
             it's
             date
             ,
             unless
             it
             had
             born
             expresly
             to
             annul
             as
             to
             bygones
             .
          
           
             The
             Lords
             found
             the
             Lybel
             ,
             and
             Reply
             Relevant
             ,
             as
             to
             bygones
             before
             the
             Act
             ,
             albeit
             there
             be
             no
             salvo
             in
             that
             Act
             ,
             as
             there
             is
             in
             the
             Rescissory
             Acts
             of
             the
             remanent
             Parliaments
             ,
             and
             found
             that
             the
             Pursuer
             had
             Right
             ,
             
               per
               tacitam
               relocationem
            
             ,
             till
             he
             was
             interrupted
             ,
             even
             for
             years
             which
             the
             Beneficed
             Person
             could
             not
             validly
             set
             ,
             as
             a
             Liferenters
             Tack
             will
             be
             validly
             set
             ,
             as
             a
             Liferenters
             Tack
             will
             be
             valide
             against
             the
             Feer
             ,
             
               per
               tacitam
               relocationem
            
             ,
             after
             her
             Death
             ,
             though
             she
             could
             grant
             no
             Tack
             validly
             after
             her
             Death
             .
          
        
         
           
           
             Relict
             of
             Mr.
             Thomas
             Swintoun
             Minister
             of
             Ednems
             contra
             Laird
             of
             Wedderburn
             .
             Eodem
             die
             .
          
           
             THe
             Minister
             of
             Ednems
             Relict
             Insisting
             for
             the
             reparation
             of
             the
             Manss
             .
             It
             was
             alleadged
             for
             the
             Heretors
             ,
             that
             those
             who
             have
             Right
             to
             the
             Teinds
             as
             Tacks-men
             ,
             or
             otherwayes
             ,
             ought
             to
             bear
             a
             proportion
             ,
             of
             the
             reparation
             .
          
           
             The
             Lords
             found
             that
             albeit
             these
             who
             have
             right
             to
             the
             Teinds
             ,
             were
             accustomed
             to
             Repair
             the
             of
             Kirks
             ,
             and
             the
             Heretors
             the
             rest
             of
             the
             Kirk
             ;
             yet
             there
             was
             neither
             Law
             nor
             Custom
             alleadged
             ,
             the
             Teinds
             could
             be
             burdened
             with
             any
             part
             of
             the
             Reparation
             .
          
        
         
           
             Sword
             contra
             Sword.
             Eodem
             die
             .
          
           
             ONe
             Sword
             as
             heir
             Served
             and
             Retoured
             ,
             to
             Bailzie
             Sword
             of
             
               Saint
               Andrews
            
             ,
             pursues
             for
             Intromission
             with
             the
             Moveable
             Heirship
             ,
             for
             delivery
             of
             the
             same
             ,
             and
             produces
             his
             Service
             done
             at
             
               Saint
               Andrews
            
             ,
             and
             Retoured
             ,
             whereby
             he
             is
             Served
             as
             Oye
             to
             the
             Defunct
             Bailzie
             ,
             his
             Father
             Brother
             ;
             compears
             another
             Party
             ;
             who
             is
             likewise
             Served
             Heir
             to
             that
             same
             Bailzie
             ,
             at
             Edinburgh
             ,
             and
             produces
             his
             Service
             Retoured
             ,
             by
             which
             he
             is
             served
             Heir
             to
             Bailzie
             Sword
             ,
             as
             his
             Father
             Brother
             Son
             ,
             whereupon
             he
             hath
             raised
             a
             Reduction
             in
             Latine
             ,
             under
             the
             Quarter-seal
             of
             the
             other
             Service
             ,
             which
             was
             prior
             ,
             and
             alleadges
             ,
             that
             he
             being
             in
             a
             nearer
             degree
             of
             Blood
             then
             the
             other
             ,
             in
             so
             far
             as
             he
             is
             a
             Father
             Brother
             Son
             ,
             and
             the
             other
             Service
             bears
             him
             to
             be
             but
             a
             Father
             Brothers
             Oye
             .
          
           
             The
             Lords
             having
             considered
             both
             the
             Retoures
             ,
             and
             that
             they
             were
             not
             contradictory
             ,
             inferring
             manifest
             Error
             of
             the
             Assize
             ,
             because
             it
             was
             sufficient
             for
             the
             Assize
             to
             Serve
             the
             Father
             Brothers
             Oye
             ,
             if
             they
             knew
             of
             no
             nearer
             Degree
             ;
             And
             also
             because
             the
             Defunct
             Bailzie
             might
             have
             had
             two
             Father
             Brothers
             ,
             one
             elder
             then
             his
             Father
             .
             and
             the
             other
             younger
             ,
             and
             thereby
             two
             Heirs
             ,
             one
             of
             Line
             and
             another
             of
             Conquest
             ,
             which
             not
             being
             clear
             by
             the
             Retoures
             ;
             the
             Lords
             will
             not
             prefer
             the
             first
             Retour
             as
             standing
             ,
             but
             would
             hear
             the
             Parties
             upon
             the
             Reduction
             .
          
        
         
           
             Mr.
             James
             Stuart
             contra
             Mr.
             John
             Spruile
             .
             Ianuary
             21.
             1663.
             
          
           
             MR.
             
               Iames
               Stuart
            
             and
             
               Robert
               Stuart
            
             Bailzie
             of
             Lithgow
             ,
             as
             Curator
             to
             him
             ,
             as
             a
             Furious
             Person
             ,
             or
             Idiot
             ,
             by
             Gift
             of
             the
             Exchequer
             ,
             pursues
             Mr.
             
               Iohn
               Spruile
            
             for
             Sums
             of
             Mony
             due
             to
             Mr.
             Iames.
             It
             was
             alleadged
             no
             Process
             at
             the
             Instance
             of
             
               Robert
               Stuart
            
             ,
             as
             Curator
             ,
             because
             by
             Law
             ,
             the
             
             Tutors
             or
             Curators
             of
             Furious
             Persons
             ,
             are
             conform
             to
             the
             Act
             of
             Parliament
             to
             be
             Cognosced
             by
             an
             Inquest
             ,
             whether
             the
             Person
             be
             Furious
             ,
             and
             who
             is
             his
             nearest
             Agnat
             ,
             of
             the
             Fathers
             side
             ,
             past
             twenty
             five
             .
          
           
             The
             Lords
             found
             Process
             ,
             
               Robert
               Stuart
            
             finding
             Caution
             to
             make
             forth
             coming
             ,
             and
             declared
             it
             should
             be
             but
             prejudice
             to
             the
             nearest
             Agnat
             ,
             to
             Serve
             according
             to
             the
             said
             Act
             of
             Parliament
             ,
             for
             they
             thought
             ,
             that
             as
             the
             Lords
             might
             name
             Curators
             ,
             
               ad
               litem
            
             ,
             in
             the
             interim
             ,
             so
             might
             the
             King
             ,
             and
             that
             the
             Exchequer
             was
             accustomed
             to
             do
             .
          
        
         
           
             William
             Zeoman
             contra
             Mr.
             Patrick
             Oliphant
             .
             Ianuary
             22.
             1663.
             
          
           
             IN
             a
             Competition
             betwixt
             Zeoman
             and
             Oliphant
             ,
             anent
             the
             Estate
             of
             Sir
             
               Iames
               Oliphant
            
             ,
             who
             having
             killed
             his
             Mother
             ,
             was
             pursued
             Criminally
             therefore
             ,
             before
             the
             Justice
             ,
             and
             being
             Charged
             to
             underly
             the
             Law
             ,
             for
             the
             said
             Crime
             ,
             under
             the
             pain
             of
             Rebellion
             ,
             he
             compeared
             not
             ,
             and
             the
             Act
             of
             Adjournal
             was
             declared
             Fugitive
             ,
             and
             his
             moveable
             Goods
             ordained
             to
             be
             Inbrought
             :
             The
             Criminal
             Libel
             proceeded
             ,
             both
             upon
             the
             Act
             of
             Parliament
             against
             Paricide
             ;
             and
             also
             upon
             the
             Act
             of
             Parliament
             ,
             declaring
             that
             killing
             of
             Persons
             under
             assurance
             of
             Trust
             ,
             to
             be
             Treasonable
             ;
             Hereupon
             the
             King
             granted
             a
             Gift
             of
             Sir
             Iames
             Forefaulture
             to
             Sir
             
               Patrick
               Oliphant
            
             ,
             who
             thereupon
             was
             Infeft
             .
             It
             was
             alleadged
             for
             
               William
               Zeoman
            
             ,
             who
             had
             Right
             by
             Appryzing
             ,
             that
             there
             could
             be
             no
             respect
             to
             the
             Gift
             of
             Forefaulture
             ,
             because
             Sir
             James
             was
             never
             Forefault
             ,
             but
             only
             declared
             Fugitive
             ,
             and
             Denunced
             as
             said
             is
             ;
             and
             that
             any
             Doom
             of
             Forefaulture
             had
             been
             pronounced
             ,
             the
             Crime
             behoved
             to
             have
             been
             proven
             before
             an
             Assize
             ,
             else
             there
             could
             be
             no
             Forefaulture
             ;
             neither
             could
             the
             Donator
             possess
             ,
             
               medio
               tempore
            
             ,
             till
             the
             Crime
             were
             yet
             put
             to
             the
             Tryal
             of
             an
             Assize
             ,
             because
             Sir
             Iames
             is
             dead
             .
          
           
             The
             Lords
             found
             that
             the
             Gift
             of
             Forfaultuee
             could
             not
             be
             effectual
             for
             the
             Reasons
             foresaid
             ,
             and
             found
             that
             the
             Act
             against
             Paricide
             ,
             could
             be
             no
             foundation
             of
             a
             Gift
             ,
             because
             it
             only
             excluded
             the
             Murderer
             ,
             and
             his
             Descendents
             ,
             to
             succeed
             to
             the
             Person
             Murdered
             ,
             by
             declaring
             expresly
             that
             the
             Murderers
             Collaterals
             should
             succeed
             ,
             and
             so
             there
             was
             no
             place
             for
             the
             King.
             And
             as
             for
             the
             other
             Act
             of
             Murder
             under
             Trust
             ,
             they
             found
             that
             there
             being
             no
             probation
             ,
             it
             could
             work
             nothing
             ,
             and
             there
             is
             no
             doubt
             ,
             but
             though
             there
             had
             been
             Probation
             ,
             that
             Act
             of
             Murder
             under
             Trust
             ,
             doth
             not
             directly
             quadrat
             to
             this
             Case
             ,
             upon
             that
             natural
             Trust
             betwixt
             Parents
             and
             Children
             ,
             but
             only
             to
             Trust
             given
             by
             express
             Paction
             ,
             or
             otherwise
             it
             could
             evacuat
             the
             benefit
             of
             the
             foresaid
             other
             Act
             anent
             Paricide
             ,
             and
             would
             prefer
             the
             Fisk
             to
             the
             Collaterals
             of
             the
             Murderer
             ,
             if
             he
             had
             done
             no
             wrong
             ,
             contrair
             to
             the
             said
             Act
             ,
             anent
             Paricide
             ,
             which
             is
             not
             derogat
             by
             the
             other
             .
          
        
         
           
           
             Wallace
             contra
             Edgar
             .
             Eodem
             die
             .
          
           
             
               IAmes
               Wallace
            
             as
             Assigney
             by
             
               Iames
               Scot
            
             ,
             to
             a
             Decreet
             obtained
             against
             
               Iohn
               Edgar
            
             in
             Drumfreis
             ,
             having
             Charged
             thereupon
             ,
             Edgar
             Suspends
             ,
             and
             alleadges
             Compensation
             ,
             upon
             Debts
             due
             by
             Scot
             the
             Cedent
             to
             the
             Suspender
             ,
             before
             the
             Intimation
             of
             his
             Assignation
             ;
             and
             therefore
             according
             to
             the
             ordinary
             Course
             ,
             Debts
             due
             by
             the
             Cedent
             ,
             before
             Intimation
             ,
             are
             Relevant
             against
             the
             Assigney
             ,
             and
             condescends
             upon
             several
             Bonds
             and
             Decreets
             against
             the
             Cedent
             ,
             assigned
             to
             the
             Suspender
             ,
             before
             the
             Chargers
             Intimation
             .
             The
             Suspender
             answered
             ,
             that
             albeit
             any
             Debt
             due
             by
             the
             Cedent
             to
             the
             Debitor
             ,
             before
             Intimation
             ,
             will
             be
             relevant
             to
             compense
             against
             the
             Assigney
             ;
             yet
             that
             will
             not
             extend
             to
             Sums
             assigned
             to
             the
             Debitor
             ,
             before
             the
             Chargers
             Assignation
             ,
             unless
             that
             Assignation
             had
             been
             Intimat
             ,
             before
             the
             Chargers
             Intimation
             ,
             because
             the
             Assignation
             only
             doth
             not
             Constitute
             the
             Suspenders
             Creditor
             ,
             or
             the
             Cedent
             Debitor
             ,
             until
             it
             be
             Intimat
             ;
             and
             so
             there
             being
             no
             debiium
             and
             Creditum
             ,
             before
             the
             Intimation
             ,
             there
             can
             be
             no
             Compensation
             ,
             which
             is
             
               contributio
               debiti
               &
               crediti
            
             .
             The
             Suspender
             answered
             ,
             that
             the
             Assignation
             Constitute
             the
             Right
             ,
             and
             the
             creditum
             ,
             but
             the
             Intimation
             was
             only
             necessar
             in
             case
             of
             Competition
             of
             other
             Assigneys
             ,
             and
             he
             needed
             not
             Intimat
             to
             
               Scot
               ;
               quia
               intus
               habet
            
             ,
             in
             respect
             Scot
             was
             owing
             him
             as
             much
             .
          
           
             The
             Lords
             found
             no
             Compensation
             ,
             unless
             the
             Suspender
             had
             Intimat
             his
             Assignation
             to
             the
             Cedent
             ,
             and
             so
             had
             Constitute
             him
             his
             Debitor
             ,
             before
             the
             Cedent
             was
             denuded
             ,
             by
             the
             Chargers
             Assignation
             and
             Intimation
             .
          
        
         
           
             Children
             of
             Netherlie
             contra
             The
             Heir
             .
             Ianuary
             24.
             1663.
             
          
           
             THe
             Children
             of
             umquhil
             Edgar
             of
             Netherlie
             ,
             alleadging
             that
             their
             Father
             left
             to
             his
             Heir
             a
             competent
             Estate
             ,
             and
             that
             he
             dyed
             before
             any
             Provision
             or
             Aliment
             appointed
             to
             them
             ,
             and
             that
             the
             Heirs
             Tutor
             refused
             to
             Aliment
             them
             :
             Their
             Mother
             being
             also
             dead
             ,
             therefore
             craved
             an
             Aliment
             to
             be
             modified
             ,
             there
             being
             no
             compearence
             in
             the
             contrair
             .
          
           
             The
             Lords
             found
             the
             Brother
             ,
             as
             being
             Heir
             to
             the
             Father
             ,
             of
             a
             competent
             Estate
             ,
             lyable
             to
             Aliment
             the
             Children
             being
             wholly
             unprovided
             ,
             but
             determined
             neither
             the
             time
             ,
             nor
             the
             quantity
             ,
             till
             the
             Condition
             of
             the
             Estate
             were
             Instructed
             .
          
        
         
           
           
             Bain
             contra
             Laird
             of
             Streichan
             .
             Eodem
             die
             .
          
           
             THe
             Laird
             of
             Streichan
             being
             pursued
             by
             Bain
             ,
             proponed
             a
             Reason
             of
             Compensation
             ,
             and
             produced
             a
             Writ
             for
             instructing
             thereof
             ,
             being
             called
             at
             the
             advising
             of
             the
             Cause
             .
          
           
             The
             Lords
             suffered
             him
             to
             Reform
             the
             Alleadgence
             ,
             seing
             he
             instructed
             it
             instantly
             ,
             by
             another
             Writ
             then
             was
             formerly
             produced
             .
          
        
         
           
             Sydeserf
             of
             Ruchlaw
             contra
             Wood.
             Eodem
             die
             .
          
           
             THere
             being
             mutual
             Contraventions
             betwixt
             Ruchlaw
             and
             Wood
             ,
             both
             relating
             to
             a
             peace
             of
             Ground
             ,
             upon
             the
             Marches
             of
             their
             Lands
             ,
             which
             Ruchlaw
             alleadged
             to
             be
             his
             Property
             ,
             and
             that
             Wood
             had
             contraveened
             by
             needful
             Pasturage
             thereon
             ,
             himself
             being
             present
             ,
             when
             he
             was
             desired
             to
             remove
             his
             Goods
             off
             the
             same
             :
             and
             the
             other
             alleadging
             Commonty
             ,
             and
             that
             Ruchlaw
             had
             contraveened
             by
             wilful
             debarring
             him
             from
             his
             Commonty
             .
          
           
             The
             Lords
             before
             Answer
             ,
             granted
             Commission
             to
             Examine
             Witnesses
             ,
             
               hinc
               inde
            
             ,
             concerning
             their
             Possession
             of
             Property
             ,
             and
             Commonty
             ;
             and
             having
             advised
             the
             Testimonies
             ,
             found
             that
             the
             Matter
             was
             not
             so
             clear
             as
             to
             be
             the
             ground
             of
             a
             Contravention
             ;
             and
             therefore
             assoilzied
             both
             Parties
             ,
             but
             declared
             it
             should
             be
             free
             to
             them
             both
             ,
             or
             either
             of
             them
             to
             turn
             their
             Libel
             into
             a
             Molestation
             ,
             and
             to
             reform
             the
             same
             accordingly
             thereanent
             .
             They
             granted
             again
             Commission
             before
             answer
             ,
             to
             Examine
             Witnesses
             ,
             
               hinc
               inde
            
             ,
             anent
             eithers
             Possession
             ,
             and
             the
             indurance
             thereof
             ,
             which
             was
             not
             cleared
             by
             the
             former
             Commission
             .
          
        
         
           
             Robert
             Grahame
             contra
             Iohn
             Rosse
             .
             Eodem
             die
             .
          
           
             IN
             a
             Competition
             betwixt
             Grahame
             and
             Rosse
             ,
             and
             a
             third
             Party
             ,
             all
             Compryzers
             ,
             the
             posterior
             Appryzers
             craving
             to
             come
             in
             
               pari
               passu
            
             ,
             by
             vertue
             of
             the
             late
             Act
             of
             Parliament
             .
             It
             was
             alleadged
             for
             Grahame
             ,
             who
             had
             obtained
             Infeftment
             ,
             that
             he
             ought
             to
             be
             preferred
             ;
             because
             albeit
             his
             Appryzing
             was
             since
             Ianuary
             1652.
             yet
             he
             had
             been
             in
             Possession
             thereby
             seven
             years
             ,
             and
             so
             had
             the
             benefit
             of
             a
             Possessory
             Judgement
             .
          
           
             This
             was
             Repelled
             ,
             because
             the
             Act
             of
             Parliament
             was
             but
             late
             ,
             before
             which
             there
             could
             be
             no
             ground
             to
             come
             in
             
               pari
               passu
            
             ,
             and
             there
             was
             no
             exception
             in
             it
             ,
             of
             these
             who
             had
             Possessed
             or
             not
             Possest
             ,
             before
             the
             Act.
             
          
           
           
             
               Secondly
               ,
               Grahame
            
             further
             alleadged
             ,
             that
             he
             ought
             to
             be
             preferred
             ;
             because
             he
             was
             Infeft
             in
             an
             Annualrent
             out
             of
             the
             Lands
             ,
             which
             is
             a
             real
             Right
             excepted
             by
             the
             Act
             of
             Parliament
             .
             Thirdly
             ,
             That
             Rosse
             could
             not
             come
             in
             ,
             because
             Rosses
             Appryzing
             was
             before
             1652.
             and
             the
             Act
             of
             Parliament
             brings
             in
             only
             Appryzing
             since
             
               December
               ,
               1652.
               
               Fourthly
            
             ,
             None
             of
             the
             Parties
             could
             come
             in
             with
             him
             ,
             until
             first
             they
             payed
             him
             their
             proportionable
             part
             of
             the
             Composition
             ,
             and
             Expenses
             bestowed
             out
             by
             him
             ,
             conform
             to
             the
             Act.
             
          
           
             The
             Lords
             found
             that
             albeit
             Grahames
             Appryzing
             was
             not
             upon
             the
             Infeftment
             of
             Annualrent
             ,
             but
             upon
             the
             personal
             obliegement
             for
             the
             Principal
             ,
             and
             bygone
             Annualrents
             ,
             upon
             Requisitions
             ,
             which
             was
             a
             passing
             from
             the
             Infeftment
             of
             Annualrent
             ;
             yet
             that
             he
             might
             ,
             
               pro
               loco
               &
               tempore
            
             ,
             pass
             from
             his
             Appryzing
             ,
             and
             might
             be
             preferred
             to
             his
             bygone
             Annualrents
             ,
             upon
             his
             Infeftment
             of
             Annualrent
             ;
             in
             this
             Case
             of
             Composition
             ,
             albeit
             there
             was
             yet
             no
             Appryzing
             upon
             the
             Infeftment
             of
             Annualrent
             ;
             and
             found
             that
             
               Iohn
               Rosses
            
             Appryzing
             before
             1652.
             was
             not
             excluded
             ,
             but
             behoved
             to
             be
             in
             the
             same
             Case
             ,
             as
             if
             it
             had
             been
             after
             :
             But
             found
             that
             the
             other
             Appryzers
             before
             they
             came
             in
             ,
             behoved
             to
             satisfie
             the
             Composition
             proportionally
             by
             the
             Tenor
             of
             the
             Act.
             
          
        
         
           
             Sir
             Robert
             Montgomerie
             of
             Skelmarlie
             contra
             Iohn
             Broun
             .
             Ianuary
             28.
             1663.
             
          
           
             SIr
             
               Robert
               Montgomery
            
             pursues
             
               Iohn
               Broun
            
             ,
             for
             perfecting
             a
             Bargain
             agreed
             upon
             in
             word
             betwixt
             them
             ,
             where
             Sir
             Rob●rt
             was
             to
             Dispone
             the
             Right
             of
             an
             Appryzing
             of
             the
             Lands
             of
             Fordel
             ,
             for
             which
             John
             was
             to
             pay
             10000.
             merks
             ;
             After
             which
             verbal
             agreement
             ,
             
               Iohn
               Broun
            
             write
             a
             Letter
             to
             Sir
             Robert
             ,
             in
             relation
             to
             the
             Bargain
             ,
             bearing
             ,
             that
             he
             was
             affrayed
             not
             to
             get
             the
             Money
             at
             the
             time
             agreed
             upon
             ;
             and
             then
             bearing
             the
             said
             words
             ,
             all
             I
             can
             say
             now
             is
             ,
             I
             am
             not
             to
             pass
             from
             what
             was
             spoken
             betwixt
             you
             and
             me
             .
             The
             Defender
             alleadged
             ,
             that
             this
             being
             a
             Communing
             in
             word
             ,
             anent
             an
             Heretable
             Right
             ,
             
               est
               locus
               penetentiae
            
             ,
             there
             being
             yet
             neither
             Minute
             ,
             Disposition
             ,
             or
             other
             Security
             ,
             Subscribed
             .
             And
             as
             to
             the
             Letter
             ,
             it
             was
             not
             to
             be
             respected
             ,
             because
             it
             was
             no
             Minute
             ,
             and
             mentionated
             ,
             that
             the
             Writer
             was
             not
             fully
             resolved
             ,
             that
             he
             would
             be
             able
             to
             provide
             the
             Money
             ,
             and
             keep
             the
             Bargain
             ;
             as
             for
             the
             Word
             Signifying
             ,
             that
             he
             would
             not
             pass
             therefrom
             ,
             it
             did
             but
             express
             his
             present
             resolution
             ,
             and
             was
             not
             Obligatory
             ;
             and
             though
             they
             were
             ,
             so
             long
             as
             Sir
             Robert
             might
             resile
             ,
             notwithstanding
             of
             the
             Letter
             ,
             
               John
               Broun
            
             might
             also
             resile
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             his
             Libel
             stood
             most
             Relevant
             ,
             because
             there
             is
             only
             
               locus
               penitentiae
            
             ,
             when
             there
             is
             no
             Writ
             ;
             but
             if
             any
             Party
             obliege
             himself
             to
             stand
             to
             a
             former
             Communing
             ,
             his
             own
             voluntar
             Deed
             ,
             has
             unquestionably
             oblieged
             him
             ,
             unless
             the
             other
             did
             resile
             ,
             and
             the
             Obligation
             is
             as
             valid
             in
             a
             missive
             Letter
             ,
             as
             the
             most
             solemn
             Bond
             :
             Neither
             are
             words
             ,
             
               I
               am
               not
               to
               pass
            
             ,
             to
             be
             interpret
             ,
             to
             signifie
             a
             Resolution
             ,
             but
             being
             
               in
               materia
               obligatoria
            
             ,
             must
             signifie
             an
             Obligation
             ,
             otherwise
             all
             Minuts
             must
             be
             void
             ,
             and
             are
             ordinarly
             expressed
             in
             such
             Terms
             ,
             as
             are
             to
             do
             ,
             or
             shall
             do
             such
             things
             :
             and
             whereas
             there
             was
             several
             Practicques
             ,
             produced
             ,
             finding
             
               locum
               penitentiae
            
             in
             such
             Cases
             ,
             though
             they
             were
             Earnest
             ,
             and
             though
             there
             were
             Possession
             ,
             and
             a
             Letter
             whereby
             the
             Resiler
             designed
             another
             
             Party
             by
             the
             Lands
             Disponed
             ,
             yet
             there
             was
             no
             Obligation
             in
             Writ
             ,
             as
             in
             this
             Letter
             :
             and
             likewise
             
               Iohn
               Brown
            
             payed
             3000.
             merks
             ,
             of
             the
             price
             ,
             albeit
             he
             took
             a
             Bond
             of
             borrowed
             Money
             ,
             till
             things
             were
             perfected
             ,
             and
             got
             the
             Keys
             of
             the
             Houses
             .
          
           
             The
             Lords
             found
             there
             was
             yet
             place
             to
             Resile
             ,
             and
             therefore
             assoilzied
             .
          
        
         
           
             Margaret
             Stevenson
             and
             her
             Son
             contra
             Ker
             and
             others
             .
             Eodem
             die
             .
          
           
             
               MArgaret
               Stevenson
            
             pursues
             
               Margaret
               Ker
            
             ,
             as
             vitious
             Intromissatrix
             with
             the
             Goods
             of
             her
             Husband
             ,
             for
             payment
             of
             a
             Debt
             ,
             wherein
             he
             was
             Cautioner
             .
             She
             alleadged
             absolvitor
             ,
             because
             her
             Iutromission
             was
             purged
             ,
             in
             so
             far
             as
             she
             had
             Confirmed
             herself
             Executrix
             Creditrix
             .
             It
             was
             answered
             by
             the
             Pursuer
             ,
             
               non
               relevat
            
             ,
             unless
             before
             intenting
             of
             the
             Cause
             .
             The
             Defender
             answered
             ,
             it
             was
             sufficient
             ,
             being
             within
             year
             and
             day
             ,
             after
             the
             Defunct's
             Death
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Lord
             Balnagoun
             contra
             M.
             Thomas
             Mckenzie
             .
             Eodem
             die
             .
          
           
             BAlnagoun
             as
             Donator
             to
             the
             Escheat
             of
             his
             Father
             ,
             pursues
             Mr
             ,
             
               Thomas
               Mckenzie
            
             for
             the
             price
             of
             some
             Lands
             ,
             sold
             to
             him
             by
             his
             Father
             ,
             and
             for
             the
             annualrents
             since
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             there
             was
             no
             Annualrent
             due
             by
             the
             Minute
             ;
             and
             albeit
             it
             was
             the
             price
             of
             Land
             ,
             yet
             Balnagoun
             had
             never
             made
             Mr.
             Thomas
             a
             Right
             to
             this
             day
             ,
             but
             had
             forced
             him
             to
             be
             at
             a
             huge
             Expenses
             and
             Plea
             ,
             and
             so
             was
             
               in
               mora
            
             ,
             that
             the
             price
             was
             not
             payed
             :
             and
             albeit●he
             did
             possess
             the
             Lands
             ,
             it
             was
             by
             redeeming
             Wodsets
             thereupon
             ,
             contained
             in
             the
             Minute
             .
          
           
             The
             Lords
             found
             Mr.
             Thomas
             lyable
             either
             for
             the
             Annualrent
             ,
             or
             for
             the
             superplus
             of
             the
             Rents
             of
             the
             Land
             ,
             more
             then
             payed
             the
             Annualrent
             .
             In
             this
             Process
             it
             was
             found
             that
             the
             Probation
             of
             a
             Tenor
             ,
             before
             an
             Inferiour
             Iudge
             was
             null
             .
          
        
         
           
             Margaret
             Edgar
             contra
             Iohn
             Murray
             .
             Ianuary
             29.
             1663.
             
          
           
             
               MArgaret
               Edgar
            
             having
             Charged
             
               Iohn
               Murray
            
             ,
             as
             Cautioner
             for
             the
             umquhil
             Viscount
             of
             Stormont
             ,
             he
             Suspends
             and
             offers
             him
             to
             prove
             by
             her
             Oath
             ,
             that
             she
             transacted
             with
             him
             to
             accept
             a
             Decreet
             against
             the
             principal
             to
             free
             him
             .
             The
             Charger
             answered
             ,
             that
             she
             being
             a
             Wife
             clade
             with
             a
             Husband
             ,
             could
             not
             swear
             in
             his
             prejudice
             .
             The
             Suspender
             Replyed
             ,
             that
             before
             her
             Marriage
             ,
             he
             had
             raised
             a
             Pursuit
             ,
             and
             Cited
             her
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             he
             was
             free
             of
             Cautionry
             ,
             in
             respect
             
             of
             the
             said
             Transaction
             ,
             and
             so
             the
             matter
             being
             Litigious
             ,
             her
             marrying
             during
             the
             Dependence
             cannot
             exclude
             him
             from
             his
             Oath
             ,
             but
             must
             work
             against
             her
             Husband
             ,
             who
             is
             only
             
               jure
               mariti
            
             ,
             a
             Legal
             Assigney
             .
          
           
             The
             Lords
             found
             this
             Reply
             Relevant
             .
          
        
         
           
             Scot
             contra
             Mr.
             John
             Dickson
             .
             Eodem
             die
             .
          
           
             SCot
             as
             Assigney
             by
             her
             Father
             to
             a
             Bond
             ,
             Charges
             Mr.
             
               Iohn
               Dickson
            
             to
             make
             payment
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Assignation
             being
             while
             the
             Charger
             was
             Wife
             to
             Scot
             her
             Husband
             ,
             the
             Sum
             belonged
             to
             the
             Husband
             ,
             
               jure
               mariti
            
             ;
             and
             therefore
             craves
             Compensation
             of
             the
             like
             Sums
             ,
             payed
             to
             ,
             or
             for
             the
             Husband
             .
             The
             Charger
             answered
             ,
             that
             though
             the
             Date
             of
             the
             Assignation
             was
             before
             her
             Husbands
             Death
             ,
             yet
             her
             Father
             keeped
             the
             same
             in
             his
             Custody
             ,
             and
             it
             was
             not
             Intimate
             till
             after
             the
             Husbands
             Death
             ,
             and
             so
             the
             Right
             not
             being
             Established
             in
             the
             Wifes
             Person
             by
             Intimation
             ,
             could
             not
             accresce
             to
             the
             Husband
             ,
             unless
             the
             Suspender
             would
             instruct
             that
             it
             was
             Intimate
             before
             .
          
           
             The
             Lords
             found
             that
             seing
             the
             Assignation
             was
             now
             in
             the
             Wifes
             hands
             ,
             they
             would
             not
             put
             the
             Suspender
             to
             prove
             the
             Delivery
             thereof
             ,
             during
             the
             Marriage
             ,
             but
             that
             it
             was
             presumed
             to
             have
             been
             delivered
             according
             to
             the
             Date
             ,
             and
             that
             thereby
             it
             became
             the
             Husbands
             ,
             
               jure
               mariti
            
             ,
             though
             no
             Intimation
             was
             in
             his
             time
             .
          
        
         
           
             Archibald
             Stuart
             contra
             Bogle
             and
             Matthie
             .
             Ianuary
             30.
             1663.
             
          
           
             BOgle
             and
             Matthie
             being
             Conveened
             before
             
               Archibald
               Stuart
            
             ,
             as
             Baillie
             of
             the
             Regality
             of
             Glasgow
             ,
             for
             a
             wrong
             committed
             upon
             two
             other
             Persons
             in
             the
             Kirk
             ,
             upon
             the
             Sabbath
             ,
             thrusting
             in
             upon
             them
             in
             Seat
             ,
             and
             beating
             them
             ,
             they
             were
             therefore
             amerciat
             in
             200.
             
             Pounds
             ,
             half
             to
             the
             Party
             ,
             and
             half
             to
             the
             Fiskall
             .
             It
             was
             alleadged
             the
             Fine
             was
             exorbitant
             ,
             and
             that
             Inferiour
             Courts
             could
             not
             amerciat
             above
             ten
             Pounds
             ,
             as
             it
             had
             been
             found
             by
             several
             Decisions
             .
             It
             was
             answered
             that
             this
             Court
             being
             a
             Regality
             ,
             and
             the
             Fact
             so
             atrocius
             ,
             the
             Fine
             was
             very
             Competent
             .
          
           
             The
             Lords
             Sustained
             the
             Decreet
             .
          
        
         
           
             Town
             of
             Linlithgow
             contra
             Inhabitants
             of
             Borrowstounness
             .
             Eodem
             die
             .
          
           
             THe
             Town
             of
             Linlithgow
             having
             apprehended
             an
             Inhabitant
             of
             Borrowstounness
             ,
             in
             their
             Town
             ,
             being
             an
             un-free
             man
             ,
             and
             exercising
             the
             Trade
             of
             Merchandise
             ,
             they
             put
             him
             in
             Prison
             ,
             he
             granted
             Bond
             to
             forbear
             
             in
             all
             time
             coming
             :
             Likeas
             they
             fined
             him
             in
             a
             100.
             merks
             ,
             he
             Suspended
             and
             raised
             Reduction
             on
             this
             Reason
             ,
             that
             the
             Bond
             was
             extorted
             ,
             when
             so
             far
             as
             he
             was
             summarly
             taken
             ,
             and
             put
             in
             Prison
             ,
             and
             could
             not
             get
             out
             till
             he
             promised
             to
             give
             the
             Bond
             ,
             and
             immediatly
             after
             he
             was
             out
             subscribed
             the
             same
             .
             The
             Charger
             alleadged
             there
             was
             no
             unjust
             force
             or
             fear
             ,
             because
             by
             the
             Acts
             of
             Parliament
             ,
             in
             favours
             of
             Free
             Borrows
             ,
             all
             unfree
             men
             are
             discharged
             to
             exercise
             the
             Trade
             of
             Merchandise
             ,
             whereupon
             they
             had
             obtained
             Decreet
             against
             the
             same
             Suspender
             to
             desist
             and
             cease
             therefrom
             .
             Secondly
             ,
             They
             and
             all
             other
             free
             Borrows
             had
             immemorially
             possessed
             this
             priviledge
             ,
             to
             apprehend
             persons
             found
             within
             their
             Town
             ,
             and
             forced
             them
             to
             find
             Caution
             as
             Law
             will
             ,
             upon
             Debt
             due
             to
             any
             in
             the
             Town
             ,
             and
             particularly
             to
             put
             them
             in
             Prison
             ,
             till
             they
             give
             such
             Bonds
             in
             Surety
             as
             this
             .
             The
             Suspender
             answered
             to
             the
             first
             ,
             there
             was
             no
             such
             Warrand
             by
             the
             Act
             of
             Parliament
             ,
             but
             only
             to
             Charge
             with
             general
             Letters
             ,
             un-free
             men
             to
             find
             Caution
             ;
             and
             for
             the
             Priviledge
             of
             Borrows
             ,
             to
             arrest
             un-free
             persons
             within
             their
             Towns
             ;
             it
             is
             only
             in
             case
             of
             Debts
             ,
             and
             other
             Merchandises
             ,
             due
             to
             Burgesses
             ,
             but
             cannot
             be
             extended
             to
             this
             Case
             ,
             where
             there
             is
             a
             special
             Order
             set
             down
             by
             Act
             of
             Parliament
             .
          
           
             The
             Lords
             found
             that
             the
             Burghs
             Royal
             summarly
             upon
             Staple
             Ware
             of
             un-free
             men
             ,
             and
             might
             judge
             thereanent
             ,
             but
             not
             summarly
             Incarcerate
             their
             Persons
             ,
             but
             only
             to
             Charge
             them
             ;
             and
             found
             their
             Custom
             and
             Priviledge
             ,
             not
             to
             extend
             to
             this
             Case
             ;
             and
             therefore
             found
             the
             Reason
             of
             Reduction
             Relevant
             .
          
        
         
           
             The
             Lady
             Carnagy
             contra
             The
             Lord
             Cranburn
             .
             Eodem
             die
             .
          
           
             LAdy
             
               Anna
               Hamiltoun
            
             and
             the
             Lord
             Carnagie
             her
             Husband
             ,
             as
             having
             obtained
             a
             Gift
             of
             Recognition
             from
             the
             King
             ,
             of
             the
             Barony
             of
             Innerweek
             ,
             and
             being
             thereupon
             Infeft
             ,
             pursues
             the
             Lord
             Cranburn
             to
             whom
             the
             samine
             was
             Disponed
             ,
             by
             the
             Earl
             of
             Dirletoun
             ,
             Grand-Father
             to
             both
             ,
             for
             declaring
             the
             Recognition
             ,
             and
             the
             Donatrix
             Right
             ,
             in
             so
             far
             as
             
               Iames
               Maxwel
            
             ,
             late
             Earl
             of
             Dirletoun
             ,
             holding
             the
             saids
             Lands
             of
             His
             Majesties
             Ward
             ,
             and
             relief
             had
             ,
             without
             His
             Majesties
             consent
             ,
             Alienat
             and
             Disponed
             the
             same
             to
             
               Iames
               Cicile
            
             his
             Oye
             ,
             then
             second
             Son
             to
             the
             Lord
             Cranburn
             ,
             procreat
             betwixt
             him
             and
             the
             Earl
             of
             Dirletouns
             second
             Daughter
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             absolvitor
             ,
             because
             where
             there
             was
             no
             Infeftment
             ,
             there
             could
             be
             no
             Alienation
             nor
             Recognition
             ;
             and
             there
             could
             be
             no
             Infeftment
             without
             the
             same
             were
             granted
             to
             the
             Disponer
             ,
             or
             his
             Procurator
             ,
             to
             the
             accepter
             to
             his
             Procurator
             ;
             but
             here
             there
             was
             no
             accepter
             nor
             Procurator
             ,
             because
             Cranburn
             being
             then
             a
             Child
             ,
             and
             in
             England
             ,
             had
             granted
             no
             Mandat
             to
             take
             this
             Seasine
             ;
             and
             therefore
             had
             raised
             Reduction
             thereof
             ,
             as
             done
             without
             his
             Warrand
             .
             And
             as
             to
             the
             Procuratory
             expead
             in
             the
             Chancellary
             ,
             Constituting
             an
             Acturney
             to
             the
             said
             
               Iames
               Cicile
            
             ,
             the
             expeading
             thereof
             was
             without
             his
             knowledge
             or
             warrand
             ;
             and
             therefore
             the
             Seasine
             being
             taken
             without
             his
             Warrant
             ,
             was
             null
             ,
             and
             made
             no
             Alienation
             nor
             Recognition
             ,
             as
             if
             any
             Heretor
             Disponing
             Ward-Lands
             ,
             and
             giving
             a
             Precept
             of
             Seasing
             ,
             if
             any
             third
             Party
             should
             accidentally
             find
             ,
             or
             steal
             away
             that
             Precept
             ,
             and
             take
             Seasine
             ,
             the
             same
             
             would
             be
             found
             null
             ,
             as
             without
             Warrant
             ,
             and
             would
             infer
             no
             Recognition
             .
             2ly
             ,
             Absolvitor
             ,
             because
             the
             Disposition
             to
             the
             Defender
             ,
             bears
             expresly
             ,
             that
             Dirltoun
             Dispones
             ,
             failzing
             Heirs-male
             of
             his
             Body
             ,
             so
             that
             it
             being
             conditional
             ,
             and
             the
             Seasine
             being
             
               actus
               legittimus
               qui
               nec
               recipit
               ,
               di●m
               nec
               conditionem
               ,
            
             the
             samine
             is
             null
             ;
             for
             if
             Di●ltoun
             had
             an
             Heir-male
             of
             his
             own
             Body
             ,
             he
             would
             have
             excluded
             
               James
               Cicile
            
             ,
             not
             by
             way
             of
             Reversion
             ,
             or
             Retrocession
             ,
             there
             being
             none
             such
             in
             the
             Disposition
             ;
             therefore
             it
             behoved
             to
             be
             a
             Suspensive
             Condition
             .
             3ly
             .
             Absolvitor
             ,
             because
             though
             the
             Seasine
             had
             been
             accepted
             warrantably
             ,
             yet
             the
             Accepter
             was
             minor
             ,
             and
             thereupon
             Leased
             ,
             and
             ought
             to
             be
             restored
             and
             the
             Seasine
             annulled
             ,
             and
             consequently
             the
             Recognition
             .
             The
             Pursuer
             answered
             to
             the
             First
             ,
             
               non
               relevat
            
             ,
             for
             albeit
             there
             had
             been
             no
             Acturney
             out
             of
             the
             Chancellary
             ,
             the
             Seasine
             would
             have
             been
             valid
             ,
             because
             there
             needs
             no
             other
             Procuratory
             ,
             for
             taking
             of
             Seasine
             ,
             but
             only
             the
             Precept
             of
             Seasine
             ,
             which
             is
             an
             express
             Mandat
             of
             the
             Disponet
             ,
             and
             the
             having
             thereof
             in
             the
             Acturneys
             hand
             ,
             is
             a
             sufficient
             evidence
             of
             the
             Warrant
             or
             Mandat
             to
             be
             Acturney
             ,
             for
             the
             Receiver
             ,
             which
             proves
             sufficiently
             his
             Warrant
             ,
             neither
             was
             there
             ever
             any
             more
             required
             to
             a
             Seasine
             in
             Scotland
             ,
             and
             if
             more
             were
             required
             ,
             all
             Seasines
             would
             be
             null
             ,
             it
             being
             ordinar
             to
             give
             Seasines
             to
             Infants
             ,
             or
             absents
             out
             of
             the
             Countrey
             ;
             but
             the
             delivery
             of
             the
             Precept
             by
             the
             Disponer
             ,
             to
             any
             Person
             in
             Name
             of
             the
             Accepter
             ,
             is
             a
             sufficient
             Mandat
             ,
             or
             Acturney
             for
             the
             Accepter
             ,
             especially
             here
             ,
             where
             a
             Grand-Father
             gives
             Infeftment
             to
             his
             Oye
             ,
             he
             might
             well
             give
             a
             Warrant
             to
             an
             Acturney
             for
             him
             to
             accept
             .
             To
             the
             second
             ,
             albeit
             the
             Disposition
             bears
             ,
             failing
             Heirs-male
             of
             the
             Disponers
             Body
             :
             Yet
             the
             Precept
             is
             directed
             to
             give
             present
             State
             and
             Seasine
             without
             delay
             ;
             whereby
             it
             is
             clear
             ,
             that
             the
             Disponers
             meaning
             was
             not
             ,
             that
             this
             condition
             should
             be
             Suspensive
             to
             impede
             the
             Infeftment
             :
             And
             therefore
             all
             it
             could
             operate
             is
             ,
             to
             have
             the
             effect
             of
             a
             resolutive
             Condition
             ,
             that
             if
             any
             Heir-male
             should
             be
             Supervenient
             ,
             he
             might
             upon
             that
             condition
             pursue
             
               James
               Cicile
            
             to
             renunce
             the
             Right
             ,
             or
             to
             declare
             it
             null
             ,
             neither
             is
             a
             Seasine
             
               actus
               legittimus
            
             ,
             and
             though
             it
             were
             ,
             and
             were
             incapable
             of
             a
             day
             or
             condition
             ,
             yet
             that
             would
             not
             annul
             the
             Act
             ,
             but
             annul
             the
             condition
             or
             day
             ,
             as
             
               aditio
               haereditatis
            
             ,
             is
             
               actus
               legittimus
            
             :
             Yet
             if
             any
             man
             enter
             Heir
             for
             a
             time
             ,
             or
             under
             condition
             ,
             he
             is
             Heir
             simply
             ;
             and
             the
             time
             and
             condition
             is
             void
             ,
             but
             not
             the
             Entry
             it self
             .
             To
             the
             Third
             ,
             albeit
             regulariter
             ,
             Minors
             Leased
             may
             be
             Restored
             ,
             yet
             that
             hath
             its
             Exceptions
             ,
             as
             a
             Minor
             being
             Denunced
             Rebel
             ,
             and
             his
             Escheat
             fallen
             ,
             or
             thereafter
             his
             Liferent
             ,
             or
             bearing
             in
             Non-entry
             ,
             either
             simply
             ,
             or
             through
             a
             wrong
             or
             informal
             Infeftment
             ,
             he
             would
             never
             be
             restored
             against
             these
             Casualities
             ,
             so
             neither
             against
             the
             taking
             of
             Seasine
             ,
             in
             so
             far
             as
             may
             infer
             Recognition
             .
             2ly
             ,
             There
             could
             be
             by
             the
             Seasine
             no
             Lesion
             at
             that
             time
             ,
             Cranburn
             being
             then
             but
             his
             Mothers
             second
             Son
             ,
             and
             not
             
               alioqui
               succ●ssurus
            
             ,
             to
             the
             half
             of
             the
             Estate
             ,
             as
             now
             he
             is
             ;
             neither
             is
             ever
             Lesion
             interpret
             by
             the
             prejudice
             of
             any
             part
             of
             a
             Deed
             ,
             unless
             there
             were
             Lesion
             of
             the
             whole
             ,
             as
             if
             Lands
             were
             Disponed
             to
             a
             Minor
             ,
             with
             the
             burden
             of
             Debts
             ,
             he
             could
             not
             reduce
             the
             burden
             of
             Debts
             as
             to
             his
             Lesion
             ,
             unless
             thereby
             the
             whole
             Disposition
             were
             to
             his
             Lesion
             .
          
           
             The
             Lords
             Repelled
             these
             three
             Defenses
             .
          
        
         
           
           
             Rig
             of
             Carberrie
             contra
             His
             Creditors
             .
             Eodem
             die
             .
          
           
             THE
             Creditors
             of
             Carberrie
             having
             obtained
             a
             Decreet
             against
             Carberrie
             ,
             and
             Denunced
             him
             thereupon
             ,
             pursues
             for
             Annualrent
             since
             the
             Denunciation
             ,
             conform
             to
             the
             Act
             of
             Parliament
             thereanent
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             First
             ,
             Because
             the
             Horning
             was
             manifestly
             null
             ,
             he
             being
             Denunced
             in
             the
             Name
             of
             Richard
             the
             Usurper
             ,
             after
             he
             was
             out
             of
             his
             pretended
             Authority
             .
             2dlie
             ,
             Because
             the
             Decreet
             being
             Suspended
             ,
             a
             fifth
             or
             sixth
             part
             thereof
             was
             taken
             away
             .
             
               3dlie
               ,
            
             ,
             The
             Denunciation
             was
             not
             at
             the
             Cross
             of
             the
             Regality
             of
             Musselburgh
             where
             he
             dwells
             ,
             but
             at
             
               Edinburgh
               ,
               4lie
            
             ,
             Before
             the
             D●nunciation
             he
             had
             given
             in
             a
             Bill
             of
             Suspension
             ,
             whereupon
             there
             was
             a
             Deliverance
             given
             ,
             superceeding
             Execution
             ,
             till
             the
             Bill
             were
             seen
             and
             answered
             ;
             in
             the
             mean
             time
             these
             Pursuers
             getting
             the
             Bill
             to
             see
             ,
             proceeded
             to
             Denunce
             .
             The
             Pursuers
             answered
             to
             the
             first
             ,
             that
             it
             was
             nottour
             ,
             and
             attested
             by
             the
             Keeper
             of
             the
             Signet
             ,
             that
             Richard
             was
             repute
             in
             Scotland
             ,
             to
             be
             in
             his
             Authority
             till
             the
             18.
             of
             May
             1659.
             till
             which
             the
             Signet
             was
             open
             ,
             and
             many
             Letters
             past
             in
             his
             Name
             ,
             and
             this
             Denunciation
             was
             upon
             the
             sixth
             of
             May
             ,
             and
             the
             Charge
             in
             Aprile
             .
          
           
             In
             respect
             whereof
             ,
             the
             Lords
             Repelled
             the
             first
             Defense
             ;
             They
             Repelled
             also
             the
             second
             Defense
             ,
             as
             to
             the
             Annualrent
             of
             what
             was
             found
             due
             by
             the
             last
             Decreet
             .
             They
             Repelled
             the
             third
             Defense
             ,
             because
             the
             Usurper
             had
             cryed
             down
             Regalities
             :
             and
             found
             the
             fourth
             Defense
             Relevant
             ,
             
               scripto
               vel
               juramento
               ,
               viz.
            
             That
             there
             was
             a
             Deliverance
             stopping
             Execution
             the
             time
             of
             the
             Denunciation
             .
          
        
         
           
             Rickart
             contra
             Eodem
             die
             .
          
           
             RICKART
             being
             Tacks-man
             of
             a
             Room
             of
             the
             Barony
             of
             Lowdoun
             ,
             set
             the
             same
             to
             a
             Subtennent
             ,
             for
             paying
             the
             Heretors
             Rent
             ,
             and
             so
             much
             superplus
             ,
             whereupon
             he
             Charged
             the
             Sub-Tennent
             ,
             who
             Suspended
             ,
             and
             alleadged
             that
             the
             Charger
             had
             sub-set
             to
             him
             as
             Tacks-man
             ,
             and
             was
             obliged
             to
             produce
             his
             Tack
             to
             him
             ,
             and
             being
             Warned
             by
             the
             Heretor
             ,
             he
             did
             by
             way
             of
             Instrument
             require
             the
             Chargers
             Tack
             (
             if
             he
             any
             had
             )
             to
             Defend
             himself
             thereby
             ,
             which
             he
             refused
             ;
             and
             the
             truth
             is
             ,
             he
             had
             no
             Tack
             unexpired
             :
             Whereupon
             he
             was
             necessitate
             to
             take
             a
             new
             Tack
             from
             the
             Heretor
             ,
             for
             the
             whole
             Duty
             he
             was
             obliged
             to
             pay
             to
             the
             Heretor
             ,
             and
             Rickart
             before
             .
             The
             Charger
             answered
             
               non
               Relevat
            
             ,
             unless
             as
             he
             had
             been
             Warned
             ,
             he
             had
             also
             been
             Removed
             by
             a
             Sentence
             ,
             in
             which
             the
             Charger
             would
             have
             compeared
             and
             Defended
             :
             And
             albeit
             he
             had
             not
             compeared
             ,
             the
             Defender
             had
             this
             Defense
             competent
             ,
             that
             he
             was
             Tennent
             to
             the
             Charg●●
             ,
             by
             payment
             of
             Male
             and
             Duty
             ,
             who
             had
             Right
             by
             Tack
             ,
             either
             standing
             ,
             or
             at
             least
             he
             bruiked
             ,
             
               per
               tacitam
               relo●ationem
            
             ,
             and
             he
             not
             Warned
             nor
             Called
             .
          
           
           
             The
             Lords
             found
             the
             Reason
             of
             Suspension
             Relevant
             ,
             and
             that
             the
             foresaid
             Defense
             of
             tacit
             Relocation
             would
             not
             have
             been
             Relevant
             ,
             tacit
             Relocation
             being
             only
             effectual
             against
             singular
             Successors
             of
             the
             natural
             Possessor
             .
             The
             Warning
             of
             whom
             is
             sufficient
             to
             interrupt
             the
             same
             ,
             not
             only
             as
             to
             them
             who
             are
             warned
             ,
             but
             any
             other
             Tacks-man
             ,
             whose
             Tacks
             are
             expired
             ,
             and
             therefore
             the
             Defense
             in
             that
             Case
             ,
             must
             always
             be
             ,
             that
             the
             Defender
             is
             Tennent
             ,
             by
             payment
             of
             Male
             and
             Duty
             to
             such
             a
             person
             ,
             who
             either
             is
             Infeft
             ,
             or
             hath
             Tack
             and
             Terms
             to
             run
             after
             the
             Warning
             ;
             but
             if
             the
             Charger
             had
             a
             Tack
             standing
             ,
             the
             Lords
             ordained
             him
             to
             produce
             the
             same
             ,
             and
             they
             would
             hear
             the
             Parties
             thereupon
             .
          
        
         
           
             Charles
             Oliphant
             contra
             Dowglasse
             of
             Donnoch
             .
             February
             3.
             1663.
             
          
           
             
               CHarles
               Oliphant
            
             as
             Assigney
             Constitute
             by
             
               David
               Macbrair
            
             ,
             Charges
             Dornoch
             to
             pay
             the
             sum
             of
             1800
             merks
             :
             Compearance
             is
             made
             for
             an
             Arrester
             ,
             as
             having
             Arrested
             before
             the
             Assignation
             ,
             at
             least
             before
             Intimation
             .
             The
             Assigney
             answered
             ,
             no
             preference
             upon
             this
             Arrestment
             ,
             because
             it
             was
             Execute
             upon
             the
             Sabbath
             Day
             ,
             and
             so
             is
             not
             lawful
             :
             for
             by
             the
             Law
             of
             all
             Nations
             ,
             Judicial
             Acts
             done
             by
             Authority
             of
             Judges
             ,
             upon
             Legal
             Process
             ,
             
               diebus
               feriates
            
             are
             null
             ;
             and
             there
             is
             an
             Act
             of
             Sederunt
             to
             that
             same
             effect
             .
             The
             Arrester
             answered
             ,
             that
             there
             was
             no
             Law
             prohibiting
             such
             Executions
             ,
             or
             declaring
             them
             null
             ;
             and
             though
             it
             was
             a
             fault
             and
             breach
             of
             the
             Sabbath
             to
             do
             so
             ,
             that
             annuls
             not
             the
             Act
             ,
             
               fi●ri
               non
               debet
               sed
               factum
               valet
               .
            
          
           
             The
             Lords
             were
             all
             clear
             that
             such
             Executions
             should
             be
             prohibit
             in
             time
             coming
             ,
             but
             
               quo
               ad
               praeterita
            
             ,
             some
             were
             
               non
               liquct
            
             ;
             Yet
             the
             major
             part
             found
             the
             Execution
             null
             ,
             for
             they
             thought
             ,
             that
             albeit
             Acts
             of
             privat
             Parties
             on
             the
             Sabbath
             Day
             ,
             might
             stand
             legally
             valid
             ,
             as
             if
             Extracts
             were
             Subscribed
             that
             day
             ,
             or
             a
             Consignation
             made
             ,
             (
             which
             had
             been
             found
             valid
             by
             a
             former
             Decision
             )
             yet
             judicial
             Acts
             ,
             
               authoritate
               judicis
            
             ,
             are
             null
             ,
             else
             Messengers
             would
             ordinarly
             wait
             Parties
             upon
             the
             Sabbath
             Day
             ,
             for
             all
             Execution
             by
             Horning
             and
             Caption
             ,
             &c.
             
          
        
         
           
             Laird
             Phillorth
             contra
             Lord
             Frazer
             .
             February
             4.
             1663.
             
          
           
             SIR
             
               Alexander
               Frazer
            
             of
             Phillorth
             ,
             being
             in
             Distresse
             for
             Debt
             ,
             Disponed
             his
             Barony
             of
             Cairnbuilg
             ;
             to
             
               Robert
               Frazer
            
             of
             Doors
             ,
             which
             Lands
             of
             Cairnbuilg
             lyes
             near
             to
             Phillorth
             ,
             and
             the
             House
             thereof
             was
             his
             Residence
             ,
             in
             the
             Alienation
             there
             is
             a
             Clause
             conceived
             to
             this
             effect
             ,
             that
             it
             shall
             not
             be
             leisom
             to
             the
             said
             
               Robert
               Frazer
            
             of
             Doors
             ,
             to
             Alienate
             the
             Lands
             ,
             during
             the
             Lifetime
             of
             the
             said
             Sir
             
               Alexander
               Frazer
            
             ,
             and
             if
             the
             said
             
               Robert
               Frazer
            
             did
             in
             the
             contrary
             ,
             he
             obliged
             him
             to
             pay
             to
             the
             said
             Sir
             Alexander
             ,
             the
             Sum
             of
             ten
             thousand
             pounds
             for
             Damnage
             and
             Interest
             ,
             
               ex
               pacto
               convento
            
             ,
             and
             if
             the
             said
             Robert
             should
             have
             a●do
             to
             sell
             the
             saids
             Lands
             ,
             after
             the
             
             death
             of
             the
             said
             Sir
             Alexander
             ,
             he
             obliged
             him
             to
             make
             offer
             there
             to
             the
             Heirsand
             Assigneys
             of
             the
             said
             Sir
             Alexander
             ;
             or
             any
             Person
             he
             pleased
             nominat
             of
             the
             Name
             of
             Frazer
             ,
             for
             38000
             pounds
             .
             The
             said
             
               Robert
               Frazer
            
             of
             Doors
             ,
             Disponed
             the
             saids
             Lands
             to
             Staniewood
             ,
             during
             the
             life
             of
             Sir
             
               Alexander
               Frazer
            
             :
             Sir
             Alexander
             assigned
             the
             Contract
             ,
             and
             the
             foresaid
             Clause
             to
             this
             Phillorth
             ,
             whereupon
             he
             raised
             Improbation
             and
             Reduction
             ,
             of
             the
             Disposition
             granted
             by
             Doors
             to
             Staniewood
             ,
             the
             Lord
             Frazers
             Grand-Father
             upon
             this
             Reason
             ,
             that
             he
             as
             Assigney
             by
             his
             Father
             to
             the
             Clause
             
               de
               non
               alienando
            
             ,
             had
             good
             interest
             to
             pursue
             Reduction
             of
             the
             Disposition
             contraveening
             the
             said
             Clause
             ;
             and
             true
             it
             is
             that
             the
             said
             Disposition
             granted
             by
             Doors
             to
             Staniewood
             ,
             was
             null
             ;
             as
             proceeding
             
               a
               non
               habente
               potestatem
            
             ,
             in
             so
             far
             as
             by
             the
             foresaid
             Clause
             ,
             in
             the
             said
             alienation
             granted
             by
             his
             Grand-Father
             to
             Doors
             ;
             it
             was
             expresly
             provided
             ,
             it
             should
             not
             be
             leisom
             for
             Doors
             to
             sell
             ,
             &c.
             
             Which
             being
             a
             Provision
             in
             the
             Disposition
             repeated
             ,
             at
             the
             least
             generally
             in
             the
             Procuratory
             of
             Resignation
             ,
             is
             
               pactum
               reale
            
             ,
             effectual
             against
             singular
             Successors
             ,
             as
             was
             lately
             found
             in
             the
             case
             of
             the
             Lord
             Stormont
             ,
             and
             so
             must
             annul
             the
             Right
             made
             contrair
             thereto
             .
             2ly
             ,
             Albeit
             it
             were
             not
             a
             real
             Paction
             ,
             yet
             unquestionably
             the
             Obligement
             not
             to
             Annalize
             ,
             did
             personally
             oblige
             Doors
             ,
             and
             thereupon
             there
             was
             an
             Inhibition
             raised
             before
             my
             Lord
             Frazers
             Grand-Father
             Staniewoods
             Right
             :
             And
             therefore
             the
             Disposition
             made
             thereafter
             ought
             to
             be
             reduced
             ,
             
               ex
               capite
               inhibitionis
            
             .
             It
             was
             answered
             for
             the
             Lord
             Frazer
             ,
             to
             the
             first
             member
             of
             the
             Reason
             ,
             
               non
               relevat
            
             ;
             for
             such
             an
             Obligation
             ,
             
               de
               non
               alienando●
            
             is
             reprobat
             in
             Law
             ,
             as
             being
             contrair
             the
             nature
             of
             Property
             .
             2ly
             ,
             It
             is
             not
             
               reale
               pactum
            
             ,
             albeit
             it
             were
             in
             the
             Charter
             or
             Seasine
             ,
             much
             less
             being
             only
             in
             the
             Disposition
             ,
             and
             in
             the
             Narrative
             of
             the
             Procuratory
             of
             Resignation
             thus
             ,
             and
             to
             the
             effect
             the
             said
             
               Robert
               Frazer
            
             may
             be
             Infeft
             ,
             upon
             the
             provisions
             and
             conditions
             in
             manner
             foresaid
             ,
             but
             no
             further
             mention
             thereof
             ;
             in
             the
             Procuratory
             of
             Resignation
             or
             Infeftment
             ,
             and
             so
             meets
             not
             with
             Stormonts
             Case
             ,
             where
             the
             Clause
             was
             expresly
             resolutive
             ,
             that
             in
             such
             a
             Case
             the
             Right
             should
             be
             null
             
               ipso
               facto
            
             ;
             and
             return
             to
             the
             next
             person
             who
             might
             be
             Heir
             of
             Tailzie
             .
             Which
             Clause
             was
             not
             only
             in
             the
             Disposition
             ,
             but
             in
             the
             Procuratory
             ,
             Charter
             ,
             and
             Seasine
             Registrate
             ;
             and
             thereby
             equivalent
             to
             a
             Publication
             of
             an
             Interdiction
             :
             but
             here
             there
             is
             no
             resolutive
             or
             irritant
             Clause
             ,
             nor
             any
             Right
             reserved
             to
             return
             in
             case
             of
             contraveening
             ,
             nor
             is
             it
             in
             the
             Infeftment
             at
             all
             .
             As
             to
             the
             second
             ,
             the
             Inhibition
             cannot
             make
             the
             Clause
             effectual
             to
             annul
             the
             Alienation
             ,
             because
             Doors
             was
             not
             simply
             obliged
             ,
             not
             to
             Alienat
             during
             Sir
             Alexanders
             Life
             ,
             but
             if
             he
             did
             in
             the
             contrair
             ,
             to
             pay
             ten
             thousand
             pound
             for
             Damnage
             and
             Interest
             ,
             
               ex
               pacto
               convento
            
             ,
             which
             cannot
             be
             understood
             of
             Damnage
             by
             delay
             ,
             or
             Expence
             in
             attaining
             the
             principal
             Obligation
             ,
             seeing
             it
             bears
             not
             as
             is
             ordinar
             by
             and
             attour
             performance
             ,
             and
             the
             quantity
             thereof
             being
             so
             great
             ,
             it
             must
             be
             evidently
             understood
             of
             the
             value
             of
             the
             principal
             Obligation
             ,
             so
             that
             it
             becomes
             an
             alternative
             or
             restrictive
             Clause
             ,
             whereby
             it
             was
             in
             Doors
             option
             ,
             whether
             to
             forbear
             to
             sell
             ,
             or
             to
             pay
             the
             ten
             thousand
             pounds
             if
             he
             did
             sell
             ,
             so
             that
             the
             Inhibition
             can
             reach
             no
             further
             then
             to
             the
             ten
             thousand
             pounds
             ,
             seing
             Doors
             by
             selling
             ,
             became
             obliged
             for
             the
             ten
             thousand
             pounds
             .
          
           
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             and
             that
             the
             Clause
             or
             Inhibition
             could
             extend
             to
             no
             further
             then
             ten
             thousand
             pounds
             .
          
           
             It
             was
             further
             alleadged
             for
             Frazer
             absolvitor
             ,
             from
             the
             ten
             thousand
             pounds
             ,
             because
             it
             being
             a
             Moveable
             Sum
             ,
             fell
             under
             Sir
             
               Alexander
               Frazer
            
             his
             Escheat
             ,
             which
             was
             Gifted
             to
             one
             Forbes
             ,
             and
             declared
             expresly
             as
             to
             this
             ten
             thousand
             Pounds
             ,
             and
             assigned
             to
             the
             Lord
             Frazer
             .
             The
             Pursuer
             answered
             that
             this
             Sum
             was
             Heretable
             ,
             because
             it
             succeeded
             in
             the
             place
             of
             the
             principal
             Obligation
             ,
             not
             to
             alienat
             for
             such
             a
             time
             ;
             and
             after
             that
             time
             to
             offer
             the
             Lands
             of
             Phillorth
             and
             his
             Heirs
             ,
             for
             eight
             thousand
             pounds
             ,
             which
             is
             clearly
             an
             heretable
             Clause
             ;
             and
             therefore
             this
             Sum
             coming
             in
             leu
             thereof
             ,
             must
             belong
             to
             the
             Heir
             or
             Assigney
             ,
             and
             so
             fell
             not
             to
             the
             Fisk
             ,
             seing
             
               surrogatum
               sapit
               naturam
               surrogati
            
             ,
             as
             Sums
             Consigned
             for
             Redemption
             of
             Lands
             before
             Declarator
             ,
             are
             not
             moveable
             ,
             but
             belong
             to
             the
             Wodsetters
             Heirs
             or
             Assigneys
             ;
             so
             in
             mutual
             Obligations
             ,
             whereby
             one
             person
             oblieges
             to
             Dispone
             ,
             or
             Resign
             Lands
             ;
             and
             another
             is
             oblieged
             for
             a
             price
             ,
             the
             price
             would
             not
             belong
             to
             the
             Executor
             ,
             or
             Fisk
             ,
             but
             to
             the
             Heir
             ;
             any
             sums
             due
             for
             Damnage
             and
             Interest
             ,
             not
             performing
             a
             Disposition
             ,
             or
             upon
             Eviction
             ,
             belongs
             to
             the
             Heir
             ,
             not
             to
             the
             Executor
             .
             The
             Defender
             answered
             ,
             that
             this
             sum
             is
             not
             in
             the
             case
             of
             any
             of
             the
             former
             alleadgences
             ,
             neither
             is
             the
             question
             here
             ,
             what
             would
             belong
             to
             the
             Executor
             ,
             but
             what
             would
             belong
             to
             the
             Fisk
             ,
             for
             Moveable
             Heirship
             belongs
             to
             the
             Heir
             and
             not
             to
             the
             Executor
             ,
             and
             yet
             belongs
             to
             the
             Fisk
             ,
             so
             do
             sums
             without
             Destination
             of
             Annualrents
             ,
             wherein
             Executors
             are
             secluded
             .
             So
             also
             doth
             the
             price
             of
             Lands
             ,
             when
             they
             are
             
               de
               presenti
            
             ,
             sold
             by
             the
             Defunct
             .
          
           
             The
             Lords
             found
             this
             sum
             moveable
             and
             belonged
             to
             the
             Fisk
             ,
             and
             therefore
             Assoilzied
             the
             Defender
             from
             that
             Member
             also
             .
          
        
         
           
             Mr.
             Ninian
             Hill
             contra
             Maxwel
             .
             February
             5.
             1663.
             
          
           
             MR.
             
               Ninian
               Hill
            
             pursues
             Maxwel
             as
             heir
             to
             his
             Father
             
               Iohn
               Maxwel
            
             ,
             for
             payment
             of
             a
             sum
             due
             to
             be
             payed
             to
             Maxwels
             Relict
             yearly
             after
             his
             death
             ,
             and
             assigned
             to
             the
             pursuer
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             Pursuers
             Cedent
             being
             Executor
             her self
             to
             the
             Defunct
             ,
             was
             lyable
             for
             this
             sum
             ,
             
               &
               intus
               habuit
            
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             this
             being
             an
             annual
             ,
             payment
             after
             the
             Defuncts
             death
             ,
             it
             was
             proper
             for
             his
             heir
             to
             pay
             the
             same
             ,
             not
             for
             his
             Executor
             ,
             and
             if
             the
             Executor
             had
             payed
             it
             ,
             he
             would
             get
             releif
             off
             the
             heir
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Grahame
             contra
             Ross
             Eodem
             die
             .
          
           
             THe
             Parties
             having
             Competed
             upon
             Appryzings
             ,
             being
             decided
             the
             24.
             of
             Ianuary
             .
          
           
           
             Wherein
             the
             Lords
             found
             that
             none
             of
             the
             Appryzers
             should
             come
             in
             with
             him
             who
             was
             first
             Infeft
             ,
             till
             first
             they
             payed
             their
             proportional
             part
             of
             the
             Composition
             and
             Expenses
             ;
             now
             having
             considered
             again
             the
             Tenor
             of
             the
             Act
             of
             Parliament
             ,
             they
             found
             that
             they
             behoved
             to
             satisfie
             the
             whole
             ,
             and
             that
             the
             obtainer
             of
             the
             first
             Infeftment
             should
             bear
             no
             share
             of
             it
             ,
             that
             being
             all
             the
             other
             Appryzers
             gave
             ,
             ●to
             got
             the
             benefit
             of
             the
             Act
             ,
             to
             come
             in
             
               pari
               passu
            
             .
          
        
         
           
             Lenox
             contra
             Lintoun
             .
             Eodem
             die
             .
          
           
             LEnox
             being
             Married
             to
             
               Margaret
               Mcgie
            
             ,
             who
             was
             an
             Heretrix
             ,
             she
             dying
             ,
             Lenox
             Son
             was
             Infeft
             as
             Heir
             to
             her
             ,
             who
             dying
             also
             without
             Issue
             ,
             this
             Lenox
             as
             his
             Brother
             by
             his
             Mother
             ,
             and
             alleadging
             him
             to
             be
             appearing
             Heir
             to
             his
             Brother
             Lenox
             ,
             in
             these
             Lands
             ,
             whereunto
             his
             Brother
             succeeded
             to
             their
             Mother
             ,
             craves
             Exhibitions
             of
             the
             Writs
             of
             the
             Lands
             ,
             
               ad
               deliberandum
            
             .
             The
             Defender
             Lintoun
             alleadged
             absolvitor
             ,
             because
             his
             Son
             being
             Infeft
             in
             the
             Lands
             as
             Heir
             to
             his
             Mother
             ,
             his
             nearest
             Agnat
             on
             the
             Fathers
             side
             ,
             his
             apparent
             Heir
             ,
             and
             ●one
             on
             his
             Mothers
             side
             ;
             for
             we
             have
             no
             
               intrin
               succession
            
             ,
             neither
             holds
             it
             with
             us
             ,
             
               materni
               maternis
               ,
               paterni
               paternis
            
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             that
             the
             Father
             was
             apparant
             Heir
             to
             his
             Son
             ,
             being
             once
             Infeft
             as
             Heir
             to
             the
             Mother
             ,
             and
             therefore
             Assoilzied
             .
          
        
         
           
             Lady
             Carnagy
             contra
             Lord
             Cranburn
             .
             Eodem
             die
             .
          
           
             THis
             day
             afternoon
             the
             Lords
             Advised
             the
             rest
             of
             the
             Defenses
             ,
             proponed
             for
             the
             Lord
             Cranburn
             ,
             in
             the
             Recognition
             pursued
             at
             the
             Instance
             of
             my
             Lady
             Carnagy
             ,
             who
             alleadged
             first
             ,
             that
             Recognition
             was
             only
             competent
             in
             proper
             Ward-holdings
             ,
             and
             not
             in
             blench
             Feu
             ,
             or
             Burgage
             ;
             these
             only
             being
             
               feuda
               recta
               &
               militaria
            
             ,
             and
             all
             others
             but
             fendastra
             ;
             But
             the
             Lands
             of
             Innerweek
             are
             not
             a
             proper
             Military
             Feu
             ,
             holding
             Ward
             ,
             being
             only
             a
             Taxed
             Ward
             ,
             wherein
             the
             word
             Duties
             is
             Taxed
             yearly
             ,
             and
             the
             Marriage
             is
             Taxed
             to
             so
             much
             ,
             and
             so
             is
             in
             the
             nature
             of
             a
             Feu
             ;
             neither
             was
             it
             ever
             yet
             found
             in
             Scotland
             that
             a
             Taxt-ward
             did
             fall
             in
             Recognition
             .
             The
             pursuer
             answered
             ,
             that
             the
             Defense
             is
             not
             Relevant
             to
             rule
             in
             our
             Law
             ,
             being
             that
             alienation
             of
             Ward-lands
             ,
             without
             the
             consent
             of
             the
             Superiour
             ,
             infers
             Recognition
             ,
             and
             neither
             Law
             nor
             Custom
             hath
             made
             exception
             of
             Taxt-wards
             ,
             which
             have
             but
             lately
             occurred
             in
             the
             time
             of
             King
             Iames
             ,
             who
             and
             King
             Charles
             were
             most
             sparing
             to
             grant
             Gifts
             of
             Recognition
             ,
             whereby
             there
             hath
             been
             few
             Debates
             or
             Decisions
             thereanent
             ,
             and
             there
             is
             no
             consequence
             ,
             that
             because
             the
             Casuality
             of
             the
             Ward
             ,
             when
             it
             falls
             ,
             is
             liquidat
             and
             Taxed
             ,
             or
             the
             value
             of
             the
             Marriage
             ,
             that
             therefore
             the
             Fee
             is
             not
             a
             Military
             Fee
             ,
             wherein
             the
             Vassal
             is
             oblieged
             to
             assist
             his
             Superiour
             in
             Counsel
             and
             in
             War
             ,
             in
             the
             stoutest
             Obligations
             of
             Faithfulness
             and
             Gratitude
             ;
             and
             therefore
             his
             withdrawing
             himself
             from
             his
             Vassallage
             ,
             and
             obtaining
             another
             to
             him
             ,
             is
             the
             greater
             Ingratitude
             that
             the
             
             Superior
             had
             Taxed
             the
             benefite
             of
             the
             Ward
             ,
             and
             Marriage
             ,
             at
             low
             rates
             ,
             which
             Casualties
             ,
             cannot
             be
             drawn
             to
             prejudge
             the
             Superior
             ,
             of
             other
             Casualties
             but
             on
             the
             contrair
             ,
             
               exceptio
               firmat
               regulam
               in
               non
               exceptis
               .
            
          
           
             
               The
               Lords
               repelled
               this
               Defense
            
             .
             It
             was
             further
             alleadged
             ,
             that
             here
             was
             no
             offer
             of
             a
             Stranger
             ,
             but
             of
             the
             Vassals
             own
             Grand-child
             ,
             who
             now
             is
             his
             apparent
             Heir
             in
             one
             half
             of
             these
             Lands
             ,
             as
             being
             the
             eldest
             Son
             of
             his
             second
             Daughter
             :
             and
             Recognition
             was
             never
             found
             in
             such
             a
             Case
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             the
             Defender
             be
             now
             apparent
             Heir
             to
             the
             Vassal
             Disponer
             ,
             yet
             the
             Case
             must
             be
             considered
             ,
             as
             it
             was
             in
             the
             time
             of
             the
             Disposition
             ,
             when
             he
             had
             an
             elder
             Brother
             ,
             the
             then
             Lord
             Cranburn
             living
             ,
             and
             was
             not
             
               alioqui
               successurus
            
             :
             and
             the
             Lords
             had
             formerly
             found
             ;
             that
             an
             alienation
             of
             Ward-lands
             ,
             by
             the
             Earl
             of
             Cassils
             to
             his
             own
             Brother
             ,
             albeit
             he
             was
             his
             nearest
             of
             Kin
             for
             the
             time
             ,
             having
             no
             Children
             ,
             yet
             seing
             he
             could
             not
             be
             esteemed
             
               alioqui
               successurus
            
             ,
             or
             Heir
             apparent
             ,
             in
             regard
             the
             Earl
             might
             have
             Children
             ,
             therefore
             they
             found
             Recognition
             incurred
             .
          
           
             
               The
               Lords
               repelled
               this
               Defense
               :
               3ly
               ,
            
             It
             was
             further
             alleadged
             ,
             that
             there
             could
             be
             no
             Recognition
             ,
             where
             there
             was
             no
             alienation
             of
             the
             Fee
             ,
             without
             the
             the
             Superiors
             consent
             ,
             here
             there
             was
             no
             alienation
             of
             the
             Fee
             ;
             because
             the
             Seasine
             being
             taken
             to
             be
             holden
             from
             Dirletoun
             ,
             of
             the
             KING
             ,
             not
             confirmed
             ,
             was
             altogether
             null
             ,
             and
             therefore
             Dirletoun
             was
             not
             Divested
             ,
             nor
             Cranburn
             Invested
             ,
             for
             such
             an
             Infeftment
             is
             ineffectual
             ,
             and
             incompleat
             ,
             till
             Confirmation
             ,
             and
             could
             never
             be
             the
             ground
             of
             Pursuit
             ,
             or
             Defense
             against
             any
             Party
             .
             2ly
             ,
             By
             such
             an
             Infeftment
             ,
             the
             Superiors
             consent
             is
             a
             Condition
             implyed
             ,
             for
             an
             Infeftment
             to
             be
             holden
             of
             the
             Superior
             ,
             is
             null
             till
             Confirming
             ,
             and
             implyes
             as
             much
             as
             if
             the
             Seasine
             had
             been
             expresly
             granted
             ,
             
               si
               dominus
               consenserit
            
             ,
             and
             so
             can
             be
             no
             obtrusion
             ,
             or
             ingratitude
             .
             
               3ly
               ,
               Craig
            
             in
             his
             
               Dieges
               .
               de
               recognitionibus
            
             ,
             Reports
             the
             Decision
             of
             the
             Lords
             betwixt
             Mckenzie
             and
             Bane
             ,
             whereby
             they
             found
             ,
             that
             the
             Seasine
             being
             unregistrat
             ,
             was
             null
             ,
             and
             inferred
             no
             Recognition
             ,
             
               quia
               non
               spectatur
               affectus
               ,
               sed
               effectus
            
             ;
             yet
             that
             was
             but
             an
             extrinsick
             nullity
             ,
             much
             more
             here
             ,
             the
             Seasine
             being
             intrinsically
             null
             .
             The
             Pursuer
             answered
             ,
             First
             ,
             That
             if
             this
             ground
             hold
             ,
             there
             could
             be
             no
             Recognition
             ,
             except
             by
             subaltern
             base
             Infeftments
             holden
             of
             the
             Vassal
             ,
             in
             which
             there
             is
             far
             lesse
             ingratitude
             ,
             there
             being
             no
             new
             Vassal
             obtunded
             ,
             nor
             the
             Vassal
             withdrawing
             himself
             from
             his
             Clientel
             ,
             nor
             any
             prejudice
             to
             the
             Superior
             ,
             because
             subaltern
             Infeftments
             would
             exclude
             none
             of
             the
             Casualities
             of
             the
             Superiority
             ,
             yet
             such
             Alienations
             ,
             exceeding
             the
             half
             of
             the
             Fee
             ,
             do
             unquestionably
             infer
             Recognition
             ,
             though
             the
             ingratitude
             be
             no
             more
             then
             this
             ,
             that
             the
             Vassal
             renders
             himself
             unable
             fitly
             to
             serve
             his
             Superior
             ,
             by
             delapidating
             his
             Fee
             ,
             or
             the
             Major
             part
             thereof
             ,
             how
             much
             more
             ,
             when
             he
             does
             all
             that
             in
             him
             is
             ,
             to
             withdraw
             himself
             from
             the
             Superiors
             Clientel
             ,
             by
             obtruding
             to
             him
             a
             Stranger
             ,
             alienating
             from
             him
             the
             whole
             Fee
             ,
             and
             albeit
             the
             Seasine
             be
             null
             ,
             as
             to
             other
             effects
             ,
             till
             it
             be
             Confirmed
             :
             Yet
             as
             Craig
             observes
             in
             the
             foresaid
             place
             ,
             
               Vassalus
               fecit
               quantum
               in
               se
               erat
               .
               2ly
               ,
            
             Though
             by
             our
             Statute
             ,
             or
             peculiar
             Custom
             ,
             such
             Seasins
             unconfirmed
             are
             null
             ;
             yet
             by
             the
             Act
             of
             Parliament
             1633.
             
             Anent
             Ward
             holdings
             ,
             Recognition
             is
             declared
             to
             proceed
             according
             to
             common
             Law
             ,
             which
             can
             be
             no
             other
             then
             the
             common
             Feudal
             Customs
             ,
             by
             which
             Customs
             it
             is
             sure
             that
             the
             Recognition
             is
             chiefly
             inferred
             by
             the
             Vassals
             alienation
             :
             As
             to
             the
             implyed
             condition
             ,
             
               si
               Dominus
               consenserit
            
             ,
             though
             that
             were
             expresse
             ,
             yet
             the
             Vassal
             giving
             Seasine
             ,
             the
             Tradition
             of
             Seasine
             is
             inconsistant
             with
             such
             a
             condition
             ,
             being
             understood
             ,
             as
             a
             Suspensive
             
             condition
             ,
             for
             he
             that
             delivers
             Possession
             
               de
               facto
            
             ,
             cannot
             be
             said
             upon
             any
             condition
             not
             to
             deliver
             the
             same
             
               de
               facto
            
             ,
             and
             therefore
             it
             is
             but
             
               protestalio
               contraria
               facto
            
             ,
             and
             if
             it
             be
             understood
             as
             a
             resolutive
             condition
             ,
             as
             needs
             it
             must
             ,
             it
             impedes
             not
             the
             Alienation
             ,
             but
             only
             might
             resolve
             the
             same
             .
             As
             to
             the
             Decision
             upon
             the
             not
             Registration
             of
             the
             Seasine
             
               una
               herundo
               non
               facit
               ver
            
             ,
             and
             albeit
             it
             might
             be
             a
             rule
             in
             that
             individual
             Case
             .
             It
             cannot
             be
             extended
             
               ad
               alios
               casus
            
             ,
             although
             it
             were
             a
             Statute
             ,
             much
             lesse
             a
             Practick
             .
          
           
             
               The
               Lords
               also
               repelled
               this
               Defense
               .
               4ly
               ,
            
             It
             was
             further
             alleadged
             by
             the
             Defender
             ,
             that
             Dirletouns
             Infeftment
             was
             granted
             by
             the
             KING
             ,
             
               Haeredibus
               &
               assignatis
               quibuscunque
            
             ,
             and
             thereby
             the
             KING
             consented
             ,
             that
             he
             should
             dispone
             his
             Right
             to
             any
             Assigney
             ,
             or
             singular
             Successor
             ,
             and
             this
             Clause
             is
             equivalent
             to
             the
             ordinar
             Feudal
             Clauses
             ,
             
               Vassallo
               &
               quibus
               dederit
            
             ,
             which
             is
             ever
             understood
             to
             exclude
             Recognition
             ,
             neither
             can
             this
             be
             understood
             to
             be
             
               stilus
               curiae
            
             ,
             as
             when
             Assigneys
             are
             casten
             in
             in
             Charters
             passing
             the
             Exchequer
             ;
             but
             this
             is
             an
             original
             Grant
             under
             the
             KINGS
             own
             Hand
             .
             The
             Pursuer
             answered
             ,
             that
             this
             Defense
             ought
             to
             be
             Repelled
             ,
             because
             such
             Concessions
             ,
             contrair
             to
             common
             course
             of
             Law
             ,
             are
             
               stricti
               juris
            
             ,
             and
             not
             to
             be
             extended
             
               ad
               effectus
               non
               expressos
               praesertim
               prohibitos
               ,
            
             but
             the
             adjection
             of
             Assigneys
             is
             no
             ways
             to
             allow
             Alienations
             of
             the
             Fee
             ,
             without
             consent
             ,
             but
             to
             this
             effect
             ,
             because
             Feuda
             and
             Benficia
             are
             in
             themselves
             
               stricti
               juris
            
             ,
             and
             belong
             not
             to
             Assigneys
             ,
             unlesse
             Assigneys
             be
             expressed
             ;
             and
             therefore
             albeit
             no
             Infeftment
             had
             been
             taken
             ,
             the
             Disposition
             ,
             Charter
             ,
             or
             Precept
             could
             not
             be
             Assigned
             :
             so
             that
             this
             is
             adjected
             ,
             to
             the
             end
             that
             those
             may
             be
             Assigned
             before
             Infeftment
             ,
             but
             after
             Infeftment
             ,
             Assignation
             hath
             no
             effect
             ,
             and
             this
             is
             the
             true
             intent
             of
             Assigneys
             .
             In
             Dispsitions
             of
             Land
             ,
             it
             is
             clear
             ,
             when
             the
             Disponer
             is
             obliged
             to
             Infeft
             the
             Acquirer
             his
             Heirs
             ,
             and
             Assigneys
             whatsoever
             ,
             there
             is
             no
             ground
             whereon
             to
             compel
             him
             to
             grant
             a
             second
             Infeftment
             to
             a
             new
             
               Assigney
            
             ;
             but
             only
             to
             grant
             the
             first
             Infeftment
             to
             that
             Person
             himself
             ,
             or
             to
             any
             Assigney
             whatever
             ,
             which
             clears
             the
             Sense
             in
             this
             case
             .
             It
             hath
             also
             this
             further
             effect
             ,
             that
             singular
             Successors
             thereby
             might
             have
             right
             to
             a
             part
             of
             the
             Lands
             ,
             which
             though
             it
             would
             not
             infer
             Recognition
             if
             done
             ,
             yet
             if
             there
             were
             no
             mention
             of
             Assigneys
             it
             would
             be
             null
             ,
             and
             as
             not
             done
             in
             the
             same
             Case
             as
             a
             Tack
             ,
             not
             mentioning
             Assigneys
             .
          
           
             
               The
               Lords
               Repelled
               this
               also
               .
               5ly
               ,
            
             It
             was
             further
             alleadged
             ,
             that
             Recognition
             takes
             only
             place
             ,
             where
             there
             is
             contempt
             and
             ingratitude
             ,
             and
             so
             no
             Deed
             done
             through
             ignorance
             infers
             it
             ,
             as
             when
             it
             is
             dubious
             whether
             the
             Holding
             be
             Ward
             or
             not
             ;
             and
             therefore
             Recognition
             cannot
             be
             inferred
             ,
             seing
             there
             is
             so
             much
             ground
             here
             to
             doubt
             ,
             this
             Right
             being
             a
             taxed
             Ward
             ,
             and
             to
             his
             Heirs
             and
             Assigneys
             ,
             and
             it
             is
             not
             clear
             ,
             whether
             it
             would
             be
             incurred
             through
             a
             Seasine
             
               à
               se
            
             ,
             or
             to
             one
             in
             his
             Family
             ,
             whereupon
             the
             wisest
             of
             men
             might
             doubt
             ,
             much
             more
             Dirletoun
             being
             illiterate
             ,
             not
             able
             to
             read
             or
             write
             .
             It
             was
             answered
             ,
             
               ignorantia
               juris
               neminem
               excusat
               .
               2ly
               ,
               Vbi
               est
               copia
               peritorum
               ignorantia
               est
               supina
               :
               Here
               Dirletoun
            
             did
             this
             Deed
             clandistenly
             ,
             without
             consulting
             his
             ordinar
             Advocats
             ,
             or
             any
             Lawyers
             ,
             and
             so
             was
             inexcusable
             ;
             and
             if
             pretence
             of
             ignorance
             could
             suffice
             ,
             there
             could
             be
             no
             Recognition
             ,
             seing
             it
             cannot
             misse
             to
             be
             ignorance
             that
             any
             should
             do
             that
             Deed
             that
             will
             be
             ineffectual
             ,
             and
             losse
             their
             Right
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             ,
             and
             all
             the
             Defenses
             joyntly
             ,
             and
             Decerned
             .
          
        
         
           
           
             Lord
             Loure
             contra
             Earl
             of
             Dundee
             .
             February
             6.
             1663.
             
          
           
             THe
             Lord
             Loure
             ,
             pursues
             a
             Reduction
             of
             a
             Disposition
             made
             by
             Carnegy
             of
             Craig
             to
             the
             Earl
             of
             Dundee
             ,
             as
             being
             posterior
             to
             the
             Pursuers
             Debts
             ,
             and
             in
             prejudice
             thereof
             ,
             upon
             the
             Act
             of
             Parliament
             1621.
             against
             Bankrupts
             ,
             and
             for
             instructing
             of
             the
             Reason
             ,
             repeats
             the
             Disposition
             it self
             ,
             being
             betwixt
             confident
             Persons
             ,
             Cusing
             Germans
             ,
             and
             without
             cause
             onerous
             ,
             in
             so
             far
             as
             it
             bears
             Reservation
             of
             the
             Disponers
             ,
             and
             his
             Ladyes
             Liferent
             ,
             and
             Provision
             to
             be
             null
             ,
             if
             Craig
             have
             Heirs
             of
             his
             Body
             ,
             in
             whose
             favours
             Dundee
             is
             to
             denude
             himself
             ,
             upon
             payment
             of
             his
             expense
             .
             The
             Defender
             alleadged
             ,
             that
             the
             Lybel
             is
             not
             Relevant
             .
             Prim●
             ,
             because
             Craig
             is
             no
             Bankrupt
             ,
             nor
             any
             Diligence
             done
             against
             him
             ,
             before
             the
             Disposition
             .
             2ly
             ,
             He
             is
             not
             insolvent
             by
             the
             Disposition
             ,
             because
             there
             is
             reserved
             to
             him
             a
             Power
             to
             sell
             as
             much
             of
             the
             Land
             as
             is
             worth
             80000
             lib.
             for
             Debt
             ,
             and
             so
             is
             not
             
               in
               fra●dm
               crea●
               oru●
            
             ;
             but
             the
             Pursuer
             ought
             to
             pursue
             for
             that
             Provision
             ,
             either
             by
             Appryzing
             ,
             or
             personal
             Action
             .
          
           
             The
             Lords
             found
             the
             Reason
             relevant
             and
             proven
             by
             the
             tenor
             of
             the
             Disposition
             ,
             and
             therefore
             reduced
             ,
             to
             the
             effect
             ,
             that
             the
             Pursuer
             m●ght
             affect
             the
             saids
             Lands
             with
             all
             Legal
             Diligence
             for
             his
             Debt
             ,
             as
             if
             the
             Disposition
             had
             not
             been
             granted
             ;
             for
             they
             thought
             ,
             seeing
             ,
             by
             this
             Disposition
             there
             remains
             not
             Esta●e
             sufficient
             ,
             
               ad
               paratam
               executionem
            
             ,
             and
             that
             there
             was
             no
             Reason
             to
             put
             the
             Pursuer
             to
             insist
             in
             that
             Clause
             ,
             to
             restrict
             himself
             thereby
             to
             a
             part
             of
             the
             Land
             ,
             but
             that
             he
             ought
             to
             have
             preference
             for
             his
             Debt
             ,
             upon
             his
             Diligence
             ,
             affecting
             the
             whole
             Land.
             
          
        
         
           
             William
             Montgomery
             contra
             Theoder
             Montgomery
             and
             Mr.
             William
             Lauder
             .
             February
             ,
             10.
             1663.
             
          
           
             
               WIlliam
               Montgomery
            
             ,
             as
             Donatar
             to
             the
             Liferent-escheat
             of
             
               Theodor
               Montgomery
            
             ,
             pursues
             a
             special
             Declarator
             against
             the
             Tennents
             of
             
               Whit
               slide
            
             belonging
             to
             
               Margaret
               Hunter
            
             in
             Liferent
             ,
             and
             now
             to
             
               Theodor
               ,
               jure
               〈◊〉
            
             ,
             for
             their
             Duties
             .
             It
             was
             alleadged
             ,
             that
             the
             Horning
             was
             null
             ,
             because
             the
             D●bt
             was
             satisfied
             before
             Denunciation
             .
             The
             Pursuer
             answered
             ,
             that
             it
             was
             not
             competent
             ,
             in
             the
             special
             Declarator
             ,
             to
             question
             the
             nullity
             of
             the
             Horning
             .
             2ly
             .
             Though
             it
             were
             in
             a
             general
             Declarator
             ,
             it
             were
             not
             competent
             ,
             not
             being
             instantly
             verifyed
             without
             Reduction
             .
             3ly
             ,
             It
             were
             not
             probable
             ,
             but
             by
             Writ
             ,
             before
             the
             Denunciation
             ,
             and
             not
             by
             the
             Creditors
             Oath
             ,
             or
             having
             discharges
             ,
             being
             in
             prejudice
             of
             the
             KING
             ,
             but
             that
             no
             hazard
             might
             be
             of
             ante-dating
             it
             ,
             was
             required
             by
             Act
             of
             Parliament
             ,
             that
             beside
             the
             Writ
             ,
             the
             Parties
             should
             depone
             upon
             the
             truth
             of
             the
             Date
             .
             The
             Defender
             answered
             ,
             to
             the
             first
             ;
             all
             Defenses
             competent
             in
             the
             general
             Declarator
             ,
             are
             reserved
             in
             the
             special
             .
             To
             the
             second
             ,
             there
             is
             a
             Reduction
             depending
             .
          
           
           
             The
             Lords
             found
             the
             Defense
             relevant
             ,
             only
             scripto
             of
             the
             Denuncer
             .
          
           
             The
             Defender
             further
             alleadged
             the
             Horning
             was
             null
             ,
             as
             being
             upon
             a
             null
             Decreet
             ,
             and
             falling
             therewith
             in
             consequence
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             and
             found
             ,
             though
             the
             Decreet
             were
             null
             through
             informality
             ,
             yet
             the
             Horning
             would
             not
             be
             anulled
             ,
             but
             the
             Partie
             was
             in
             contempt
             ,
             in
             not
             Suspending
             
               debito
               tempore
            
             .
          
           
             Compearance
             was
             also
             made
             for
             Mr.
             
               William
               Lauder
            
             ,
             who
             alleadged
             he
             had
             Disposition
             from
             the
             Rebel
             ,
             before
             year
             and
             day
             run
             .
             
               The
               Lords
               found
               this
               Alleadgeance
               not
               relevant
               ,
               unless
               it
               were
               alleadged
               to
               be
               for
               a
               just
               Debt
               ,
               before
               the
               Denunciation
               .
            
             It
             was
             further
             alleadged
             for
             Mr.
             William
             ,
             that
             the
             Pursuer
             granted
             Back-bond
             to
             the
             Thesaurer
             to
             imploy
             the
             Gift
             ,
             by
             his
             appointment
             ,
             and
             he
             offered
             to
             satisfye
             the
             Donatars
             Debt
             ,
             and
             the
             whole
             expense
             of
             the
             Gift
             .
          
           
             The
             Lords
             found
             this
             not
             relevant
             ,
             without
             a
             second
             Gift
             ,
             or
             Declaration
             from
             the
             Thesaurer
             .
          
        
         
           
             Thomas
             Crawfoord
             contra
             〈…〉
             Eodem
             die
             .
          
           
             
               THomas
               Crawfoord
            
             ,
             as
             Executor
             Creditor
             to
             Umquhile
             
               Robert
               Inglis
            
             Pursues
             some
             of
             his
             Debitors
             .
             It
             was
             alleadged
             no
             Process
             ;
             because
             Thomas
             ,
             as
             Factor
             for
             
               Robert
               Inglis
            
             ,
             had
             pursued
             the
             same
             Partie
             ,
             for
             the
             same
             Cause
             ,
             before
             the
             Commissaries
             of
             Edinburgh
             ,
             wherein
             Litiscontestation
             was
             made
             :
             and
             so
             now
             it
             cannot
             be
             pursued
             elsewhere
             ,
             but
             the
             Process
             ,
             ought
             to
             be
             transferred
             and
             insisted
             in
             .
             The
             Pursuer
             answered
             ,
             that
             he
             pursued
             then
             as
             Factor
             ,
             but
             now
             as
             Executor-Creditor
             ,
             who
             did
             not
             consider
             what
             Diligence
             Defuncts
             did
             :
             but
             might
             insist
             therein
             ,
             or
             not
             .
             2dly
             ,
             This
             being
             a
             dilator
             ,
             is
             not
             instantly
             verifyed
             .
          
           
             The
             Lords
             found
             the
             Defense
             relevant
             ,
             but
             would
             not
             find
             it
             competent
             ,
             unless
             instantly
             verifyed
             ;
             and
             because
             it
             behoved
             to
             be
             instructed
             by
             an
             Act
             Extracted
             .
          
        
         
           
             Catharine
             Frazer
             contra
             Heugh
             Frazer
             .
             February
             ,
             11.
             1663.
             
          
           
             THe
             said
             Catharine
             only
             Child
             of
             a
             second
             Marriage
             ,
             being
             provided
             to
             eight
             thousand
             merk
             of
             Portion
             ,
             at
             her
             age
             of
             14
             years
             ,
             but
             no
             oblidgment
             of
             Aliment
             ,
             or
             Annualrent
             till
             then
             ,
             pursues
             her
             Brother
             ,
             as
             Heir
             to
             her
             Fathers
             Estate
             ,
             being
             of
             a
             good
             condition
             for
             Aliment
             .
             He
             alleadges
             he
             was
             oblidged
             for
             none
             ,
             not
             being
             Parent
             ,
             nor
             his
             Father
             oblidged
             by
             Contract
             ,
             or
             Bond
             for
             it
             .
          
           
             The
             Lords
             found
             an
             Aliment
             due
             ,
             for
             the
             Pursuers
             Mother
             was
             not
             alive
             ,
             and
             able
             to
             Aliment
             her
             .
          
        
         
           
           
             Lockie
             contra
             Patoun
             .
             February
             12.
             1663.
             
          
           
             
               ELizabeth
               Lockie
            
             Spouse
             to
             Doctor
             Patoun
             ,
             pursues
             a
             Reduction
             of
             a
             Disposition
             ,
             granted
             by
             her
             Husband
             ,
             to
             certain
             Persons
             ,
             as
             prejudicial
             to
             her
             Contract
             ;
             in
             which
             Contract
             there
             was
             a
             Clause
             ,
             declaring
             Execution
             to
             pass
             at
             the
             instance
             of
             certain
             Persons
             ,
             who
             concur
             with
             this
             pursuit
             .
          
           
             The
             Lords
             sustained
             the
             pursuit
             ,
             though
             it
             was
             not
             for
             Implement
             ,
             but
             for
             Reduction
             of
             a
             Right
             ,
             impeding
             the
             benefit
             of
             the
             Contract
             ,
             without
             concurse
             of
             the
             Husband
             ,
             seing
             the
             Process
             was
             against
             a
             Deed
             of
             the
             Husbands
             ,
             and
             he
             called
             passive
             .
          
        
         
           
             Earl
             of
             Southesk
             and
             Carnegy
             contra
             Bromhall
             .
             Eodem
             die
             .
          
           
             BRomhall
             having
             taken
             the
             Lord
             Sinclar
             with
             Caption
             ,
             Southesk
             and
             his
             Son
             gave
             Bond
             ,
             to
             produce
             him
             to
             the
             Messengers
             ;
             or
             to
             pay
             the
             Sum.
             on
             the
             third
             of
             February
             ,
             betwixt
             two
             and
             ten
             ,
             whereupon
             Southesk
             having
             reproduced
             him
             ,
             craved
             by
             Supplication
             ,
             his
             Bond
             up
             ,
             or
             to
             be
             declared
             satisfied
             ,
             and
             extinct
             .
             The
             Defender
             answered
             ,
             First
             ,
             He
             not
             being
             a
             Member
             ,
             or
             Dependent
             on
             the
             Colledge
             of
             Justice
             ,
             cannot
             be
             called
             thus
             summarily
             :
             especially
             to
             declare
             a
             Bond
             void
             ,
             which
             is
             in
             effect
             a
             Reduction
             .
             2dly
             ,
             The
             Bond
             was
             not
             performed
             ,
             in
             so
             far
             as
             the
             Lord
             Sinclar
             was
             not
             reproduced
             till
             the
             4th
             of
             February
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defender
             living
             in
             Edinburgh
             ,
             and
             not
             compearing
             ,
             the
             Bill
             ,
             
               per
               modum
               quaerelae
            
             might
             be
             sustained
             .
             To
             the
             second
             ,
             it
             being
             
               modica
               mora
            
             of
             one
             day
             ,
             without
             damnage
             to
             the
             Defender
             ,
             and
             there
             being
             trysting
             amongst
             the
             Parties
             all
             the
             time
             betwixt
             ,
             it
             was
             sufficient
             .
          
           
             The
             Lords
             sustained
             the
             Petition
             ,
             and
             found
             it
             extinct
             .
          
        
         
           
             Relict
             of
             George
             Morison
             contra
             His
             Heirs
             .
             Eodem
             die
             .
          
           
             THis
             Relict
             pursues
             for
             Implement
             of
             her
             Contract
             .
             It
             was
             alleadged
             she
             had
             accepted
             a
             Wodset
             ,
             in
             full
             satisfaction
             thereof
             ,
             which
             now
             being
             Redeemed
             ,
             she
             could
             crave
             no
             more
             ,
             but
             Re-imploying
             the
             Money
             to
             her
             in
             Liferent
             .
          
           
             The
             Lords
             found
             ,
             that
             this
             acceptance
             by
             the
             Wife
             ,
             being
             
               donatio
               inter
               virum
               &
               uxorem
            
             ,
             she
             might
             now
             revock
             it
             ,
             and
             therefore
             found
             the
             Heir
             lyable
             to
             make
             up
             what
             was
             in
             the
             Contract
             .
          
        
         
           
           
             The
             Town
             of
             Linlithgow
             contra
             Unfree-men
             of
             Borrowstounness
             .
             February
             13.
             1663.
             
          
           
             THe
             Town
             of
             Linlithgow
             insisted
             in
             their
             Charge
             ,
             upon
             a
             Bond
             granted
             by
             some
             Inhabitants
             of
             Borrowstounness
             ,
             oblidging
             them
             to
             disist
             and
             cease
             from
             us●ing
             the
             Merchant
             Trade
             ,
             under
             the
             pain
             of
             500
             ,
             merk
             which
             was
             Suspended
             ,
             on
             this
             Reason
             ,
             that
             the
             Bond
             was
             extorted
             by
             unwarrantable
             force
             ,
             in
             so
             far
             as
             the
             Suspenders
             were
             taken
             in
             
               Linlithgow
               brevi
               manu
            
             ,
             and
             incarcerat
             ,
             till
             they
             granted
             the
             Bond.
             The
             Charger
             produced
             a
             Decreet
             of
             the
             Lords
             ,
             in
             Anno
             1643.
             against
             several
             Inhabitants
             in
             Borrowstounness
             ,
             compearand
             ,
             who
             having
             Suspended
             the
             general
             Letters
             ,
             upon
             Act
             of
             Parliament
             ,
             for
             finding
             Caution
             to
             desist
             ,
             &c.
             
             The
             Letters
             were
             found
             orderly
             proceeded
             ;
             and
             the
             Town
             of
             Linlithgow
             
               impowred
            
             ,
             not
             only
             to
             seize
             upon
             the
             Merchant
             Goods
             of
             the
             Inhabitants
             of
             Borrowstounness
             ,
             if
             they
             medled
             in
             Merchant
             Trading
             ,
             but
             also
             bearing
             ,
             with
             power
             to
             put
             the
             Persons
             ,
             using
             the
             saids
             Merchant
             Trade
             in
             Prison
             ,
             till
             Justice
             were
             done
             upon
             them
             ;
             and
             thereupon
             alleadge
             ,
             that
             the
             Suspenders
             being
             incarcerat
             ,
             by
             vertue
             ,
             and
             conform
             to
             the
             foresaid
             Decreet
             standing
             ,
             there
             was
             no
             unwarrantable
             Force
             used
             .
             2dly
             ,
             They
             produced
             an
             Act
             of
             the
             Council
             of
             
               Linlithg●w
               ▪
            
             Bearing
             the
             Suspenders
             ,
             to
             have
             compeared
             before
             the
             Council
             ,
             and
             to
             have
             confessed
             their
             wronging
             of
             the
             said
             Town
             ,
             in
             the
             Trade
             of
             Merchandize
             ;
             and
             that
             there
             was
             Horning
             and
             Caption
             against
             them
             ,
             for
             the
             Cause
             ;
             and
             therefore
             declared
             their
             willingness
             to
             grant
             the
             Bond
             in
             Question
             .
             The
             Suspenders
             answered
             to
             the
             First
             ,
             That
             albeit
             the
             foresaid
             Decreet
             bear
             compearance
             ,
             yet
             there
             is
             no
             Dispute
             in
             it
             ,
             and
             it
             is
             evident
             to
             be
             by
             Collusion
             ,
             and
             Surreptitious
             ;
             because
             this
             Conclusion
             now
             alleadged
             ,
             is
             
               ultra
               petita
            
             ,
             there
             being
             no
             such
             thing
             in
             the
             general
             Letters
             ,
             nor
             doth
             the
             Decreet
             bear
             any
             special
             Charge
             given
             ,
             neither
             is
             this
             Conclusion
             warrantable
             ,
             by
             any
             Law
             ,
             or
             Act
             of
             Parliament
             .
             2dly
             ,
             This
             Decreet
             could
             be
             no
             warrant
             to
             Incarcerat
             the
             Suspenders
             ,
             because
             it
             is
             given
             only
             against
             some
             particular
             Persons
             ,
             then
             living
             in
             Borrowstounness
             ;
             without
             calling
             either
             of
             the
             Barron
             or
             Baillies
             of
             the
             Burgh
             of
             B●rronie
             ,
             and
             therefore
             is
             null
             ,
             as
             to
             any
             other
             Persons
             ;
             and
             as
             to
             the
             Second
             Answer
             ,
             upon
             the
             Act
             of
             Council
             ,
             it
             cannot
             prove
             against
             the
             Suspenders
             ,
             being
             only
             under
             the
             Town-clerks
             hand
             ,
             not
             being
             a
             Process
             upon
             Citation
             ,
             nor
             having
             a
             Warrnat
             subscribed
             by
             the
             Suspenders
             .
          
           
             The
             Lords
             having
             considered
             the
             Bond
             in
             Question
             ,
             albeit
             they
             found
             the
             tenor
             thereof
             not
             to
             be
             contrair
             the
             Act
             of
             Parliament
             ,
             yet
             found
             the
             same
             was
             unwarranttably
             taken
             ,
             if
             the
             same
             was
             extort●d
             ,
             as
             aforesaid
             ,
             and
             found
             the
             Decreet
             of
             the
             Lords
             not
             to
             militat
             against
             the
             Suspenders
             ,
             or
             to
             warrand
             that
             incarceration
             
               brevi
               manu
            
             ,
             and
             found
             the
             Act
             of
             Council
             proved
             not
             agai●st
             the
             Suspenders
             and
             yet
             Ordained
             them
             to
             renew
             a
             Bond
             ,
             by
             the
             Lords
             Authority
             of
             the
             like
             tenor
             .
          
        
         
           
           
             Elizabeth
             Fleming
             and
             Sir
             Iohn
             Gibson
             contra
             Fleming
             and
             Robert
             Baird
             .
          
           
             BY
             Contract
             of
             Marriage
             betw●xt
             the
             said
             
               Robert
               Baird
            
             ,
             and
             his
             Spouse
             ,
             he
             accepted
             12000
             merk
             in
             name
             of
             Tocher
             in
             satisfaction
             of
             all
             his
             Wife
             could
             succeed
             to
             ,
             by
             her
             Father
             ,
             Mother
             ,
             Sister
             and
             Brothers
             ,
             and
             discharged
             his
             Mother
             as
             Executrix
             ,
             and
             Tutrix
             thereof
             ;
             Yet
             she
             having
             formerly
             put
             more
             Bonds
             in
             the
             name
             of
             Roberts
             Wife
             ,
             then
             this
             Sum
             ,
             and
             there
             being
             no
             Assignation
             to
             the
             remainder
             in
             the
             Contract
             ,
             pursues
             the
             said
             Robert
             and
             his
             Spouse
             ,
             to
             grant
             an
             Assignation
             thereof
             ,
             and
             to
             pay
             what
             he
             had
             uplifted
             of
             the
             Sums
             ,
             more
             nor
             his
             Tocher
             .
             The
             Defender
             alleadged
             the
             Summons
             are
             not
             relevant
             ,
             he
             neither
             oblidged
             
               ex
               lege
            
             ,
             nor
             ex
             pacto
             to
             Assign
             .
             The
             Pursuer
             answered
             ,
             this
             being
             
               bona
               fidei
               contractus
            
             ,
             the
             meaning
             and
             interest
             of
             the
             Parties
             is
             most
             to
             be
             respected
             ,
             and
             therefore
             though
             it
             contains
             but
             expresly
             a
             discharge
             ,
             which
             cannot
             be
             effectual
             ,
             to
             lift
             the
             Sums
             from
             the
             Creditors
             ,
             but
             would
             loss
             them
             to
             both
             Parties
             ,
             he
             must
             Assign
             :
             especially
             ,
             seing
             his
             acceptance
             of
             full
             satisfaction
             imports
             an
             oblidgment
             ,
             to
             denude
             himself
             of
             the
             superplus
             .
             
               And
               which
               the
               Lords
               found
               relevant
               ,
               and
               sustained
               the
               Summons
               .
            
          
        
         
           
             Walter
             Riddell
             contra
             Eodem
             die
             .
          
           
             
               WAlter
               Riddell
            
             ,
             as
             Executor
             dative
             confirmed
             to
             one
             Liddell
             in
             the
             Ca●nongate
             ,
             pursues
             his
             Debitors
             to
             pay
             ,
             compears
             a
             Donator
             ,
             as
             
               ultimus
               Haeres
            
             ,
             and
             craves
             preference
             .
             The
             Pursuer
             answered
             .
             First
             ,
             His
             Gift
             was
             not
             declared
             .
             2dly
             .
             He
             offered
             to
             prove
             the
             Defunct
             had
             an
             
               Agnat
               ,
               viz.
            
             an
             Uncle
             ,
             or
             an
             Uncles
             Son.
             
               Which
               the
               Lords
               found
               relevant
               to
               be
               proven
               by
               Witnesses
               .
            
          
        
         
           
             Robertson
             contra
             Buchannan
             .
             February
             14
             1663.
             
          
           
             RObertson
             pursues
             Buchannan
             ,
             to
             repay
             to
             him
             a
             sum
             of
             Money
             ,
             who
             alleadged
             ,
             that
             his
             Bond
             bearing
             to
             pay
             this
             Charger
             ,
             or
             to
             
               Arthur
               Buchannan
            
             his
             Brother
             ,
             it
             is
             
               alternative
               &
               electi●
               est
               debitoris
            
             ,
             and
             he
             has
             compensation
             against
             Arthur
             ,
             which
             is
             equivalent
             ,
             as
             if
             he
             had
             payed
             him
             .
          
           
             The
             Lords
             repelled
             this
             alleadgance
             ,
             and
             found
             that
             the
             Charger
             being
             deliverer
             of
             the
             Money
             ,
             and
             now
             haver
             of
             the
             Bond
             ,
             it
             could
             import
             no
             more
             ,
             but
             that
             the
             other
             Brother
             was
             adjected
             for
             the
             Chargers
             behove
             ,
             and
             that
             there
             is
             no
             option
             to
             the
             Debitor
             in
             such
             cases
             .
          
        
         
           
           
             Mr.
             Iames
             Forsyth
             contra
             Archibald
             Patoun
             .
             February
             17.
             1663.
             
          
           
             MR.
             
               Iames
               Forsyth
            
             ,
             as
             Executor
             Confirmed
             to
             his
             Sister
             ,
             pursues
             the
             said
             
               Archibald
               Patoun
            
             her
             Husband
             ,
             for
             payment
             of
             her
             third
             of
             his
             Free
             Goods
             ,
             at
             the
             time
             of
             her
             death
             .
             The
             Defender
             alleadged
             ,
             First
             ,
             By
             the
             Deceased
             Wifes
             Contract
             of
             Marriage
             with
             the
             Defender
             ,
             she
             accepted
             a
             1000
             lib.
             for
             all
             she
             could
             crave
             by
             his
             decease
             ,
             in
             case
             there
             were
             no
             Bairns
             of
             the
             Marriage
             ,
             and
             albeit
             there
             was
             a
             Bairn
             surviving
             her
             ,
             yet
             the
             Bairn
             shortly
             thereafter
             dyed
             .
          
           
             The
             Lords
             repelled
             this
             Defence
             ,
             and
             found
             that
             the
             Bairn
             surviving
             the
             Mother
             ,
             never
             so
             short
             was
             enough
             .
          
           
             It
             was
             further
             alleadged
             absolvitor
             ,
             because
             the
             Deceased
             Wife
             having
             a
             Child
             surviving
             her
             ,
             her
             share
             belonged
             to
             that
             Child
             ,
             as
             nearest
             of
             Kin
             ,
             and
             the
             Child
             being
             dead
             ,
             belongs
             to
             the
             Defender
             ,
             the
             Childs
             Father
             ,
             as
             nearest
             of
             Kine
             to
             the
             Child
             ,
             and
             cannot
             go
             back
             to
             the
             Mothers
             nearest
             of
             Kin
             ;
             because
             there
             is
             no
             succession
             of
             Cognats
             in
             Scotland
             .
             The
             Pursuer
             answered
             ,
             that
             if
             the
             Child
             had
             been
             Executor
             Confirmed
             to
             the
             Mother
             
               ad
               eundo
               haereditate
            
             ,
             would
             transmit
             the
             same
             to
             the
             Father
             ,
             but
             there
             being
             no
             Confirmation
             
               haeredi●as
               mobilium
               jacebat
            
             ,
             and
             the
             Goods
             remain
             yet
             still
             
               in
               bonis
               defuncti
               maritis
            
             ,
             and
             albeit
             it
             was
             found
             in
             the
             case
             of
             Bells
             contra
             Wilkies
             ,
             that
             it
             was
             not
             necessar
             to
             transmit
             moveables
             ,
             that
             the
             Testament
             were
             execute
             ;
             yet
             in
             that
             case
             it
             was
             a
             Confirmation
             ,
             which
             was
             esteemed
             an
             addition
             .
             The
             Defender
             answered
             ,
             that
             he
             had
             done
             diligence
             to
             have
             it
             Confirmed
             ,
             but
             during
             the
             Childs
             life
             ,
             all
             Judicatories
             were
             stopped
             ,
             and
             he
             had
             taken
             Instruments
             of
             his
             desire
             to
             be
             Confirmed
             :
             and
             alleadged
             ,
             that
             as
             Bairns
             surviving
             would
             transmit
             their
             Legittime
             though
             they
             had
             done
             no
             diligence
             ;
             so
             this
             Bairn
             surviving
             alone
             was
             sufficient
             .
          
           
             The
             Lords
             found
             ,
             that
             seing
             there
             was
             no
             Confirmation
             ,
             the
             Right
             was
             not
             established
             in
             the
             Childs
             Person
             ,
             and
             that
             the
             Right
             could
             not
             fall
             to
             the
             Father
             ,
             but
             fell
             to
             the
             nearest
             of
             Kin
             of
             the
             Mother
             ,
             and
             found
             it
             was
             not
             like
             a
             Legittime
             ,
             which
             is
             only
             of
             the
             Fathers
             means
             ,
             and
             not
             of
             the
             Mothers
             ,
             and
             hath
             a
             special
             priviledge
             in
             Law
             ,
             to
             be
             transmitted
             by
             more
             superviving
             .
          
        
         
           
             Margaret
             Hay
             contra
             Sir
             Geo●ge
             Morison
             .
             Eodem
             die
             .
          
           
             SIR
             
               Geoege
               Morison
            
             having
             granted
             a
             Bond
             to
             Umquhile
             
               Iohn
               Bell
            
             and
             
               Margaret
               Hay
            
             ,
             the
             longest
             liver
             of
             them
             two
             in
             Conjunct-fee
             ,
             and
             after
             their
             Decease
             ,
             to
             the
             Bairns
             of
             the
             Marriage
             ,
             the
             said
             Margaret
             ,
             with
             concurse
             of
             the
             Bairns
             ,
             charges
             for
             Payment
             ,
             Sir
             George
             Suspends
             on
             this
             Reason
             ;
             that
             Margaret
             is
             but
             Liferenter
             ,
             and
             the
             Bairns
             of
             the
             Marriage
             are
             but
             Feears
             ;
             and
             therefore
             ,
             seing
             there
             was
             an
             Infeftment
             upon
             the
             said
             Bond
             ,
             he
             ought
             not
             to
             pay
             the
             Sum
             ,
             till
             the
             Bairns
             be
             Infeft
             as
             Heirs
             of
             Provision
             of
             the
             Marriage
             to
             their
             Father
             ,
             and
             renunce
             the
             Infeftment
             .
          
           
           
             The
             Lords
             decerned
             ,
             but
             superseded
             the
             Extract
             ,
             untill
             the
             Bairns
             were
             Infeft
             ,
             as
             Heirs
             of
             Provision
             to
             their
             Father
             :
             and
             did
             grant
             Renunciation
             ,
             and
             found
             ,
             that
             all
             the
             Bairns
             ,
             Male
             and
             Female
             ,
             joyntly
             and
             equally
             ,
             behoved
             to
             be
             Served
             as
             Heirs
             of
             Provision
             to
             their
             Father
             in
             this
             Annualrent
             ,
             and
             Infeft
             accordingly
             ,
             and
             that
             by
             Bairns
             ,
             was
             not
             to
             be
             understood
             the
             Heir
             of
             the
             Marriage
             only
             .
          
        
         
           
             Colonel
             Iames
             Montgomery
             contra
             The
             Heirs
             of
             Robert
             Halliburtoun
             Eodem
             die
             .
          
           
             IN
             a
             Declarator
             of
             Redemption
             of
             a
             part
             of
             the
             Lands
             of
             Collfield
             .
          
           
             The
             Lords
             sustained
             the
             Order
             ,
             at
             the
             instance
             of
             the
             Collonel
             ,
             as
             being
             a
             Singular
             Successor
             ,
             albeit
             he
             produced
             not
             the
             Reversion
             ,
             at
             the
             using
             of
             the
             Ordor
             ,
             nor
             now
             ,
             seing
             the
             Defender
             compeared
             and
             he
             offered
             to
             prove
             by
             their
             Oath
             ,
             or
             their
             Curators
             ,
             that
             they
             had
             the
             Contract
             of
             Wodset
             in
             their
             hand
             ,
             both
             then
             and
             now
             .
          
        
         
           
             Birsh
             contra
             Dowglas
             .
             February
             18.
             1663.
             
          
           
             BIrsh
             an
             Inglish
             Woman
             pursues
             
               Catharine
               Dowglas
            
             ,
             to
             pay
             a
             Bond
             ,
             wherein
             she
             and
             her
             Umquhile
             Husband
             were
             oblidged
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             it
             was
             a
             Bond
             
               stante
               matrimonio
            
             given
             by
             a
             Wife
             ,
             which
             is
             null
             in
             Law.
             It
             was
             replyed
             it
             is
             Ratified
             Judicially
             ,
             and
             the
             Defender
             oblidged
             never
             to
             come
             in
             the
             contrare
             upon
             Oath
             Judicially
             ,
             which
             is
             the
             strongest
             Renunciation
             of
             that
             priviledge
             of
             Wifes
             ,
             and
             it
             hath
             been
             frequently
             found
             ,
             that
             minors
             making
             faith
             ,
             cannot
             be
             restored
             
               lesionem
               conscientia
               ex
               juramento
               violato
            
             .
          
           
             The
             Lords
             having
             debated
             the
             case
             at
             large
             amongst
             themselves
             ,
             found
             the
             Bond
             null
             notwithstanding
             of
             the
             Oath
             ;
             for
             they
             thought
             ,
             that
             where
             the
             deed
             needed
             no
             Restitution
             ,
             as
             in
             the
             case
             of
             minors
             ,
             these
             deeds
             are
             valid
             ,
             but
             the
             minor
             may
             be
             restored
             ;
             but
             in
             deeds
             
               ipso
               jure
            
             null
             ,
             where
             there
             need
             no
             Restitution
             ,
             an
             Oath
             cannot
             make
             ,
             that
             ane
             Legal
             deed
             which
             is
             none
             ,
             it
             was
             winne
             by
             a
             Vot
             or
             two
             ,
             many
             thinking
             that
             such
             priviledges
             introduced
             by
             Custome
             or
             Statute
             might
             be
             Renunced
             ,
             and
             much
             more
             sware
             against
             ;
             but
             that
             it
             were
             fit
             for
             the
             future
             ,
             that
             all
             Magistrats
             were
             prohibited
             to
             take
             such
             Oaths
             of
             Wifes
             ,
             or
             Minors
             ,
             who
             are
             as
             easily
             induced
             to
             Swear
             ,
             as
             to
             oblidge
             ,
             and
             if
             they
             did
             ,
             that
             they
             should
             be
             lyable
             to
             pay
             the
             Debt
             themselves
             .
          
        
         
           
             Dumbar
             of
             Hemprigs
             contra
             Lady
             Frazer
             .
             Eodem
             die
             .
          
           
             MY
             Lady
             Frazer
             ,
             being
             first
             married
             to
             Sir
             
               Iohn
               Sinclar
            
             of
             Dumbeath
             ,
             next
             to
             the
             Lord
             Arbuthnet
             ,
             and
             last
             to
             the
             Lord
             
               Frazer
               ,
               Dumbar
            
             of
             Hemprigs
             as
             Executor
             confirmed
             to
             Dumbeath
             ,
             pursues
             her
             ,
             and
             the
             Lord
             
             Frazer
             her
             Hushand
             ,
             for
             his
             interest
             ,
             for
             delivery
             ,
             or
             payment
             of
             the
             Moveables
             of
             Dumbeath
             ,
             intrometted
             by
             her
             .
             It
             was
             answered
             .
             That
             she
             had
             Right
             to
             the
             half
             of
             Dumbeaths
             Moveables
             ,
             as
             his
             Relict
             ,
             and
             her
             intromission
             was
             within
             that
             half
             .
             It
             was
             Replyed
             ,
             that
             she
             had
             only
             right
             to
             third
             ,
             because
             Dumbeath
             had
             a
             Bairn
             of
             the
             former
             Marriage
             ,
             who
             survived
             him
             ,
             and
             so
             the
             Executory
             must
             be
             imparted
             .
             It
             was
             duplyed
             ,
             that
             that
             Bairn
             was
             
               for
               as
               familiat
            
             ,
             married
             ,
             and
             provided
             before
             her
             Fathers
             Death
             ,
             and
             so
             was
             not
             
               in
               familia
            
             ,
             and
             albeit
             ,
             if
             there
             had
             been
             any
             other
             Bairns
             in
             the
             Family
             ,
             that
             Bairns
             part
             would
             have
             accresced
             to
             them
             ,
             yet
             being
             no
             other
             :
             It
             accresced
             to
             the
             Man
             and
             Wife
             ;
             and
             the
             Executory
             is
             bipartiti
             .
          
           
             The
             Lords
             found
             the
             Defense
             and
             Duply
             relevant
             ,
             albeit
             it
             was
             not
             alleadged
             ,
             that
             the
             Tocher
             was
             accepted
             ,
             in
             satisfaction
             of
             the
             Bairns
             Part
             of
             Gear
             ,
             unless
             those
             who
             have
             Right
             would
             offer
             to
             confer
             ,
             and
             bring
             in
             the
             Tocher
             received
             ;
             in
             which
             case
             ,
             they
             might
             crave
             a
             third
             ,
             if
             the
             same
             were
             not
             Renunced
             ,
             o●
             the
             Tocher
             accepted
             instead
             thereof
             .
          
           
             It
             was
             further
             alleadged
             for
             the
             
               Lord
               Frazer
            
             ,
             that
             he
             could
             not
             be
             lyable
             as
             Husband
             ;
             because
             his
             Lady
             being
             formerly
             Married
             to
             the
             
               Lord
               Arbuthnet
            
             ,
             he
             got
             the
             Moveables
             ,
             and
             his
             Successors
             should
             be
             ●yable
             ,
             at
             least
             in
             the
             first
             place
             .
          
           
             The
             Lords
             repelled
             the
             alleadgeance
             ,
             but
             prejudice
             to
             the
             Lord
             Frazer
             ,
             to
             pursue
             the
             Successors
             of
             the
             former
             Husband
             ,
             for
             repetition
             ,
             as
             accords
             .
          
        
         
           
             Mckenzie
             contra
             Iohn
             Ross.
             Eodem
             die
             .
          
           
             
               JOhn
               Ross
            
             having
             Appryzed
             certain
             Lands
             belonging
             to
             Mckenzie
             ,
             there
             is
             a
             Pursuite
             of
             Compt
             and
             Reckoning
             intented
             ,
             for
             declaring
             ,
             that
             the
             Apprysing
             was
             satisfyed
             within
             the
             Legal
             .
             It
             was
             alleadged
             ,
             that
             the
             Appryzer
             was
             not
             Comptable
             for
             more
             of
             the
             other
             Parties
             Minority
             then
             seven
             years
             ,
             because
             ,
             in
             the
             Act
             of
             Parliament
             1621
             Anent
             Appryzing
             ,
             it
             is
             so
             provided
             ,
             and
             albeit
             the
             meaning
             of
             the
             Act
             of
             Parliament
             was
             declared
             to
             be
             otherwayes
             ,
             by
             the
             Act
             of
             Parliament
             1641.
             
             Yet
             that
             Declaration
             was
             contrary
             to
             the
             clear
             meaning
             ,
             by
             the
             general
             rescissory
             Act
             1661.
             
          
           
             The
             Lords
             having
             considered
             the
             Rescissory
             Act●
             and
             the
             Reservation
             therein
             ,
             of
             the
             Right
             of
             Private
             Parties
             following
             upon
             the
             deeds
             of
             these
             Parliaments
             .
             In
             Respect
             thereof
             ,
             and
             of
             the
             Custome
             this
             20
             years
             ,
             the
             Appryser
             useing
             to
             Compt
             for
             all
             ,
             found
             the
             Appryser
             Comptable
             for
             the
             whole
             Year
             of
             the
             Minority
             .
          
        
         
           
             William
             Blair
             contra
             Anderson
             .
             Eodem
             die
             .
          
           
             
               William
               Blair
            
             as
             Assigny
             ,
             by
             the
             Wife
             and
             Bairns
             of
             Mr.
             
               David
               Anderson
            
             ,
             by
             his
             second
             Marriage
             ,
             pursues
             his
             Daughters
             ,
             both
             of
             the
             first
             and
             second
             Marriage
             ,
             as
             Heirs
             of
             Lyne
             ,
             for
             Implement
             of
             the
             second
             
             Contract
             of
             Marriage
             ,
             and
             the
             Daughters
             of
             the
             second
             Marriage
             offering
             to
             Renunce
             to
             be
             Heirs
             of
             Line
             ,
             but
             prejudice
             of
             their
             Provision
             ,
             by
             Contract
             of
             Marriage
             ,
             as
             Bairns
             of
             that
             Marriage
             .
             The
             Assigney
             insisted
             against
             the
             Daughters
             of
             the
             first
             Marriage
             ,
             as
             lawfully
             Charged
             ,
             &c.
             
             Who
             alleadged
             no
             Processe
             ,
             because
             the
             Provision
             ,
             by
             the
             Contract
             of
             Marriage
             ,
             insisted
             on
             ,
             run
             thus
             ,
             That
             Mr.
             David
             obliged
             himself
             ,
             and
             his
             Heirs-male
             ,
             Successors
             to
             him
             in
             his
             Estate
             ,
             but
             did
             oblige
             no
             other
             Heirs
             .
             
               Ita
               est
            
             ,
             there
             is
             an
             Heir-male
             .
             The
             Pursuer
             answered
             ,
             albeit
             Heirs-male
             were
             only
             expressed
             ,
             other
             Heirs
             were
             not
             excluded
             :
             specially
             ,
             seing
             he
             bound
             himself
             ,
             so
             that
             the
             effect
             thereof
             would
             only
             be
             ,
             that
             the
             Heir-male
             should
             be
             lyable
             
               primo
               loco
            
             .
          
           
             The
             Lords
             found
             the
             Heir-male
             lyable
             
               primo
               loco
            
             ,
             and
             the
             Heirs
             of
             Line
             
               secundo
               loco
            
             ,
             and
             found
             the
             Heir-male
             sufficiently
             discussed
             ,
             by
             an
             apprizing
             of
             the
             Clause
             of
             the
             Contract
             of
             Marriage
             ,
             in
             favours
             of
             the
             Heirs-male
             ,
             they
             not
             being
             Infeft
             as
             yet
             ,
             and
             having
             no
             other
             Right
             .
          
        
         
           
             Scots
             contra
             Earl
             of
             Hume
             .
             February
             19.
             1663.
             
          
           
             THe
             four
             Daughters
             of
             〈…〉
             Scot
             pursues
             an
             Ejection
             against
             the
             Earl
             of
             Hume
             ,
             out
             of
             some
             Lands
             belonging
             to
             them
             .
             It
             was
             alleadged
             for
             the
             Earl
             absolvitor
             ,
             because
             he
             entered
             into
             Possession
             ,
             by
             vertue
             of
             a
             Decreet
             of
             Removing
             ,
             given
             at
             his
             instance
             ,
             Anno
             1650.
             
             It
             was
             Replyed
             ,
             that
             the
             Decreet
             was
             only
             against
             the
             Pursuers
             Mother
             ,
             that
             they
             were
             never
             called
             ,
             nor
             decerned
             therein
             .
             The
             Earl
             answered
             ,
             First
             ,
             That
             the
             Decreet
             was
             against
             the
             Mother
             ,
             to
             remove
             her self
             ,
             Bairns
             ,
             Tennents
             ,
             and
             Servants
             ,
             and
             her
             Daughters
             were
             in
             the
             Family
             ,
             being
             then
             young
             Bairns
             ;
             and
             he
             was
             not
             obliged
             to
             know
             them
             ,
             they
             not
             being
             Infeft
             ,
             but
             having
             only
             an
             old
             Right
             ;
             whereupon
             there
             was
             no
             Infeftment
             for
             40.
             years
             the
             time
             of
             the
             Decreet
             .
          
           
             The
             Lords
             in
             respect
             of
             the
             Defense
             ,
             restricted
             the
             
               Processe
            
             to
             Restitution
             ,
             and
             the
             ordinary
             Profits
             ,
             and
             decerned
             the
             Earl
             to
             restore
             them
             to
             Possession
             instantly
             ,
             but
             superceeded
             payment
             of
             Profits
             till
             both
             Parties
             were
             heard
             ,
             as
             to
             their
             Rights
             ,
             for
             they
             found
             ,
             that
             the
             Decreet
             of
             Removing
             could
             not
             extend
             to
             their
             Children
             ;
             and
             albeit
             they
             were
             not
             Infeft
             ,
             yet
             they
             might
             maintain
             their
             Possession
             upon
             their
             Predecessors
             Infeftment
             ,
             how
             old
             soever
             ,
             seing
             they
             continued
             in
             Possession
             .
          
        
         
           
             Bessie
             Muir
             contra
             Jean
             Stirling
             .
             Eodem
             die
             .
          
           
             THe
             said
             
               Bessie
               Muir
            
             pursues
             her
             Mother
             ,
             as
             Executrix
             to
             her
             Father
             ,
             for
             payment
             of
             a
             Legacy
             of
             8000.
             merks
             left
             in
             his
             Testament
             ,
             subscribed
             by
             the
             Defender
             ,
             and
             Confirmed
             by
             her
             ,
             after
             her
             Husbands
             Death
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             she
             ,
             by
             the
             Contract
             of
             Marriage
             ,
             was
             Provided
             to
             the
             Liferent
             of
             all
             Sums
             to
             be
             Conquest
             ,
             and
             albeit
             she
             consented
             to
             the
             Legacy
             ,
             it
             was
             
               Donatio
               inter
               virum
            
             &
             uxorem
             ,
             and
             for
             her
             Confirmation
             ,
             it
             cannot
             import
             a
             passing
             from
             her
             own
             Right
             ,
             but
             only
             
             her
             purpose
             to
             execute
             the
             Defunc●s
             Will
             ,
             according
             to
             Law
             ,
             especially
             she
             being
             an
             illiterat
             Person
             .
             The
             Pursuer
             answered
             ,
             that
             this
             Donation
             was
             not
             by
             the
             Wife
             ,
             to
             ,
             or
             in
             favours
             of
             the
             Husband
             ,
             but
             of
             their
             Children
             ,
             which
             ,
             is
             not
             revockable
             ,
             and
             also
             the
             Confirmation
             humologats
             the
             same
             ,
             seing
             the
             Wife
             might
             have
             Confirmed
             ,
             and
             Protested
             to
             be
             withont
             prejudice
             of
             her
             own
             Rigt
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             .
          
        
         
           
             Cicil
             Ruthven
             contra
             Hay
             of
             Balhousie
             .
             Eodem
             die
             .
          
           
             
               CIcil
               Ruthven
            
             having
             granted
             a
             Bond
             to
             
               David
               Lamb
            
             ,
             that
             thereupon
             he
             might
             Apprize
             from
             her
             an
             Annualrent
             ,
             whereunto
             she
             was
             Apparent
             Heir
             ;
             whereupon
             she
             having
             obtained
             a
             Decreet
             ,
             and
             now
             seeking
             Adjudication
             in
             Lambs
             Name
             ;
             Lamb
             produces
             under
             his
             hand
             a
             Writ
             declaring
             that
             his
             Name
             was
             but
             used
             in
             Trust
             ,
             that
             he
             disclamed
             the
             Processe
             .
          
           
             The
             Lords
             ,
             notwithstanding
             Sustained
             Proc●sse
             ,
             being
             so
             far
             proceeded
             ,
             in
             respect
             of
             the
             Declaration
             ,
             bearing
             the
             Trust
             ,
             and
             found
             he
             could
             not
             disclaim
             ,
             in
             prejudice
             of
             the
             Trust.
             
          
        
         
           
             Lady
             Swintoun
             contra
             Town
             of
             Edinburgh
             .
             Eodem
             die
             .
          
           
             THe
             Magistrats
             ,
             and
             Councel
             of
             Edinburgh
             ,
             having
             granted
             them
             to
             be
             Debitors
             to
             the
             Lady
             Swintoun
             ,
             by
             way
             of
             Act
             ,
             conform
             to
             their
             Custom
             .
             The
             Lady
             supplicat
             ,
             that
             the
             Lords
             would
             grant
             Letters
             of
             Horning
             upon
             the
             said
             Act
             ,
             whereupon
             the
             Magistrats
             being
             Cited
             upon
             twenty
             four
             hours
             ;
             alleadged
             ,
             they
             were
             not
             Conveenable
             
               hoc
               ordine
            
             ,
             by
             suiting
             Letters
             of
             Horning
             upon
             a
             Bill
             ,
             but
             it
             ought
             to
             have
             been
             by
             an
             ordinary
             Summons
             ,
             either
             craving
             payment
             ,
             or
             Letters
             conform
             .
          
           
             The
             Lords
             notwithstanding
             granted
             Letters
             of
             Horning
             .
          
        
         
           
             Baillies
             of
             Edinburgh
             contra
             Heretors
             of
             East-lothian
             and
             Mers
             .
             February
             20.
             1663.
             
          
           
             THe
             Baillies
             pursue
             these
             Heretors
             for
             so
             much
             allowed
             of
             the
             Maintainance
             of
             these
             Shires
             ,
             of
             the
             moneths
             of
             August
             and
             September
             ,
             1650.
             
             And
             insisting
             on
             an
             Act
             of
             Litiscontestation
             ,
             in
             Anno
             1659.
             
             Whereby
             the
             Defenders
             having
             proponed
             a
             Defense
             of
             total
             vastation
             ,
             the
             same
             was
             found
             relevant
             .
             The
             Defenders
             having
             now
             raised
             a
             review
             ,
             alleadge
             that
             they
             ought
             not
             to
             have
             been
             put
             to
             prove
             total
             Vastation
             ,
             seing
             Vastation
             was
             Notour
             ,
             these
             Shires
             being
             the
             Seat
             of
             the
             War
             ,
             where
             the
             English
             Aarmy
             lay
             ,
             which
             ought
             to
             have
             freed
             them
             ,
             unlesse
             the
             Pursuers
             had
             replyed
             ,
             that
             the
             Heretors
             got
             Rent
             that
             year
             ,
             and
             had
             been
             burdened
             with
             the
             Probation
             thereof
             .
             2dly
             ,
             The
             Order
             of
             Sir
             
               Iohn
               Smiths
            
             general
             Commissar
             ,
             and
             also
             of
             the
             Provisors
             of
             the
             Army
             ,
             bearing
             the
             Provisors
             to
             
             have
             Furnished
             such
             Provisions
             want
             Witnesses
             ,
             and
             might
             have
             been
             made
             up
             since
             they
             were
             out
             of
             their
             Offices
             .
          
           
             The
             Lords
             adhered
             to
             the
             Act
             ,
             and
             found
             the
             Defense
             of
             total
             Devastation
             ,
             yet
             Relevant
             ,
             in
             this
             manner
             ,
             that
             the
             Heretors
             got
             no
             Rent
             ,
             and
             granted
             Commission
             to
             receive
             Witnesses
             ,
             at
             the
             head
             Burghs
             of
             the
             Shires
             ,
             for
             each
             particular
             Heretor
             ,
             to
             prove
             their
             particular
             Devastations
             ,
             and
             Sustained
             the
             Order
             of
             the
             General
             Commissar
             ,
             he
             making
             faith
             ,
             that
             he
             subscribed
             an
             Order
             of
             the
             same
             Tenor
             while
             he
             was
             in
             Office.
             
          
        
         
           
             Hary
             Hamiltoun
             contra
             William
             Hamiltoun
             .
             February
             21.
             1663.
             
          
           
             
               HAry
               Hamiltoun
            
             pursues
             his
             Brother
             William
             ,
             as
             behaving
             himself
             as
             Heir
             to
             their
             Father
             
               Iohn
               Hamiltoun
            
             Apothecary
             ,
             to
             pay
             six
             thousand
             merks
             of
             Provision
             by
             Bond
             ,
             and
             condescends
             that
             William
             intrometted
             with
             the
             Rents
             of
             the
             Lands
             of
             Vlistobe
             ,
             whereunto
             his
             Father
             had
             Heretable
             Right
             .
             The
             Defender
             answered
             ,
             that
             his
             Father
             was
             not
             Infeft
             ,
             because
             he
             Infeft
             the
             Defender
             therein
             before
             his
             Death
             ,
             Reserving
             only
             his
             own
             Liferent
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Infeftment
             was
             under
             Reversion
             ,
             and
             was
             Redeemed
             by
             the
             Father
             ,
             which
             Order
             ,
             though
             not
             Declared
             ,
             gave
             him
             the
             Right
             to
             this
             Land
             ,
             and
             was
             more
             than
             equivalent
             to
             an
             Heretable
             Disposition
             ,
             cled
             with
             Possession
             ,
             which
             would
             make
             the
             Apparent
             Heirs
             intrometting
             ,
             infer
             behaving
             as
             Heir
             ,
             for
             the
             Declarator
             
               non
               constituit
               sed
               declarat
               jus
               constitutum
               .
            
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             duply
             ,
             in
             respect
             of
             the
             condescendence
             ,
             and
             reply
             of
             the
             Order
             used
             .
          
           
             2ly
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             those
             Lands
             were
             Apprized
             from
             the
             Defunct
             ,
             and
             thereby
             he
             was
             denuded
             ,
             and
             so
             the
             Defender
             could
             not
             be
             Heir
             therein
             ,
             at
             least
             he
             could
             have
             nothing
             but
             the
             Right
             of
             Reversion
             ,
             which
             reacheth
             not
             to
             Mails
             and
             Duties
             .
          
           
             The
             Lords
             found
             ,
             that
             unlesse
             the
             Defender
             had
             Title
             ,
             or
             Tolerance
             from
             the
             Apprizer
             ,
             the
             Legal
             not
             being
             expired
             ,
             but
             the
             Debitor
             in
             Possession
             ,
             his
             Heir
             intrometting
             ,
             behaved
             as
             Heir
             ,
             the
             Apprizing
             being
             but
             a
             Security
             ,
             of
             which
             the
             Apprizer
             might
             make
             no
             use
             ,
             or
             but
             in
             Part
             ,
             as
             he
             pleased
             .
          
        
         
           
             Stirling
             contra
             Campbel
             .
             Eodem
             die
             .
          
           
             THe
             same
             last
             point
             was
             found
             betwixt
             these
             Parties
             ,
             and
             also
             that
             the
             Heirs
             Intromission
             with
             the
             whole
             Silver
             work
             ,
             so
             comprehending
             the
             best
             of
             them
             ,
             which
             is
             the
             Heirship
             ,
             was
             
               gestio
               pro
               haerede
            
             .
          
        
         
           
           
             Anna
             Wardlaw
             contra
             Frazer
             of
             Kilmundi
             .
             Eodem
             die
             .
          
           
             
               ANdrew
               Wardlaw
            
             having
             a
             Wodset
             upon
             some
             Lands
             of
             the
             Lord
             Frarzer
             ;
             The
             Debitor
             raises
             Suspension
             of
             multiple
             Poinding
             ,
             against
             Anna
             Sister
             and
             Heir
             to
             the
             said
             
               Andrew
               Wardlaw
            
             ,
             and
             Frazer
             of
             Kilmundi
             pretending
             Right
             by
             a
             Legacy
             ,
             from
             the
             Defunct
             to
             the
             same
             Sum.
             The
             Heir
             alleadged
             ,
             that
             it
             could
             be
             lyable
             to
             no
             Legacy
             ,
             being
             Heretable
             .
             The
             Defender
             answered
             ,
             primo
             ,
             the
             Legacy
             was
             made
             
               in
               pro●inctu
               belli
            
             where
             there
             was
             no
             occasion
             to
             get
             advice
             of
             the
             Formal
             and
             Secure
             way
             of
             disposing
             of
             the
             Wodset
             ,
             but
             the
             Will
             of
             the
             Defunct
             appearing
             
               in
               eo
               casu
            
             ,
             it
             must
             be
             held
             as
             effectual
             as
             
               Testamentum
               militare
               in
               procinc●u
            
             ,
             which
             needs
             no
             solemnities
             .
             2ly
             ,
             The
             Heirs
             Husband
             hath
             homologat
             the
             Legacy
             ,
             by
             discounting
             a
             part
             thereof
             .
             It
             was
             answered
             ,
             that
             no
             Testament
             whatever
             can
             reach
             Heretable
             Rights
             with
             us
             .
             3ly
             ,
             That
             the
             homologation
             of
             the
             Husband
             cannot
             prejudge
             his
             Wife
             ,
             nor
             himself
             ,
             
               quoad
               reliquum
            
             not
             discounted
             .
          
           
             The
             Lords
             found
             the
             Heirs
             had
             only
             right
             ,
             except
             in
             so
             far
             as
             the
             Husband
             had
             homologat
             the
             Legacy
             ,
             which
             they
             found
             to
             prefer
             the
             Legator
             to
             the
             whole
             benefit
             ,
             the
             Husband
             could
             have
             thereby
             
               jure
               mariti
            
             ,
             but
             not
             to
             prejudice
             the
             Wife
             thereaf●er
             .
          
        
         
           
             Iames
             Aikenhead
             contra
             Marjory
             Aikenhead
             .
             February
             25.
             1663.
             
          
           
             THe
             said
             Iames
             insists
             for
             the
             delivery
             of
             a
             Bond
             granted
             to
             his
             umquhile
             Father
             ,
             and
             Assignation
             thereto
             ,
             by
             his
             Father
             to
             him
             ,
             against
             the
             said
             Marjory
             ,
             producer
             thereof
             .
             It
             was
             alleadged
             no
             delivery
             ,
             because
             the
             Assignation
             ,
             in
             favours
             of
             the
             Pursuer
             ,
             was
             never
             delivered
             ,
             but
             keeped
             in
             his
             Fathers
             Possession
             ,
             which
             cannot
             be
             accompted
             his
             Possession
             ,
             seing
             the
             Pursuer
             is
             a
             Bastard
             .
             2ly
             ,
             The
             conception
             of
             the
             Assignation
             is
             to
             the
             Pursuer
             and
             his
             Heirs
             ;
             which
             failzing
             ,
             to
             the
             said
             Marjory
             ,
             and
             her
             Heirs
             ,
             and
             he
             being
             now
             Minor
             ,
             ought
             not
             to
             dispose
             of
             the
             Sum
             in
             her
             prejudice
             .
          
           
             The
             Lords
             Repelled
             the
             Defenses
             against
             the
             delivery
             ,
             and
             found
             that
             the
             Pursuer
             ,
             during
             his
             Minority
             should
             not
             uplift
             the
             Sum
             ,
             till
             the
             Defender
             were
             called
             ,
             and
             had
             accesse
             to
             plead
             her
             Interest
             .
          
        
         
           
             Adam
             Hepburn
             contr
             Helen
             Hepburn
             .
             Eodem
             die
             .
          
           
             THe
             Estate
             of
             Humby
             being
             provided
             to
             Heirs
             whatsoever
             ;
             umquhile
             
               Tomas
               Hepburn
            
             of
             Humby
             ,
             in
             his
             Contract
             of
             Marriage
             .
             with
             
               Elizabeth
               Iohns●oun
            
             ,
             provides
             the
             said
             Estate
             to
             the
             Heirs-male
             ,
             and
             provides
             25000.
             merks
             for
             the
             Daughters
             ,
             there
             is
             a
             Clause
             of
             the
             Contract
             ,
             Bearing
             ,
             that
             it
             should
             be
             leisome
             to
             the
             said
             Thomas
             ,
             at
             any
             time
             ,
             during
             his
             Life
             ,
             to
             alter
             the
             said
             Provision
             ,
             or
             to
             dispone
             thereof
             ,
             according
             to
             his
             pleasure
             ;
             thereafter
             ,
             upon
             Death-bed
             he
             Disponed
             the
             whole
             Estate
             ,
             in
             favours
             of
             his
             Daughter
             of
             the
             Marriage
             ,
             being
             his
             only
             Child
             ,
             
               Adam
               Hepburn
            
             his
             Brother
             ,
             as
             Heir-male
             ,
             intents
             Reduction
             of
             that
             Disposition
             ,
             as
             being
             done
             in
             
               lecto
               Aegritudinis
            
             .
             It
             was
             alleadged
             ,
             for
             
             the
             Defender
             ,
             
               primo
               ,
               Minor
               non
               tenetur
               placitare
               de
               Haereditate
               Paterna
               .
            
             The
             Defender
             is
             Minor
             ,
             and
             now
             the
             Question
             of
             Reduction
             is
             ,
             upon
             her
             Fathers
             Heretage
             .
             It
             was
             Answered
             ,
             that
             the
             maxime
             holds
             not
             ,
             where
             the
             Question
             is
             of
             the
             Disposition
             made
             to
             the
             Minor
             ,
             whether
             valid
             or
             not
             ,
             but
             where
             the
             Question
             is
             not
             upon
             the
             Minors
             Right
             ,
             but
             upon
             the
             Fathers
             Right
             ;
             which
             Right
             of
             the
             Fathers
             ,
             or
             Predecessors
             ,
             the
             Minor
             is
             not
             holden
             to
             Dispute
             .
          
           
             
               The
               Lords
               repelled
               this
               Defense
               ,
               in
               respect
               of
               the
               Reply
               .
               2dly
               .
            
             It
             was
             alleadged
             absolvitor
             ,
             because
             the
             Pursuer
             having
             only
             a
             Personal
             Provision
             ,
             in
             his
             Favours
             ,
             conceived
             in
             the
             Contract
             of
             Marriage
             ,
             and
             there
             being
             as
             yet
             ,
             no
             Infeftment
             to
             Heirs
             Male
             ,
             the
             maxime
             ,
             that
             no
             deed
             upon
             Death-bed
             ,
             can
             be
             prejudicial
             to
             Heirs
             ,
             can
             be
             extended
             to
             none
             ,
             but
             such
             as
             are
             Special
             Heirs
             ,
             and
             not
             to
             those
             who
             are
             by
             destination
             Heirs
             ,
             which
             is
             less
             then
             if
             a
             Charter
             had
             been
             granted
             to
             the
             Heir
             Male
             ,
             which
             according
             to
             Craigs
             Opinion
             ,
             is
             but
             as
             
               nudum
               pactum
            
             ,
             and
             an
             uncompleat
             Right
             and
             could
             not
             compell
             the
             Heirs
             of
             Lyne
             ,
             to
             Resign
             :
             The
             Pursuer
             answered
             ,
             that
             the
             maxime
             is
             general
             ,
             and
             there
             is
             no
             Distinction
             by
             Law
             ,
             or
             Custome
             ;
             whatsoever
             the
             Heirs
             be
             ,
             so
             that
             a
             Person
             having
             a
             Right
             to
             Heretable
             Bonds
             ,
             bearing
             Clause
             of
             Infeftment
             ,
             whereupon
             no
             Infeftment
             had
             followed
             ,
             could
             do
             nothing
             upon
             Death-bed
             in
             prejudice
             of
             the
             Heirs
             ,
             who
             would
             have
             succeeded
             unto
             those
             Bonds
             ,
             as
             to
             Craigs
             Opinion
             of
             a
             Charter
             ,
             it
             is
             against
             Law
             ,
             and
             the
             common
             Opinion
             now
             received
             that
             a
             Charter
             ,
             or
             any
             Provision
             in
             Write
             is
             effectual
             against
             the
             granter
             ,
             and
             his
             Heirs
             to
             compel
             them
             to
             compleat
             the
             same
             .
          
           
             
               The
               Lords
               repelled
               this
               Defense
               .
               3ly
               .
            
             It
             was
             alleadged
             ,
             absolvitor
             ,
             because
             the
             maxime
             ,
             can
             be
             only
             understood
             of
             the
             Heir
             of
             Lyne
             ,
             as
             nearest
             of
             blood
             ,
             so
             that
             nothing
             can
             be
             effectually
             done
             in
             their
             prejudice
             ,
             but
             here
             the
             Diposition
             ,
             is
             but
             in
             prejudice
             of
             an
             Heir
             Male
             ,
             and
             in
             favours
             of
             an
             Heir
             of
             Lyne
             ,
             in
             respect
             of
             whom
             the
             Heir
             of
             Male
             is
             but
             a
             Stranger
             ,
             which
             is
             the
             more
             clear
             ,
             because
             this
             maxime
             being
             very
             ancient
             ,
             was
             produced
             before
             their
             was
             any
             Heir
             Male
             ,
             or
             of
             Tailzie
             ;
             and
             because
             the
             Reason
             of
             the
             Law
             is
             founded
             upon
             the
             Natural
             Obligation
             ,
             Parents
             and
             Predecessors
             have
             ,
             of
             providing
             their
             Successors
             ,
             and
             so
             can
             do
             them
             no
             prejudice
             :
             especially
             ,
             when
             they
             are
             weak
             ,
             and
             on
             Death-bed
             .
             The
             Pursuer
             answered
             ,
             as
             before
             ,
             that
             the
             maxime
             is
             general
             ;
             and
             there
             is
             no
             distinction
             introduced
             by
             Law
             or
             Custome
             of
             Heirs
             Male
             :
             and
             albeit
             the
             Law
             had
             introduced
             such
             Heirs
             since
             this
             Common
             Law
             ;
             yet
             in
             so
             far
             as
             it
             makes
             them
             Heirs
             .
             It
             gives
             them
             the
             Priviledge
             of
             Heirs
             ,
             to
             which
             the
             Reason
             of
             the
             Law
             doth
             well
             Quadrat
             ,
             which
             is
             not
             that
             Natural
             Obligation
             ,
             but
             this
             presumption
             of
             Law
             ,
             that
             Persons
             on
             Death-bed
             are
             facile
             ,
             and
             weaker
             in
             their
             Capacities
             then
             at
             other
             times
             ,
             and
             therefore
             the
             Law
             disables
             them
             at
             that
             time
             ,
             to
             alter
             the
             Setlment
             of
             their
             Estates
             ,
             as
             they
             were
             in
             their
             Health
             ;
             and
             so
             allows
             of
             no
             deed
             ,
             in
             prejudice
             of
             any
             Heir
             of
             whatsoever
             kind
             ,
             although
             in
             favours
             of
             another
             .
          
           
             
               The
               Lords
               repelled
               this
               Defense
               .
               4ly
               .
            
             It
             was
             alleadged
             ,
             that
             the
             Defunct
             ,
             having
             himself
             constitute
             this
             interest
             of
             the
             Heir
             Male
             ,
             had
             reserved
             this
             power
             to
             himself
             ,
             to
             alter
             it
             during
             his
             life
             ,
             can
             signifie
             nothing
             ,
             unless
             it
             Impower
             him
             to
             do
             it
             on
             Death-bed
             ,
             because
             ,
             without
             any
             such
             Reversion
             ,
             he
             might
             have
             altered
             the
             Tailzie
             ,
             during
             his
             Leigpoustie
             .
             The
             Pursuer
             answered
             ,
             
               Pactum
               privatorum
               non
               derogat
               jure
               communi
            
             ;
             Therefore
             this
             being
             a
             special
             part
             of
             our
             common
             Law
             ,
             anterior
             to
             either
             Act
             of
             Parliament
             ,
             or
             Practique
             ,
             no
             privat
             Provision
             ,
             or
             Reversion
             can
             capacitat
             any
             Person
             to
             do
             that
             which
             the
             Law
             declares
             void
             ;
             especially
             ,
             being
             upon
             a
             Reason
             of
             weakness
             and
             infirmity
             ,
             which
             is
             presumed
             in
             Persons
             on
             Death-bed
             ,
             
               presumptione
               juris
               &
               de
               jure
            
             ,
             admitting
             no
             contray
             probation
             ,
             for
             it
             will
             not
             be
             admitted
             ,
             to
             prove
             that
             the
             Disponer
             was
             in
             perfect
             soundnesse
             of
             mind
             ,
             and
             therefore
             ,
             
             if
             any
             Person
             should
             reserve
             a
             Power
             to
             Dispone
             ,
             though
             he
             were
             not
             
               compos
               mentis
            
             :
             the
             Reservation
             would
             signifie
             nothing
             ,
             so
             here
             neither
             is
             the
             ordinary
             word
             adjected
             ,
             
               etiam
               in
               articulo
               mortis
            
             ,
             or
             on
             Death-bed
             ,
             and
             so
             cannot
             be
             extended
             to
             that
             case
             and
             can
             reach
             only
             to
             what
             is
             done
             lawfully
             ,
             
               legittimo
               tempore
               &
               modo
            
             ,
             and
             there
             is
             far
             lesse
             inconvenience
             ,
             that
             a
             Cause
             should
             be
             superfluous
             ,
             which
             is
             very
             ordinary
             ,
             then
             that
             it
             should
             extend
             to
             take
             away
             common
             Law
             ,
             neither
             is
             the
             Provision
             adjected
             as
             an
             expresse
             condition
             upon
             which
             the
             Tailzie
             was
             made
             ,
             and
             no
             otherwise
             .
          
           
             The
             Lords
             repelled
             also
             this
             defense
             ,
             in
             respect
             of
             the
             Reply
             ,
             and
             so
             having
             advised
             all
             the
             Defenses
             ,
             and
             Disputes
             in
             the
             afternoon
             ,
             albeit
             the
             Parties
             had
             aggreed
             before
             hand
             ,
             and
             the
             Heir
             of
             Lynes
             Portion
             doubled
             ,
             yet
             the
             Lords
             were
             generally
             clear
             in
             the
             Decisions
             abovewritten
             ,
             as
             relevant
             in
             themselves
             .
          
        
         
           
             James
             Cuthbert
             of
             Dragakers
             contra
             Robert
             Monro
             of
             Foules
             .
             February
             26.
             1663.
             
          
           
             THe
             said
             Iames
             pursues
             the
             said
             
               Robert
               Monro
            
             ,
             as
             Heir
             to
             his
             Predecessor
             the
             Laird
             of
             Foules
             ,
             for
             payment
             of
             a
             Debt
             due
             by
             him
             ,
             and
             insists
             against
             him
             as
             behaving
             himself
             as
             Heir
             ,
             by
             intromission
             with
             the
             Moveable
             Heirship
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             it
             was
             not
             condescended
             ,
             that
             the
             Defunct
             was
             a
             Person
             who
             could
             have
             an
             Heir
             ,
             as
             to
             Heirship
             Moveable
             ,
             as
             being
             Prelat
             ,
             Baron
             or
             Burgess
             ,
             and
             if
             the
             Lands
             of
             Foules
             be
             condescended
             on
             :
             It
             is
             offered
             to
             be
             proven
             ,
             that
             he
             was
             denuded
             by
             Appryzing
             ,
             before
             his
             Death
             to
             which
             Appryzing
             he
             had
             Right
             before
             he
             was
             Apparant
             Heir
             ,
             being
             Tutor
             to
             another
             ,
             who
             was
             Apparant
             Heir
             for
             the
             time
             ,
             and
             therefore
             the
             Defender
             has
             neither
             behaved
             himself
             as
             Heir
             ,
             by
             Intrommission
             with
             the
             Moveable
             Heirship
             ,
             or
             the
             Rents
             of
             the
             Defuncts
             Lands
             .
             3dly
             .
             The
             Defender
             died
             Rebel
             ,
             and
             his
             Escheat
             Gifted
             ,
             and
             Declared
             ,
             and
             so
             
               nihil
               habuit
               in
               se
               bonis
            
             ,
             and
             could
             have
             no
             Moveable
             Heirship
             .
             It
             is
             answered
             ,
             for
             the
             Pursuer
             ,
             to
             the
             first
             ,
             
               non
               relevat
            
             ,
             that
             the
             Lands
             were
             Appryzed
             from
             the
             Defunct
             ,
             unless
             the
             Legal
             had
             been
             expyred
             ,
             yet
             
               semel
               Baro
               semper
               Baro.
               3ly
            
             .
             The
             Pursuer
             having
             taken
             Right
             to
             the
             Appryzing
             ,
             while
             he
             was
             Tutor
             
               ipso
               facto
            
             ,
             it
             accresced
             to
             the
             Pupil
             ,
             and
             thereby
             was
             extinct
             ,
             and
             cannot
             defend
             his
             Intromissions
             .
             4ly
             .
             It
             was
             for
             a
             smal
             Sum
             ,
             and
             satisfied
             by
             Intromission
             of
             a
             year
             or
             two
             ,
             so
             that
             the
             continuance
             of
             the
             Apparant
             Heir
             in
             the
             Possession
             ,
             after
             he
             was
             satisfyed
             is
             
               gestio
               .
               5ly
            
             .
             The
             Gift
             and
             Declarator
             ,
             if
             it
             was
             done
             during
             the
             Rebels
             Life
             ,
             it
             was
             simulat
             
               ●etenta
               possessione
            
             ,
             and
             so
             null
             .
          
           
             The
             Lords
             found
             the
             Appryzing
             not
             to
             purge
             the
             Intromission
             ,
             unless
             the
             Legal
             had
             been
             expired
             ,
             in
             Moveable
             ,
             and
             his
             Apparant
             Heir
             might
             behave
             himself
             as
             Heir
             ,
             by
             Intromission
             with
             the
             Rents
             of
             the
             Apprysed
             Lands
             ;
             but
             if
             the
             Legal
             was
             expired
             ,
             they
             found
             it
             sufficient
             ,
             and
             that
             
               semel
               Baro
               semper
               Baro
            
             is
             only
             to
             be
             understood
             presumptive
             ,
             
               nisi
               contrarium
               probatur
            
             ,
             as
             also
             they
             found
             the
             Defender
             his
             taking
             right
             to
             the
             Appryzing
             ,
             while
             being
             Tutor
             ,
             or
             continuing
             in
             Possession
             after
             satisfaction
             thereof
             ,
             by
             Intromission
             not
             to
             infer
             the
             passive
             Title
             ,
             and
             that
             the
             Gift
             and
             Declarator
             did
             take
             away
             the
             Heirship
             moveable
             ,
             unless
             it
             were
             offered
             to
             be
             proven
             simul
             ,
             or
             
               retenta
               possessione
            
             during
             the
             Rebels
             lifetime
             .
          
        
         
           
           
             Lady
             Milntoun
             contra
             Laird
             of
             Milntoun
             .
             February
             27.
             1663.
             
          
           
             THe
             Lady
             Milntoun
             pursues
             the
             probation
             of
             a
             Tenor
             of
             a
             Bond
             granted
             by
             Maxwel
             of
             Calderwood
             ,
             her
             Husband
             ,
             bearing
             ,
             that
             in
             respect
             of
             his
             Facility
             he
             might
             be
             induced
             to
             dispose
             of
             his
             Wifes
             Liferent
             ,
             and
             thereby
             redact
             them
             both
             to
             want
             and
             misery
             ;
             therefore
             he
             oblieges
             himself
             not
             to
             dispose
             thereof
             without
             his
             Wifes
             consent
             ,
             seing
             he
             had
             no
             means
             but
             what
             he
             got
             by
             her
             ,
             hereupon
             she
             used
             Inhibition
             ,
             which
             she
             now
             produces
             as
             an
             Adminicle
             ,
             and
             craves
             the
             Tenor
             of
             the
             Bond
             to
             be
             made
             up
             by
             Witnesses
             .
             The
             Defender
             having
             alleadged
             .
             that
             there
             behoved
             here
             to
             be
             lybelled
             and
             proven
             a
             special
             
               causus
               omissionis
            
             ,
             because
             albeit
             it
             were
             proven
             that
             such
             a
             Bond
             once
             was
             ,
             yet
             unless
             it
             were
             also
             proven
             how
             it
             was
             lost
             ,
             it
             must
             be
             presumed
             to
             have
             been
             given
             back
             to
             the
             Husband
             ,
             granter
             thereof
             ,
             whereby
             he
             is
             liberat
             ,
             and
             this
             is
             the
             course
             observed
             in
             the
             Tenors
             of
             all
             Bonds
             of
             borrowed
             Money
             .
             The
             Pursuer
             answered
             ,
             that
             this
             was
             not
             like
             a
             Bond
             of
             borrowed
             Money
             ,
             the
             intent
             whereof
             is
             ,
             not
             to
             stand
             as
             a
             constant
             Right
             ,
             but
             to
             be
             a
             mean
             to
             get
             payment
             ;
             but
             this
             Bond
             by
             its
             tenor
             was
             to
             stand
             as
             a
             constant
             Right
             ,
             to
             preserve
             the
             Dilapidation
             of
             the
             Liferent
             ,
             and
             so
             cannot
             be
             presumed
             to
             have
             been
             quite
             by
             redelivery
             thereof
             ;
             albeit
             it
             had
             been
             in
             the
             Husbands
             hands
             .
          
           
             The
             Lords
             before
             answer
             to
             this
             Dispute●
             Ordained
             the
             Pursuer
             to
             condescend
             what
             the
             effect
             of
             this
             Write
             would
             be
             ,
             if
             it
             were
             made
             up
             ;
             for
             if
             it
             have
             no
             effect
             ,
             there
             were
             no
             necessity
             to
             make
             it
             up
             .
          
           
             The
             Pursuer
             condescended
             upon
             the
             effect
             thereof
             thus
             ,
             that
             it
             would
             be
             effectual
             as
             an
             Interdiction
             published
             by
             the
             Inhibition
             ,
             to
             annual
             and
             reduce
             the
             Disposition
             of
             the
             Pursuers
             Liferent
             ,
             made
             by
             her
             Husband
             ,
             without
             her
             consent
             ,
             in
             favours
             of
             Milntoun
             ,
             her
             Step-son
             2.
             
             This
             Bond
             being
             accessory
             to
             the
             Contract
             of
             Marriage
             betwixt
             the
             same
             ,
             and
             the
             Marriage
             is
             
               pactum
               dotale
            
             ,
             and
             must
             have
             the
             same
             effect
             ,
             as
             if
             it
             were
             included
             in
             the
             Contract
             of
             Marriage
             ;
             and
             so
             is
             a
             Provision
             for
             Securing
             of
             the
             Pursuers
             Liferent
             to
             her self
             ,
             and
             that
             no
             Deed
             by
             her
             Husband
             ,
             without
             her
             own
             consent
             ,
             should
             be
             effectual
             .
             The
             Defender
             alleadged
             that
             none
             of
             these
             Condescendences
             could
             be
             effectual
             ,
             not
             the
             first
             ,
             because
             if
             the
             foresaid
             Bond
             were
             an
             Interdiction
             ,
             it
             would
             have
             no
             effect
             ,
             unless
             it
             were
             instructed
             that
             the
             granter
             thereof
             were
             prodigus
             ,
             and
             if
             it
             were
             Instructed
             that
             he
             was
             
               rei
               suae
               providus
            
             ,
             it
             could
             take
             away
             the
             effect
             thereof
             ,
             because
             an
             Interdiction
             is
             nothing
             else
             but
             
               constitutio
               Car●●torum
               prodigo
            
             ;
             where
             albeit
             it
             is
             done
             of
             course
             ,
             
               periculo
               facientis
               sine
               causae
               cognitione
            
             with
             us
             :
             Yet
             if
             it
             be
             on
             an
             false
             Ground
             and
             Narrative
             ,
             its
             ineffectual
             .
             2ly
             .
             Though
             it
             could
             be
             instructed
             ,
             that
             the
             Husband
             was
             levis
             ;
             yet
             the
             Interdiction
             is
             null
             ,
             being
             to
             his
             own
             Wife
             ,
             who
             cannot
             be
             his
             Curator
             ,
             being
             
               sub
               potestate
               viri
            
             :
             Nor
             Curator
             to
             any
             other
             ,
             much
             less
             can
             her
             Husband
             be
             made
             her
             Pupil
             ,
             contrair
             to
             the
             Law
             Divine
             and
             Humane
             .
             Neither
             could
             the
             Bond
             be
             effectual
             ,
             as
             a
             Provision
             adjected
             to
             the
             Contract
             of
             Marriage
             ,
             because
             it
             being
             from
             an
             Husband
             to
             his
             Wife
             ,
             so
             soon
             as
             he
             was
             Married
             ,
             it
             returned
             to
             himself
             ,
             
               jure
               mari●i
            
             ,
             because
             nothing
             can
             consist
             in
             the
             person
             of
             the
             Wife
             ,
             which
             belongs
             not
             to
             the
             Husband
             ,
             
               jure
               mariti
            
             ,
             being
             moveable
             ,
             except
             an
             Aliment
             formerly
             Constitute
             to
             her
             in
             
             a
             competent
             measure
             .
             The
             Pursuer
             answered
             that
             she
             opponed
             the
             Bond
             ,
             and
             further
             offered
             to
             restore
             to
             the
             Defender
             ,
             all
             that
             he
             gave
             for
             the
             Disposition
             of
             her
             Liferent
             .
          
           
             The
             Lords
             after
             they
             had
             Reasoned
             the
             several
             Points
             ,
             
               in
               jure
            
             ,
             and
             found
             that
             without
             the
             offer
             ,
             the
             Bond
             could
             not
             be
             consistent
             as
             an
             Interdiction
             ,
             in
             so
             far
             as
             concerned
             the
             Husband
             to
             annul
             the
             Disposition
             ,
             but
             were
             inclined
             to
             Sustain
             the
             same
             for
             the
             Wife
             ,
             in
             so
             far
             as
             might
             extend
             to
             a
             competent
             Aliment
             of
             her
             Family
             to
             her Self
             ,
             Daughter
             and
             Servants
             ,
             not
             excluding
             her
             Husband
             :
             Yer
             they
             found
             the
             offer
             so
             reasonable
             ,
             to
             Repay
             the
             Sum
             Payed
             for
             the
             Liferent
             ,
             being
             5000.
             merks
             ,
             and
             the
             Liferent
             it self
             being
             eight
             Chalder
             of
             Victual
             ,
             and
             eight
             hundred
             merks
             ,
             that
             they
             found
             the
             effect
             of
             the
             Tenor
             would
             be
             to
             Restore
             either
             Party
             ,
             
               hinc
               inde
            
             ,
             but
             desired
             the
             Pursuer
             to
             let
             the
             Defender
             keep
             the
             Possession
             of
             the
             House
             and
             Lands
             ,
             wherein
             there
             was
             many
             Woods
             newly
             cutted
             ,
             he
             finding
             Caution
             to
             pay
             her
             eight
             Chalder
             of
             Victual
             ,
             and
             eight
             hundred
             merks
             ,
             which
             his
             Father
             was
             oblieged
             to
             make
             them
             worth
             by
             the
             Contract
             of
             Marriage
             .
          
        
         
           
             Sir
             William
             Gordoun
             of
             Lesmore
             contra
             Mr.
             James
             Leith
             .
             Iune
             10.
             1663.
             
          
           
             SIr
             
               William
               Gordoun
            
             of
             Lesmore
             pursues
             Mr.
             
               Iames
               Leith
            
             of
             New-lesly
             ,
             as
             representing
             his
             Father
             ,
             on
             all
             the
             passive
             Titles
             ,
             and
             condescended
             that
             he
             behaved
             himself
             as
             Heir
             ,
             by
             meddling
             with
             his
             Fathers
             Heirship
             moveable
             ,
             and
             with
             the
             Mails
             and
             Duties
             of
             his
             Fathers
             Lands
             of
             New-lesly
             and
             Syde
             .
             The
             Defender
             answered
             to
             the
             first
             ,
             that
             his
             Father
             could
             have
             no
             Heirship
             moveable
             ,
             because
             he
             dyed
             Rebel
             ,
             and
             so
             his
             hail
             Goods
             belonged
             to
             the
             King
             as
             Escheat
             .
             2ly
             .
             If
             need
             beis
             ,
             he
             offers
             him
             to
             prove
             that
             he
             dyed
             not
             only
             Rebel
             ,
             but
             his
             Escheat
             was
             Gifted
             ,
             and
             so
             as
             a
             Confirmation
             takes
             away
             vitious
             Intromission
             Moveables
             .
             So
             the
             Gift
             with
             the
             Escheat
             must
             purge
             vitious
             intromission
             with
             Heirship
             ,
             being
             before
             intenting
             of
             this
             Cause
             .
             3ly
             .
             He
             offers
             him
             to
             prove
             that
             the
             Heirship
             moveable
             was
             Confirmed
             promiscuously
             with
             the
             rest
             of
             the
             moveables
             ,
             and
             that
             the
             Defender
             had
             right
             from
             the
             Executor
             ,
             which
             Confirmation
             ,
             though
             it
             could
             not
             be
             effectual
             to
             carry
             the
             Heirship
             ,
             yet
             it
             was
             a
             collourable
             Title
             ,
             to
             show
             that
             the
             Defender
             had
             not
             
               〈…〉
               miscendi
            
             ,
             but
             that
             he
             meddled
             by
             a
             singular
             Title
             ,
             and
             neither
             formerly
             drew
             an
             Heirship
             ,
             nor
             meddled
             therewith
             ,
             as
             Heir
             appearing
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             it
             was
             not
             relevant
             that
             he
             was
             Rebel
             ,
             nor
             that
             his
             Escheat
             ,
             unless
             it
             had
             been
             Gifted
             before
             his
             Intromission
             ,
             as
             well
             as
             before
             intenting
             of
             the
             Cause
             ,
             and
             that
             the
             Defender
             had
             Right
             from
             the
             Donator
             .
             To
             the
             second
             ,
             it
             was
             answered
             by
             the
             Pursuer
             ,
             that
             the
             promiscuous
             Confirmation
             was
             not
             sufficient
             ,
             because
             he
             offered
             him
             to
             prove
             ,
             the
             Defender
             Confirmed
             his
             own
             Servant
             to
             his
             own
             behove
             .
          
           
           
             The
             Lords
             found
             that
             the
             Defenders
             Father
             dying
             Rebel
             ,
             was
             not
             sufficient
             ,
             unless
             it
             had
             been
             Gifted
             ,
             and
             declared
             before
             intromission
             ,
             and
             they
             found
             the
             Reply
             Relevant
             ,
             that
             the
             promiscuous
             Confirmation
             was
             to
             the
             Defenders
             behove
             .
          
           
             As
             to
             the
             second
             Member
             of
             the
             Condescendence
             ,
             the
             Defender
             alleadged
             ,
             .
             that
             albeit
             his
             Father
             was
             Infeft
             ,
             yet
             his
             Infeftment
             was
             only
             base
             ,
             not
             cled
             with
             Possession
             ;
             and
             that
             the
             Defenders
             Title
             was
             by
             another
             Party
             ,
             Possessing
             ,
             and
             publictly
             Infeft
             before
             his
             Fathers
             Death
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Iames
             Allan
             .
             contra
             Iames
             Paterson
             .
             Iune
             17.
             1663.
             
          
           
             
               JAmes
               Allan
            
             charges
             
               Iames
               Paterson
            
             as
             Cautioner
             in
             an
             Indenter
             ,
             for
             a
             Prentise
             ,
             set
             to
             the
             Charger
             for
             five
             years
             ,
             and
             insists
             upon
             that
             Article
             of
             paying
             two
             dayes
             wadges
             for
             ilk
             dayes
             absence
             ,
             and
             subsumes
             that
             the
             Prentise
             left
             his
             Service
             after
             the
             first
             two
             years
             ,
             and
             was
             absent
             three
             years
             ,
             The
             said
             
               Iames
               Paterson
            
             Suspends
             on
             this
             reason
             ,
             that
             it
             must
             be
             presumed
             Collusion
             betwixt
             the
             Charger
             and
             his
             Prentise
             ,
             that
             having
             gotten
             the
             Prentise
             Fee
             ,
             and
             not
             learned
             him
             the
             Trade
             ,
             he
             had
             suffered
             him
             to
             escape
             ,
             never
             making
             intimation
             to
             the
             Suspender
             ,
             that
             he
             might
             have
             brought
             him
             back
             to
             his
             Service
             ,
             while
             now
             that
             he
             is
             out
             of
             the
             Countrey
             ,
             and
             not
             knowing
             where
             .
             The
             Charger
             answered
             ,
             that
             there
             was
             nothing
             to
             obliege
             him
             to
             make
             such
             intimation
             ,
             neither
             could
             a
             sufficient
             presumption
             of
             Collusion
             be
             sustained
             .
          
           
             The
             Lords
             found
             the
             Letters
             orderly
             proceeded
             ,
             either
             while
             the
             Cautioner
             caused
             the
             Prentise
             Re-enter
             ,
             and
             serve
             out
             his
             time
             ,
             or
             otherways
             payed
             fifty
             pound
             for
             damnage
             and
             interest
             ,
             to
             which
             they
             modified
             the
             Charge
             .
          
        
         
           
             Margaret
             Fleming
             contra
             Iames
             Gilleis
             .
             Iune
             18.
             1663.
             
          
           
             
               MArgaret
               Fleming
            
             being
             Infeft
             in
             an
             Annualrent
             of
             700.
             merks
             out
             of
             Houses
             in
             Edinburgh
             ,
             in
             Liferent
             ,
             with
             absolute
             warrandice
             from
             all
             dangers
             ,
             perils
             and
             inconveniencies
             whatsomever
             ;
             pursues
             Declarator
             against
             the
             said
             
               Iames
               Gilleis
            
             ,
             as
             Heretor
             ,
             for
             declaring
             that
             her
             Annualrent
             should
             be
             free
             of
             all
             publick
             burden
             ,
             since
             the
             rescinding
             of
             the
             Act
             of
             Parliament
             1646.
             whereby
             Liferenters
             were
             ordained
             to
             bear
             proportional
             part
             for
             their
             Annualrents
             ,
             with
             the
             Heretors
             .
             The
             Defender
             answered
             ,
             the
             Libel
             was
             not
             Relevant
             ,
             for
             albeit
             the
             Act
             of
             Parliament
             was
             rescinded
             ,
             the
             justice
             and
             equity
             thereof
             remained
             ,
             that
             whatever
             burden
             were
             laid
             upon
             Land
             ,
             shouldly
             proportionably
             upon
             every
             part
             therof
             ,
             and
             every
             profit
             forth
             of
             it
             .
          
           
             Which
             Defense
             the
             Lords
             found
             Relevant
             and
             Assoilzied
             .
          
        
         
           
           
             Francis
             Hamiltoun
             contra
             Mitchel
             and
             Keith
             .
             Eodem
             die
             .
          
           
             SIr
             
               Alexander
               Keith
            
             of
             Ludquharn
             being
             oblieged
             by
             Bond
             to
             
               Robert
               Mitchel
            
             in
             Leith
             ,
             for
             the
             price
             of
             certain
             Bolls
             of
             Victual
             ,
             was
             arrested
             in
             Leith
             ,
             till
             he
             found
             
               Francis
               Hamiltoun
            
             Cautioner
             as
             Law
             will
             ,
             and
             both
             being
             pursued
             on
             the
             Act
             ,
             raised
             Advocation
             on
             this
             reason
             ,
             that
             the
             Baillies
             of
             Leith
             had
             unjustly
             forced
             him
             to
             find
             Caution
             as
             Law
             will
             ;
             he
             not
             being
             dwelling
             in
             Leith
             ,
             nor
             Leith
             not
             being
             a
             Burgh
             Royal
             ,
             but
             a
             Burgh
             of
             Barony
             .
             It
             was
             answered
             ,
             that
             the
             priviledge
             and
             custome
             of
             the
             Town
             of
             Edinburgh
             ,
             was
             to
             arrest
             within
             Leith
             ,
             and
             all
             other
             priviledges
             and
             pendicles
             thereof
             .
          
           
             The
             Lords
             found
             that
             it
             behoved
             to
             be
             condescended
             ,
             in
             what
             place
             of
             
               Leith
               Ludquharn
            
             was
             arrested
             ,
             for
             the
             Peer
             of
             Leith
             was
             a
             part
             of
             the
             Burgh
             Royal
             of
             Edinburgh
             ,
             and
             was
             served
             by
             a
             Bailie
             of
             Edinburgh
             ,
             called
             the
             Water
             Baillie
             ,
             and
             if
             he
             was
             arrested
             there
             ,
             it
             was
             valid
             ,
             but
             the
             rest
             of
             Leith
             is
             but
             a
             Burgh
             of
             Barony
             ,
             and
             in
             that
             part
             thereof
             ,
             the
             Baillie
             is
             called
             Baron
             Baillie
             ,
             it
             were
             not
             valid
             .
          
        
         
           
             Euphan
             Hay
             contra
             Elizabeth
             Carstorphine
             .
             June
             19.
             1663.
             
          
           
             THe
             said
             Euphan
             having
             obtained
             Decreet
             against
             the
             said
             Elizabeth
             ,
             for
             certain
             Furnitur
             to
             her
             House
             .
             She
             suspended
             on
             this
             reason
             ,
             that
             her
             Husband
             was
             not
             called
             .
             The
             Charger
             offered
             to
             prove
             ,
             in
             ●ortification
             of
             her
             Decreet
             ,
             that
             her
             Husband
             was
             20.
             years
             out
             of
             the
             Countrey
             ,
             and
             she
             repute
             as
             Widow
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             George
             Reid
             contra
             Thomas
             Harper
             .
             Eodem
             die
             .
          
           
             THese
             Parties
             competing
             in
             a
             double
             Poinding
             ,
             
               George
               Reid
            
             craved
             preference
             ,
             because
             he
             was
             assigned
             to
             the
             Mails
             and
             Duties
             by
             
               Thomas
               Mudie
            
             ,
             Heretor
             of
             the
             Land.
             
               Thomas
               Harper
            
             alleadged
             that
             he
             had
             arrested
             the
             Duties
             upon
             a
             Debt
             owing
             to
             him
             by
             
               William
               Mudy
            
             ,
             Father
             to
             the
             said
             Thomas
             ,
             and
             any
             Right
             Thomas
             had
             ,
             was
             fraudulent
             and
             null
             by
             exception
             ,
             by
             the
             express
             words
             of
             the
             Act
             of
             Parliament
             1621.
             being
             betwixt
             Father
             and
             Son
             ,
             without
             any
             onerous
             Cause
             ,
             and
             he
             ought
             not
             to
             be
             put
             to
             Reduce
             
               in
               re
               minima
            
             ,
             his
             Debt
             being
             within
             a
             100.
             pound
             .
          
           
             The
             Lords
             found
             he
             behoved
             to
             Reduce
             ,
             conform
             to
             their
             constant
             Custom
             in
             Heretable
             Rights
             .
          
        
         
           
           
             Ferguson
             contra
             Ferguson
             .
             June
             23.
             1663.
             
          
           
             UMquhil
             Ferguson
             in
             Restalrig
             ,
             having
             a
             Tack
             set
             to
             him
             by
             the
             Lord
             Balmerino
             for
             certain
             years
             ,
             his
             eldest
             Brother
             Son
             as
             heir
             of
             Conquest
             ,
             and
             his
             youngest
             Brother
             Son
             as
             heir
             of
             Line
             ,
             competed
             for
             the
             Mails
             and
             Duties
             of
             the
             Lands
             .
          
           
             The
             Lords
             found
             the
             Tack
             to
             belong
             to
             the
             Heir
             of
             Line
             ,
             albeit
             it
             was
             Conquest
             by
             the
             Defender
             .
          
        
         
           
             Mcdowgal
             contra
             Laird
             Glentorchy
             .
             June
             24.
             1663.
             
          
           
             Mcneil
             having
             Disponed
             certain
             Lands
             to
             Mcdowgal
             ,
             wherein
             he
             was
             Heir
             apparent
             to
             his
             Goodsyrs
             Brother
             ,
             oblieged
             himself
             ,
             to
             Infeft
             himself
             as
             heir
             therein
             ,
             and
             to
             Infeft
             Mcdowgal
             ,
             at
             least
             to
             renunce
             to
             be
             heir
             to
             the
             Effect
             ,
             Mcdowgal
             might
             obtain
             the
             Lands
             adjudged
             ,
             whereupon
             Mcdowgal
             having
             raised
             a
             Charge
             to
             enter
             heir
             ,
             Mcneil
             renunces
             ,
             and
             thereupon
             Mcdowgal
             craves
             the
             Land
             to
             be
             Adjudged
             ,
             and
             Glentorchy
             Decerned
             to
             receive
             and
             Infeft
             him
             ;
             Glentorchy
             alleadged
             ,
             that
             he
             could
             not
             receive
             him
             ,
             because
             he
             had
             right
             to
             the
             Property
             himself
             ,
             unless
             the
             Pursuer
             condescend
             and
             instruct
             his
             authors
             ,
             in
             whose
             place
             he
             craves
             to
             be
             Entered
             ,
             had
             Right
             .
             The
             Pursuer
             answered
             ,
             that
             lie
             needed
             to
             instruct
             no
             Right
             ,
             nor
             was
             he
             oblieged
             to
             Dispute
             the
             Superiours
             Right
             ,
             but
             craved
             the
             ordinar
             course
             to
             be
             Entered
             ,
             
               suo
               periculo
            
             ,
             with
             reservation
             of
             every
             mans
             Right
             ,
             and
             the
             Superiours
             own
             Right
             ,
             as
             is
             ordinary
             in
             Appryzings
             and
             Adjudications
             .
             The
             Defender
             alleadged
             ,
             that
             albeit
             that
             was
             sustained
             in
             Appryzings
             ,
             where
             the
             Superiour
             gets
             a
             years
             Rent
             ;
             and
             though
             it
             might
             be
             allowed
             in
             ordinar
             Adjudications
             ,
             proceeding
             upon
             a
             liquid
             Debt
             ,
             
               favore
               creditorum
            
             ;
             yet
             not
             in
             such
             a
             Case
             as
             this
             ,
             where
             the
             Vassals
             apparent
             Heir
             Dispones
             ,
             and
             oblieges
             himself
             to
             Renunce
             of
             purpose
             ,
             to
             Charge
             his
             Superiour
             .
          
           
             The
             Lords
             found
             no
             Processe
             ,
             till
             the
             Pursuer
             instructed
             his
             Authors
             Titles
             ;
             But
             an
             Infeftment
             being
             produced
             ,
             he
             was
             not
             put
             to
             Dispute
             the
             validity
             thereof
             ,
             in
             this
             instance
             .
          
        
         
           
             Menzeis
             contra
             Laird
             Glenurchy
             .
             Eodem
             die
             .
          
           
             THe
             Daughters
             of
             Mr.
             
               William
               Menzeis
            
             ,
             as
             Executrix
             to
             him
             ,
             pursues
             Glenurchy
             for
             payment
             of
             a
             Bond
             due
             to
             their
             Father
             ,
             he
             alleadged
             minority
             and
             Lesion
             ,
             and
             that
             he
             had
             Reduction
             thereupon
             depending
             .
             The
             Pursuers
             answered
             no
             Lesion
             ;
             because
             this
             Bond
             
             being
             granted
             to
             their
             Father
             ,
             for
             his
             Stipend
             by
             the
             Defender
             ,
             who
             was
             Heretor
             of
             the
             Land
             ,
             he
             was
             not
             leased
             ,
             because
             as
             Heretor
             he
             was
             lyable
             for
             the
             Stipend
             .
             The
             Defender
             answered
             that
             his
             being
             Heretor
             could
             not
             Obliege
             him
             ,
             because
             his
             Grand-father
             was
             then
             living
             ,
             whose
             Liferent
             was
             reserved
             in
             his
             Disposition
             ;
             who
             ,
             and
             the
             intrometters
             could
             only
             be
             lyable
             ,
             Stipends
             not
             being
             
               debita
               fundi
            
             ;
             and
             it
             were
             of
             very
             evil
             consequence
             ,
             if
             the
             Heretor
             were
             lyable
             ,
             during
             the
             whole
             life
             of
             a
             Liferent
             .
          
           
             The
             Lords
             found
             that
             there
             being
             a
             Liferenter
             ,
             the
             Heretor
             was
             not
             lyable
             ,
             and
             therefore
             sustained
             the
             Reason
             .
          
        
         
           
             Elizabeth
             contra
             Eodem
             die
             .
          
           
             THe
             said
             Elizabeth
             pursued
             the
             Executors
             of
             her
             Husband
             ,
             and
             insisted
             upon
             several
             points
             ;
             First
             ,
             she
             craved
             the
             Ann
             ,
             as
             belonging
             wholly
             to
             her
             ,
             seing
             there
             was
             no
             Children
             ,
             and
             the
             Ann
             being
             in
             favours
             of
             the
             Wife
             and
             Children
             ,
             the
             nearest
             of
             Kin
             could
             have
             no
             part
             thereof
             .
             The
             Defenders
             answered
             ,
             that
             the
             Ann
             was
             introduced
             the
             time
             of
             Popery
             ,
             when
             the
             had
             no
             Wife
             nor
             Bairns
             ,
             and
             so
             did
             still
             most
             properly
             belong
             to
             the
             nearest
             of
             Kin
             ,
             who
             would
             get
             it
             ,
             if
             there
             were
             neither
             Wife
             nor
             Bairns
             .
          
           
             The
             Lords
             found
             the
             Ann
             to
             divide
             betwixt
             the
             Pursuer
             and
             the
             nearest
             of
             Kin.
             
          
           
             The
             Pursuer
             insisted
             next
             ,
             and
             alleadged
             ,
             that
             a
             Bond
             bearing
             Clausses
             of
             Annualrent
             and
             Obliegement
             to
             Infeft
             ,
             behoved
             either
             to
             give
             a
             Right
             to
             the
             half
             of
             the
             Stock
             ,
             or
             else
             to
             a
             Terce
             of
             the
             Annualrents
             .
          
           
             The
             Lords
             found
             the
             Clausses
             of
             Annualrent
             and
             Destination
             ,
             to
             exclude
             her
             from
             the
             Stock
             as
             Heretor
             ,
             and
             the
             want
             of
             Infeftment
             to
             exclude
             her
             from
             the
             Terce
             of
             Annualrent
             .
          
           
             The
             Pursuer
             insisted
             in
             the
             next
             place
             ,
             and
             produced
             a
             Bond
             granted
             by
             her
             Father
             to
             her
             Husband
             ,
             and
             here
             the
             longest
             liver
             of
             them
             two
             ,
             and
             the
             heirs
             procreat
             betwixt
             them
             ,
             without
             any
             addition
             or
             termination
             ,
             failzing
             these
             heirs
             ,
             and
             without
             Clausses
             of
             Annualrents
             or
             Infeftment
             ,
             and
             therefore
             she
             claimed
             the
             whole
             Sum
             as
             being
             the
             longest
             liver
             .
             It
             was
             answered
             ,
             that
             this
             Bond
             did
             Constitute
             in
             her
             only
             a
             Liferent
             ,
             according
             to
             the
             ordinar
             conception
             and
             interpretation
             of
             that
             Clause
             ,
             the
             longest
             liver
             of
             them
             two
             betwixt
             man
             and
             wife
             ;
             but
             especially
             heirs
             procreat
             betwixt
             them
             ,
             being
             mentioned
             ,
             which
             behoved
             to
             be
             the
             mans
             heirs
             ,
             who
             if
             they
             had
             existed
             ,
             would
             have
             had
             right
             as
             heirs
             to
             their
             Father
             ,
             not
             to
             their
             Mother
             ;
             and
             therefore
             the
             Father
             behoved
             to
             be
             Feear
             ,
             and
             the
             Mother
             only
             Liferenter
             .
             It
             was
             further
             alleadged
             ,
             that
             beside
             the
             Liferent
             ,
             the
             Pursuer
             behoved
             to
             have
             right
             to
             the
             half
             of
             the
             Stock
             ,
             because
             the
             sum
             being
             moveable
             ,
             albeit
             the
             Tenor
             of
             the
             Bond
             made
             it
             payable
             to
             the
             Relict
             for
             her
             Liferent
             use
             ,
             yet
             she
             behoved
             to
             imploy
             it
             so
             ,
             as
             the
             Stock
             would
             remain
             ;
             which
             Stock
             would
             still
             be
             divisible
             betwixt
             the
             Relict
             and
             nearest
             of
             Kin
             ,
             as
             being
             moveable
             .
          
           
           
             The
             Lords
             found
             that
             the
             Pursuer
             might
             take
             her
             choise
             of
             the
             Liferent
             ,
             or
             of
             the
             half
             of
             the
             sum
             ,
             but
             would
             not
             allow
             her
             both
             .
          
        
         
           
             Iames
             Halyburtoun
             contra
             Lord
             Roxburgh
             .
             Ianuary
             25.
             1663.
             
          
           
             
               JAmes
               Halyburtoun
            
             as
             Assigney
             Constitute
             by
             his
             Father
             ,
             pursues
             the
             Earl
             of
             Roxburgh
             ,
             for
             payment
             of
             a
             Debt
             due
             to
             his
             Father
             .
             The
             Defender
             alleadged
             no
             Process
             ,
             because
             the
             Assignation
             was
             not
             intimate
             in
             the
             Cedents
             Life
             ,
             and
             so
             he
             was
             not
             denuded
             ,
             but
             the
             sum
             remained
             
               in
               bonis
               defuncti
            
             .
             and
             behoved
             to
             be
             Confirmed
             ,
             especially
             ,
             seing
             this
             Assignation
             is
             a
             general
             Assignation
             ,
             
               omnium
               bonorum
            
             ,
             without
             condescending
             upon
             this
             or
             any
             other
             particular
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             and
             found
             Process
             .
          
        
         
           
             Ninian
             Steuart
             of
             Askoege
             contra
             Steuart
             nf
             Arnhome
             .
             Eodem
             die
             .
          
           
             
               NInian
               Steuart
            
             as
             heir
             to
             his
             Father
             Askoege
             ,
             pursues
             Reduction
             of
             a
             Transaction
             of
             a
             Tack
             ,
             which
             Tack
             was
             Assigned
             to
             him
             by
             his
             Wife
             ,
             and
             by
             him
             Transferred
             to
             
               Iohn
               Steuart
            
             heir
             of
             a
             former
             Marriage
             .
             The
             Reason
             of
             Reduction
             was
             ,
             because
             the
             Translation
             was
             on
             Death-bed
             ,
             in
             prejudice
             of
             the
             heir
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuer
             is
             Witnesse
             in
             the
             Translation
             ,
             which
             imports
             his
             consent
             .
             The
             Pursuer
             answered
             that
             Subscribing
             as
             Witnesse
             ,
             could
             import
             no
             more
             ,
             but
             that
             the
             Witness
             saw
             the
             Party
             Subscribe
             ,
             but
             did
             not
             obliege
             to
             take
             inspection
             of
             the
             Contents
             of
             the
             Write
             .
             2ly
             .
             The
             Pursuer
             when
             he
             Subscribed
             was
             minor
             .
             The
             Defender
             answered
             ,
             that
             in
             this
             Case
             ,
             the
             Subscribing
             as
             Witness
             behoved
             to
             import
             consent
             ,
             because
             that
             very
             Subscription
             it self
             by
             the
             Father
             ,
             being
             sick
             ,
             did
             import
             a
             Deed
             done
             on
             Death-bed
             ;
             Especially
             it
             not
             being
             a
             Testament
             but
             a
             Writ
             ,
             
               inter
               vivos
            
             ;
             and
             for
             the
             minority
             ,
             the
             Pursuer
             was
             
               in
               confinio
               majoris
               aetatis
            
             ,
             and
             suffered
             the
             Defender
             to
             possess
             twenty
             years
             ,
             long
             after
             his
             
               anni
               utiles
            
             was
             past
             .
          
           
             The
             Lords
             found
             the
             Subscription
             ,
             as
             Witnesse
             in
             this
             Case
             to
             import
             consent
             ,
             and
             being
             quarreled
             
               inter
               annos
               utiles
            
             ,
             they
             found
             sufficient
             to
             a
             minor
             ,
             though
             in
             Confirmation
             .
          
        
         
           
             Gordon
             contra
             Frazer
             .
             Iuly
             3.
             1663.
             
          
           
             GOrdon
             having
             Confirmed
             himself
             Executor
             Creditor
             to
             Forbes
             of
             Auchinvil
             ,
             pursues
             
               〈…〉
               Frazer
            
             his
             Relict
             for
             Delivery
             to
             him
             of
             the
             Moveables
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             Moveables
             
             upon
             the
             Mayns
             of
             Achnivil
             ,
             were
             Disponed
             to
             her
             by
             her
             umquhil
             Husband
             .
             it
             was
             answered
             ,
             that
             the
             Disposition
             was
             simulat
             ,
             
               inter
               conjunctas
               personas
               retenta
               possessione
            
             ,
             and
             therefore
             null
             .
             It
             was
             duplyed
             ,
             that
             the
             Disposition
             was
             upon
             an
             onerous
             Cause
             without
             simulation
             ,
             because
             it
             bears
             to
             be
             in
             respect
             that
             by
             the
             Defuncts
             Contract
             of
             Marriage
             ,
             he
             is
             oblieged
             to
             Infeft
             his
             Wife
             in
             five
             Chalder
             of
             Victual
             out
             of
             Auchnivil
             ,
             for
             the
             Aliment
             and
             Intertainment
             of
             his
             younger
             Children
             ,
             till
             the
             age
             of
             fourteen
             years
             ;
             and
             because
             he
             was
             necessitate
             to
             sell
             that
             Land
             ,
             therefore
             he
             Disponed
             the
             moveables
             in
             leu
             thereof
             ,
             which
             is
             also
             instructed
             by
             the
             Contract
             of
             Marriage
             .
             The
             Pursuer
             answered
             ,
             that
             this
             is
             but
             a
             provision
             to
             Children
             ,
             and
             could
             not
             be
             preferred
             to
             the
             Defuncts
             Creditors
             ,
             especially
             being
             a
             provision
             before
             the
             Children
             were
             existent
             ,
             and
             if
             such
             should
             be
             allowed
             ,
             it
             were
             easie
             upon
             such
             latent
             provisions
             ,
             in
             favours
             of
             Children
             to
             prejudge
             Creditors
             .
             The
             Defender
             answered
             ,
             that
             if
             the
             Pursuers
             Debt
             had
             been
             anterior
             to
             the
             Contract
             of
             Marriage
             ,
             he
             might
             have
             had
             ground
             upon
             the
             Act
             of
             Parliament
             1621.
             but
             this
             Debt
             was
             posterior
             to
             the
             Contract
             ,
             and
             there
             was
             no
             reason
             to
             hinder
             a
             Parent
             to
             provide
             his
             Children
             ,
             and
             Dispone
             Moveables
             to
             him
             in
             satisfaction
             thereof
             .
             The
             Pursuer
             answered
             ,
             that
             both
             being
             yet
             but
             personal
             obliegements
             ,
             not
             having
             obtained
             effectual
             Possession
             ;
             the
             Creditor
             though
             posterior
             ,
             must
             be
             preferred
             to
             the
             Children
             ,
             especially
             if
             the
             Defunct
             have
             not
             sufficient
             Estate
             to
             pay
             both
             .
             2ly
             .
             The
             Disposition
             is
             upon
             a
             false
             Narrative
             ;
             because
             the
             Lands
             of
             Auchnivil
             are
             yet
             undisponed
             .
          
           
             The
             Lords
             found
             that
             the
             Childrens
             Disposition
             ought
             to
             be
             preferred
             ,
             unless
             the
             Father
             were
             insolvendo
             at
             his
             death
             :
             in
             which
             case
             they
             preferred
             the
             Creditors
             ,
             though
             posterior
             ;
             and
             likewise
             found
             the
             alleadgence
             Relevant
             ,
             that
             the
             Narrative
             was
             false
             ,
             and
             so
             the
             Disposition
             without
             a
             Cause
             .
          
        
         
           
             Isobel
             Mow
             contra
             Dutches
             of
             Bucleugh
             .
             Iuly
             7.
             1663.
             
          
           
             THe
             said
             Isobel
             having
             Served
             Heir
             to
             
               William
               Mow
            
             ,
             her
             Grandsyre
             Charges
             the
             Dutches
             as
             Superiour
             ,
             to
             receive
             her
             ;
             she
             Suspends
             ,
             and
             compearence
             is
             made
             for
             certain
             persons
             ,
             to
             whom
             the
             Chargers
             Father
             had
             Disponed
             the
             Lands
             in
             question
             ,
             who
             raised
             Reduction
             of
             the
             Defenders
             Retour
             and
             Infeftment
             ,
             upon
             this
             Reason
             ,
             that
             the
             Retour
             was
             null
             ,
             Serving
             the
             Charger
             Heir
             to
             her
             Grandsyre
             ,
             as
             last
             Vest
             and
             Seased
             ,
             whereas
             they
             produced
             the
             Infeftments
             of
             their
             Uncle
             and
             Father
             ,
             as
             Heirs
             to
             their
             Grandsyre
             in
             these
             Lands
             ;
             and
             therefore
             instructed
             that
             her
             Grandsyre
             dyed
             not
             as
             last
             Invest
             and
             Seased
             ,
             as
             of
             Fee
             ,
             but
             her
             Father
             their
             Author
             .
             It
             was
             answered
             for
             the
             Charger
             ,
             that
             the
             Retour
             could
             not
             be
             taken
             away
             ,
             
               hoc
               ordine
            
             ,
             by
             Reduction
             ,
             but
             behoved
             to
             be
             by
             a
             Summons
             of
             Error
             ,
             for
             Reducing
             the
             Service
             by
             an
             Inquest
             of
             Error
             ,
             to
             be
             pursued
             in
             Latine
             ,
             by
             a
             Precept
             out
             of
             the
             Chancellary
             .
             It
             was
             replyed
             ,
             that
             there
             needed
             no
             Service
             of
             Error
             ,
             but
             the
             Retour
             and
             Infeftment
             might
             be
             Reduced
             ,
             unless
             there
             had
             been
             the
             question
             of
             propinquity
             of
             Blood
             ,
             of
             a
             nearer
             Heir
             ,
             which
             might
             have
             made
             the
             Inquest
             an
             Assise
             of
             Error
             ,
             which
             could
             not
             be
             in
             this
             case
             ,
             seing
             the
             Inquest
             had
             done
             their
             Duty
             ,
             who
             〈…〉
             produced
             one
             of
             the
             Grandsyres
             
               Seasine
            
             found
             him
             to
             have
             dyed
             last
             Vest
             and
             Seased
             ,
             as
             of
             
             Fee
             ,
             and
             neither
             could
             know
             ,
             nor
             was
             oblieged
             to
             know
             ,
             that
             there
             was
             a
             posterior
             Infeftment
             to
             the
             Defenders
             Uncle
             or
             Father
             .
          
           
             
               The
               Lords
               found
               the
               Reduction
               receivable
               ,
            
             hoc
             ordine
             .
          
        
         
           
             Hamiltoun
             contra
             a
             Dumb
             man
             in
             Glasgow
             .
             Iuly
             9.
             1663.
             
          
           
             THis
             Dumb
             Man
             having
             Right
             to
             an
             Annualrent
             of
             twenty
             pound
             yearly
             out
             of
             a
             Tenement
             in
             Glasgow
             ,
             thereupon
             
               〈…〉
               Hamiltoun
            
             his
             Creditor
             having
             arrested
             ,
             and
             obtained
             Decreet
             for
             payment
             of
             this
             Annualrent
             ,
             in
             Satisfaction
             of
             the
             Dumb-mans
             Debt
             .
             It
             was
             alleadged
             for
             the
             Person
             whose
             Bond
             was
             lyable
             for
             the
             Annualrents
             ,
             Absolvitor
             for
             five
             years
             thereof
             ,
             because
             he
             had
             payed
             these
             years
             to
             the
             Dumb-mans
             Sister
             by
             his
             consent
             ,
             in
             so
             far
             ,
             as
             he
             Delivered
             the
             Money
             to
             the
             Sister
             in
             presence
             of
             the
             Dumb-man
             ,
             and
             obtained
             her
             Discharge
             thereupon
             ,
             in
             his
             name
             ;
             subscribed
             also
             by
             him
             ,
             with
             the
             initial
             Letters
             of
             his
             name
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             because
             the
             Discharge
             bore
             not
             that
             the
             Dumb-man
             received
             the
             same
             ,
             but
             his
             Sister
             :
             and
             bears
             that
             she
             is
             obliedged
             to
             warrant
             it
             at
             the
             Dumb-mans
             hand
             ,
             and
             his
             presence
             ,
             and
             seing
             of
             Money
             Delivered
             ,
             and
             his
             Subscription
             cannot
             import
             his
             consent
             ,
             because
             he
             being
             Dumb
             could
             not
             know
             what
             the
             extent
             of
             the
             Sum
             was
             ,
             nor
             whatfor
             years
             it
             was
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             in
             respect
             of
             the
             Reply
             .
          
        
         
           
             Mr.
             Thomas
             Kirkcaldy
             contra
             Mr.
             Robert
             Balcanquhil
             ,
             and
             Heretors
             of
             Tranent
             .
             Eodem
             die
             .
          
           
             THe
             Heretors
             of
             Tranent
             raised
             a
             double
             Poynding
             against
             Mr.
             
               Robert
               Balcanquhil
            
             ,
             on
             the
             one
             part
             ,
             and
             Mr.
             
               Thomas
               Kirkcaldy
            
             ,
             on
             the
             other
             part
             ,
             both
             claiming
             the
             Stipend
             of
             Tranent
             ,
             1662.
             
             It
             was
             alleadged
             for
             Mr.
             
               Robert
               Balcanquhil
            
             ,
             he
             ought
             to
             be
             preferred
             ,
             because
             he
             was
             Minister
             at
             Tranent
             ,
             by
             Presentation
             ,
             and
             Collation
             ,
             long
             anterior
             to
             Mr.
             
               Thomas
               Kirkcaldy
            
             ;
             and
             albeit
             he
             was
             Deposed
             in
             Anno
             1648.
             yet
             he
             was
             Reponed
             by
             the
             Bishop
             of
             Edinburgh
             ,
             and
             Synod
             of
             Lothian
             ,
             in
             October
             1662.
             because
             of
             that
             Narrative
             ,
             that
             he
             was
             unlawfully
             Deposed
             in
             Anno
             1648.
             and
             so
             being
             Reponed
             before
             Martinmass
             1662.
             he
             thereby
             must
             have
             Right
             to
             the
             half
             ,
             due
             at
             Martinmass
             1662.
             
             It
             was
             answered
             for
             Mr.
             
               Thomas
               Kirkcaldy
            
             ,
             that
             Balcanquhils
             Repossession
             being
             after
             Michaelmess
             ,
             1662.
             which
             is
             the
             Legal
             Term
             of
             Stipends
             ,
             and
             he
             having
             Served
             till
             that
             time
             ,
             by
             a
             Title
             standing
             ,
             Reposition
             can
             operat
             nothing
             before
             its
             Date
             ,
             and
             so
             cannot
             reach
             to
             Michaelmass
             Term
             :
          
           
             The
             Lords
             preferred
             Mr.
             
               Thomas
               Kirkcaldy
            
             to
             the
             hail
             year
             .
          
        
         
           
           
             William
             Hay
             contra
             Iohn
             Nicolson
             .
             Iune
             16.
             1664.
             
          
           
             
               JOhn
               Nicolson
            
             having
             granted
             an
             Assignation
             in
             Anno
             1653.
             of
             a
             Bond
             granted
             to
             him
             by
             
               Iames
               Crightoun
            
             ,
             Sheriff
             of
             Nithisdail
             ,
             principal
             ;
             and
             umquhil
             
               William
               Livingstoun
            
             Cautioner
             ,
             the
             name
             of
             the
             Assigney
             was
             left
             blank
             till
             1663.
             at
             which
             time
             
               William
               Hayes
            
             name
             was
             filled
             up
             ,
             and
             which
             Assignation
             contained
             a
             Clause
             of
             Warrandice
             against
             all
             deadly
             ,
             as
             Law
             will
             :
             
               William
               Hay
            
             having
             used
             Execution
             on
             the
             Assignation
             ,
             against
             the
             Principal
             and
             Cautioner
             in
             the
             Bond
             ,
             returns
             upon
             the
             Warrandice
             ,
             and
             Charges
             Nicolson
             ,
             who
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Clause
             of
             Warrandice
             ,
             as
             it
             is
             conceived
             in
             the
             Assignation
             ,
             could
             import
             no
             more
             ,
             then
             that
             the
             Debt
             Assigned
             ,
             was
             a
             real
             Debt
             resting
             ,
             and
             not
             to
             be
             Evicted
             by
             any
             other
             Right
             ,
             Especially
             seing
             it
             did
             not
             bear
             expresly
             ,
             to
             warrand
             it
             to
             be
             good
             ,
             valide
             and
             sufficient
             ,
             which
             might
             infer
             to
             warrand
             ,
             not
             only
             that
             the
             Assignation
             should
             clear
             the
             Right
             of
             the
             Debt
             ,
             but
             that
             the
             Debitor
             should
             be
             solvendo
             .
             And
             secondly
             ,
             considering
             that
             there
             is
             no
             onerous
             equivalent
             Cause
             for
             granting
             the
             Assignation
             ,
             Nicolson
             the
             Creditor
             might
             have
             Discharged
             ,
             Livingstoun
             the
             Cautioner
             ,
             and
             given
             him
             an
             Assignation
             ,
             that
             he
             might
             thereupon
             Charge
             the
             Principal
             .
             The
             Charger
             opponed
             the
             Clause
             of
             absolute
             warrandice
             ,
             which
             have
             ever
             been
             esteemed
             to
             reach
             to
             the
             Debtors
             ,
             being
             solvendo
             .
          
           
             The
             Lords
             found
             the
             Claúse
             thus
             concieved
             ,
             could
             not
             extend
             to
             the
             sufficiency
             of
             the
             Debtor
             .
          
        
         
           
             Thomson
             contra
             Reid
             .
             Iune
             15.
             1664.
             
          
           
             
               JAmes
               Thomson
            
             in
             Cryle
             having
             Appryzed
             certain
             Tenements
             in
             Edinburgh
             ,
             from
             
               Iames
               Sinclar
            
             ,
             pursues
             
               Iames
               Reid
            
             ,
             as
             one
             of
             the
             Possessors
             ,
             for
             Mails
             and
             Duties
             ,
             who
             alleadged
             that
             he
             had
             bruiked
             by
             Tack
             from
             
               Iames
               Sinclar
            
             ,
             before
             the
             Appryzing
             ;
             which
             Tack
             bare
             80.
             pound
             of
             Tack
             Duty
             ,
             and
             to
             continue
             for
             seven
             years
             ,
             and
             bare
             expresly
             a
             provision
             ,
             that
             the
             said
             
               Iames
               Reid
            
             should
             retain
             the
             Annualrent
             of
             600.
             merks
             adebted
             to
             him
             by
             Sinclar
             ,
             as
             a
             part
             of
             the
             Tack
             Duty
             ,
             and
             that
             he
             should
             not
             be
             removed
             ,
             untill
             the
             said
             600.
             merks
             were
             payed
             .
             The
             Pursuer
             answered
             ,
             that
             the
             alleadgence
             was
             no
             way
             Relevant
             ,
             to
             accompt
             the
             payment
             of
             the
             80.
             pounds
             of
             Tack
             Duty
             to
             the
             Pursuer
             ,
             out
             of
             which
             the
             Defender
             could
             have
             no
             Retention
             of
             his
             Annualrent
             ,
             because
             that
             is
             but
             a
             personal
             provision
             ,
             adjected
             in
             the
             Tack
             ,
             and
             no
             part
             of
             the
             Tack
             ,
             and
             can
             work
             no
             more
             ,
             then
             if
             such
             a
             Provision
             had
             been
             made
             out
             of
             
             the
             Tack
             ,
             in
             which
             Case
             it
             would
             only
             have
             been
             a
             part
             of
             the
             Tack
             Duty
             in
             Compensation
             of
             the
             Annualrent
             ,
             as
             an
             Assignation
             ,
             would
             not
             be
             effectual
             against
             a
             singular
             Successor
             ,
             and
             would
             endure
             no
             longer
             then
             the
             Land
             was
             his
             ,
             who
             assigned
             the
             Duties
             ;
             So
             now
             the
             Land
             ceassing
             to
             be
             Sinclars
             ,
             the
             Assignment
             or
             Alocation
             thereof
             ,
             to
             be
             retained
             for
             satisfaction
             of
             the
             Annualrent
             ,
             is
             not
             Relevant
             against
             this
             Appryzer
             ,
             no
             more
             then
             that
             part
             of
             the
             Clause
             ,
             by
             which
             the
             Defender
             is
             provided
             ,
             not
             to
             remove
             till
             his
             Sum
             be
             payed
             ,
             which
             was
             never
             sustained
             to
             be
             effectual
             against
             a
             singular
             Successor
             .
             The
             Defender
             answered
             ,
             that
             this
             Defense
             stood
             Relevant
             ,
             because
             the
             Clause
             of
             Retention
             ,
             is
             adjected
             immediatly
             to
             the
             Tack
             Duty
             ,
             and
             so
             is
             as
             a
             part
             thereof
             ,
             and
             so
             is
             real
             and
             Effectual
             against
             a
             singular
             Successor
             ,
             because
             if
             Sinclar
             had
             set
             the
             Tack
             for
             a
             grot
             ,
             it
             would
             have
             been
             valid
             ;
             and
             therefore
             might
             more
             set
             it
             for
             the
             satisfaction
             of
             the
             Annualrents
             ,
             and
             so
             much
             Duty
             further
             .
          
           
             The
             Lords
             Sustained
             the
             De●ense
             ,
             that
             seing
             there
             remained
             a
             Tack
             Duty
             ,
             over
             and
             above
             the
             Retention
             of
             the
             Annualrent
             ,
             and
             that
             the
             Tack
             had
             a
             particular
             Ish
             of
             seven
             years
             ,
             that
             it
             was
             valid
             ;
             but
             found
             the
             Case
             dubious
             ,
             if
             there
             had
             been
             no
             Tack
             Duty
             over
             and
             above
             the
             Annualrent
             ;
             but
             that
             the
             Land
             had
             been
             either
             set
             expresly
             for
             satisfaction
             of
             the
             Annualrent
             ,
             or
             for
             such
             a
             sum
             equivalent
             thereto
             ,
             to
             be
             retained
             :
             In
             which
             case
             the
             Tacks
             would
             want
             a
             Tack
             Duty
             to
             the
             present
             Here●or
             ;
             but
             they
             ●ound
             the
             Clause
             ,
             for
             not
             Removing
             till
             the
             mony
             were
             payed
             ,
             but
             only
             to
             be
             personal
             ,
             and
             not
             effectual
             against
             a
             singular
             Successor
             .
          
        
         
           
             Murray
             contra
             the
             Executors
             of
             Rutherfoord
             .
             Iune
             16.
             1664.
             
          
           
             
               JAmes
               Murray
            
             pursues
             the
             Executors
             of
             
               Katharin
               Rutherfoord
            
             ,
             Wife
             to
             Doctor
             Guild
             ,
             to
             pay
             a
             Legacy
             of
             600.
             merk
             ,
             left
             by
             Katharin
             in
             her
             Testament
             to
             Iames
             ,
             in
             these
             words
             ,
             I
             leave
             to
             
               Iames
               Murray
            
             600.
             merks
             ,
             whereof
             200.
             merks
             is
             in
             his
             hand
             ,
             due
             to
             me
             by
             Bond
             ;
             which
             Bond
             I
             ordain
             to
             be
             delivered
             up
             to
             him
             ,
             and
             four
             more
             ,
             to
             be
             payed
             to
             him
             .
             The
             Defender
             alleadged
             ,
             that
             they
             could
             be
             oblieged
             no
             further
             then
             to
             Discharge
             the
             Bond
             of
             200.
             merks
             ,
             with
             warrandice
             from
             their
             own
             Deed.
             The
             Pursuer
             answered
             that
             the
             Bond
             belonged
             to
             Doctor
             Guild
             the
             Husband
             ,
             
               jure
               mariti
            
             ,
             and
             was
             recovered
             by
             his
             Heirs
             and
             Executors
             ,
             already
             from
             the
             Defender
             ;
             and
             therefore
             this
             being
             
               legatum
               rei
               alienae
            
             .
             The
             Defender
             behoved
             to
             make
             it
             effectual
             ,
             and
             to
             pay
             it
             out
             of
             the
             Defuncts
             free
             Moveables
             ,
             especially
             seing
             600.
             merks
             was
             left
             ,
             and
             the
             Adjection
             was
             but
             the
             Destination
             of
             the
             manner
             of
             payment
             of
             it
             ,
             by
             Liberation
             ;
             and
             which
             failzing
             ,
             the
             principal
             Legacy
             stands
             ,
             and
             must
             be
             fulfilled
             and
             adduced
             ,
             a
             Decision
             the
             last
             Session
             ,
             betwixt
             contra
             whereby
             a
             Legacy
             of
             a
             Heretable
             Bond
             was
             ordained
             to
             be
             made
             up
             by
             the
             Executor
             ,
             out
             of
             the
             Moveables
             .
             The
             Defenders
             answered
             ,
             that
             their
             Defenses
             stood
             yet
             Relevant
             ;
             for
             Legacies
             being
             poor
             Donations
             ,
             did
             not
             carry
             warrandice
             ,
             so
             that
             a
             thing
             Legat
             being
             Evicted
             ,
             the
             Legator
             had
             it
             but
             
               cum
               peri●ulo
            
             ,
             and
             that
             in
             the
             Law
             ,
             
               legatum
               rei
               alienae
               est
               praestandum
            
             ;
             because
             Legacies
             being
             favourable
             ,
             whereby
             the
             Testator
             leaves
             there
             expresly
             ,
             under
             the
             name
             of
             that
             
             which
             belongs
             to
             another
             ,
             his
             meaning
             is
             extended
             ,
             to
             purchase
             that
             ,
             or
             the
             value
             thereof
             to
             the
             Lagator
             ;
             but
             where
             he
             leaved
             it
             as
             his
             own
             ,
             and
             his
             knowledge
             of
             the
             Right
             of
             another
             ,
             appears
             not
             there
             ,
             as
             in
             all
             Donations
             ,
             the
             Legator
             hath
             it
             upon
             his
             peril
             ,
             without
             warrandice
             ;
             as
             if
             a
             Testator
             should
             leave
             a
             Bond
             ,
             or
             sum
             ,
             to
             which
             he
             had
             right
             by
             Assignation
             ,
             if
             it
             were
             found
             that
             there
             were
             a
             prior
             Assignation
             intimat
             ,
             and
             so
             the
             sum
             Evicted
             ,
             the
             Lagator
             would
             have
             no
             remeid
             :
             Or
             if
             he
             left
             a
             sum
             due
             by
             a
             Bond
             ,
             defective
             in
             some
             necessar
             Solemnity
             ,
             as
             wanting
             Writer
             and
             Witness
             ,
             such
             Bond
             failing
             ,
             the
             Legator
             could
             not
             return
             upon
             the
             Executor
             ,
             and
             for
             the
             instance
             of
             an
             Heretable
             Bond
             ,
             that
             is
             not
             alike
             ,
             because
             it
             was
             not
             
               res
               aliena
            
             ,
             but
             
               propria
               testatoris
            
             ,
             though
             not
             test●ble
             .
             The
             Pursuer
             answered
             ,
             that
             Legacies
             were
             most
             favourable
             ,
             and
             ever
             extended
             ,
             and
             that
             this
             was
             
               lega●um
               re
               alienae
               &
               ex
               scientia
               testatoris
               ,
            
             for
             the
             Testatrix
             that
             a
             Bond
             conceived
             in
             her
             name
             ,
             during
             the
             Marriage
             ,
             would
             belong
             to
             her
             Husband
             ,
             
               jure
               mariti
            
             ,
             at
             least
             she
             was
             oblieged
             to
             know
             the
             same
             ,
             for
             
               s●ire
               &
               scire
               debere
               ,
               parificantùr
               in
               jure
               .
            
             The
             Defender
             answered
             ,
             that
             the
             Action
             hold
             not
             
               in
               mulieribus
               presertim
               ubi
               questio
               est
               in
               partibus
               juris
            
             ;
             as
             in
             this
             Case
             the
             Testatrix
             was
             ,
             and
             might
             be
             ignorant
             of
             the
             Extent
             of
             the
             
               jus
               mariti●
            
             .
          
           
             The
             Lords
             Repelled
             the
             Defenses
             ,
             and
             sustained
             the
             Libel
             and
             Reply
             ,
             to
             make
             up
             the
             palpable
             and
             known
             Law
             ,
             that
             the
             Testatrix
             was
             Repute
             ,
             as
             knowing
             the
             same
             ,
             and
             that
             having
             a
             half
             of
             her
             Husbands
             Goods
             ,
             Testable
             by
             her
             ,
             she
             might
             leave
             the
             sum
             as
             a
             part
             of
             her
             half
             ,
             that
             there
             was
             no
             necessity
             to
             devide
             every
             sum
             ,
             but
             the
             whole
             ,
             as
             many
             Co-executors
             discharging
             a
             Bond
             ,
             the
             Discharge
             is
             Relevant
             ,
             not
             only
             for
             that
             Co-executors
             part
             ,
             but
             for
             the
             whole
             Bond
             ,
             if
             that
             Co-executors
             part
             exceeded
             the
             value
             of
             the
             Bond
             ,
             but
             the
             Lords
             did
             not
             find
             that
             the
             Executors
             behoved
             to
             make
             up
             every
             Legacy
             ,
             that
             were
             evicted
             ,
             or
             that
             they
             were
             lyable
             ,
             
               de
               evictione
            
             .
          
        
         
           
             Tulliallan
             and
             Condie
             contra
             Crawfoord
             .
             Eodem
             die
             .
          
           
             TVlliallan
             and
             Condie
             pursues
             a
             Declarator
             of
             an
             Appryzing
             ,
             led
             against
             them
             ,
             as
             satisfied
             and
             payed
             within
             the
             Legal
             ,
             by
             Intromission
             ,
             and
             as
             an
             Article
             ,
             adduces
             a
             Discharge
             of
             a
             part
             of
             the
             Sum
             Appryzed
             .
             The
             Defender
             alleadged
             ,
             that
             the
             alleadgence
             was
             not
             now
             competent
             ,
             because
             it
             was
             
               res
               judicata
            
             ,
             before
             the
             Lords
             of
             Session
             ,
             in
             Anno
             1637.
             where
             the
             same
             alleadgence
             being
             proponed
             in
             a
             Suspension
             .
          
           
             The
             Lords
             found
             not
             the
             same
             instructed
             ;
             and
             therefore
             found
             the
             Letters
             orderly
             proceeded
             ,
             yet
             conditionally
             superceeding
             Execution
             of
             the
             Decreet
             ,
             till
             such
             a
             day
             ,
             that
             in
             the
             mean
             time
             ,
             if
             the
             same
             were
             instructed
             ;
             the
             Instructions
             should
             be
             received
             ,
             and
             nothing
             was
             produced
             during
             that
             time
             ,
             so
             that
             it
             cannot
             be
             received
             more
             ,
             then
             27.
             years
             thereafter
             to
             take
             away
             an
             Appryzing
             cled
             with
             long
             Possession
             ,
             and
             now
             in
             the
             Person
             of
             a
             singular
             Successor
             .
          
           
           
             The
             Pursuer
             answered
             ,
             that
             his
             Declarator
             founded
             upon
             the
             said
             Article
             ,
             was
             most
             just
             and
             relevant
             ;
             it
             being
             now
             evident
             ,
             that
             the
             Sum
             Appryzed
             for
             ,
             was
             payed
             in
             part
             ,
             and
             as
             for
             the
             point
             of
             formality
             ,
             albeit
             in
             ordinary
             Actions
             ,
             where
             Terms
             are
             assigned
             to
             prove
             ,
             and
             so
             a
             competent
             time
             granted
             to
             search
             for
             Writs
             ,
             if
             Certification
             be
             admitted
             regularly
             ,
             it
             is
             valide
             ,
             and
             yet
             even
             in
             that
             case
             ,
             the
             Lords
             will
             Repone
             ,
             upon
             any
             singular
             accident
             in
             a
             Suspension
             ,
             
               ubi
               questio
               non
               est
               de
               jure
               ,
               sed
               de
               executione
               .
            
          
           
             The
             Lords
             would
             not
             delay
             Execution
             ,
             unless
             the
             Reasons
             be
             instantly
             verified
             .
          
           
             Yet
             
               in
               petitione
            
             ,
             will
             not
             take
             away
             the
             Right
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             and
             would
             not
             sustain
             the
             foresaid
             Article
             ,
             in
             respect
             of
             the
             Decreet
             ,
             
               in
               foro
               contradictorio
            
             ,
             though
             in
             a
             Suspension
             here
             ,
             there
             was
             no
             Alleadgence
             that
             the
             Writs
             were
             new
             come
             to
             knowledge
             ,
             or
             newly
             found
             ,
             nor
             could
             be
             ,
             because
             it
             was
             alleadged
             one
             in
             the
             Decreet
             .
          
        
         
           
             Mr.
             Iohn
             Hay
             .
             contra
             the
             Collectors
             of
             the
             vacant
             Stipends
             .
             Iune
             17.
             1664.
             
          
           
             THe
             Parochiners
             of
             Manner
             ,
             which
             is
             a
             Pendicle
             of
             the
             Parsonage
             of
             Peebles
             ,
             being
             Charged
             for
             the
             Stipend
             of
             the
             year
             1662.
             
             Suspends
             upon
             double
             poynding
             ,
             and
             calls
             the
             Ministers
             Collectors
             of
             the
             vacant
             Stipends
             ,
             and
             the
             Parson
             of
             Peebles
             ;
             the
             Minister
             alleadged
             that
             he
             was
             presented
             by
             the
             Parson
             of
             Peebles
             Patron
             ,
             in
             August
             1662.
             after
             which
             he
             continued
             to
             Preach
             at
             the
             Kirk
             ,
             and
             was
             still
             upon
             his
             Tryals
             till
             he
             was
             Admitted
             in
             October
             1662.
             and
             therefore
             the
             whole
             years
             Stipends
             1662.
             belongs
             to
             him
             ,
             because
             the
             Legal
             Terms
             of
             Teinds
             and
             Stipends
             ,
             is
             not
             as
             of
             other
             Rents
             ,
             Whitsonday
             and
             Martinmass
             ,
             but
             one
             Term
             for
             all
             ,
             viz.
             the
             separation
             of
             the
             Fruits
             at
             Michaelmess
             ;
             and
             therefore
             if
             he
             had
             had
             Right
             to
             the
             drawn
             Teind
             ,
             he
             might
             have
             drawn
             the
             whole
             ,
             so
             the
             whole
             Tack
             Duty
             must
             belong
             to
             him
             .
             It
             was
             alleadged
             for
             the
             Parson
             of
             Peebles
             ,
             that
             this
             Kirk
             being
             a
             Pendicle
             of
             his
             Parsonage
             ,
             and
             some
             time
             served
             for
             a
             less
             ,
             and
             some
             times
             for
             a
             more
             Stipend
             ,
             as
             he
             agreed
             ;
             it
             is
             not
             a
             fixed
             Stipend
             ,
             but
             as
             a
             helper
             ,
             and
             therefore
             the
             vacancy
             thereof
             belongs
             not
             to
             the
             Collector
             of
             the
             vacant
             Stipends
             ,
             but
             returns
             to
             the
             Parson
             who
             has
             Right
             to
             the
             whole
             Fruits
             of
             the
             Benefice
             ,
             by
             his
             Right
             of
             Presentation
             and
             Collation
             .
             It
             was
             alleadged
             for
             the
             Collectors
             of
             the
             vacant
             Stipends
             ,
             that
             his
             Stipend
             was
             not
             as
             the
             allowance
             of
             an
             helper
             ,
             but
             was
             a
             several
             Congregation
             ,
             separate
             from
             the
             Parsonage
             of
             Peebles
             ,
             and
             at
             the
             Parsons
             Presentation
             ,
             and
             that
             no
             helper
             has
             a
             Presentation
             ,
             and
             that
             the
             Incumbent
             ,
             not
             being
             admitted
             till
             after
             Michaelmess
             ,
             has
             no
             Right
             to
             any
             part
             of
             the
             Fruits
             of
             that
             year
             ,
             though
             he
             was
             Presented
             before
             ,
             because
             the
             Kirk
             cannot
             be
             said
             to
             be
             full
             ,
             but
             vacant
             ,
             till
             the
             Minister
             be
             admitted
             .
          
           
           
             The
             Lords
             found
             that
             this
             Kirk
             having
             a
             Presentation
             ,
             could
             not
             return
             in
             the
             vacancy
             to
             the
             Parson
             of
             Peebles
             ,
             and
             that
             the
             Presentation
             being
             at
             Lambas
             ,
             and
             the
             Incumbent
             serving
             at
             the
             Kirk
             ,
             and
             Entring
             to
             his
             Tryals
             immediatly
             ,
             till
             he
             was
             Entred
             ,
             which
             was
             in
             October
             thereafter
             ,
             and
             that
             he
             had
             Right
             to
             the
             half
             of
             that
             years
             Stipend
             ,
             not
             being
             presented
             before
             Whitsonday
             ,
             and
             found
             the
             other
             half
             to
             belong
             to
             the
             Collector
             of
             vacand
             Stipends
             .
          
        
         
           
             Lairds
             of
             Tulliallan
             and
             Condie
             contra
             Crawfoord
             .
             Eodem
             die
             .
          
           
             THe
             Lairds
             of
             Tulliallan
             and
             Condie
             ,
             as
             having
             a
             Right
             from
             him
             ,
             pursues
             Declarator
             of
             the
             Expiration
             of
             an
             Appryzing
             ,
             led
             at
             the
             Instance
             of
             Crawfoord
             ,
             to
             which
             
               Margaret
               Crawfoord
            
             his
             Daughter
             ,
             has
             now
             Right
             ,
             and
             condescends
             that
             the
             sum
             Appryzed
             for
             ,
             was
             satisfied
             within
             the
             Legal
             by
             Compensation
             ,
             in
             so
             far
             as
             Tulliallan
             had
             Right
             to
             a
             Contract
             ,
             whereby
             Crawfoord
             the
             Appryzer
             was
             oblieged
             to
             deliver
             so
             many
             Chalders
             of
             Coal
             weekly
             ,
             or
             in
             Case
             of
             Failzie
             ,
             four
             pounds
             for
             ilk
             Chalder
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             this
             Article
             of
             Compensation
             ought
             to
             be
             repelled
             :
             First
             ,
             because
             the
             said
             Contract
             is
             prescribed
             .
             2ly
             .
             The
             Appryzing
             proceeded
             upon
             a
             Decreet
             of
             Compt
             and
             Reckoning
             ,
             wherein
             an
             Alleadgence
             being
             founded
             upon
             the
             same
             Contract
             ,
             was
             past
             from
             ,
             
               pro
               loco
               &
               tempore
            
             ,
             and
             so
             can
             never
             now
             be
             made
             use
             of
             ,
             to
             take
             away
             that
             Decreet
             ,
             much
             less
             the
             Appryzing
             against
             a
             singular
             Successor
             ,
             who
             seing
             the
             same
             past
             ,
             
               in
               tuto
            
             ,
             to
             take
             Right
             without
             the
             hazard
             thereof
             .
             3ly
             .
             The
             Defender
             cannot
             be
             oblieged
             after
             fourty
             or
             fifty
             years
             time
             ,
             to
             prove
             the
             Delivery
             of
             an
             yearly
             Duty
             of
             Coal
             .
             4ly
             .
             The
             Compensation
             is
             not
             
               de
               liquido
               in
               liquidum
            
             ,
             because
             the
             one
             is
             a
             personal
             Contract
             ,
             the
             other
             is
             an
             Apprysing
             and
             Infeftment
             ;
             the
             one
             hath
             not
             a
             liquid
             price
             Constitute
             ,
             but
             bears
             expresly
             ,
             such
             a
             Sum
             in
             case
             of
             failzie
             ,
             and
             not
             as
             the
             price
             ,
             which
             being
             much
             more
             ,
             then
             the
             ordinar
             price
             then
             is
             but
             a
             personal
             failzie
             ,
             which
             cannot
             be
             liquidat
             till
             Declarator
             ,
             and
             modification
             of
             a
             Judge
             .
             The
             Pursuer
             answered
             ,
             that
             he
             was
             evicting
             the
             rigor
             of
             an
             Appryzing
             ,
             
               in
               causa
               maxime
               favorabili
            
             .
             And
             as
             to
             the
             first
             alleadgence
             anent
             the
             Prescription
             ,
             offers
             to
             prove
             Interruption
             by
             Arrestments
             ,
             &c.
             
             To
             the
             second
             not
             Relevant
             ,
             according
             to
             the
             Custome
             ,
             before
             the
             years
             1649.
             competent
             and
             omitted
             ,
             was
             not
             relevant
             against
             Decreets
             of
             Suspension
             ;
             But
             Suspenders
             might
             either
             omit
             ,
             or
             pass
             from
             their
             Reasons
             ,
             and
             Suspend
             upon
             them
             again
             ,
             which
             could
             not
             but
             be
             alswell
             effectual
             against
             the
             Assigney
             as
             the
             Cedent
             .
             As
             to
             the
             third
             ,
             this
             Article
             being
             instructed
             by
             Writ
             ,
             no
             presumption
             ,
             nor
             less
             time
             then
             Prescription
             ,
             could
             take
             it
             away
             .
             To
             the
             which
             ,
             the
             Coals
             having
             a
             liquid
             Sum
             in
             lieu
             thereof
             ,
             the
             Article
             is
             liquid
             ,
             and
             as
             payment
             within
             the
             legal
             ,
             will
             annul
             an
             Appryzing
             ,
             so
             will
             Compensation
             ,
             which
             is
             equiparat
             in
             Law
             ,
             though
             the
             Case
             would
             not
             be
             alike
             in
             a
             Wodset
             ,
             against
             a
             singular
             Successor
             .
          
           
           
             The
             Lords
             found
             the
             Defenses
             against
             this
             Article
             relevant
             ,
             viz.
             that
             the
             Article
             was
             not
             liquid
             by
             a
             Sum
             ,
             Constitute
             expresly
             for
             a
             price
             ,
             and
             that
             it
             being
             alleadged
             ,
             that
             in
             the
             Decreet
             this
             alleadgeance
             was
             past
             from
             ,
             and
             an
             expresse
             reservation
             ,
             that
             it
             might
             be
             made
             use
             of
             against
             any
             other
             just
             Debt
             ,
             then
             that
             which
             was
             in
             the
             Decreet
             ,
             whereupon
             the
             Appryzing
             proceeded
             .
             The
             Lords
             had
             also
             consideration
             ,
             that
             the
             Legal
             of
             the
             Appryzing
             was
             not
             yet
             expired
             .
          
        
         
           
             Lyon
             of
             Muirask
             contra
             Laird
             of
             Elsick
             .
             Eodem
             die
             .
          
           
             LYon
             of
             Muirask
             pursues
             the
             Laird
             of
             Elsick
             upon
             a
             Debt
             of
             his
             Fathers
             ,
             as
             Successor
             
               titulo
               lacrativo
            
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             any
             Disposition
             he
             had
             from
             his
             Father
             ,
             was
             in
             his
             Contract
             of
             Marriage
             ,
             whereby
             10000●
             merks
             of
             Tocher
             was
             received
             by
             his
             Father
             ,
             and
             14000.
             merks
             of
             Debt
             more
             ,
             undertaken
             for
             his
             Father
             ,
             with
             the
             burden
             of
             his
             Fathers
             Liferent
             .
             The
             Pursuer
             answered
             ,
             the
             alleadgeance
             ought
             to
             be
             repelled
             ,
             because
             he
             offered
             him
             to
             prove
             ,
             that
             the
             Land
             Disponed
             ,
             was
             then
             worth
             fourty
             or
             fifty
             Chalders
             of
             Victual
             ,
             so
             that
             the
             Cause
             onerous
             was
             not
             the
             half
             of
             the
             value
             ;
             and
             therefore
             as
             to
             the
             Superplus
             ,
             he
             was
             Lucrative
             Successor
             .
             The
             Defender
             answered
             ,
             that
             any
             onerous
             Cause
             ,
             or
             price
             ,
             though
             incompetent
             ,
             was
             enough
             to
             purge
             this
             passive
             Title
             ,
             and
             albeit
             the
             Pursuer
             might
             reduce
             the
             Right
             ,
             and
             make
             the
             Lands
             lyable
             ,
             because
             the
             Cause
             was
             not
             onerous
             and
             equivalent
             ,
             yet
             he
             could
             not
             be
             personally
             lyable
             in
             solidum
             ,
             for
             all
             the
             Defuncts
             Debts
             .
          
           
             The
             Lords
             having
             seriously
             considered
             the
             bussinesse
             ,
             after
             a
             former
             Interlocutor
             the
             last
             Session
             ,
             Assoilzing
             from
             the
             passive
             Title
             ,
             but
             finding
             the
             Lands
             redeemable
             by
             the
             Pursuer
             ,
             or
             any
             other
             Creditor
             ,
             for
             the
             sums
             payed
             out
             ,
             did
             now
             find
             further
             ,
             that
             the
             Defender
             was
             lyable
             for
             the
             superplus
             of
             the
             just
             price
             of
             the
             Land
             ,
             according
             to
             the
             ordinar
             Rate
             the
             time
             of
             the
             Disposition
             ,
             and
             that
             the
             superplus
             over
             and
             above
             what
             he
             payed
             or
             undertook
             ,
             ought
             to
             bear
             Annualrent
             ,
             as
             being
             the
             price
             of
             Land.
             
          
        
         
           
             Iames
             Iustice
             contra
             Earl
             of
             Queensberry
             .
             Eodem
             die
             .
          
           
             
               IAmes
               Iustice
            
             as
             having
             right
             to
             a
             Bond
             of
             6000.
             merks
             ,
             due
             by
             the
             Earl
             of
             Queensberry
             ,
             pursues
             the
             Earl
             ,
             and
             the
             Lord
             Drum●anrig
             his
             Son
             ,
             as
             taking
             his
             Estate
             ,
             with
             the
             burden
             of
             his
             Debt
             ,
             to
             pay
             it
             ;
             who
             alleadged
             no
             Processe
             ,
             because
             the
             Pursuers
             Right
             was
             an
             Assignation
             ,
             granted
             by
             a
             Tutrix
             ,
             not
             bearing
             in
             Name
             of
             the
             Pupil
             ,
             or
             as
             Tutrix
             ,
             in
             his
             Name
             ,
             because
             being
             in
             infancy
             he
             could
             not
             subscribe
             :
             but
             bearing
             to
             be
             done
             by
             her
             ,
             as
             taking
             burden
             for
             the
             Pupil
             .
          
           
           
             The
             Lords
             found
             the
             Assignation
             not
             formal
             ,
             not
             bearing
             the
             Pupil
             Disponer
             with
             his
             Tutrix
             ,
             but
             yet
             found
             the
             Letters
             orderly
             proceeded
             ,
             the
             Charger
             before
             Extract
             ,
             producing
             a
             Ratification
             by
             the
             Pupil
             and
             Tutrix
             formally
             done
             .
          
        
         
           
             Laird
             of
             Prestoun
             contra
             Nathaniel
             Ebred
             .
             Iune
             24.
             1664.
             
          
           
             THe
             Laird
             of
             Prestoun
             pursues
             Reduction
             and
             Improbation
             ,
             against
             
               Nathaniel
               Ebred
            
             ,
             of
             all
             his
             Rights
             of
             certain
             Lands
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Lands
             in
             question
             are
             Abbay-lands
             ,
             Erected
             in
             a
             temporal
             Holding
             ,
             in
             favour
             of
             Prestoun
             ;
             and
             therefore
             by
             the
             Act
             of
             Parliament
             ,
             1633.
             all
             such
             Lands
             are
             annexed
             to
             the
             Crown
             ,
             and
             the
             Feu-duties
             are
             only
             found
             due
             to
             the
             Lords
             of
             Erection
             ,
             ay
             and
             while
             they
             be
             redeemed
             ,
             which
             is
             repeited
             in
             the
             30.
             
             Act
             of
             Parliament
             ,
             1661.
             and
             therefore
             the
             Pursuer
             not
             being
             Superiour
             ,
             but
             the
             King
             ,
             he
             has
             no
             interest
             to
             Improve
             of
             Reduce
             .
             The
             Pursuer
             answered
             ,
             that
             he
             opponed
             his
             Infeftment
             of
             the
             Lands
             holden
             of
             the
             King
             ,
             with
             the
             Kings
             Advocats
             concurse
             .
             The
             Defender
             answered
             ,
             that
             the
             Advocats
             concurse
             was
             but
             
               ex
               stilo
               curiae
            
             ,
             and
             he
             could
             make
             no
             concurse
             sufficient
             ,
             for
             any
             Improbation
             and
             Reduction
             ,
             without
             the
             Kings
             special
             order
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             and
             Assoilzied
             ,
             at
             which
             time
             it
             was
             remembred
             ,
             that
             Sir
             
               Thomas
               Hope
            
             insisting
             in
             an
             Improbation
             of
             his
             Good-son
             ,
             the
             same
             was
             not
             Sustained
             ,
             because
             it
             wanted
             the
             Kings
             expresse
             Order
             .
          
        
         
           
             Town
             of
             Cowper
             contra
             Town
             of
             Kinnothy
             .
             Eodem
             die
             .
          
           
             THe
             Town
             of
             Cowper
             having
             Charged
             the
             Town
             of
             Kinnothy
             to
             desist
             from
             Merchant
             Trade
             .
             They
             Suspend
             ,
             and
             alleadge
             ,
             that
             they
             have
             the
             Priviledge
             of
             Burgh
             of
             Barony
             ,
             in
             keeping
             Hostlers
             ,
             and
             selling
             Wine
             .
             The
             Charger
             answered
             ,
             that
             selling
             of
             Wine
             is
             one
             of
             their
             chiefest
             and
             expresse
             Priviledges
             .
          
           
             The
             Lords
             considering
             ,
             that
             this
             dipped
             upon
             the
             Controversie
             ,
             betwixt
             Burgh
             Royal
             and
             Burgh
             of
             Barony
             ,
             which
             has
             remained
             undecided
             these
             thirty
             years
             ,
             would
             not
             Discusse
             this
             particular
             ,
             but
             found
             the
             Letters
             orderly
             proceeded
             in
             general
             ,
             ay
             and
             while
             the
             Defenders
             found
             Caution
             to
             desist
             from
             Merchant
             Trade
             ,
             without
             determining
             how
             far
             that
             reached
             .
          
        
         
           
           
             Moffet
             contra
             Black.
             Eodem
             die
             .
          
           
             THere
             being
             a
             Bargain
             betwixt
             the
             said
             Moffet
             and
             Black
             ,
             for
             some
             Packs
             of
             Plaids
             ,
             by
             which
             it
             was
             agreed
             ,
             that
             the
             buyer
             for
             satisfaction
             of
             the
             price
             ,
             should
             give
             Assignation
             to
             certain
             Bonds
             exprest
             ;
             but
             there
             was
             no
             mention
             what
             Warrandice
             .
             At
             the
             Discussing
             of
             the
             Cause
             the
             Seller
             craved
             absolute
             Warrandice
             ;
             and
             alleadged
             ,
             that
             seing
             it
             was
             not
             Communed
             ,
             that
             it
             should
             be
             a
             restricted
             Warrandice
             ,
             it
             behoved
             to
             be
             an
             Absolute
             ,
             being
             for
             a
             Cause
             onerous
             ,
             and
             for
             the
             price
             of
             the
             Goods
             .
             2ly
             .
             Seing
             the
             Agreement
             required
             an
             Assignation
             in
             Writ
             ,
             to
             Bonds
             ;
             the
             Buyer
             might
             ,
             
               re
               integra
            
             resile
             ,
             seing
             neither
             the
             Plaids
             nor
             Bonds
             were
             Delivered
             .
          
           
             The
             Lords
             found
             that
             
               thē
            
             Buyer
             ,
             who
             insisted
             ,
             behoved
             either
             to
             give
             absolute
             Warrandice
             ,
             that
             the
             Bond
             was
             not
             only
             due
             ,
             but
             should
             be
             effectual
             ,
             and
             the
             Creditor
             solvendo
             ,
             otherways
             they
             suffered
             the
             Seller
             to
             Resile
             ,
             especially
             seing
             the
             Bargain
             was
             not
             made
             first
             by
             words
             ,
             Absolute
             for
             such
             a
             price
             ,
             and
             afterwards
             that
             it
             had
             been
             agreed
             to
             give
             such
             Bonds
             for
             that
             price
             ;
             In
             which
             case
             the
             Bargain
             ,
             though
             verbal
             ,
             would
             have
             stood
             .
          
        
         
           
             Alexander
             Falconer
             .
             contra
             Mr.
             Iohn
             Dowgal
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Falconer
            
             pursues
             Mr.
             
               Iohn
               Dowgal
            
             ,
             for
             payment
             of
             1000.
             merks
             ,
             left
             in
             Legacy
             by
             umquhil
             
               Iohn
               Dowgal
            
             ,
             by
             a
             special
             Legacy
             of
             a
             Bond
             ,
             adebted
             by
             the
             Earl
             of
             Murray
             ,
             whereupon
             he
             conveens
             the
             Earl
             as
             Debitor
             ,
             and
             Mr.
             
               Iohn
               Dowgal
            
             as
             Executor
             ,
             for
             his
             Interest
             ,
             to
             pay
             the
             special
             Legacy
             .
             The
             
               Exceutor
            
             alleadged
             ,
             that
             the
             sum
             belonged
             to
             him
             ,
             because
             he
             had
             Assignation
             thereto
             from
             the
             Defunct
             ,
             before
             the
             Legacy
             .
             The
             Pursuer
             Answered
             ,
             that
             
               hoc
               dato
            
             ,
             there
             was
             sufficiency
             of
             Free-goods
             to
             make
             up
             this
             Legacy
             ;
             and
             albeit
             it
             had
             been
             
               legatum
               rei
               alienae
            
             ;
             yet
             being
             done
             by
             the
             Testator
             scienter
             ,
             who
             cannot
             be
             presumed
             ,
             to
             be
             ignorant
             of
             his
             own
             Assignation
             ,
             lately
             made
             before
             ,
             it
             must
             be
             satisfied
             out
             of
             the
             rest
             of
             the
             Free-Goods
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Duke
             and
             Dutches
             of
             Hamiltoun
             contra
             Scots
             .
             Eodem
             die
             .
          
           
             DUke
             and
             Dutches
             of
             Hamiltoun
             ,
             being
             Charged
             for
             payment
             of
             a
             Sum
             ,
             due
             to
             umquhil
             Sir
             
               William
               Scot
            
             of
             Clerkingtoun
             ,
             and
             assigned
             by
             him
             to
             his
             four
             Children
             ,
             alleadged
             that
             by
             Act
             of
             Parliament
             Commission
             
             was
             granted
             for
             deducing
             so
             much
             of
             his
             Creditors
             Annualrents
             ,
             as
             should
             be
             found
             just
             ,
             not
             exceeding
             eight
             years
             ;
             and
             therefore
             there
             could
             be
             no
             Sentence
             against
             him
             ,
             as
             to
             that
             ,
             till
             the
             Commission
             had
             decyded
             .
             The
             Pursuers
             answered
             ,
             that
             these
             Annualrents
             were
             not
             due
             for
             the
             years
             during
             the
             time
             the
             Duke
             was
             Forefault
             by
             the
             English
             ,
             which
             ended
             in
             Anno.
             1656.
             and
             they
             insist
             but
             for
             the
             Annualrents
             since
             that
             year
             .
             It
             's
             answered
             for
             the
             Duke
             ,
             that
             albeit
             he
             had
             payed
             many
             of
             these
             years
             Annualrents
             by
             force
             of
             Law
             ,
             then
             standing
             ,
             yet
             that
             could
             not
             hinder
             the
             Deduction
             ,
             but
             that
             he
             would
             have
             Repetition
             or
             Deduction
             ,
             in
             subsequent
             years
             .
             The
             Pursuers
             alleadged
             ,
             he
             behoved
             to
             seek
             the
             Heir
             for
             Repetition
             ,
             and
             could
             not
             deduce
             from
             them
             .
          
           
             The
             Lords
             in
             respect
             of
             the
             Commission
             ,
             would
             not
             Decide
             nor
             Discuss
             the
             Alleadgence
             ,
             anent
             the
             years
             Annualrent
             ,
             but
             Superceeded
             to
             give
             Answer
             ,
             till
             the
             Commission
             had
             determined
             ,
             even
             till
             seven
             years
             after
             the
             Forefaulture
             ,
             to
             make
             up
             these
             that
             was
             payed
             before
             .
          
           
             In
             this
             Process
             ,
             compearence
             was
             made
             for
             Sir
             
               Laurence
               Scot
            
             ,
             the
             Heir
             and
             Executor
             Dative
             ,
             who
             alleadged
             that
             there
             was
             2000.
             merks
             of
             the
             Sum
             belonged
             to
             him
             ,
             because
             his
             Fathers
             Assignation
             to
             the
             Children
             ,
             contained
             an
             express
             Division
             of
             their
             shares
             ,
             which
             was
             so
             much
             less
             then
             the
             hail
             Sum
             Assigned
             .
             The
             Children
             answered
             ,
             they
             opponed
             their
             Assignation
             ,
             which
             bare
             expresly
             an
             Assignation
             to
             the
             hail
             Sum
             ,
             and
             Bond
             it self
             :
             and
             albeit
             the
             Division
             was
             short
             ,
             it
             was
             but
             a
             mistake
             of
             the
             Defunct
             ,
             and
             cannot
             prejudge
             the
             Assigneys
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             George
             Melvil
             contra
             Mr.
             Thomas
             Ferguson
             .
             Iune
             25.
             1664.
             
          
           
             
               GEorge
               Melvil
            
             pursues
             Mr.
             
               Thomas
               Ferguson
            
             his
             step-son
             for
             the
             value
             of
             his
             aliment
             ,
             after
             the
             Mothers
             Decease
             .
             The
             Defender
             alleadged●
             Absolvitor
             ,
             because
             the
             Defunct
             was
             his
             own
             Mother
             ,
             and
             he
             had
             no
             means
             of
             his
             own
             ,
             and
             it
             must
             be
             presumed
             that
             she
             Entertained
             him
             free
             ,
             out
             of
             her
             Maternal
             Affection
             ,
             and
             that
             his
             Step-Father
             did
             the
             same
             ,
             after
             he
             had
             Married
             his
             Mother
             .
          
           
             The
             Lords
             sustained
             the
             first
             part
             of
             the
             Defense
             ,
             but
             not
             the
             second
             anent
             the
             Step-father
             after
             the
             Mothers
             decease
             .
          
        
         
           
             Alexander
             Allan
             contra
             Mr.
             John
             Colzier
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Allan
            
             pursues
             Mr.
             
               Iohn
               Colzier
            
             ,
             to
             pay
             a
             sum
             of
             ninety
             two
             pounds
             ,
             adebted
             for
             the
             Defenders
             Mother
             ,
             and
             that
             upon
             the
             Defenders
             Missive
             Letter
             ,
             by
             which
             he
             oblieged
             him
             to
             pay
             the
             same
          
           
           
             The
             Defender
             answered
             absolvitor
             ,
             because
             by
             the
             missive
             produced
             ,
             he
             offered
             him
             to
             become
             the
             Pursuers
             Debitor
             ,
             for
             the
             sum
             due
             by
             his
             Mother
             ,
             being
             about
             ninety
             two
             pounds
             ;
             but
             by
             a
             Postcript
             ,
             requires
             the
             Pursuer
             to
             Intimat
             to
             him
             ,
             or
             his
             Friends
             at
             Falkland
             ,
             whether
             he
             accepted
             or
             not
             ,
             which
             he
             did
             not
             then
             till
             after
             the
             Defenders
             Mothers
             Death
             ,
             and
             so
             it
             being
             a
             Conditional
             offer
             ,
             not
             accepted
             ,
             is
             not
             binding
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             and
             Assoilzied
             .
          
        
         
           
             Cauhame
             contra
             Adamson
             .
             Eodem
             die
             .
          
           
             
               THomas
               Cauhame
            
             having
             Appryzed
             a
             Tenement
             in
             Dumbar
             ,
             from
             
               Ioseph
               Iohnstoun
            
             ,
             pursues
             
               Iames
               Adamson
            
             to
             remove
             therefrom
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             this
             Apprizer
             could
             be
             in
             no
             better
             case
             ,
             then
             Iohnstoun
             from
             whom
             he
             Appryzed
             ,
             whose
             Right
             is
             affected
             with
             this
             provision
             ,
             that
             he
             should
             pay
             600.
             pounds
             to
             any
             person
             his
             Author
             pleased
             to
             nominat
             ;
             
               Ita
               est
            
             ,
             he
             hath
             Assigned
             the
             Right
             to
             the
             Defender
             ,
             so
             that
             it
             is
             a
             real
             Burden
             affecting
             the
             Land
             ,
             even
             against
             this
             singular
             Successor
             ,
             and
             included
             in
             his
             Authors
             Infeftment
             .
             The
             pursuer
             answered
             ,
             that
             albeit
             it
             be
             in
             the
             Infeftmen
             ,
             yet
             it
             is
             no
             part
             of
             the
             Infeftment
             ,
             or
             real
             Right
             ,
             but
             expresly
             an
             obliegment
             to
             pay
             without
             any
             Clause
             Irritant
             ,
             or
             without
             declaring
             that
             the
             Disponers
             Infeftment
             should
             stand
             valid
             ,
             as
             to
             the
             Right
             of
             that
             Sum.
             
          
           
             The
             which
             the
             Lords
             found
             Relevant
             ,
             and
             Repelled
             the
             Defense
             ,
             but
             superceeded
             Execution
             until
             some
             time
             that
             the
             Defender
             might
             use
             any
             means
             he
             could
             for
             making
             this
             Sum
             to
             affect
             the
             Land.
             
          
        
         
           
             Farquherson
             contra
             Gardiner
             .
             Eodem
             die
             .
          
           
             MR.
             
               Iames
               Farquherson
            
             having
             obtained
             a
             Decreet
             of
             Spuilzie
             ,
             against
             
               Iohn
               Gairdiner
            
             and
             others
             .
             Gairdiner
             Suspends
             on
             this
             Reason
             ,
             that
             he
             medled
             with
             the
             Goods
             in
             question
             ,
             as
             a
             Souldier
             in
             a
             Party
             in
             Arms
             ,
             being
             then
             in
             the
             Regiment
             of
             the
             Master
             of
             Forbes
             ,
             under
             the
             Command
             of
             the
             Earl
             of
             Midletoun
             ,
             and
             therefore
             is
             freed
             by
             the
             Act
             of
             Indemnity
             .
             The
             Charger
             answered
             ,
             that
             he
             oppons
             the
             Act
             Indemnifying
             only
             these
             who
             Acted
             by
             Warrand
             of
             any
             Committee
             of
             Estates
             ,
             or
             Commander
             ,
             or
             other
             Authority
             ,
             so
             that
             it
             is
             not
             Relevant
             ,
             unless
             the
             Suspender
             alleadge
             ,
             that
             as
             he
             was
             a
             Souldier
             in
             Arms
             ,
             so
             he
             had
             such
             Warrand
             ,
             and
             did
             apply
             the
             particulars
             to
             the
             publick
             use
             ,
             under
             which
             he
             served
             :
             And
             it
             is
             offered
             to
             be
             proven
             ,
             that
             he
             took
             the
             Goods
             lybelled
             to
             his
             own
             House
             ,
             and
             made
             use
             of
             them
             to
             his
             privat
             use
             .
             The
             Suspenders
             answered
             ,
             that
             this
             Reason
             stands
             Relevant
             as
             proponed
             ,
             
             because
             it
             is
             clear
             by
             the
             Act
             of
             Indemnity
             ,
             that
             all
             things
             done
             under
             any
             pretended
             Authority
             or
             Command
             ,
             are
             Indemnified
             ;
             and
             therefore
             there
             is
             a
             special
             Exception
             of
             privat
             Thefts
             and
             Robberies
             ,
             which
             confirms
             the
             Rule
             as
             to
             publick
             Pilledging
             in
             any
             War
             ,
             and
             if
             there
             were
             a
             necessity
             to
             every
             person
             to
             instruct
             the
             Command
             ,
             or
             Warrand
             of
             his
             Officer
             ,
             which
             was
             not
             accustomed
             to
             be
             in
             Writ
             ,
             the
             whole
             Act
             would
             be
             elusory
             ;
             so
             that
             it
             is
             sufficient
             ,
             that
             the
             thing
             was
             done
             in
             the
             way
             of
             a
             publick
             War
             ;
             otherwise
             ,
             all
             that
             was
             taken
             or
             converted
             to
             privat
             use
             ,
             of
             those
             that
             were
             either
             with
             Montrose
             or
             Glencairn
             ,
             might
             ly
             open
             to
             Pursuits
             ,
             notwithstanding
             of
             the
             Act
             of
             Indemnity
             .
          
           
             The
             Lords
             after
             serious
             Consideration
             of
             this
             ,
             as
             a
             leading
             Case
             ,
             found
             the
             Reason
             of
             Suspension
             Relevant
             ,
             that
             the
             Defender
             needed
             not
             to
             prove
             that
             he
             had
             Warrant
             ,
             but
             that
             the
             Warrant
             was
             presumed
             ,
             if
             he
             proved
             he
             Acted
             with
             a
             Party
             in
             War
             ,
             against
             which
             ,
             they
             would
             admit
             no
             contrary
             Probation
             ,
             unless
             it
             were
             offered
             to
             be
             proven
             by
             the
             Defenders
             own
             Oath
             ,
             that
             he
             did
             without
             any
             Warrant
             ,
             converted
             the
             Goods
             to
             his
             own
             privat
             use
             .
          
        
         
           
             Margaret
             Inglis
             contra
             Thomas
             Inglis
             .
             Eodem
             die
             .
          
           
             
               MArgaret
               Inglis
            
             having
             obtained
             a
             Decreet
             before
             the
             Commissars
             of
             Edinburgh
             ,
             against
             
               Thomas
               Inglis
            
             ,
             for
             giving
             her
             Security
             of
             1000.
             pounds
             in
             Legacy
             ,
             left
             in
             her
             Fathers
             Testament
             ,
             and
             for
             payment
             of
             the
             Annualrent
             of
             the
             said
             Legacy
             .
             Thomas
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Legacy
             being
             left
             to
             be
             payed
             ,
             the
             one
             half
             at
             the
             Chargers
             marriage
             ,
             and
             the
             other
             half
             at
             the
             Death
             of
             the
             Defuncts
             Wife
             ;
             buire
             no
             Annualrent
             ,
             as
             neither
             doth
             any
             other
             Legacy
             ,
             much
             less
             this
             ,
             being
             
               in
               diem
               incertum
            
             ,
             which
             is
             equivalent
             to
             a
             Conditional
             Legacy
             :
             For
             if
             the
             Defuncts
             Wife
             had
             Survived
             the
             Legatar
             ,
             or
             if
             she
             never
             Marry
             ,
             nothing
             will
             ever
             be
             due
             .
             The
             Charger
             answered
             ,
             that
             this
             Legacy
             was
             in
             effect
             alimentar
             ,
             though
             not
             expresly
             left
             
               eo
               nomine
            
             ;
             and
             therefore
             ought
             to
             be
             profitable
             ,
             and
             that
             the
             Lords
             had
             been
             accustomed
             to
             give
             Annualrent
             in
             such
             cases
             ,
             as
             in
             the
             case
             of
             the
             Lady
             Otter
             ,
             and
             her
             Daughters
             .
             The
             Suspender
             answered
             ,
             that
             the
             case
             was
             far
             different
             ,
             these
             being
             lawful
             Daughters
             ,
             and
             their
             Provisions
             being
             in
             lieu
             of
             an
             Estate
             of
             Land
             ,
             and
             this
             Charger
             being
             but
             a
             Bastard
             ,
             and
             come
             to
             that
             age
             that
             she
             may
             serve
             for
             her
             Maintainance
             .
          
           
             The
             Lords
             considering
             that
             the
             one
             half
             of
             the
             Sum
             was
             payable
             at
             the
             time
             of
             the
             Chargers
             Marriage
             ,
             being
             a
             Condition
             in
             her
             own
             power
             ,
             and
             that
             it
             was
             not
             favourable
             to
             put
             her
             to
             a
             necessity
             of
             Marry
             :
             Therefore
             they
             sustained
             Annualrents
             for
             that
             half
             ,
             but
             not
             for
             the
             other
             .
          
        
         
           
           
             Brown
             contra
             Lawson
             .
             Iuly
             6.
             1664.
             
          
           
             
               ALexander
               Brown
            
             having
             obtained
             a
             Decreet
             against
             
               William
               Lawson
            
             ,
             as
             vitious
             Intrometter
             with
             the
             Goods
             of
             umquhil
             
               William
               Lawson
            
             of
             New-milns
             ,
             he
             Suspends
             ,
             and
             alleadges
             the
             Decreet
             was
             unjustly
             given
             ,
             because
             it
             beares
             ,
             that
             he
             excepted
             upon
             a
             Disposition
             ,
             made
             by
             the
             Defunct
             for
             an
             Onerous
             Cause
             ,
             and
             an
             Instrument
             of
             Possession
             of
             the
             Goods
             before
             his
             Death
             .
             The
             Charger
             answered
             ,
             that
             the
             Decreet
             did
             bear
             ,
             that
             the
             Suspender
             did
             judicially
             acknowledge
             ,
             that
             there
             was
             no
             true
             Delivery
             of
             the
             Goods
             .
          
           
             The
             Lords
             found
             this
             collourable
             Title
             sufficient
             to
             purge
             the
             passive
             Title
             of
             vitious
             Intromission
             ,
             providing
             the
             Defender
             Confirmed
             within
             four
             moneths
             ,
             for
             they
             thought
             the
             Defuncts
             Disposition
             ,
             
               in
               articulo
               mortis
            
             ,
             was
             rather
             as
             a
             Testament
             or
             Legacy
             ,
             in
             satisfaction
             of
             the
             defenders
             Debt
             ,
             then
             as
             
               actus
               inter
               vivos
            
             .
          
        
         
           
             Iohn
             Miln
             contra
             Hoom.
             Iuly
             7.
             1664.
             
          
           
             
               JOhn
               Miln
            
             Mason
             ,
             having
             Charged
             Sir
             
               James
               Home
            
             of
             Eccles
             ,
             for
             payment
             of
             a
             Sum
             of
             Money
             ,
             due
             by
             Bond
             ,
             he
             Suspended
             ,
             and
             alleadged
             that
             he
             had
             the
             benefit
             of
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             as
             to
             personal
             Execution
             ,
             seing
             he
             had
             payed
             a
             years
             Annualrent
             ,
             and
             had
             consigned
             a
             Bond
             of
             Corroboration
             ,
             joyning
             the
             rest
             of
             the
             Annualrents
             to
             the
             principal
             .
             The
             Charger
             answered
             ,
             the
             Suspender
             could
             not
             crave
             the
             benefit
             of
             the
             Act
             ,
             because
             he
             had
             not
             found
             caution
             for
             the
             principal
             ,
             and
             annual
             conform
             to
             the
             said
             Act
             for
             his
             naked
             Bond
             of
             Corroboration
             ,
             without
             Caution
             ,
             could
             not
             be
             interpret
             Security
             .
          
           
             The
             Lords
             found
             the
             Suspender
             behoved
             to
             give
             security
             ,
             either
             by
             Caution
             or
             Infeftment
             .
          
        
         
           
             Ogilbie
             and
             Grant
             contra
             Ker.
             Eodem
             die
             .
          
           
             THere
             being
             a
             Charge
             in
             the
             Name
             of
             
               Iames
               Ogilbie
            
             and
             
               William
               Grant
               ,
               contra
            
             Mr.
             
               Andrew
               Ker
            
             Minister
             ,
             on
             this
             ground
             ,
             that
             by
             a
             minut
             of
             Contract
             of
             Alienation
             ,
             Ogilbie
             had
             sold
             to
             Ker
             ,
             certain
             Lands
             ,
             and
             Ker
             was
             expresly
             Bound
             by
             the
             minut
             ,
             to
             pay
             this
             Grant
             and
             others
             ,
             in
             part
             of
             the
             price
             of
             the
             Land
             ,
             certain
             Debts
             due
             by
             Ogilbie
             to
             them
             .
             Ker
             Suspends
             upon
             this
             Reason
             ,
             that
             he
             had
             satisfied
             Ogilbie
             ,
             and
             obtained
             his
             Discharge
             .
          
           
           
             Grant
             answered
             ,
             that
             by
             the
             foresaid
             Clause
             ,
             contained
             in
             the
             Minut
             ,
             he
             had
             acquired
             right
             to
             the
             Sum
             ,
             in
             satisfaction
             of
             his
             Debt
             ,
             which
             Ogilbie
             his
             Debitor
             could
             not
             take
             away
             ,
             without
             his
             consent
             ,
             especially
             seing
             the
             Minut
             took
             effect
             ;
             and
             the
             Suspender
             by
             his
             Missive
             Letters
             ,
             after
             the
             Date
             of
             this
             Discharge
             ,
             Writ
             to
             the
             Laird
             of
             Pitmeddin
             ,
             who
             was
             Cautioner
             to
             Grant
             ,
             that
             he
             would
             satisfie
             the
             Debt
             .
             The
             Suspender
             answered
             ,
             that
             the
             Clause
             in
             favour
             of
             Grant
             ,
             who
             was
             no
             Contracter
             ,
             could
             not
             give
             him
             a
             Right
             :
             First
             ,
             Because
             it
             was
             never
             a
             delivered
             Evident
             to
             
               Grant.
               2ly
            
             .
             Because
             it
             was
             but
             a
             Mandat
             ,
             whereby
             Ogilbie
             the
             Contracter
             ,
             did
             order
             a
             part
             of
             the
             Sum
             to
             be
             payed
             to
             Grant
             ,
             which
             Ogilbie
             might
             recal
             at
             his
             pleasure
             ,
             as
             he
             might
             have
             annulled
             the
             Bargain
             ,
             and
             destroyed
             the
             Writ
             ;
             especially
             seing
             nothing
             had
             yet
             followed
             .
             And
             as
             for
             the
             Letters
             ,
             they
             were
             not
             Written
             to
             Grant
             ,
             but
             to
             a
             third
             Party
             .
          
           
             The
             Lords
             found
             ,
             that
             seing
             the
             Bargain
             took
             Effect
             ,
             the
             Clause
             in
             Grants
             favour
             ,
             was
             not
             a
             simple
             Mandat
             ,
             but
             a
             Delegation
             ,
             whereby
             Ogilbie
             constitute
             Ker
             his
             Debitor
             ,
             to
             be
             Debitor
             to
             Grant
             his
             Creditor
             ,
             which
             needed
             no
             Intimation
             ,
             being
             Contracted
             by
             ,
             and
             so
             known
             to
             Ker
             himself
             ;
             and
             therefore
             found
             Ogilbies
             Discharge
             ineffectual
             .
          
        
         
           
             Town
             of
             Edinburgh
             contra
             Lord
             Ley
             and
             William
             Veatch
             .
             July
             8.
             1664.
             
          
           
             IN
             a
             Double
             Poynding
             ,
             raised
             by
             the
             Town
             of
             Edinburgh
             ,
             against
             my
             Lord
             Ley
             on
             the
             one
             part
             ,
             and
             
               William
               Veitch
            
             upon
             the
             other
             .
             The
             Ground
             whereof
             was
             this
             ;
             The
             Town
             of
             Edinburgh
             being
             Debitor
             to
             umquhil
             Dowglas
             of
             Mortoun
             ,
             in
             a
             Sum
             of
             Money
             ,
             his
             Son
             Confirmed
             himself
             Executor
             to
             his
             Father
             ,
             and
             Confirmed
             this
             Sum
             ,
             which
             was
             Arrested
             in
             the
             Towns
             hands
             by
             
               William
               Veatch
            
             ,
             first
             ;
             and
             thereafter
             by
             my
             Lord
             Ley.
             It
             was
             alleadged
             for
             
               William
               Veatch
            
             ,
             that
             he
             ought
             to
             be
             preferred
             ,
             having
             used
             the
             first
             Diligence
             by
             Arresting
             ,
             several
             years
             before
             my
             Lord
             Ley
             ,
             and
             having
             obtained
             Decreet
             against
             the
             Town
             ,
             before
             the
             Commissars
             ,
             but
             before
             it
             was
             Extracted
             ,
             my
             Lord
             Ley
             obtained
             Advocation
             .
             It
             was
             alleadged
             for
             my
             Lord
             Ley
             ,
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             the
             sum
             Arrested
             being
             due
             to
             umquhil
             Dowglas
             of
             Mortoun
             .
             There
             was
             never
             a
             Decreet
             obtained
             at
             the
             Instance
             of
             this
             Executor
             ,
             establishing
             it
             in
             his
             Person
             ;
             and
             therefore
             this
             Competition
             being
             betwixt
             
               William
               Veatch
            
             ,
             who
             was
             only
             the
             Executors
             proper
             Creditor
             ,
             and
             not
             the
             Defuncts
             Creditor
             .
             The
             Defuncts
             Money
             ought
             to
             be
             applyed
             :
             First
             ,
             to
             pay
             the
             Defuncts
             Debt
             ,
             before
             the
             Executors
             Debt
             ,
             albeit
             the
             Executors
             own
             Creditor
             had
             done
             the
             first
             Diligence
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Lord
             Ley
             ,
             as
             being
             Creditor
             to
             the
             Defunct
             ,
             ought
             first
             to
             be
             preferred
             ,
             seing
             now
             he
             appears
             before
             the
             Debt
             was
             Established
             in
             the
             Person
             of
             the
             Executor
             .
          
        
         
           
           
             Nisbit
             contra
             Lesly
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Nisbit
            
             ,
             as
             Assigney
             Constitute
             by
             Major
             Drummond
             ,
             Charges
             
               Lachlan
               Lesly
            
             to
             pay
             four
             Dollars
             for
             ilk
             Souldier
             of
             sixty
             ,
             conform
             to
             a
             Contract
             betwixt
             Major
             Drummond
             and
             
               Lodovick
               Lesly
            
             ,
             for
             whom
             Lachlan
             was
             Cautioner
             .
             Lachlan
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Charge
             is
             to
             the
             behove
             of
             
               Francis
               Arneil
            
             ,
             who
             was
             Conjunct
             Cautioner
             ,
             and
             bound
             for
             mutual
             Relief
             ,
             and
             therefore
             he
             can
             ask
             no
             more
             ,
             then
             his
             share
             of
             what
             he
             truely
             payed
             in
             Composition
             .
             The
             Charger
             answered
             ,
             that
             he
             nor
             
               Francis
               Arneil
            
             ,
             were
             not
             Charging
             on
             the
             Clause
             of
             Relief
             ,
             but
             on
             the
             principal
             Contract
             ,
             as
             Assigney
             :
             And
             though
             he
             had
             gotten
             Assignation
             thereto
             gratis
             ,
             he
             might
             crave
             the
             same
             ,
             except
             his
             own
             part
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Heugh
             Kennedy
             contra
             George
             Hutchison
             .
             Eodem
             die
             .
          
           
             
               HEugh
               Kennedy
            
             as
             Assigney
             by
             Sir
             
               Mark
               Ker
            
             ,
             to
             a
             Bill
             of
             Exchange
             ,
             which
             was
             drawn
             by
             
               George
               Hutchison
            
             ,
             upon
             
               William
               Schaw
            
             at
             London
             ,
             payable
             to
             Sir
             Mark
             ,
             for
             like
             value
             received
             from
             him
             ,
             did
             obtain
             Decreet
             against
             
               George
               Hutchison
            
             and
             one
             Schaw
             ,
             as
             Intrometters
             with
             the
             Goods
             of
             
               William
               Schaw
            
             ,
             both
             for
             the
             Bill
             it self
             ,
             and
             for
             the
             Exchange
             ,
             and
             Re-exchange
             ;
             the
             Bill
             being
             Protested
             for
             not
             payment
             .
             This
             Decreet
             being
             Suspended
             ,
             it
             was
             alleadged
             that
             there
             could
             be
             no
             Exchange
             ,
             or
             Re-exchange
             ,
             nor
             any
             thing
             payed
             for
             the
             Bill
             ,
             because
             the
             Bill
             was
             not
             lawfully
             protested
             ,
             but
             being
             accepted
             by
             Schaw
             at
             London
             ,
             he
             shortly
             after
             dyed
             ;
             and
             it
             was
             protested
             at
             his
             house
             where
             he
             dyed
             ,
             before
             none
             of
             his
             Relations
             ,
             having
             neither
             Wife
             nor
             Children
             .
             The
             Charger
             answered
             ,
             that
             he
             took
             Instruments
             on
             the
             Defense
             ,
             and
             alleadged
             ,
             that
             he
             needed
             not
             to
             prove
             the
             passive
             Title
             .
             Secondly
             ,
             That
             he
             had
             done
             all
             that
             was
             requisit
             ,
             having
             protested
             at
             the
             Dwelling-house
             where
             Schaw
             resided
             .
          
           
             The
             Lords
             found
             ,
             that
             in
             this
             Case
             ,
             that
             Death
             Interveening
             ,
             which
             was
             an
             Accident
             ,
             there
             could
             be
             no
             Exchange
             nor
             Re-exchange
             ,
             because
             this
             was
             no
             voluntar
             Failz●e
             ,
             nor
             fault
             ;
             But
             found
             that
             the
             Charger
             ,
             as
             Assigney
             ,
             might
             either
             take
             himself
             for
             the
             single
             value
             against
             the
             Person
             drawer
             of
             the
             Bill
             ,
             or
             to
             his
             Successors
             on
             whom
             it
             was
             drawn
             .
          
        
         
           
           
             Earl
             of
             Airly
             contra
             Iohn
             Mcintosh
             .
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Airly
             pursues
             
               Iohn
               Mcintosh
            
             for
             Contravention
             ,
             and
             Lybels
             these
             Deeds
             ,
             that
             the
             Defenders
             Herds
             had
             been
             found
             Pasturing
             several
             times
             far
             within
             his
             Ground
             ,
             for
             a
             considerable
             time
             :
             which
             Ground
             was
             without
             all
             Controversie
             the
             Pursuers
             .
          
           
             The
             Lords
             Sustained
             the
             Lybel
             ,
             it
             being
             always
             proven
             ,
             that
             the
             Herd
             herded
             by
             his
             Masters
             Command
             ,
             or
             Ratihabition
             ,
             and
             referred
             to
             themselves
             ,
             at
             their
             conclusion
             of
             the
             Cause
             ,
             to
             consider
             ,
             whether
             they
             would
             sustain
             the
             several
             times
             of
             hirding
             ,
             as
             several
             Deeds
             
               toties
               quoties
            
             ,
             or
             if
             only
             as
             one
             Deed
             made
             up
             of
             all
             ,
             and
             how
             far
             the
             witnesses
             should
             be
             received
             ,
             as
             to
             command
             ,
             or
             direction
             of
             the
             Defender
             .
          
        
         
           
             Dumbar
             of
             Hempriggs
             contra
             Frazer
             .
             July
             11.
             1664.
             
          
           
             
               HEmprigs
               as
            
             Executor
             to
             Dumbeath
             ,
             having
             pursued
             the
             Lady
             Frazer
             ,
             Relict
             of
             Dumbeath
             ,
             and
             the
             Lord
             Frazer
             for
             his
             Interest
             ,
             for
             payment
             of
             Executory
             ,
             intrometted
             with
             by
             the
             Lady
             ,
             there
             being
             Litiscontestation
             in
             the
             Cause
             :
             Dumbeath
             calls
             the
             Act
             ,
             and
             craves
             the
             Term
             to
             be
             Circumduced
             against
             the
             Lord
             Frazer
             ,
             who
             alleadged
             that
             now
             his
             Lady
             was
             dead
             ,
             and
             so
             his
             interest
             being
             
               jus
               mariti
            
             ,
             ceased
             .
             It
             was
             answered
             ,
             Litiscontestation
             being
             made
             ,
             the
             Debt
             was
             Constitute
             in
             the
             Husbands
             Person
             ,
             as
             if
             he
             had
             Contracted
             to
             pay
             it
             ,
             Litiscontestation
             being
             a
             Judicial
             Contract
             .
             Secondly
             ,
             The
             Lord
             Frazer
             was
             Decerned
             to
             give
             Bond
             to
             pay
             what
             his
             Lady
             should
             be
             found
             due
             .
             Frazar
             answered
             ,
             that
             no
             Bond
             was
             yet
             given
             ,
             and
             that
             the
             Ordinance
             was
             only
             against
             him
             as
             he
             was
             cited
             ,
             which
             was
             for
             his
             Interest
             ,
             which
             is
             Seassed
             .
          
           
             And
             which
             the
             Lords
             found
             Relevant
             and
             Assoilzied
             .
          
        
         
           
             Grahame
             of
             Hiltoun
             contra
             the
             Heretors
             of
             Clackmannan
             .
             Iuly
             13.
             1664.
             
          
           
             GRahame
             of
             Hiltoun
             having
             obtained
             a
             Decreet
             against
             the
             Heretors
             of
             Clackmannan
             ,
             for
             a
             sum
             of
             Money
             Imposed
             upon
             that
             Shire
             ,
             by
             the
             Commity
             of
             Estates
             ;
             the
             Heretors
             of
             the
             Shire
             have
             raised
             a
             Revew
             ,
             and
             alleadged
             ,
             that
             this
             Decreet
             being
             obtained
             before
             the
             Commissioners
             ,
             in
             the
             English
             time
             ,
             he
             has
             liberty
             to
             quarrel
             the
             Justice
             thereof
             ,
             within
             a
             year
             ,
             conform
             to
             the
             Act
             of
             Parliament
             ,
             and
             now
             alleadges
             ,
             that
             the
             saids
             Commissioners
             did
             unjustly
             repell
             this
             Defense
             ,
             proponed
             for
             singular
             Successors
             within
             the
             said
             Shire
             ;
             that
             they
             ought
             not
             to
             be
             lyable
             for
             any
             part
             of
             the
             said
             Imposition
             ,
             having
             Acquired
             their
             Rights
             
             long
             after
             the
             same
             ,
             and
             before
             any
             diligence
             was
             used
             upon
             the
             said
             Act
             of
             the
             Committee
             .
             It
             was
             answered
             ,
             that
             there
             was
             no
             injustice
             there
             ,
             because
             this
             being
             a
             publick
             Burden
             ,
             imposed
             upon
             a
             Shyre
             by
             Authority
             of
             Parliament
             ,
             it
             is
             
               debi●um
               fundi
            
             ,
             and
             affecteth
             singular
             Successors
             ;
             especially
             ,
             seing
             the
             Act
             of
             the
             Committee
             of
             Estates
             was
             Ratified
             in
             the
             Parliament
             ,
             1641.
             which
             Parliament
             ,
             and
             Committee
             ,
             though
             they
             be
             now
             Rescinded
             ,
             yet
             it
             is
             with
             expresse
             Reservation
             of
             Privat
             Rights
             acquired
             thereby
             ,
             such
             as
             this
             .
             The
             Pursuer
             answered
             ,
             that
             every
             Imposition
             of
             this
             nature
             ,
             though
             by
             Authority
             of
             Parliament
             ,
             is
             not
             
               debitum
               fundi
            
             ;
             but
             doth
             only
             affect
             the
             Persons
             having
             Right
             the
             time
             of
             the
             Imposition
             ;
             whereanent
             ,
             the
             minde
             of
             the
             late
             Parliament
             appeareth
             in
             so
             far
             ,
             as
             in
             the
             Acts
             thereof
             ,
             ordaining
             Impositions
             to
             be
             uplifted
             during
             the
             troubles
             ,
             Singular
             Successors
             are
             excepted
             .
             It
             was
             answered
             
               exceptio
               firmat
               regulam
               in
               non
               exceptis
               ,
            
             such
             an
             exception
             had
             not
             been
             needful
             ,
             if
             
               de
               jure
            
             singular
             Successors
             had
             been
             free
             .
             It
             was
             answered
             ,
             many
             exceptions
             ,
             though
             they
             bear
             not
             so
             expresly
             ,
             yet
             they
             are
             rather
             Declaratory
             of
             a
             Right
             ,
             then
             in
             being
             ,
             then
             statutory
             ,
             introducing
             a
             new
             Right
             .
          
           
             The
             Lords
             found
             Singular
             Successors
             free
             ,
             and
             reduced
             the
             Decreet
             
               pro
               tanto
            
             .
          
        
         
           
             Earl
             of
             Lauderdail
             contra
             Wolmet
             .
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Lauderdail
             pursues
             a
             Spuilzie
             of
             the
             Teynds
             of
             Wolmet
             ,
             against
             Major
             Biggar
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             Lands
             of
             Wolmet
             were
             Valued
             and
             approven
             .
             The
             Pursuer
             replyed
             ,
             that
             the
             said
             Decreet
             of
             Valuation
             was
             improven
             ,
             by
             a
             Decreet
             of
             Certification
             obtained
             there
             against
             ,
             at
             the
             instance
             of
             Swinton
             ,
             having
             Right
             to
             these
             Teynds
             for
             the
             time
             ,
             by
             a
             Gift
             from
             the
             Usurper
             .
             The
             Defender
             duplyed
             ,
             that
             no
             respect
             ought
             to
             be
             had
             to
             the
             said
             Certification
             ;
             First
             ,
             because
             this
             Pursuer
             derives
             no
             Right
             from
             Swintoun
             ,
             being
             only
             restored
             to
             his
             own
             Right
             ,
             and
             Swintouns
             Right
             from
             the
             Usurper
             found
             null
             :
             so
             that
             as
             the
             Pursuer
             would
             not
             be
             burdened
             with
             any
             Deed
             of
             Swintouns
             ,
             to
             his
             prejudice
             ,
             neither
             can
             he
             have
             the
             benefit
             of
             any
             Deed
             of
             Swintouns
             to
             his
             advantage
             .
             2dly
             .
             The
             said
             Certification
             was
             most
             unwarrantable
             ,
             in
             so
             far
             as
             the
             Decreet
             of
             Valuation
             being
             in
             the
             Register
             of
             the
             Valuation
             of
             Teynds
             ,
             the
             Defender
             was
             not
             oblidged
             to
             produce
             it
             ,
             but
             the
             Pursuer
             ought
             to
             have
             Extracted
             it
             himself
             .
             3dly
             .
             All
             Parties
             having
             interest
             were
             not
             called
             to
             the
             said
             Certification
             ,
             viz.
             Mr.
             
               Mark
               Ker
            
             the
             Wodsetter
             ,
             by
             a
             publick
             Infeftment
             ,
             in
             whose
             Right
             Major
             Biggar
             ,
             now
             Succeeds
             .
             And
             last
             ,
             the
             Defender
             alleadged
             ,
             that
             he
             had
             a
             Reduction
             of
             the
             Certification
             ,
             upon
             Minority
             and
             Lesion
             ,
             and
             the
             unwarrantable
             Extracting
             of
             it
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             seing
             Swintoun
             did
             use
             the
             Pursuers
             Right
             ,
             all
             reall
             advantages
             which
             were
             not
             Personal
             ,
             but
             consequent
             upon
             the
             Real
             Right
             ,
             and
             which
             belonged
             not
             to
             
               Swintoun
               personaliter
            
             ,
             but
             as
             prerended
             proprietar
             :
             do
             follow
             the
             Real
             Right
             it self
             ;
             and
             Accresce
             to
             the
             true
             Proprietar
             ,
             as
             if
             he
             had
             acquired
             a
             Servitude
             ,
             or
             had
             reduced
             the
             Vassalls
             Right
             ,
             
               ●b
               non
               solutum
               canonem
            
             .
             To
             the
             Second
             ,
             oppones
             the
             Certification
             ,
             wherein
             compearance
             was
             made
             ,
             for
             Wolmet
             ,
             and
             three
             Terms
             taken
             to
             produce
             ,
             and
             no
             such
             Defense
             was
             alleadged
             ,
             as
             that
             the
             Valuation
             was
             in
             a
             publick
             Register
             .
             To
             the
             Third
             ,
             the
             Pursuer
             
             needed
             not
             know
             the
             Wodsetter
             ,
             because
             it
             was
             an
             Improper
             Wodset
             ,
             the
             Heretor
             Possessing
             by
             his
             Back-bond
             ,
             as
             Heretable
             Possessor
             ,
             seing
             the
             Decreet
             of
             Valuation
             was
             at
             the
             Heretors
             instance
             ,
             it
             was
             sufficient
             to
             Reduce
             it
             against
             his
             Heir
             ;
             for
             it
             would
             not
             have
             been
             necessar
             to
             have
             called
             the
             Wodsetter
             ,
             to
             obtain
             the
             Decreet
             of
             Valuation
             ,
             but
             the
             then
             Heretable
             Possessor
             :
             so
             neither
             is
             it
             necessar
             to
             call
             the
             Wodsetter
             to
             the
             Reducing
             or
             improving
             thereof
             .
             To
             the
             last
             ,
             no
             such
             Reduction
             seen
             nor
             ready
             ,
             neither
             the
             Production
             satisfied
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             
               duplyes
            
             ,
             in
             respect
             of
             the
             Certification
             ,
             which
             they
             found
             to
             accresce
             to
             the
             Pursuer
             ,
             but
             prejudice
             to
             the
             Defender
             ,
             to
             insist
             in
             his
             Reduction
             ,
             as
             accords
             ;
             and
             declared
             ,
             that
             if
             the
             Defender
             used
             diligence
             ,
             in
             the
             Reduction
             ,
             they
             would
             take
             it
             to
             consideration
             at
             the
             conclusion
             of
             the
             cause
             .
          
        
         
           
             Balmirrino
             contra
             Sir
             William
             ,
             Dicks
             Creditors
             .
             Iuly
             14.
             1664.
             
          
           
             
               JAmes
               Gilmor
            
             ,
             for
             the
             use
             of
             the
             Lord
             Balmirrino
             ,
             being
             Infeft
             in
             the
             Lands
             of
             Northberwick
             ,
             upon
             a
             Right
             from
             Sir
             
               Iohn
               Smith
            
             ,
             who
             had
             Right
             from
             Sir
             
               William
               Dick
            
             ,
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             Sir
             Williams
             other
             Creditors
             ,
             Wodsetters
             and
             Appryzers
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             Pursuers
             Right
             is
             Extinct
             ,
             in
             so
             far
             as
             Balmirrino
             being
             Debitor
             to
             Sir
             
               William
               Dick
            
             ,
             and
             charged
             by
             him
             ,
             had
             acquired
             this
             Right
             from
             Sir
             
               Iohn
               Smith
            
             to
             compence
             Sir
             William
             ,
             and
             did
             actually
             compence
             him
             by
             alleadging
             the
             same
             reason
             of
             Compensation
             ,
             producing
             the
             Disposition
             then
             blank
             in
             the
             Assigneys
             name
             ;
             whereupon
             the
             Letters
             were
             Suspended
             Simpliciter
             ,
             aud
             my
             Lord
             assoilzied
             ;
             and
             the
             Disposition
             given
             up
             to
             Mr.
             
               Alexander
               Dick
            
             ,
             which
             is
             instructed
             by
             the
             Testimony
             of
             
               William
               Douny
            
             Clerk
             at
             that
             time
             ,
             Balmirrino
             answered
             ,
             First
             ,
             That
             
               William
               Dounys
            
             Testimony
             ,
             could
             not
             make
             up
             a
             Minute
             of
             Decreet
             ,
             where
             there
             were
             no
             Process
             ,
             nor
             Adminicle
             to
             be
             seen
             .
             2dly
             Though
             the
             minute
             of
             the
             Decreet
             were
             lying
             before
             the
             Lords
             ,
             not
             being
             Extracted
             ,
             the
             Lord
             Balmirrino
             might
             passe
             from
             his
             Reason
             of
             Compensation
             ,
             and
             take
             up
             his
             Disposition
             ,
             which
             is
             always
             permitted
             before
             Litiscontestation
             ,
             or
             Decreet
             ,
             and
             Litiscontestation
             is
             never
             accounted
             untill
             the
             Act
             be
             Extracted
             :
             So
             that
             there
             being
             no
             Act
             of
             Litiscontestation
             Extracted
             in
             the
             said
             Process
             ,
             but
             only
             an
             alleadged
             minute
             of
             a
             Decreet
             without
             an
             Act
             ,
             neither
             Partie
             might
             resile
             .
             3dly
             ,
             Though
             the
             Suspender
             might
             not
             resile
             Simpliciter
             ,
             yet
             it
             is
             still
             competent
             to
             him
             ,
             to
             propone
             a
             several
             reason
             of
             Suspension
             before
             Extract
             ;
             being
             instantly
             verified
             :
             and
             now
             he
             propones
             this
             Reason
             ,
             that
             the
             Debt
             awand
             by
             him
             to
             Sir.
             
               William
               Dick
            
             ,
             is
             a
             publick
             Debt
             ,
             and
             the
             Parliament
             has
             Suspended
             all
             execution
             thereupon
             ,
             till
             the
             next
             Parliament
             ;
             which
             by
             consequence
             liberats
             him
             from
             making
             use
             of
             ,
             or
             instructing
             his
             Reason
             of
             Compensation
             .
             The
             Creditors
             answered
             ,
             it
             was
             most
             ordinar
             for
             the
             Lords
             ,
             to
             make
             up
             Minuts
             by
             the
             Testimonies
             of
             the
             Clerks
             ,
             when
             they
             were
             lost
             .
             So
             that
             
               William
               Douny
            
             being
             a
             famous
             Clerk
             ,
             his
             Testimony
             must
             make
             up
             the
             Minute
             ,
             after
             which
             the
             Lord
             Balmirrino
             cannot
             resile
             from
             his
             Reason
             of
             Compensation
             ,
             or
             take
             back
             the
             Disposition
             ;
             seing
             it
             was
             his
             own
             fault
             he
             did
             not
             Extract
             it
             ,
             and
             cannot
             make
             use
             now
             of
             a
             Supervenient
             Exception
             ,
             that
             was
             not
             
             at
             that
             time
             Competent
             ,
             in
             prejudice
             of
             their
             Creditors
             ;
             Balmirrino
             being
             now
             in
             much
             worse
             condition
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Lord
             Balmirrino
             might
             now
             propone
             a
             Reason
             of
             Suspension
             emergent
             on
             the
             late
             Act
             of
             Parliament
             and
             pass
             from
             his
             Reason
             of
             Compensation
             ,
             and
             take
             up
             his
             Disposition
             ,
             seing
             it
             did
             not
             appear
             that
             the
             Process
             was
             miscarried
             through
             
             Balmirrino's
             fault
             ,
             or
             that
             the
             Disposition
             was
             delivered
             to
             Mr.
             Dick
             ,
             neither
             of
             which
             did
             appear
             by
             
               William
               Dounys
            
             Testimony
             .
          
        
         
           
             Thomas
             Crawfoord
             contra
             Prestoun
             Grange
             .
             Iuly
             15.
             1664.
             
          
           
             
               THomas
               Crawfoord
            
             ,
             as
             Assigney
             by
             the
             Earl
             of
             Tarquair
             to
             a
             Decreet
             of
             the
             Valuation
             of
             the
             Teynds
             Lethinhops
             obtained
             Decreet
             against
             the
             Laird
             of
             
               Prestoun
               Grange
            
             Heretor
             thereof
             ;
             who
             Suspended
             upon
             this
             Reason
             ,
             that
             these
             Lands
             were
             a
             part
             of
             the
             Patrimony
             of
             the
             Abbacy
             of
             New-botle
             ,
             which
             Abbacy
             was
             of
             the
             Cistertian
             Order
             ,
             which
             Order
             ,
             did
             injoy
             that
             Priviledge
             ,
             that
             they
             payed
             no
             Teynds
             for
             their
             Lands
             ,
             while
             they
             were
             in
             their
             own
             Labourage
             ,
             or
             Pastourage
             ,
             of
             which
             Priviledge
             ,
             not
             only
             the
             Abbots
             ,
             but
             after
             them
             ,
             the
             Lord
             New-botle
             ,
             and
             the
             Defender
             hath
             been
             in
             Possession
             :
             and
             accordingly
             Sir
             
               Iohn
               Stewart
            
             of
             Traquair
             having
             pursued
             the
             Lord
             Newbotle
             before
             the
             Commissaries
             of
             Edinburgh
             ,
             in
             Anno
             1587.
             
             For
             the
             Teynds
             of
             the
             Lands
             of
             Newbotle
             ,
             upon
             the
             same
             Defense
             ,
             was
             Assoilzied
             ,
             which
             Decreet
             standing
             ,
             must
             be
             sufficient
             to
             the
             Defender
             ,
             ay
             and
             while
             it
             be
             reduced
             ;
             likeas
             ,
             the
             Defender
             stood
             Infeft
             in
             the
             saids
             Lands
             by
             the
             King
             ,
             with
             express
             Priviledges
             
               decimarum
               more
               solito
            
             .
             The
             Charger
             answered
             .
             First
             ,
             That
             the
             foresaid
             Priviledge
             ,
             which
             sometime
             did
             belong
             to
             all
             Monestries
             ,
             was
             by
             Pope
             Adrian
             the
             fourth
             ,
             limited
             to
             the
             Cistertian
             Order
             Templars
             ,
             Hospitillars
             ,
             and
             that
             for
             such
             Lands
             only
             as
             they
             had
             before
             the
             Lateran
             Counsel
             :
             So
             that
             the
             Suspender
             cannot
             injoy
             that
             Priviledge
             .
             First
             ,
             because
             he
             cannot
             instruct
             the
             Lands
             to
             have
             belonged
             to
             the
             Abbacy
             ,
             before
             that
             Counsel
             .
             2ly
             ,
             That
             being
             a
             Priviledge
             granted
             to
             Church-men
             ,
             is
             Personal
             ,
             and
             cannot
             belong
             to
             their
             Successors
             ,
             being
             ley
             men
             ,
             and
             albeit
             the
             said
             Decreet
             ,
             be
             in
             favours
             of
             the
             said
             Lord
             Newbotle
             ,
             yet
             he
             was
             Comendator
             of
             the
             Abbacy
             ,
             and
             so
             in
             the
             Title
             of
             the
             Order
             .
          
           
             The
             Lords
             found
             the
             Reason
             relevant
             ,
             and
             instructed
             ,
             by
             the
             said
             Decreet
             ,
             and
             Suspended
             ,
             for
             such
             part
             of
             the
             Lands
             ,
             a●
             were
             in
             the
             Suspenders
             own
             hand
             .
          
        
         
           
             Mr.
             William
             Colvill
             contra
             the
             Executors
             of
             the
             Lord
             Colvill
             his
             Brother
             Eodem
             die
             .
          
           
             MR.
             
               William
               Colvill
            
             pursues
             the
             Executors
             of
             the
             Lord
             Colvill
             his
             Brother
             ,
             for
             payment
             of
             2000.
             merk
             of
             Portion
             ,
             Contracted
             to
             him
             by
             his
             brother
             ,
             incase
             his
             Brother
             wanted
             Heirs
             Male.
             It
             was
             alleadged
             ,
             for
             the
             Defender
             ,
             absolvitor
             ,
             because
             the
             Contract
             is
             null
             ,
             there
             being
             no
             Witnesses
             designed
             therein
             ,
             to
             the
             Lord
             Colvills
             Subscription
             ,
             but
             only
             two
             Witnesses
             expresly
             subscribing
             as
             Witnesses
             to
             Mr.
             
               William
               Colvils
            
             
             Subscription
             ,
             and
             other
             two
             undesigned
             ,
             subscribing
             as
             Witnesses
             ,
             but
             not
             relating
             to
             any
             particular
             Subscription
             .
             The
             Pursuer
             answered
             ,
             that
             he
             offered
             to
             designe
             ,
             the
             other
             two
             Witnesses
             which
             was
             always
             found
             sufficient
             to
             take
             away
             that
             nullitie
             .
             It
             were
             answered
             ,
             for
             the
             Defender
             ,
             that
             albeit
             the
             Designation
             were
             sufficient
             ,
             
               in
               recenti
            
             ,
             where
             the
             Witnesses
             were
             on
             life
             ,
             because
             use
             may
             be
             made
             of
             these
             Witnesses
             ,
             to
             improve
             the
             Write
             ,
             which
             could
             not
             hold
             
               in
               re
               antiqua
            
             where
             both
             Witnesses
             were
             dead
             .
          
           
             
               The
               Lords
               formerly
               found
               ,
               that
               the
               Designation
               was
               not
               sufficient
               ,
               without
               instructing
               the
               Write
               by
               Witnesses
               ,
               or
               Adminicles
               ,
            
             for
             which
             effect
             ,
             the
             Pursuer
             produced
             several
             Writs
             ,
             subscribed
             by
             the
             Lord
             Colvill
             ,
             and
             by
             one
             of
             the
             two
             Witnesses
             ,
             that
             
               comparatione
               literarum
            
             might
             instruct
             the
             truth
             of
             their
             Subscriptions
             ;
             and
             alleadged
             further
             ,
             that
             this
             being
             a
             mutual
             Contract
             ,
             and
             unquestionably
             ,
             Subscribed
             by
             the
             one
             Contracter
             ,
             and
             being
             of
             that
             nature
             that
             he
             ,
             whose
             Subscription
             was
             unquestionable
             ,
             did
             ingadge
             for
             a
             more
             onerous
             cause
             then
             the
             other
             .
          
           
             The
             Lords
             compared
             the
             hand
             writs
             ,
             and
             found
             them
             both
             alike
             ,
             sustained
             the
             VVrite
             .
             The
             Pursuer
             making
             faith
             that
             it
             was
             truely
             subscribed
             by
             both
             Parties
             .
          
        
         
           
             Hospitall
             of
             Glasgow
             contra
             Robert
             Campbel
             .
             Iuly
             19.
             1664.
             
          
           
             THe
             Hospital
             of
             Glasgow
             having
             Appryzed
             the
             Lands
             of
             Silvercraige
             ,
             they
             thereupon
             obtained
             Decreet
             ,
             which
             being●
             Suspended
             ,
             compearance
             is
             made
             for
             
               Robert
               Campbel
            
             in
             Glasgow
             ,
             who
             alleadged
             that
             he
             has
             Appryzed
             the
             Estate
             of
             Lamont
             ,
             from
             the
             Laird
             of
             Lamont
             ;
             and
             that
             the
             Lands
             of
             Silvercraige
             are
             a
             Part
             and
             Pertinent
             of
             the
             Lands
             Apprized
             by
             him
             ,
             whereby
             he
             stands
             in
             the
             Right
             of
             the
             Superior
             ,
             and
             offers
             to
             prove
             ,
             that
             the
             Lands
             in
             question
             ,
             are
             Waird
             ,
             and
             that
             the
             Appearand
             Heir
             from
             whom
             the
             Hospitall
             hath
             Appryzed
             ,
             is
             yet
             Minor
             ,
             and
             therefore
             the
             Hospitall
             coming
             in
             his
             place
             ,
             can
             be
             in
             no
             better
             Case
             nor
             the
             Minor
             ;
             but
             the
             Course
             of
             the
             Waird
             must
             run
             ,
             during
             the
             Appearant
             Heirs
             minority
             .
             The
             Charger
             answered
             ,
             that
             the
             Course
             of
             the
             Waird
             cannot
             now
             run
             ,
             because
             the
             Lands
             are
             full
             ,
             by
             the
             Infeftment
             of
             the
             Appryzer
             ,
             who
             stands
             Infeft
             ,
             being
             received
             by
             a
             prior
             Appryzer
             of
             the
             Superiority
             ,
             without
             any
             Exception
             ,
             or
             Reservation
             of
             the
             Waird
             Duties
             .
             It
             was
             answered
             ,
             for
             
               Robert
               Campbel
            
             ,
             that
             
               George
               Campbels
            
             Appryzing
             of
             the
             Superiority
             was
             ,
             extinct
             ,
             by
             Satisfaction
             with
             the
             Males
             and
             Duties
             ,
             before
             he
             received
             the
             Hospitall
             ,
             and
             so
             there
             is
             now
             place
             to
             the
             Second
             Appryzer
             ,
             neither
             can
             the
             filling
             of
             the
             Fee
             by
             the
             Appryzer
             stop
             the
             Course
             of
             the
             Waird
             ,
             which
             began
             before
             the
             Appryzing
             ;
             albeit
             the
             Appryzer
             be
             Infeft
             simply
             ;
             seing
             all
             Infeftments
             on
             Appryzings
             ,
             are
             in
             obedience
             ,
             which
             never
             imports
             a
             passing
             from
             any
             Right
             of
             the
             Superiors
             ,
             albeit
             he
             do
             not
             reserve
             the
             same
             ;
             and
             therefore
             he
             may
             make
             use
             of
             any
             Right
             in
             his
             Person
             ,
             not
             only
             as
             to
             the
             Casualities
             of
             the
             Superiority
             ,
             but
             as
             to
             the
             Property
             ,
             and
             his
             receiving
             in
             obedience
             ,
             is
             only
             to
             give
             the
             Appryzer
             Anteriority
             of
             Diligence
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
           
             Sir.
             Laurence
             Scot
             contra
             .
             Lady
             Shenaltoun
             Eodem
             die
             .
          
           
             IN
             an
             Act
             of
             Litiscontestation
             ,
             betwizt
             Sir.
             
               Laurence
               Scot
            
             ,
             and
             the
             Lady
             Shenaltoun
             ;
             a
             Defense
             of
             Payment
             being
             found
             Relevant
             ,
             
               Scripto
               velj●ramento
            
             for
             Sir
             Laurence
             ,
             and
             not
             having
             cited
             the
             Lady
             ,
             to
             give
             her
             Oath
             ,
             nor
             produced
             any
             Write
             ;
             the
             Term
             was
             craved
             to
             be
             circumduced
             .
          
           
             The
             Lords
             did
             not
             circumduce
             the
             Term
             ,
             but
             found
             that
             the
             Pursuer
             should
             have
             been
             still
             ready
             to
             produce
             his
             Client
             to
             Depone
             ,
             if
             the
             Defender
             made
             choise
             of
             his
             Oath
             .
          
        
         
           
             Elizabeth
             Douglass
             contra
             Laird
             of
             Wadderburn
             .
             Eodem
             die
             .
          
           
             
               ELizabeth
               Douglass
            
             ,
             as
             Heir
             to
             her
             Goodsire
             ,
             and
             Sr.
             
               Robert
               Sinclar
            
             of
             Loc●ermacus
             her
             Husbands
             ,
             pursue
             a
             Spuilzie
             of
             Teynds
             against
             the
             Laird
             of
             Wadderburn
             ,
             who
             alleadged
             absolvitor
             ,
             because
             he
             had
             Tack
             of
             the
             Teynds
             of
             the
             saids
             lands
             from
             the
             Earl
             of
             Hoom
             ,
             and
             by
             vertue
             thereof
             ,
             was
             
               bona
               fide
            
             Possessor
             ,
             and
             behoved
             to
             bruik
             ,
             till
             his
             Tack
             were
             reduced
             .
             2ly
             .
             That
             he
             had
             Right
             from
             the
             Earl
             of
             Hoom
             ,
             by
             the
             said
             Tack
             ,
             which
             Earl
             of
             Hoom
             ,
             albeit
             his
             Right
             which
             he
             had
             ,
             the
             time
             of
             the
             granting
             of
             the
             said
             Tack
             ,
             was
             reduced
             ,
             yet
             he
             has
             sincepresently
             in
             his
             Person
             ,
             the
             Right
             of
             the
             Teynds
             of
             the
             lands
             from
             
               Iohn
               Steuart
            
             of
             Coldingham
             ,
             which
             being
             
               jus
               superveniens
               authori
            
             ,
             must
             accresce
             to
             the
             Defender
             ,
             and
             defend
             him
             in
             this
             Pursuit
             .
             The
             Pursuer
             answered
             to
             the
             First
             Defense
             ,
             that
             the
             Defenders
             
               bona
               fides
            
             was
             interrupted
             ,
             by
             Process
             against
             him
             ,
             long
             before
             the
             Years
             lybelled
             .
             2ly
             .
             Albeit
             there
             had
             been
             none
             ,
             yet
             this
             Author
             ,
             the
             Earl
             of
             Hooms
             Right
             being
             reduced
             in
             Parliament
             ,
             his
             
               bona
               fides
            
             being
             
               sine
               omni
               titulo
            
             ;
             is
             not
             sufficient
             ;
             neither
             needed
             the
             Tacks-man
             to
             be
             called
             to
             the
             Reduction
             ,
             but
             his
             Right
             fell
             
               in
               consequentiam
            
             with
             the
             granter
             of
             the
             Tacks
             right
             .
             The
             second
             Defense
             ,
             It
             was
             answered
             ,
             that
             the
             general
             maxime
             of
             
               jus
               Superveniens
            
             ,
             has
             its
             own
             fallancies
             ,
             for
             the
             Reason
             of
             the
             maxime
             is
             ,
             that
             when
             any
             thing
             is
             disponed
             for
             a
             cause
             onerous
             ,
             equivalent
             to
             the
             Value
             thereof
             :
             It
             is
             always
             understood
             ,
             that
             the
             Disponer
             dispones
             not
             only
             what
             Right
             he
             hath
             already
             ,
             but
             whatever
             Right
             he
             shall
             happen
             to
             acquire
             ;
             seing
             he
             gets
             the
             full
             Value
             :
             and
             therefore
             
               sixione
               juris
            
             ,
             whatever
             Right
             thereafter
             comes
             in
             his
             Person
             ,
             though
             it
             be
             after
             the
             Acquirers
             Right
             ,
             yet
             it
             is
             holden
             as
             conveyed
             by
             the
             Acquirers
             Right
             ,
             without
             any
             new
             Deed
             or
             Solemnity
             ,
             but
             where
             that
             Reason
             is
             wanting
             ,
             it
             holds
             not
             as
             first
             ,
             if
             it
             appear
             ,
             that
             the
             Cause
             of
             the
             Disposition
             is
             not
             at
             the
             full
             Value
             ;
             then
             it
             is
             presumed
             ,
             that
             the
             Disponer
             only
             disponed
             such
             Right
             as
             he
             presently
             had
             ;
             or
             if
             the
             Disponer
             deduce
             a
             Particular
             Right
             :
             as
             an
             Appryzing
             ,
             or
             Tacks
             .
             &c.
             and
             either
             Dispons
             ,
             but
             that
             Right
             ,
             
               per
               expressum
            
             ,
             or
             at
             least
             dispones
             not
             for
             all
             Right
             he
             hath
             or
             may
             have
             ,
             or
             does
             not
             dispone
             with
             absolute
             Warrandice
             ;
             In
             these
             Cases
             ,
             the
             Authors
             Right
             supervening
             ,
             accresces
             not
             to
             the
             Acquirer
             ,
             but
             himself
             ,
             may
             make
             use
             thereof
             against
             the
             Acquirer
             ,
             much
             more
             any
             other
             having
             Right
             from
             
             from
             him
             .
             2ly
             .
             The
             maxime
             holds
             not
             ,
             if
             the
             Authors
             Right
             be
             Reduced
             before
             he
             acquire
             the
             new
             Right
             ,
             in
             which
             case
             ,
             the
             first
             Right
             being
             extinct
             ,
             nothing
             can
             accresce
             thereto
             ,
             but
             the
             Author
             may
             acquire
             any
             other
             new
             Right
             ,
             and
             make
             use
             thereof
             .
             3ly
             ,
             The
             maxime
             hath
             no
             place
             ,
             if
             the
             Author
             do
             not
             acquire
             a
             new
             Right
             to
             the
             land
             ,
             which
             could
             be
             the
             foundation
             and
             ground
             of
             the
             Tack
             granted
             ;
             as
             if
             he
             acquired
             but
             the
             Right
             of
             an
             Annualrent
             ,
             which
             could
             be
             no
             ground
             of
             the
             Defenders
             Tack
             ,
             much
             more
             ,
             if
             he
             acquire
             a
             Right
             to
             the
             Mails
             and
             Duties
             of
             the
             lands
             ,
             either
             upon
             Sentence
             to
             make
             Arrested
             Goods
             furthcommand
             ,
             or
             an
             Assignation
             ,
             or
             Disposition
             of
             the
             Mails
             and
             Duties
             made
             to
             the
             Author
             ,
             for
             satisfying
             of
             a
             Debt
             to
             him
             ,
             by
             the
             Disponer
             .
             This
             would
             be
             no
             Right
             to
             the
             land
             that
             could
             accresce
             to
             Validat
             a
             Tack
             .
             The
             Defender
             answered
             ,
             First
             ,
             that
             his
             first
             Defense
             was
             yet
             relevant
             ,
             because
             ,
             albeit
             his
             Authors
             Right
             were
             reduced
             ,
             he
             not
             being
             called
             ,
             his
             Right
             would
             be
             a
             sufficient
             colourable
             Title
             ,
             to
             give
             him
             the
             benefit
             of
             a
             Possessory
             judgement
             ,
             untill
             his
             
               bona
               fides
            
             were
             interrupted
             by
             Process
             ,
             because
             his
             subaltern
             Right
             is
             not
             extinct
             ,
             till
             either
             by
             way
             of
             Action
             ,
             or
             Exception
             ,
             it
             be
             declared
             extinct
             ;
             as
             falling
             in
             consequence
             ,
             with
             his
             Authors
             Right
             reduced
             ,
             seing
             there
             is
             no
             mention
             thereof
             in
             the
             Decreet
             of
             Reduction
             .
             2ly
             Albeit
             Diligence
             had
             been
             used
             ,
             yet
             if
             the
             user
             thereof
             insisted
             not
             ,
             but
             suffered
             the
             Defender
             ,
             to
             possess
             
               bona
               fide
            
             seven
             year
             thereafter
             ,
             it
             revives
             that
             benefit
             of
             a
             new
             Possessory
             Judgement
             .
          
           
             The
             Lords
             ,
             as
             to
             this
             Poynt
             ,
             found
             that
             the
             Interruption
             of
             the
             
               bona
               fides
            
             by
             Process
             ,
             did
             still
             take
             the
             same
             away
             ,
             unless
             it
             were
             Prescrived
             ,
             but
             found
             ,
             that
             before
             any
             Process
             ,
             the
             Defense
             should
             be
             relevant
             ;
             and
             therefore
             sustained
             only
             Process
             ,
             for
             the
             year
             ,
             since
             the
             Citation
             .
          
           
             As
             to
             the
             other
             Defense
             
               in
               jure
            
             .
             The
             Defender
             answered
             ,
             that
             his
             Defense
             stands
             yet
             Relevant
             ,
             notwithstanding
             all
             the
             Fallacies
             alleadged
             which
             are
             without
             warrant
             in
             Law
             ,
             and
             without
             example
             with
             us
             ,
             where
             this
             Maxime
             hath
             ever
             been
             held
             unquestionable
             ,
             that
             
               jus
               Authoris
               accrescit
               Successori
            
             ,
             unlesse
             the
             Successors
             Right
             be
             expresly
             limited
             ,
             to
             a
             particular
             Right
             ,
             or
             to
             any
             Right
             the
             Author
             then
             had
             ,
             but
             the
             Defender
             needs
             not
             Disput
             the
             Equivalence
             of
             the
             Cause
             ,
             unlesse
             such
             expresse
             Limitation
             were
             ,
             added
             there
             is
             no
             ground
             to
             presume
             an
             Exception
             upon
             the
             Personal
             oblidgment
             of
             Warrandice
             ,
             from
             fact
             and
             deed
             ,
             which
             oftimes
             is
             put
             in
             Contracts
             fully
             onerous
             ,
             but
             on
             the
             contrair
             ,
             there
             is
             a
             several
             Defense
             upon
             that
             very
             Clause
             :
             that
             the
             Earl
             of
             Hoom
             ,
             whatever
             Right
             he
             should
             acquire
             ,
             yet
             if
             he
             should
             make
             use
             of
             it
             against
             this
             Defender
             ,
             he
             comes
             against
             his
             own
             Warrandice
             ,
             whereby
             he
             is
             oblidged
             ,
             that
             he
             has
             done
             ,
             nor
             shall
             do
             no
             deed
             prejudicial
             to
             the
             Defenders
             Tack
             ,
             neither
             is
             there
             any
             ground
             of
             Exception
             ;
             albeit
             the
             Authors
             Right
             was
             reduced
             ,
             before
             the
             new
             Right
             acquired
             from
             that
             ground
             ,
             that
             the
             new
             cannot
             accresce
             unto
             the
             old
             Right
             ,
             being
             Extinct
             ,
             because
             the
             Maxime
             bears
             ,
             that
             it
             accresces
             
               Successori
               ,
               non
               jure
               Successoris
            
             ;
             so
             that
             albeit
             the
             new
             Right
             do
             not
             Validat
             the
             old
             Right
             :
             yet
             the
             new
             Right
             becomes
             the
             Defenders
             Right
             ,
             
               eo
               momento
            
             ,
             that
             it
             became
             the
             Authors
             Right
             ,
             
               per
               fictionem
               juris
            
             ,
             without
             deed
             or
             diligence
             ,
             and
             cannot
             be
             taken
             away
             by
             any
             subsequent
             deed
             of
             that
             Author
             ,
             more
             then
             if
             before
             such
             a
             deed
             ,
             he
             had
             particularly
             established
             his
             Successors
             therein
             ;
             because
             the
             fiction
             of
             the
             Law
             is
             equivalent
             to
             any
             such
             establishment
             ,
             neither
             is
             their
             any
             ground
             of
             Exception
             ,
             that
             the
             Authors
             Right
             Superveening
             ,
             is
             but
             an
             Annualrent
             ,
             which
             cannot
             Validat
             a
             Tack
             ;
             because
             ,
             if
             the
             Author
             were
             making
             use
             of
             that
             Annualrent
             to
             poynd
             the
             ground
             ,
             the
             Defender
             upon
             his
             Tack
             and
             Warrandice
             would
             exclude
             him
             ,
             because
             he
             could
             not
             come
             against
             his
             own
             d●ed
             and
             oblidgment
             ;
             yea
             ,
             albeit
             it
             were
             but
             a
             Right
             to
             the
             
             Mails
             and
             Duties
             ,
             
               quocunque
               modo
            
             .
             The
             Lords
             having
             considered
             the
             Earl
             of
             Hooms
             new
             Superveening
             Right
             ,
             and
             that
             it
             was
             but
             the
             Right
             of
             an
             Annualrent
             of
             300
             
               lib.
               Starling
            
             ,
             with
             a
             Clause
             ,
             that
             incase
             of
             failzie
             of
             payment
             ,
             he
             might
             uplift
             the
             hail
             Mails
             and
             Duties
             till
             he
             were
             payed
             ,
             and
             that
             the
             Defenders
             Tack
             included
             only
             Personal
             Warrandice
             .
             
               They
               repelled
               the
               Defense
               ,
               and
               found
               that
               such
               a
               Right
               could
               not
               accresce
               to
               the
               Defender
               ,
               to
               validat
               his
               Tack
               ,
               wherein
               some
               of
               the
               Lords
               had
               respect
               to
               that
               point
               that
               the
               Right
               was
               Reduced
               before
               this
               new
               Right
               ;
               but
               others
               ,
               as
               it
               seems
               ,
               on
               better
               grounds
               layed
               no
               weight
               on
               that
               if
               the
               cause
               onerous
               ,
               had
               been
               the
               full
               value
               ,
               and
               equivalent
               ,
               or
               if
               the
               Tack
               had
               born
               for
               all
               Right
               that
               I
               have
               ,
               or
               shall
               acquire
               ,
               which
               would
               accresce
               to
               the
               Successor
               ,
               as
               oft
               as
               ever
               it
               was
               acquired
               ,
               though
               all
               the
               prior
               Rights
               had
               been
               reduced
               ,
               but
               in
               this
               Case
               ,
               the
               Author
               not
               acquiring
               a
               new
               Right
               to
               the
               Lands
               ,
               but
               only
               to
               the
               Mails
               and
               Duties
               ,
               which
               in
               effect
               is
               but
               Personal
               ,
               it
               could
               not
               accresce
               to
               the
               Defender
               ,
               more
               then
               if
               the
               Author
               had
               been
               Factor
               to
               a
               thrid
               Part
               by
               the
               new
               Right
               ,
               and
               albeit
               the
               Clauses
               of
               Personall
               Warrandice
               might
               have
               Personally
               excluded
               the
               Earl
               of
            
             Hoom
             
               himself
               ,
               yet
               seing
               ,
               that
               Right
               could
               accresce
               to
               the
               Defender
               ,
               the
               Earl
               of
            
             Hoom
             
               having
               renunced
               ,
               or
               assigned
               it
               to
               a
               thrid
               Partie
               .
               The
               Personal
               Objection
               against
               the
               Earl
               of
            
             Hoom
             
               upon
               the
               Personal
               Clause
               of
               Warrandice
               ceases
               ,
               neither
               did
               the
               Pursuer
               insist
               upon
               the
               Earl
               of
            
             Hooms
             
               Right
               ,
               but
               his
               own
            
             .
          
        
         
           
             Elizabeth
             Scrimgeor
             contra
             Executors
             of
             Mr.
             John
             Murray
             Eodem
             die
             .
          
           
             IN
             a
             Compt
             and
             Reckoning
             betwixt
             
               Elizabeth
               Scrimgeor
            
             relict
             of
             Mr.
             
               Iohn
               Murray
            
             Minister
             ,
             and
             his
             Executors
             ,
             these
             Queries
             were
             reported
             to
             the
             Lords
             by
             the
             Auditor
             .
             First
             ,
             Whether
             the
             Defunct
             dying
             Infeft
             in
             an
             Annualrent
             could
             have
             an
             Heir
             ,
             as
             to
             moveable
             Heirship
             .
             The
             Lords
             found
             he
             would
             ,
             seing
             the
             Annualrent
             was
             Feudum
             ,
             and
             he
             might
             thereby
             be
             esteemed
             as
             Baro
             ,
             as
             well
             as
             a
             petty
             Fewer
             .
          
           
             Quest.
             2.
             
             Whether
             the
             Defunct
             ,
             having
             died
             the
             day
             before
             Martinmas
             1661.
             
             He
             would
             have
             right
             to
             any
             part
             of
             the
             Stipend
             1662.
             
             As
             the
             Annat
             .
             The
             Lords
             found
             he
             would
             have
             the
             half
             of
             1662.
             
             Quest.
             3.
             
             Whether
             he
             would
             have
             like
             right
             to
             the
             Gleib
             ,
             as
             to
             the
             Stipend
             ,
             by
             the
             Ann.
             The
             Lords
             found
             that
             could
             not
             be
             debaitable
             ,
             betwixt
             the
             Defuncts
             Relict
             and
             Executors
             ,
             albeit
             there
             was
             no
             compearance
             for
             a
             new
             intrant
             in
             which
             Case
             ,
             they
             thought
             that
             so
             soon
             as
             the
             intrant
             〈…〉
             were
             admitted
             ,
             he
             would
             have
             right
             to
             the
             Manse
             and
             Gleib
             ,
             and
             not
             the
             Defunct
             ,
             though
             the
             Defuncts
             Wife
             would
             have
             right
             to
             a
             part
             of
             the
             Stipend
             due
             after
             his
             entrie
             .
             Quest.
             4.
             
             Whether
             the
             Heretable
             Debt
             could
             exhaust
             the
             moveable
             Estate
             of
             the
             Defunct
             ,
             to
             deminish
             the
             Relicts
             part
             ,
             especially
             if
             their
             be
             no
             Heretable
             Debt
             due
             to
             the
             Defunct
             ,
             or
             if
             the
             Heretable
             Debts
             due
             by
             him
             exceed
             these
             due
             to
             him
             .
          
           
             The
             Lords
             found
             ,
             that
             seing
             the
             Relict
             could
             have
             no
             benefit
             of
             Heretable
             Debts
             due
             to
             the
             Defunct
             ,
             being
             excluded
             by
             the
             Act
             of
             Parliament
             1641.
             renewed
             ,
             1662.
             
             Therefore
             she
             would
             have
             no
             detriment
             ,
             by
             such
             Heretable
             Debt
             due
             by
             the
             Defunct
             ,
             whether
             they
             exceeded
             the
             Heretable
             Debts
             due
             him
             ,
             or
             no.
             In
             this
             report
             ,
             it
             falling
             into
             consideration
             ,
             whether
             the
             Ann
             would
             only
             belong
             to
             the
             Wife
             ,
             there
             being
             no
             Children
             ,
             or
             half
             to
             the
             Wife
             ,
             and
             half
             to
             the
             nearest
             of
             Kin
             ,
             they
             thought
             it
             would
             devide
             equally
             betwixt
             them
             ,
             though
             it
             was
             not
             res●lv●d
             ,
             whether
             it
             needed
             to
             be
             confirmed
             ,
             or
             would
             be
             lyable
             to
             the
             Defuncts
             Debt
             .
          
        
         
           
           
             Lady
             Clerkingtoun
             contra
             Stewart
             .
             Iuly
             20.
             1664.
             
          
           
             THe
             Lady
             Clerkingtoun
             ,
             pursues
             the
             Heirs
             of
             Umquhile
             
               David
               Stewart
            
             Son
             to
             the
             Laird
             of
             Blackhall
             ,
             for
             the
             Sum
             of
             2000
             merks
             due
             to
             her
             Husband
             .
             It
             was
             alleadged
             ,
             for
             
               Walter
               Stewart
            
             Brother
             to
             the
             Defunct
             ,
             Defender
             ,
             no
             Process
             ,
             because
             the
             Heir
             of
             Lyne
             ,
             of
             the
             Defunct
             
               David
               Stewart
            
             was
             not
             called
             ,
             in
             so
             far
             as
             David
             ,
             being
             the
             only
             Son
             of
             the
             second
             Marriage
             ,
             and
             having
             neither
             Brother
             nor
             Sister
             of
             that
             Marriage
             ;
             his
             Heir
             of
             Lyne
             could
             not
             be
             
               Walter
               Stewart
            
             ,
             youngest
             Son
             of
             the
             first
             Marriage
             ,
             but
             the
             Heir
             of
             the
             Eldest
             Son
             of
             the
             first
             Marriage
             ;
             according
             to
             Craigs
             Opinion
             ,
             
               de
               successionibus
            
             .
          
           
             The
             Lords
             found
             ,
             that
             in
             this
             case
             ,
             Walter
             ,
             as
             the
             next
             immediat
             preceeding
             ,
             was
             both
             Heir
             and
             of
             Conquest
             ,
             and
             not
             the
             eldest
             Brother
             .
          
           
             In
             this
             Process
             ,
             it
             was
             also
             alleadged
             ,
             that
             this
             Sum
             was
             a
             Clandestine
             Fraudulent
             Paction
             ,
             contrare
             to
             the
             Contract
             of
             Marriage
             ,
             betwixt
             the
             Defunct
             
               David
               Stewart
            
             ,
             and
             the
             Defenders
             Daughter
             ,
             whereby
             10000
             merks
             being
             Contracted
             with
             her
             in
             Tochar
             ,
             and
             Blackhall
             granted
             a
             proportionable
             Liferent
             thereto
             ;
             yet
             under
             hand
             ,
             without
             Blackhalls
             knowledge
             his
             Son
             was
             induced
             to
             give
             Bond
             for
             this
             2000
             merk
             ,
             to
             take
             away
             2000
             merk
             of
             the
             Tochar
             :
             and
             it
             was
             remembred
             by
             some
             of
             the
             Lords
             ,
             that
             in
             the
             like
             Case
             ,
             a
             discharge
             of
             a
             part
             of
             a
             Sons
             Provision
             granted
             to
             his
             Father
             ,
             contrair
             to
             his
             Contract
             of
             Marriage
             was
             found
             Fraudulent
             and
             null
             ,
             by
             exception
             .
          
           
             The
             Lords
             did
             not
             decyde
             ,
             but
             rather
             desired
             the
             Parties
             should
             agree
             ,
             but
             thought
             this
             was
             an
             unfavourable
             Act
             of
             dangerous
             consequence
             .
          
        
         
           
             Petrie
             contra
             Paul.
             Eodem
             die
             .
          
           
             PEtrie
             pursues
             a
             Removing
             against
             Paul
             ,
             who
             alleadged
             absolvitor
             because
             she
             possessed
             ,
             by
             vertue
             of
             her
             Infeftment
             .
             It
             was
             replyed
             ,
             the
             Infeftment
             was
             null
             ,
             by
             exception●
             as
             following
             upon
             a
             Contract
             of
             Marriage
             which
             Marriage
             was
             dissolved
             within
             year
             and
             day
             .
             It
             was
             duplyed
             ,
             that
             the
             Infeftment
             behoved
             to
             stand
             valid
             ,
             being
             in
             recompence
             of
             her
             Tochar
             ,
             untill
             her
             Tochar
             was
             repayed
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             unless
             it
             were
             alleadged
             ,
             that
             the
             Tochar
             was
             not
             payed
             to
             the
             Husband
             ,
             but
             in
             her
             own
             hands
             ,
             or
             her
             Debitor
             .
          
        
         
           
             Scot
             of
             Braid-meadow
             contra
             Scot
             of
             Thirlstoun
             .
             Iuly
             21.
             1664.
             
          
           
             SCot
             of
             Braid-meadow
             pursues
             Scot
             of
             Thirlstain
             his
             Curator
             ,
             for
             Compt
             and
             Reckoning
             ,
             who
             alleadged
             absolvitor
             ;
             because
             the
             Pursuer
             having
             conveened
             the
             Defender
             before
             the
             Sheriff
             ,
             to
             compt
             ,
             and
             Reckon
             ,
             and
             to
             Renunce
             his
             Curatorie
             ,
             he
             was
             ●hen
             decerned
             to
             Renunce
             the
             Office
             ,
             and
             
             did
             Compt
             for
             bygones
             .
             The
             Pursuer
             answered
             ,
             no
             respect
             to
             that
             Decreet
             ,
             because
             it
             was
             during
             his
             Minority
             .
             In
             which
             time
             the
             Defender
             had
             a
             competent
             defense
             ,
             that
             he
             was
             not
             comptable
             ;
             and
             for
             the
             Renunciation
             of
             the
             Office.
             It
             was
             a
             great
             Lesion
             to
             the
             Pupil
             ,
             which
             the
             Curator
             should
             not
             have
             yeelded
             to
             ,
             but
             proponed
             a
             Defense
             against
             the
             same
             ,
             that
             he
             could
             not
             pursue
             his
             Curator
             to
             Renunce
             ,
             unless
             he
             had
             condescended
             ,
             and
             instructed
             malversation
             .
             The
             Defender
             answered
             ,
             that
             he
             had
             just
             Reason
             to
             suffer
             Sentence
             ,
             because
             his
             Pupil
             was
             Irregular
             ,
             and
             medled
             with
             his
             own
             Rents
             by
             force
             ,
             and
             mispent
             the
             same
             .
          
           
             The
             Lords
             ,
             Notwithstanding
             of
             the
             Decreet
             ,
             ordained
             Compt
             and
             Reckoning
             ,
             and
             found
             ,
             that
             the
             Decreet
             could
             not
             liberat
             the
             Curator
             ,
             even
             for
             his
             Omissions
             after
             ,
             but
             reserved
             to
             the
             Defender
             ,
             before
             the
             Auditor
             to
             condescend
             what
             deeds
             the
             Pupil
             had
             done
             before
             ,
             as
             being
             relevant
             
               pro
               tanto
            
             .
          
        
         
           
             Alexander
             Livingstoun
             contra
             Heirs
             of
             Lyne
             and
             Daughters
             of
             the
             Lord
             Forrester
             .
             Iuly
             22.
             1664.
             
          
           
             
               ALexander
               Livingstoun
            
             ,
             as
             Assigney
             to
             a
             Debt
             awand
             by
             the
             deceist
             Lord
             Forrester
             ,
             having
             charged
             his
             Daughters
             ,
             and
             Heirs
             of
             Lyne
             and
             they
             Renunced
             ,
             whereupon
             he
             pursues
             Adjudication
             ;
             Compearance
             ,
             is
             made
             for
             the
             Lord
             Forrester
             ,
             who
             produced
             his
             Infeftment
             ,
             and
             alleadged
             the
             Lands
             therein
             comprehended
             could
             not
             be
             Adjudged
             ;
             because
             the
             Defunct
             was
             denuded
             thereof
             ,
             before
             his
             Death
             ;
             and
             as
             he
             could
             stop
             the
             Apparant
             Heirs
             ,
             if
             they
             were
             craving
             themselves
             to
             be
             entered
             Heirs
             to
             their
             Fathers
             ,
             so
             the
             Adjudger
             ,
             in
             their
             place
             could
             not
             crave
             Infeftment
             .
             The
             Pursuer
             answered
             ,
             the
             Defense
             was
             not
             Competent
             
               hoc
               loco
            
             ,
             and
             the
             Defender
             would
             not
             be
             prejudged
             by
             any
             Infeftment
             ,
             or
             Adjudication
             ,
             if
             he
             had
             sufficient
             Right
             .
             And
             therefore
             ,
             as
             in
             an
             Apprysing
             ,
             he
             might
             Appryse
             
               omne
               jus
            
             ,
             that
             the
             Defunct
             had
             ,
             and
             thereupon
             be
             Infeft
             :
             So
             he
             hath
             the
             like
             benefit
             in
             Adjudication
             ,
             which
             hath
             been
             ordinarly
             sustained
             ,
             
               periculo
               petentis
            
             .
          
           
             The
             Lords
             sustained
             the
             Adjudication
             ,
             as
             to
             all
             Right
             the
             Appearand
             Heirs
             could
             have
             had
             in
             the
             Lands
             ,
             but
             not
             as
             to
             the
             Property
             ,
             and
             therefore
             would
             not
             decern
             the
             Pu●●uer
             to
             be
             Infeft
             ,
             but
             sustained
             the
             Decreet
             of
             Adjudication
             ,
             that
             thereby
             he
             may
             have
             Right
             to
             Reversions
             ,
             and
             Clauses
             resolutive
             ,
             or
             other
             Personal
             Clauses
             ,
             which
             they
             thought
             would
             be
             sufficiently
             carried
             by
             the
             Decreet
             of
             Adjudication
             ,
             without
             Infeftment
             ,
             and
             would
             not
             be
             prejudged
             by
             another
             Adjudger
             ,
             obtainer
             of
             the
             first
             ●nfefment
             ,
             but
             this
             was
             besyde
             the
             Ordinar
             Course
             wherein
             Adjudications
             use
             always
             to
             be
             granted
             
               periculo
               petentis
            
             ,
             that
             thereby
             
               omne
               jus
            
             may
             be
             carried
             ;
             and
             as
             in
             Appryzings
             ,
             it
             hath
             been
             ordinarly
             found
             ,
             that
             the
             Superior
             must
             Infeft
             the
             Appryzer
             ,
             to
             compleat
             his
             Legal
             diligence
             ,
             albeit●he
             Superior
             instruct
             ,
             that
             him●elf
             hath
             a
             Right
             to
             the
             Lands
             ;
             Because
             his
             receiving
             of
             the
             Appryzer
             ,
             in
             obedience
             ,
             will
             not
             prejudge
             his
             Right
             ,
             and
             it
             were
             unreasonable
             to
             force
             an
             Appryzer
             ,
             or
             Adjudger
             to
             dispute
             the
             Poynt
             of
             Right●
             when
             all
             the
             Writs
             and
             Evidences
             are
             in
             their
             Adversaries
             hands
             ,
             and
             the
             Creditors
             being
             meir
             Strangers
             ,
             who
             upon
             their
             Appryzings
             ,
             or
             Adjudications
             can
             only
             have
             Title
             to
             exhibition
             of
             the
             Rights
             ,
             and
             afterward
             be
             oblidged
             to
             dispute
             ,
             but
             here
             the
             Case
             was
             notour
             to
             many
             of
             the
             Lords
             being
             near
             the
             Town
             of
             Edinburgh
             ,
             that
             the
             Lord
             Forrester
             had
             Infeft
             his
             Goodson
             in
             his
             Estate
             .
          
        
         
           
           
             Lord
             Loure
             contra
             Lady
             Craig
             .
             Eodem
             die
             .
          
           
             LOrd
             Loure
             being
             Infeft
             in
             the
             Estate
             of
             Craig
             ,
             pursues
             for
             Mails
             and
             Duties
             ;
             Compearance
             is
             made
             for
             the
             Lady
             Craig
             Liferenter
             ,
             who
             alleadges
             she
             stands
             Infeft
             ,
             and
             in
             Possession
             of
             the
             Lands
             .
             The
             Pursuer
             answered
             ,
             that
             any
             Infeftment
             ;
             as
             to
             that
             part
             thereof
             ,
             that
             was
             not
             for
             fulfilling
             of
             the
             Contract
             of
             Marriage
             ,
             was
             Fraudulent
             ,
             and
             in
             Prejudice
             of
             lawful
             Creditors
             ,
             and
             so
             null
             by
             exception
             ,
             conform
             to
             the
             Act
             of
             Parliament
             1621.
             
             It
             was
             answered
             for
             the
             Lady
             .
             They
             opponed
             the
             Lords
             dayly
             Practique
             ever
             since
             the
             said
             Act
             ,
             that
             Infeftments
             were
             never
             taken
             away
             thereupon
             by
             Exception
             or
             Reply
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Montgomerie
             contra
             Hoom.
             Eodem
             die
             .
          
           
             
               WIlliam
               Mongomery
            
             ,
             pursues
             
               Alexander
               Hoom
            
             to
             Remove
             ,
             who
             alleadged
             absolvitor
             ,
             because
             he
             stands
             Infeft
             ,
             and
             by
             vertue
             thereof
             ,
             in
             seven
             years
             Possession
             ,
             and
             so
             hath
             the
             benefit
             of
             a
             Possessorie
             Judgement
             .
             It
             was
             Replyed
             ,
             that
             before
             any
             such
             Possession
             ,
             a
             Decreet
             of
             Removing
             was
             obtained
             against
             the
             Defender
             ,
             which
             made
             him
             
               mala
               fide
            
             Possessor
             .
             It
             was
             duplyed
             ,
             that
             since
             that
             Decreet
             ,
             which
             was
             in
             absence
             ,
             the
             Defender
             had
             Possessed
             it
             seven
             years
             without
             Interruption
             ,
             which
             acquired
             the
             benefit
             of
             a
             new
             Possessorie
             Judgement
             .
             And
             alleadges
             that
             an
             Interruption
             of
             Possession
             ceases
             by
             seven
             years
             ,
             albeit
             in
             the
             Point
             of
             Right
             ,
             it
             ceases
             not
             till
             Fourty
             .
          
           
             The
             Lords
             found
             the
             Interruption
             stands
             for
             fourty
             Years
             ,
             and
             that
             no
             Possession
             thereafter
             ,
             upon
             that
             same
             ground
             could
             give
             a
             new
             Possessorie
             Iudgment
             ,
             the
             Possession
             being
             Interrupted
             ,
             not
             only
             by
             Citation
             ,
             but
             by
             a
             Decreet
             of
             Removing
             ,
             which
             stated
             the
             other
             Partie
             in
             Civil
             Pessession
             .
          
        
         
           
             Earl
             of
             Sutherland
             contra
             Mcintosh
             of
             Conadge
             .
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Sutherland
             pursues
             Mcintosh
             of
             Conadge
             for
             the
             profit
             of
             a
             Regality
             belonging
             to
             the
             Earl.
             viz.
             Blood-wyts
             ,
             Escheats
             .
             &c.
             whereof
             Conadge
             had
             obtained
             Gift
             from
             the
             Usurpers
             ,
             the
             time
             that
             Regalities
             were
             Supprest
             ;
             and
             declared
             that
             he
             insisted
             for
             those
             only
             that
             were
             yet
             unuplifted
             ,
             for
             which
             the
             Parties
             Fyned
             had
             not
             made
             payment
             ,
             albeit
             some
             of
             them
             had
             given
             Bond.
             The
             Defender
             alleadged
             absolvitor
             ,
             for
             Blood-wyts
             ,
             and
             Amerciaments
             ,
             which
             might
             have
             been
             done
             by
             the
             Justices
             of
             Peace
             because
             ,
             as
             to
             these
             ,
             the
             Inglish
             had
             done
             no
             wrong
             ;
             seing
             the
             Justice
             of
             
             Peace
             might
             then
             ,
             and
             may
             now
             Cognosce
             and
             Fyne
             for
             Blood-wyts
             ,
             whithin
             the
             Regality
             .
             The
             Pursuer
             answered
             ,
             that
             as
             he
             might
             have
             Re-pleadged
             from
             the
             Justice
             General
             ,
             if
             he
             had
             not
             been
             impeded
             by
             the
             Act
             of
             the
             Usurpers
             ,
             so
             much
             more
             might
             he
             have
             re-pleadged
             from
             the
             Justice
             of
             Peace
             ,
             and
             therefore
             any
             Blood-wyts
             decerned
             by
             them
             ,
             belonged
             to
             him
             ,
             as
             Lord
             of
             the
             Regality
             .
          
           
             The
             Lords
             repel●ed
             the
             Defense
             ,
             and
             jo●nd
             the
             dead
             of
             the
             Iustice
             of
             Peace
             could
             not
             prejudge
             the
             Pursuer
             .
          
        
         
           
             M.
             John
             Muirhead
             contra
             Iuly
             21.
             1664.
             
          
           
             
               MR.
               John
               Muirhead
            
             ,
             as
             Assigney
             pursuing
             he
             alleadged
             ,
             that
             the
             Assignation
             not
             being
             intimat
             before
             the
             Cedents
             ,
             death
             ,
             the
             Sum
             was
             in
             
               bonis
               defuncti
            
             ,
             and
             the
             Assigney
             could
             have
             no
             Right
             without
             Confirmation
             .
          
           
             The
             Lords
             Repelled
             the
             alleadgance
             .
          
        
         
           
             James
             Johnstoun
             Merchant
             in
             Edinburgh
             ,
             contra
             The
             Lady
             Kincaide
             November
             11.
             1664.
             
          
           
             
               JAmes
               Iohnstoun
            
             pursues
             the
             Lady
             Kincaide
             ,
             as
             Executrix
             to
             her
             Husband
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             Testament
             was
             exhausted
             ,
             and
             she
             had
             obtained
             a
             Decreet
             of
             Exoneration
             ,
             which
             being
             standing
             un-reduced
             ,
             she
             behoved
             to
             be
             assoilzied
             ,
             seing
             there
             was
             no
             Reduction
             thereof
             raised
             .
             2ly
             ,
             Albeit
             the
             said
             Exoneration
             were
             quarrallable
             
               hoc
               ordine
            
             yet
             it
             appears
             thereby
             ,
             that
             the
             Testament
             was
             exhausted
             .
             The
             Pursuer
             answered
             ,
             that
             the
             first
             Defense
             on
             the
             Exoneration
             
               non
               Relevat
            
             ,
             unless
             the
             Pursuer
             had
             been
             cited
             to
             the
             giving
             thereof
             ;
             it
             operats
             nothing
             against
             him
             ,
             nor
             needs
             he
             Reduce
             it
             .
             2ly
             ,
             The
             second
             member
             of
             the
             Defense
             of
             exhausting
             the
             Testament
             mentioned
             in
             the
             Exoneration
             ,
             
               non
               Relevat
            
             ,
             unlesse
             it
             were
             alleadged
             exhausted
             by
             lawful
             Sentences
             ,
             before
             intenting
             of
             the
             Pursuers
             Cause
             .
             The
             Defender
             answered
             ,
             that
             it
             was
             Relevant
             to
             alleadge
             ,
             that
             payment
             was
             made
             of
             lawful
             Debts
             of
             the
             Defuncts
             instructed
             by
             writ
             ,
             before
             intenting
             of
             the
             Pursuers
             Cause
             ,
             for
             seing
             the
             Debt
             was
             clear
             ,
             the
             Executor
             ought
             not
             to
             multiply
             Expenses
             ,
             by
             defending
             against
             the
             same
             ,
             unless
             it
             were
             alleadged
             there
             were
             collusion
             to
             prefer
             the
             Creditors
             payed
             .
          
           
             The
             Lords
             repelled
             both
             members
             of
             the
             Defense
             ,
             and
             found
             that
             the
             Executrix
             might
             not
             ,
             without
             a
             Sentence
             prefer
             any
             Creditor
             ;
             especially
             ,
             seing
             it
             was
             not
             a
             Debt
             given
             up
             in
             Testament
             by
             the
             Defunct
             ,
             neither
             was
             it
             alleadged
             ,
             that
             the
             Pursuer
             had
             long
             neglected
             to
             pursue
             .
          
        
         
           
           
             Nicolas
             Murray
             Lady
             Craigcaffie
             contra
             Cornelius
             Neilson
             Merchant
             in
             Edinburgh
             .
             November
             12.
             1664.
             
          
           
             
               NIcolas
               Murray
            
             pursues
             a
             Reduction
             of
             a
             Decreet
             of
             the
             Baillies
             of
             Edinburgh
             ,
             obtained
             against
             her
             ,
             at
             the
             instance
             of
             
               Cornelius
               Neilson
            
             upon
             this
             Reason
             ,
             that
             she
             being
             pursued
             for
             the
             Mournings
             for
             her self
             and
             Family
             ,
             to
             her
             Husbands
             Funeralls
             ;
             which
             Mournings
             were
             delivered
             to
             her
             ,
             by
             the
             said
             Cornelius
             ,
             and
             were
             bought
             by
             her
             from
             him
             ,
             or
             by
             her
             Order
             sent
             to
             her
             ;
             which
             was
             referred
             to
             her
             Oath
             ,
             and
             she
             deponed
             ,
             that
             Cornelius
             had
             promised
             to
             his
             Father
             ,
             to
             give
             necessars
             for
             his
             Funerals
             out
             of
             his
             Chop
             ,
             and
             according
             to
             that
             promise
             ,
             had
             sent
             unto
             her
             .
          
           
             The
             Baillies
             found
             ,
             that
             this
             qualitie
             adjected
             in
             the
             Oath
             ,
             that
             the
             Furniture
             was
             upon
             Cornelius
             promise
             to
             his
             Father
             ,
             resulted
             in
             ane
             Exception
             ,
             which
             they
             found
             probable
             by
             Write
             ,
             or
             Oath
             of
             Cornelius
             ;
             who
             having
             deponed
             ,
             denyed
             any
             such
             promise
             ,
             and
             therefore
             they
             decerned
             ,
             the
             Lady
             to
             pay
             :
             Against
             which
             her
             Reason
             of
             Reduction
             is
             ,
             that
             she
             ought
             to
             have
             been
             Assoilzied
             by
             the
             Baillies
             ,
             because
             her
             Oath
             did
             not
             prove
             the
             lybel
             .
             viz.
             That
             she
             bought
             the
             Wair
             from
             Cornelius
             ,
             or
             made
             her self
             Debitor
             ,
             therefore
             ,
             but
             only
             that
             she
             received
             the
             same
             from
             him
             without
             any
             Contract
             ,
             or
             Ingadgment
             ,
             which
             would
             never
             make
             her
             Debitor
             ,
             for
             a
             Wife
             ,
             or
             a
             Bairn
             in
             Family
             are
             not
             lyable
             for
             their
             ,
             Cloaths
             ,
             unless
             they
             promise
             payment
             ,
             but
             only
             the
             Father
             ;
             and
             in
             the
             same
             manner
             ,
             the
             Mourning
             for
             the
             Funeralls
             of
             the
             Husband
             is
             not
             the
             Wifs
             Debt
             ,
             but
             the
             Husbands
             Executors
             .
             The
             Defender
             answered
             ,
             that
             the
             Reason
             was
             no
             ways
             Relevant
             ,
             seing
             the
             Pursuers
             Oath
             proved
             the
             receipt
             of
             the
             Goods
             ,
             which
             was
             sufficient
             
               ad
               victoriam
               causa
            
             .
             The
             quality
             being
             justly
             taken
             away
             ;
             for
             albeit
             the
             Husband
             or
             his
             Executors
             were
             lyable
             for
             the
             Relicts
             Mournings
             ,
             yet
             a
             Merchant
             that
             gives
             off
             the
             same
             to
             the
             Relict
             ,
             is
             not
             oblidged
             to
             dispute
             that
             ,
             but
             may
             take
             himself
             to
             the
             Relict
             ,
             who
             received
             the
             same
             without
             either
             Protestation
             ,
             or
             Aggreement
             ,
             not
             to
             be
             lyable
             .
             The
             Pursuer
             answered
             ,
             that
             whatever
             Favour
             might
             be
             pleaded
             for
             a
             Merchant
             Stranger
             ,
             yet
             this
             Furniture
             being
             given
             by
             the
             Defuncts
             own
             Son
             to
             his
             Relict
             ,
             could
             not
             oblidge
             her
             .
             The
             Son
             being
             the
             Fathers
             ordinar
             Merchant
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Oath
             before
             the
             Baillies
             proved
             not
             the
             lybel
             ,
             and
             that
             the
             accepting
             of
             the
             Mournings
             ,
             did
             not
             oblidge
             the
             Relict
             ,
             but
             the
             Executors
             seing
             the
             Defunct
             was
             a
             Person
             of
             their
             quality
             ,
             that
             his
             Relict
             required
             mourning
             and
             therefore
             Reduced
             .
          
        
         
           
             Galbreath
             contra
             Colquhoun
             .
             Eodem
             die
             .
          
           
             
               WAlter
               Galbreath
            
             pursues
             an
             Exhibition
             of
             all
             Writs
             made
             by
             ,
             or
             to
             his
             Predecessors
             ,
             
               ad
               deliberandum
            
             .
             The
             Lords
             restricted
             the
             lybel
             ,
             to
             Writs
             made
             to
             the
             Defunct
             ,
             or
             his
             Predecessors
             ,
             or
             by
             them
             to
             any
             Preson
             in
             their
             own
             Family
             ,
             or
             containing
             any
             Clause
             in
             their
             ●avour
             ,
             
             whereupon
             the
             Defender
             having
             Deponed
             ,
             that
             he
             had
             in
             his
             hand
             a
             Disposition
             of
             Lands
             made
             by
             the
             Pursuers
             Predecessors
             ,
             Irredeemably
             ;
             and
             that
             he
             had
             his
             Predecessors
             progress
             of
             these
             Lands
             ,
             but
             that
             he
             thought
             there
             was
             no
             Clause
             in
             any
             of
             these
             Writs
             ,
             in
             the
             Pursuer
             ,
             or
             his
             Predecessors
             Favours
             .
          
           
             The
             Lords
             having
             considered
             the
             Oath
             ,
             Ordained
             the
             Defender
             to
             produce
             the
             Disposition
             ,
             denunding
             the
             Purs●ers
             Predecessors
             ,
             and
             thought
             that
             being
             produced
             simply
             ,
             without
             condition
             of
             Reversion
             ,
             it
             liberat
             him
             from
             producing
             the
             Pursuers
             Predecessors
             Progresse
             ,
             though
             made
             in
             their
             Favours
             ;
             but
             because
             the
             Pursuer
             alleadged
             ,
             that
             in
             their
             Predecessors
             Progress
             ,
             there
             was
             a
             Clause
             
               de
               non
               alienando
            
             ,
             which
             would
             work
             in
             his
             Favour
             ,
             and
             that
             the
             Oath
             was
             not
             positive
             ,
             but
             that
             he
             thought
             .
             They
             Ordained
             the
             Defender
             to
             be
             examined
             ,
             if
             he
             had
             any
             Tailzie
             .
          
        
         
           
             Daughters
             of
             Balmirrino
             contra
             Eodem
             die
             .
          
           
             THe
             Daughters
             of
             Balmirrino
             having
             pursued
             the
             Heirs
             Male
             ,
             for
             their
             Portions
             contained
             in
             their
             Mothers
             Contract
             of
             Marriage
             ,
             and
             for
             a
             competent
             Aliment
             untill
             the
             same
             were
             payed
             .
             The
             Defender
             renunced
             to
             be
             Heir
             ,
             and
             was
             absent
             .
          
           
             The
             Lords
             advised
             the
             Contract
             ,
             by
             which
             they
             found
             the
             Portion
             payable
             at
             the
             Daughters
             age
             of
             fyfteen
             ,
             and
             Aliment
             till
             that
             time
             ,
             but
             no
             mention
             of
             Annualrent
             ,
             or
             Aliment
             thereafter
             ;
             yet
             they
             found
             that
             the
             Aliment
             behoved
             to
             be
             continued
             till
             their
             Marriage
             ,
             or
             the
             payment
             of
             their
             Tochar
             :
             They
             being
             Minors
             ,
             and
             leised
             ,
             by
             not
             pursuing
             therefore
             at
             the
             Age
             of
             fyfteen
             ,
             but
             that
             they
             could
             not
             have
             Annualrent
             ,
             seing
             the
             Contract
             bare
             none
             .
          
        
         
           
             Dame
             Elizabeth
             Fleming
             contra
             Fleming
             and
             Baird
             her
             Husband
             .
             November
             16.
             1664.
             
          
           
             IN
             an
             Accompt
             and
             Reckoning
             ,
             betwixt
             Dame
             
               Elizabeth
               Fleming
            
             ,
             and
             her
             Daughter
             ,
             and
             
               Robert
               Baird
            
             her
             Spouse
             .
             The
             Lords
             having
             considered
             the
             Contract
             of
             Marriage
             ,
             in
             which
             
               Robert
               Baird
            
             accepted
             12000
             merk
             ,
             in
             full
             satisfaction
             of
             all
             his
             Wife
             could
             claim
             ,
             by
             her
             Fathers
             decease
             ,
             or
             otherwayes
             ;
             and
             there
             being
             some
             other
             Bands
             in
             her
             Name
             ,
             her
             Mother
             craved
             ,
             that
             she
             might
             be
             decerned
             by
             the
             Lords
             ,
             to
             denude
             her Self
             and
             Assigne
             to
             her
             Mother
             ;
             seing
             she
             was
             satisfyed
             ,
             and
             she
             on
             the
             other
             part
             ,
             craved
             ,
             that
             her
             mother
             and
             Sir
             
               Iohn
               Gibson
            
             might
             be
             oblidged
             to
             warrand
             her
             ,
             that
             her
             12000
             merk
             should
             be
             free
             of
             any
             Debt
             of
             her
             Fathers
             .
             It
             was
             answered
             for
             the
             Mother
             ,
             that
             there
             was
             no
             such
             Provision
             contained
             in
             the
             Contract
             ,
             and
             the
             Lords
             in
             justice
             could
             not
             cause
             her
             to
             go
             beyond
             the
             terms
             of
             the
             Contract
             ,
             there
             was
             no
             Reason
             for
             such
             a
             warrandice
             ;
             seing
             Debts
             might
             arise
             to
             exhauste
             the
             hail
             Inventary
             .
             It
             was
             answered
             for
             the
             Daughter
             ,
             that
             there
             was
             no
             oblidgment
             in
             the
             Contract
             ,
             for
             her
             to
             assigne
             her
             Mother
             ,
             but
             if
             the
             Lords
             did
             supply
             that
             as
             consequent
             
             upon
             the
             tennor
             of
             the
             Contract
             ;
             they
             ought
             also
             to
             supply
             the
             other
             .
             It
             was
             answered
             for
             the
             Mother
             ,
             that
             there
             was
             no
             reason
             for
             her
             to
             undertake
             the
             hazard
             ,
             unless
             it
             would
             appear
             ,
             that
             there
             was
             so
             considerable
             Adiminition
             of
             her
             Daughters
             Portion
             ,
             in
             her
             favours
             ,
             as
             might
             import
             her
             taking
             of
             that
             hazard
             for
             that
             abatement
             ;
             and
             albeit
             such
             a
             warrandice
             were
             granted
             ,
             yet●
             it
             should
             only
             be
             to
             warrand
             the
             Daughter
             from
             the
             Fathers
             Debt
             ,
             in
             so
             far
             as
             might
             be
             extended
             to
             the
             superplus
             of
             the
             Daughters
             full
             portion
             ,
             above
             the
             12000
             merk
             .
          
           
             The
             Lords
             found
             ,
             that
             if
             there
             was
             an
             abatement
             in
             favours
             of
             the
             mother
             ,
             it
             behoved
             to
             import
             ,
             t●at
             she
             undertook
             the
             hazard
             of
             the
             fathers
             Debt
             ,
             not
             only
             as
             to
             the
             superplus
             ,
             but
             simply
             ;
             but
             seing
             it
             was
             known
             to
             the
             Lords
             :
             They
             gave
             the
             mother
             her
             choise
             ,
             either
             to
             compt
             to
             the
             Daughter
             for
             the
             whole
             Portion
             ,
             if
             she
             thought
             there
             was
             no
             benefit
             without
             any
             such
             Warrandice
             ,
             or
             if
             ,
             she
             took
             herself
             to
             the
             Contract
             ,
             and
             so
             acknowledged
             there
             was
             a
             benefit
             .
             They
             found
             her
             lyable
             to
             warrand
             her
             Daughter
             simpliciter
             .
          
        
         
           
             Lochs
             and
             the
             Earl
             of
             Kincairdin
             contra
             Hamiltoun
             .
             November
             18.
             1664.
             
          
           
             HAmiltoun
             and
             her
             Authors
             ,
             having
             obtained
             Decreet
             against
             Lochs
             ,
             as
             Heirs
             to
             their
             Father
             ,
             for
             a
             Sum
             of
             money
             ;
             and
             Annuals
             thereof
             ,
             after
             Compt
             and
             Reckoning
             ,
             and
             being
             thrice
             Suspended
             ,
             there
             are
             still
             Decreets
             
               in
               foro
               ,
               Lochs
            
             ,
             and
             the
             Earl
             of
             Kincardine
             now
             Suspends
             again
             ,
             and
             alleadged
             ,
             that
             in
             the
             Compt
             and
             Reckoning
             ,
             there
             were
             several
             Recepts
             of
             Annualrent
             ,
             which
             were
             not
             at
             that
             time
             in
             Lochs
             hands
             ,
             but
             in
             the
             Earl
             of
             Kincardines
             ,
             whose
             Father
             was
             Co
             principal
             bound
             conjunctly
             and
             severally
             with
             Lochs
             Father
             .
             The
             Charger
             opponed
             her
             Decreets
             
               in
               foro
            
             ,
             and
             alleadged
             ,
             that
             Kincairdin
             had
             no
             interest
             ,
             for
             neither
             could
             the
             Letters
             be
             found
             Orderly
             Proceeded
             ,
             nor
             yet
             Suspended
             against
             him
             ;
             and
             whereas
             it
             was
             alleadged
             ,
             that
             the
             Clause
             of
             mutual
             Relief
             ,
             would
             force
             him
             to
             Relieve
             the
             
               Lochs
               prorata
            
             ,
             he
             had
             a
             good
             Defense
             ,
             that
             they
             had
             not
             intimat
             to
             him
             the
             Plea
             ,
             and
             thereby
             had
             Prejudged
             themselves
             ,
             of
             the
             Defense
             upon
             the
             Ticket
             in
             his
             hands
             .
             The
             Suspenders
             answered
             ,
             they
             were
             Minors
             ,
             and
             that
             Kincardin
             having
             a
             clear
             Interest
             ,
             might
             choise
             whether
             to
             Defend
             them
             ,
             or
             Defend
             himself
             against
             them
             .
          
           
             The
             Lords
             reponed
             them
             to
             the
             Tickets
             now
             gotten
             out
             of
             my
             Lord
             Kincairdins
             hands
             ,
             but
             declared
             there
             should
             be
             expense
             granted
             against
             them
             ,
             for
             all
             the
             Decreets
             to
             which
             the
             Chargers
             were
             put
             .
          
        
         
           
             Thomas
             Guthrie
             contra
             Sornbeg
             .
             Eodem
             die
             .
          
           
             GVthrie
             pursues
             Sornbeg
             ,
             alleadging
             ,
             that
             their
             being
             a
             first
             Wodset
             of
             the
             Lands
             of
             Thriplandhill
             ,
             and
             certain
             Tenements
             in
             Edinburgh
             ,
             to
             
               Alexander
               Veatch
            
             ,
             or
             his
             Authors
             ;
             and
             a
             second
             Wodset
             of
             the
             Lands
             of
             Thriplandhill
             granted
             to
             the
             Pursuers
             Father
             ,
             and
             by
             a
             posterior
             Contract
             .
          
           
           
             The
             Pursuers
             Fathers
             Wodset
             was
             Confirmed
             ,
             and
             a
             certain
             Sum
             added
             thereto
             ,
             and
             for
             both
             ,
             some
             Tenements
             in
             Edinburgh
             ,
             were
             disponed
             with
             this
             provision
             ;
             that
             Guthrie
             should
             possess
             thereby
             ,
             and
             should
             be
             comptable
             for
             what
             was
             more
             then
             his
             Annualrent
             ,
             and
             Sornbeg
             having
             redeemed
             the
             first
             Wodset
             ,
             and
             taking
             a
             Renunciation
             thereof
             ,
             and
             having
             Right
             to
             the
             Reversion
             of
             the
             whole
             ,
             entered
             to
             the
             Possession
             of
             the
             Tenements
             in
             the
             Town
             :
             whereupon
             Guthrie
             craves
             ,
             that
             Sornbeg
             may
             compt
             and
             reckon
             for
             the
             Mails
             and
             Duties
             uplifted
             by
             him
             ,
             and
             possess
             him
             in
             time
             coming
             ,
             to
             the
             hail
             Mails
             and
             Duties
             ,
             aye
             and
             while
             he
             be
             payed
             of
             his
             Principal
             Sum
             ,
             and
             Annualrents
             ,
             or
             satisfied
             by
             Intromission
             .
             The
             Defender
             alleadged
             ,
             First
             ,
             That
             he
             having
             the
             Right
             of
             Reverson
             ,
             though
             posterior
             ,
             yet
             having
             ,
             first
             Redeemed
             ,
             and
             made
             use
             thereof
             ,
             his
             Right
             of
             Reversion
             by
             his
             Disposition
             ,
             being
             in
             effect
             an
             Assignation
             to
             the
             Reversion
             :
             and
             Guthries
             second
             Wodset
             being
             a
             prior
             Assignation
             to
             the
             Reversion
             .
             The
             second
             Assignation
             with
             the
             first
             Diligence
             ,
             or
             Intimation
             must
             prefer
             the
             Defender
             .
          
           
             This
             the
             Lords
             repelled
             ,
             and
             found
             no
             necessity
             of
             an
             Intimation
             ,
             or
             Diligence
             to
             consumat
             Guthries
             Right
             to
             the
             Reversion
             of
             the
             first
             Wodset
             ,
             seing
             Guthrie
             was
             Infeft
             by
             his
             second
             Infeftment
             ,
             which
             was
             equivalent
             to
             the
             Registrating
             of
             a
             Formall
             Assignation
             to
             the
             Reversion
             .
          
           
             2dly
             .
             The
             Defender
             alleadged
             ,
             that
             being
             Singular
             Successor
             ;
             and
             having
             Redeemed
             the
             first
             Wodset
             :
             which
             is
             now
             extinct
             ,
             he
             possesses
             by
             an
             irredeemable
             Right
             ,
             and
             so
             must
             have
             the
             benefit
             of
             a
             Possessory
             Judgement
             .
          
           
             The
             Lords
             repelled
             this
             Defense
             ,
             seing
             seven
             years
             Possession
             was
             not
             alleadged
             .
          
           
             3dly
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             from
             the
             bygone
             Mails
             and
             Duties
             ,
             before
             intenting
             of
             this
             Cause
             ,
             because
             ,
             albeit
             he
             had
             not
             possessed
             so
             long
             ,
             as
             to
             attain
             the
             benefit
             of
             a
             Possessory
             Judgement
             ,
             which
             would
             defend
             him
             ,
             not
             only
             for
             bygones
             ,
             but
             in
             time
             coming
             ;
             till
             his
             Right
             were
             Reduced
             ,
             yet
             before
             Citation
             ,
             he
             was
             
               bona
               fide
            
             possessor
             ,
             
               &
               fecit
               fructus
               consumptos
               suos
            
             ,
             which
             the
             Lords
             found
             relevant
             .
             4ly
             .
             The
             Defender
             alleadged
             ,
             that
             by
             the
             Pursuers
             Contract
             ,
             he
             was
             to
             be
             comptable
             for
             the
             superplus
             of
             the
             Mails
             and
             Duties
             of
             the
             Lands
             ,
             more
             then
             payed
             his
             Annualrent
             ,
             and
             now
             the
             Defender
             coming
             in
             place
             of
             the
             Heretor
             ,
             the
             Pursuer
             is
             comptable
             to
             him
             for
             the
             superplus
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             he
             was
             comptable
             ,
             he
             might
             detain
             those
             Annualrents
             ,
             and
             impute
             them
             in
             his
             Principal
             Sum.
             
          
           
             The
             Lords
             having
             considered
             the
             Contract
             ,
             found
             the
             Pursuer
             ought
             to
             be
             Re-possessed
             ,
             but
             that
             he
             could
             not
             detain
             the
             superplus
             ,
             but
             that
             he
             behoved
             to
             be
             comptable
             yearly
             to
             the
             Defender
             conform
             to
             the
             Contracte
             .
          
        
         
           
             Margaret
             Mcgil
             contra
             Ruthven
             of
             Gairn
             .
             November
             22.
             1664.
             
          
           
             
               MArgaret
               Mcgil
            
             pursues
             a
             Reduction
             of
             her
             first
             Contract
             of
             Marriage
             with
             Umquhil
             
               Patrick
               Ruthven
            
             younger
             of
             Gairn
             ,
             upon
             two
             Reasons
             ,
             First
             ,
             because
             it
             was
             
               post
               nuptias
            
             ,
             and
             so
             
               donatio
               inter
               virum
               &
               uxorem
               stante
               matrimonio
               revocabilis
               .
               2dly
               .
            
             Because
             she
             was
             Minor
             ,
             and
             enorlie
             
             leised
             ,
             in
             so
             far
             as
             she
             disponed
             to
             her
             Husband
             ,
             and
             the
             Heirs
             of
             the
             Marriage
             ;
             which
             failling
             ,
             to
             his
             Heirs
             8000
             lib.
             of
             money
             ,
             and
             above
             ;
             and
             the
             half
             of
             some
             Tenements
             in
             Edinburgh
             ,
             worthie
             1100
             lib.
             yearly
             in
             leiu
             whereof
             ,
             her
             Liferent
             was
             only
             of
             8.
             or
             10.
             
             Chalders
             of
             Victual
             ,
             and
             of
             her
             own
             Tenements
             ;
             but
             she
             did
             not
             ●etain
             to
             her self
             the
             Liferent
             of
             the
             Money
             ,
             or
             any
             Part
             of
             the
             Stock
             ,
             whereby
             she
             is
             leised
             in
             that
             ,
             if
             the
             Heirs
             of
             the
             Marriage
             fail
             the
             Money
             ,
             and
             the
             Lands
             goes
             to
             the
             Heirs
             of
             the
             Husband
             ,
             and
             returnes
             not
             to
             hers
             ,
             and
             that
             her
             Provision
             being
             worth
             20000
             lib.
             she
             ought
             ,
             at
             least
             to
             have
             had
             the
             double
             of
             the
             Annualrent
             thereof
             in
             joynter
             .
             The
             Defender
             answered
             to
             the
             first
             Reason
             ,
             that
             it
             was
             no
             way
             relevant
             ,
             seing
             this
             was
             expresly
             a
             Contract
             of
             Marriage
             ,
             although
             after
             the
             Marriage
             there
             being
             no
             Contract
             before
             it
             is
             alike
             ,
             as
             if
             it
             had
             been
             before
             the
             Marriage
             ;
             and
             to
             the
             second
             Reason
             is
             not
             relevant
             ,
             unless
             it
             were
             
               enorme
               lefion
            
             ;
             for
             there
             being
             no
             Portion
             ,
             or
             rule
             in
             Tochars
             and
             Joynters
             ,
             but
             that
             some
             get
             a
             Joynter
             equivalent
             to
             the
             Aunualrent
             of
             their
             Tochar
             ,
             some
             half
             as
             much
             more
             ,
             some
             double
             ,
             and
             it
             being
             ordinar
             ,
             that
             Tochars
             are
             provided
             to
             the
             Heirs
             of
             the
             Marriage
             ,
             which
             failling
             ,
             to
             the
             Mans
             Heirs
             ,
             here
             was
             no
             
               enorme
               lesion
            
             ,
             or
             any
             thing
             extraordinar
             ,
             although
             there
             were
             an
             equality
             .
             The
             Pursuer
             being
             a
             Burgess
             Daughter
             ,
             and
             her
             Husband
             a
             Gentleman
             of
             an
             ancient
             Family
             ,
             Quality
             should
             be
             compensed
             with
             Means
             .
             3dly
             .
             The
             Pursuer
             ,
             since
             she
             was
             Major
             had
             Homologat
             the
             Contract
             ,
             by
             setting
             her
             Joynter
             Lands
             ,
             and
             lifting
             the
             Rent
             thereof
             .
          
           
             The
             Lords
             having
             ,
             before
             answer
             ,
             heard
             Probation
             of
             the
             Provision
             ,
             and
             of
             the
             Joynture
             ,
             and
             having
             at
             length
             considered
             the
             whole
             Cause
             .
             They
             first
             Repelled
             the
             Defense
             of
             Homologation
             ,
             because
             the
             Pursuer
             was
             not
             quarrelling
             what
             she
             got
             ,
             but
             what
             she
             gave
             ;
             and
             therefore
             requiring
             Rectification
             to
             have
             more
             .
             They
             also
             sustained
             not
             the
             first
             Reason
             of
             Reduction
             ,
             and
             found
             the
             Contract
             not
             to
             be
             a
             Donation
             betwixt
             Man
             and
             Wife
             :
             and
             they
             found
             the
             second
             Reason
             of
             Reduction
             Relevant
             ,
             in
             so
             far
             as
             extended
             to
             an
             
               enorme
               lesion
            
             beyond
             the
             latitude
             of
             Contracts
             of
             Marriage
             amongst
             such
             Persons
             ,
             and
             therefore
             found
             it
             not
             Relevant
             ,
             to
             reduce
             the
             Fee
             of
             the
             Wifs
             Provision
             ,
             but
             found
             it
             Relevant
             to
             add
             to
             her
             a
             further
             Conjunct-fee
             ;
             and
             therefore
             Rectified
             the
             Contract
             ,
             in
             so
             far
             as
             she
             had
             Assigned
             her
             Sums
             of
             Money
             ,
             without
             reserving
             her
             own
             Liferent
             thereof
             :
             and
             found
             ,
             that
             seing
             the
             Fee
             returned
             not
             to
             her
             ,
             she
             should
             have
             the
             Liferent
             of
             her
             own
             Portion
             ,
             and
             her
             Provision
             out
             of
             her
             Husbands
             Estate
             ,
             which
             is
             Eight
             or
             Ten
             Chalder
             of
             Victual
             further
             .
          
        
         
           
             Malcome
             Scot
             contra
             Laird
             of
             Bearfoord
             .
             November
             23.
             1664.
             
          
           
             BEarsoord
             having
             borrowed
             4000
             merk
             from
             
               Malcome
               Scot
            
             in
             Anno
             1652.
             
             By
             his
             Contract
             ,
             he
             is
             oblidged
             to
             pay
             the
             Annualrent
             thereof
             ,
             and
             the
             Sum
             at
             certain
             Terms
             ,
             which
             Contract
             bears
             ,
             That
             for
             Malcoms
             better
             Security
             
             Bairford
             sets
             to
             him
             certain
             Aikers
             of
             Land
             ,
             for
             53.
             
             Bolls
             of
             Victual
             yearly
             ,
             at
             Malcolms
             option
             ,
             either
             to
             pay
             the
             Bolls
             ,
             or
             to
             pay
             twenty
             shilling
             less
             then
             the
             Candlemess
             Fiers
             .
             Bairford
             alleadged
             ,
             that
             Malcolm
             ought
             to
             compt
             for
             the
             full
             Fiars
             ,
             and
             that
             the
             Diminution
             of
             twenty
             shilling
             ,
             was
             Usurary
             ,
             given
             Malcolm
             more
             then
             his
             Annualrents
             ,
             indirectly
             by
             that
             abatement
             ;
             and
             therefore
             both
             by
             Common
             Law
             ,
             and
             specially
             by
             the
             late
             Act
             of
             Parliament
             ,
             betwixt
             Debitor
             and
             Creditor
             ,
             that
             Addition
             was
             void
             .
             It
             was
             answered
             ,
             that
             there
             was
             here
             no
             Usurary
             Paction
             ;
             But
             it
             was
             free
             to
             
               Malcolm
               Scot
            
             ,
             to
             take
             the
             Lands
             by
             his
             Tack●
             for
             what
             Terms
             he
             pleased
             ,
             and
             he
             might
             have
             taken
             it
             for
             half
             as
             many
             Bolls
             ,
             or
             at
             four
             merks
             the
             Boll
             ,
             for
             each
             Boll
             which
             would
             have
             been
             valid
             .
             2ly
             .
             The
             Case
             of
             the
             Act
             of
             Parliament
             meets
             not
             ,
             because
             that
             is
             only
             in
             Wodsets
             ;
             here
             there
             is
             neither
             Infeftment
             nor
             Wodset
             ,
             but
             a
             Personal
             Obliegement
             ,
             and
             a
             Tack
             .
          
           
             3ly
             .
             There
             is
             a
             just
             reason
             to
             abate
             so
             much
             of
             the
             Boll
             ,
             because
             the
             Tennent
             behoved
             to
             be
             at
             the
             Expense
             of
             the
             Selling
             thereof
             ,
             and
             at
             the
             hazard
             of
             these
             that
             bought
             ,
             if
             they
             failed
             in
             payment
             .
          
           
             The
             Lords
             Sustained
             the
             Tack
             ,
             without
             Annulling
             the
             Abatement
             ,
             and
             found
             it
             not
             Vsurary
             .
          
        
         
           
             Halyburtoun
             contra
             Porteous
             .
             Eodem
             die
             .
          
           
             HAlyburtoun
             having
             Married
             a
             Widow
             in
             the
             Potter-raw
             ,
             there
             was
             no
             Contract
             of
             Marriage
             betwixt
             them
             ,
             but
             he
             gave
             her
             first
             an
             Infeftment
             in
             all
             the
             Lands
             he
             had
             ,
             the
             time
             of
             the
             Infeftment
             ,
             and
             thereafter
             he
             gave
             her
             a
             second
             Obliegment
             ,
             providing
             certain
             Lands
             to
             him
             and
             her
             ,
             and
             the
             Heirs
             betwixt
             them
             ,
             which
             ●ailzing
             ,
             to
             devide
             betwixt
             their
             Heirs
             :
             Her
             Heirs
             pursuing
             to
             fulfill
             this
             Obliegment
             .
             Halyburtoun
             alleadged
             it
             was
             
               donatio
               inter
               virum
               &
               uxorem
            
             ,
             and
             now
             he
             Revocked
             .
          
           
             Which
             the
             Lords
             formerly
             found
             Relevant
             ,
             unless
             the
             Pursuer
             condescended
             ,
             that
             this
             Infeftment
             was
             Remuneratory
             ,
             for
             a
             proportionable
             Provision
             ,
             brought
             by
             the
             Wife
             ,
             and
             after
             condescendence
             ,
             having
             considered
             what
             the
             Wife
             brought
             ,
             and
             what
             of
             it
             was
             before
             the
             first
             Infeftment
             ,
             and
             what
             interveened
             betwixt
             the
             first
             and
             the
             second
             ;
             Albeit
             whatever
             fell
             unto
             the
             Wife
             ,
             was
             moveable
             ,
             and
             would
             have
             belonged
             to
             the
             Husband
             ,
             
               jure
               mariti
            
             ;
             Yet
             if
             it
             had
             been
             of
             that
             value
             ,
             to
             have
             Served
             both
             the
             first
             and
             second
             Provision
             .
          
           
             They
             would
             have
             Sustained
             both
             ,
             as
             Remuneratory
             in
             gratitude
             to
             the
             Wife
             ;
             but
             they
             found
             no
             such
             thing
             condescended
             on
             ,
             or
             Instructed
             ,
             and
             therefore
             they
             Reduced
             the
             second
             Provision
             .
          
        
         
           
           
             Collin
             Hay
             contra
             Magistrates
             of
             Elgin
             .
             Eodem
             die
             .
          
           
             
               COllin
               Hay
            
             pursues
             the
             Magistrates
             of
             Elgin
             ,
             for
             the
             Debt
             of
             a
             Rebel
             ,
             Escaping
             out
             of
             their
             Prison
             .
             They
             Alleadged
             Absolvitor
             ;
             First
             ,
             Because
             it
             was
             in
             the
             time
             of
             Richard
             the
             Usurper
             .
             2ly
             .
             The
             Rebel
             Escaped
             ,
             by
             breaking
             through
             the
             Roof
             of
             the
             Prison
             ,
             and
             they
             searched
             for
             him
             immediatly
             after
             .
          
           
             The
             Lords
             Repelled
             both
             Defenses
             ,
             seing
             the
             Escape
             was
             in
             day
             light
             ,
             during
             which
             the
             Towns
             Officer
             should
             Guard
             the
             Prison
             .
          
        
         
           
             Elizabeth
             Nisbet
             Lady
             contra
             Murray
             .
             Eodem
             die
             .
          
           
             
               ELizabeth
               Nisbit
            
             pursues
             a
             Poinding
             of
             the
             Ground
             ,
             of
             certain
             Lands
             wherein
             she
             was
             Infeft
             ,
             by
             
               Iames
               Wood
            
             her
             Husband
             .
             Compearance
             is
             made
             for
             
               Patrick
               Murray
            
             ,
             who
             alleadged
             that
             he
             is
             Infeft
             by
             her
             Husband
             ,
             his
             Debitor
             in
             the
             same
             Lands
             ,
             and
             ought
             to
             be
             preferred
             .
             It
             is
             answered
             for
             the
             Lady
             ,
             that
             she
             ought
             to
             be
             preferred
             ,
             because
             both
             their
             Annualrents
             being
             base
             ;
             albeit
             her
             Infeftment
             be
             posterior
             ;
             Yet
             her
             Husbands
             Possession
             being
             her
             Possession
             ,
             and
             she
             being
             Infeft
             before
             Patrick
             Murray's
             Infeftment
             was
             cled
             with
             Possession
             ,
             must
             be
             preferred
             .
             It
             was
             answered
             for
             
               Patrick
               Murray
            
             ;
             First
             ,
             That
             a
             Husbands
             Possession
             should
             be
             the
             Wifes
             Possession
             ,
             cannot
             be
             understood
             in
             an
             Annualrent
             ,
             because
             her
             Husband
             never
             Possessed
             an
             Annualrent
             ,
             but
             the
             Property
             .
          
           
             This
             the
             Lords
             Repelled
             ,
             and
             found
             the
             Possession
             of
             the
             Property
             ,
             as
             
               jus
               nobilius
            
             ,
             to
             contain
             the
             Annualrents
             eminenter
             .
          
           
             
               2ly
               .
               Patrick
               Murray
            
             alleadged
             that
             the
             Husbands
             Possession
             being
             the
             Wifes
             ,
             is
             only
             introduced
             in
             favours
             of
             Contracts
             of
             Marriage
             ,
             
               favore
               dotis
            
             ;
             That
             because
             Wives
             cannot
             Possess
             ,
             during
             their
             Husbands
             life
             ;
             therefore
             his
             Possession
             is
             accomp●ed
             theirs
             .
             But
             this
             Infeftment
             in
             question
             is
             not
             founded
             upon
             the
             Contract
             of
             Marriage
             ,
             but
             upon
             a
             posterior
             Charter
             ,
             of
             a
             different
             Tenor.
             
               3ly
               .
               Patrick
               Murray
            
             used
             citation
             before
             C●nd●esmess
             ,
             next
             after
             the
             Ladys
             Infeftment
             ,
             and
             thereupon
             obtained
             Decreet
             in
             March
             ,
             which
             must
             be
             drawn
             back
             to
             the
             Citation
             .
             So
             that
             the
             Husband
             could
             have
             no
             Possession
             betwixt
             the
             Ladys
             Charter
             ,
             and
             his
             Diligence
             ,
             there
             being
             no
             interveening
             Term.
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             this
             Priviledge
             is
             allowed
             to
             Wifes
             ,
             that
             their
             Husbands
             Possession
             is
             theirs
             during
             their
             Marriage
             ,
             
               favore
               datis
            
             ,
             which
             may
             be
             without
             a
             Contract
             .
          
           
           
             2ly
             .
             The
             Husband
             being
             in
             present
             current
             Possession
             ,
             from
             the
             very
             Date
             of
             the
             Wifes
             Seasine
             ,
             his
             Possession
             is
             sufficient
             to
             validate
             hers
             .
          
           
             The
             Lords
             found
             the
             Ladyes
             Infeftment
             to
             be
             first
             validat
             by
             Possession
             .
          
           
             It
             was
             further
             alleadged
             by
             
               Patrick
               Murray●
            
             that
             this
             Infeftment
             was
             
               donatio
               inter
               virum
               &
               uxorem
            
             ,
             not
             being
             founded
             on
             the
             Contract
             of
             Marriage
             ,
             which
             was
             satisfied
             before
             ,
             at
             least
             it
             is
             to
             the
             prejudice
             of
             him
             a
             lawful
             Creditor
             ,
             who
             was
             Infeft
             before
             the
             Lady
             ;
             and
             therefore
             seeing
             the
             Ladys
             Infeftment
             is
             so
             free
             and
             lucrative
             ,
             both
             parties
             being
             now
             Disputing
             the
             Possession
             and
             power
             therein
             .
             The
             Ladys
             Infeftment
             cannot
             prejudge
             him
             .
             That
             the
             Contract
             of
             Marriage
             was
             satisfied
             ;
             he
             condescends
             thus
             ,
             that
             the
             Husband
             was
             oblieged
             to
             Infeft
             his
             Wife
             in
             certain
             Lands
             ,
             and
             to
             make
             them
             worth
             18.
             
             Chalders
             of
             Victual
             ,
             or
             otherwise
             at
             her
             option
             ,
             to
             Infeft
             her
             in
             an
             Annualrent
             ,
             
               ita
               est
            
             ,
             she
             made
             her
             option
             ,
             and
             was
             Infeft
             in
             the
             Property
             ,
             after
             which
             she
             cannot
             return
             to
             this
             Annualrent
             in
             question
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             the
             Clause
             being
             conceived
             in
             her
             option
             ,
             must
             be
             Interpret
             her
             option
             not
             to
             receive
             the
             Infeftment
             ,
             but
             to
             enjoy
             either
             of
             the
             two
             she
             pleased
             .
             First
             ,
             A
             Seasine
             cannot
             import
             her
             choise
             ,
             which
             might
             have
             been
             given
             by
             her
             Husband
             ,
             without
             her
             knowledge
             upon
             the
             Preccept
             ,
             contained
             in
             the
             Contract
             of
             Marriage
             ,
             unless
             it
             were
             instructed
             ,
             that
             she
             did
             accept
             the
             same
             by
             a
             Seasine
             ,
             
               propriis
               manibus
            
             ,
             or
             otherwise
             ;
             and
             that
             her
             Infeftment
             ,
             was
             a
             valid
             effectual
             Infeftment
             .
             3ly
             .
             Albeit
             that
             Article
             of
             the
             Contract
             of
             Marriage
             ,
             were
             satisfied
             by
             taking
             her
             choise
             ;
             yet
             she
             being
             thereafter
             Infeft
             upon
             her
             Charter
             produced
             ,
             in
             her
             Liferent
             Lands
             ,
             and
             in
             the
             Annualrent
             in
             Warrandice
             thereof
             ,
             or
             with
             power
             to
             her
             to
             make
             use
             of
             the
             Annualrent
             it self
             ,
             principaliter
             ,
             at
             her
             option
             ,
             albeit
             her
             choice
             once
             made
             ,
             will
             exclude
             her
             from
             the
             annualrent
             ,
             principaliter
             ;
             yet
             not
             in
             so
             far
             as
             she
             is
             Infeft
             therein
             ,
             to
             warrand
             and
             make
             up
             the
             principal
             Lands
             ,
             which
             can
             be
             accounted
             no
             Donation
             nor
             Deed
             ,
             in
             prejudice
             of
             a
             Creditor
             ,
             because
             it
             doth
             but
             make
             real
             and
             effectual
             the
             personal
             obliegement
             of
             warrandice●
             contained
             in
             the
             Contract
             .
             It
             was
             answered
             for
             
               Patrick
               Murray
            
             ,
             that
             this
             alleadgance
             
               non
               competent
               hoc
               loco
            
             ,
             but
             he
             must
             only
             poind
             the
             Ground
             ,
             until
             the
             Lady
             obtain
             a
             Declarator
             ,
             of
             what
             is
             defective
             of
             her
             Liserent
             Lands
             ,
             but
             cannot
             come
             in
             by
             way
             of
             Reply
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Ladys
             acceptance
             of
             the
             Liferent
             Infeftment
             ,
             satisfied
             the
             obliegement
             in
             the
             Contract
             of
             Marriage
             ,
             and
             did
             not
             sustain
             the
             posterior
             Charter
             ,
             to
             give
             her
             any
             further
             choice
             ;
             but
             sustained
             the
             Right
             of
             annualrent
             constitute
             therein
             ,
             in
             warrandice
             of
             the
             Liferent
             Lands
             
               hoc
               loco
            
             ,
             and
             ordained
             the
             Lady
             to
             condescend
             upon
             the
             several
             Rooms
             ,
             what
             they
             payed
             ,
             and
             what
             was
             wanting
             ,
             that
             she
             might
             be
             preferred
             in
             the
             first
             place
             ,
             and
             
               Patrick
               Murray
            
             in
             the
             second
             place
             .
          
        
         
           
           
             Alexander
             Livingstoun
             and
             Schaw
             of
             Scrnbeg
             contra
             Lord
             Forrester
             and
             Creditors
             of
             Grange
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Livingstoun
            
             ,
             as
             Assigney
             by
             Mistriss
             
               Margaret
               Forrester
            
             and
             Sornbeg
             her
             Husband
             ,
             to
             some
             Debts
             owing
             to
             her
             by
             her
             Father
             .
             The
             umquhil
             Lord
             Forrester
             having
             Charged
             the
             remnant
             Daughters
             ,
             and
             Heirs
             of
             Line
             ,
             craves
             Adjudication
             of
             the
             Estate
             of
             Forrester
             and
             Barony
             of
             Grange
             ,
             wherein
             the
             Lord
             Forrester
             Died
             Infeft
             .
             Compearance
             is
             made
             for
             a
             Creditor
             of
             Grange
             ,
             who
             produces
             a
             Back
             Bond
             ,
             granted
             by
             the
             Lord
             Forrester
             to
             the
             Laird
             of
             Grange
             ,
             bearing
             ,
             that
             the
             Infeftment
             was
             in
             trust
             to
             the
             use
             and
             behove
             of
             the
             Laird
             of
             Grange
             ,
             and
             only
             to
             the
             Lord
             Forresters
             behove
             for
             Relief
             of
             Debts
             he
             should
             be
             ingaged
             in
             for
             Grange●
             and
             alleadged
             that
             he
             being
             Granges
             Creditor
             ;
             and
             now
             insisting
             against
             Grange
             ,
             who
             has
             renunced
             to
             be
             Heir
             for
             Adjudging
             of
             the
             Estate
             of
             Grange
             ;
             for
             Granges
             own
             Debt
             he
             has
             good
             Interest
             in
             this
             Process
             ,
             to
             alleadge
             no
             Adjudication
             of
             Grange
             Estate
             ,
             because
             it
             is
             only
             in
             Trust
             ,
             except
             in
             so
             far
             as
             may
             be
             extended
             to
             my
             Lord
             Forresters
             Relief
             :
             and
             if
             the
             Pursuer
             condescend
             upon
             any
             Distress
             or
             Ingagement
             ,
             he
             will
             instantly
             relieve
             the
             same
             .
             The
             Pursuer
             answered
             ,
             that
             he
             being
             now
             in
             an
             anterior
             Diligence
             to
             this
             Party
             ,
             ought
             not
             to
             be
             stopped
             in
             his
             Diligence
             ,
             but
             must
             be
             admitted
             to
             Adjudge
             from
             the
             Lord
             Forresters
             Heirs
             ,
             whatever
             was
             in
             his
             Person
             .
             And
             the
             other
             Party
             may
             also
             proceed
             according
             to
             his
             Diligence
             ,
             to
             Adjudge
             the
             Back
             Bond
             ,
             and
             when
             he
             pursues
             thereupon
             ,
             he
             shall
             have
             an
             answer
             .
             2ly
             .
             There
             is
             no
             reason
             to
             stop
             the
             Adjudication
             ,
             and
             to
             force
             the
             Pursuer
             to
             condescend
             upon
             my
             Lord
             Forresters●
             Debts
             or
             Interest
             ,
             because
             a
             Creditor
             cannot
             possibly
             know
             them
             ;
             and
             therefore
             Adjudications
             are
             always
             granted
             ,
             generally
             of
             all
             Right
             the
             Debitor
             had
             ,
             and
             is
             the
             only
             ground
             upon
             which
             the
             Adjudger
             can
             pursue
             the
             havers
             of
             the
             Debitors
             Rights
             ,
             to
             Exhibit
             and
             Deliver
             them
             ,
             and
             thereupon
             to
             found
             Processes
             and
             Condescendences
             ,
             but
             cannot
             be
             urged
             to
             condescend
             before
             he
             obtain
             Adjdication
             ;
             and
             also
             insinuat
             that
             he
             would
             take
             his
             Adjudication
             ,
             with
             the
             burden
             of
             the
             Back
             Bond
             :
             But
             some
             of
             his
             Advocats
             resiled
             therefrom
             .
          
           
             The
             Lords
             having
             considered
             the
             Case
             amongst
             themselves
             ,
             how
             dangerous
             it
             were
             ,
             if
             the
             Creditors
             ,
             or
             Persons
             intrusted
             ,
             obtaining
             Infeftment
             of
             an
             intrusted
             Estate
             ;
             the
             Back
             Bond
             of
             Trust
             being
             personal
             ,
             would
             not
             exclude
             them
             :
             and
             albeit
             the
             Person
             intrusted
             were
             not
             solvendo
             ,
             as
             in
             this
             Case
             the
             Intrusted
             Estate
             ,
             as
             to
             the
             Heirs
             and
             Creditors
             ,
             would
             be
             inavoidablie
             lost
             .
          
           
             And
             some
             being
             of
             opinion
             ,
             that
             a
             Personal
             Exception
             upon
             a
             Back
             Bond
             ,
             could
             not
             be
             competent
             to
             burden
             ,
             or
             qualifie
             a
             real
             Right
             ,
             or
             an
             Action
             for
             obtaining
             thereof
             :
             But
             the
             most
             part
             were
             of
             opinion
             ,
             that
             albeit
             the
             Right
             ,
             if
             it
             were
             compleat
             ,
             would
             be
             real
             ;
             yet
             this
             Action
             for
             obtaining
             thereof
             ,
             is
             but
             Personal
             ;
             for
             real
             Actions
             are
             such
             only
             which
             proceed
             upon
             real
             Rights
             ,
             and
             against
             the
             Ground
             ,
             such
             as
             upon
             Annualrents
             ;
             and
             therefore
             this
             being
             a
             Personal
             Action
             ,
             might
             be
             excluded
             ,
             or
             qualified
             by
             a
             Personal
             Exception
             upon
             the
             Back
             Bond.
             
          
           
           
             And
             therefore
             they
             Adjudged
             ,
             with
             the
             Burden
             of
             the
             Back
             Bond.
             
          
        
         
           
             Earl
             of
             Sutherland
             contra
             Hugh
             Gordoun
             .
             December
             1.
             1664.
             
          
           
             THe
             Earl
             of
             Sutherland
             pursues
             a
             Declarator
             against
             
               Hugh
               Gordoun
            
             his
             Vassal
             ,
             that
             his
             Right
             being
             holden
             Feu
             ,
             two
             terms
             has
             run
             into
             the
             third
             ,
             and
             thereby
             the
             Right
             is
             extinct
             ,
             not
             only
             by
             the
             Act
             of
             Parliament
             ,
             but
             by
             a
             particular
             Clause
             in
             the
             Defenders
             Infeftment
             ,
             at
             least
             in
             the
             Disposition
             ,
             whereupon
             his
             Charter
             and
             Seasine
             proceeds
             .
             There
             is
             also
             called
             an
             Apprizer
             ,
             who
             alleadged
             ,
             that
             he
             being
             a
             singular
             Successor
             and
             a
             stranger
             to
             his
             Authors
             Rights
             ,
             during
             the
             Legal
             unexpyred
             ,
             is
             not
             oblieged
             to
             possess
             ,
             and
             cannot
             omit
             his
             Right
             by
             his
             Authors
             fault
             ,
             or
             by
             his
             own
             Ignorance
             .
          
           
             The
             Lords
             having
             considered
             this
             Case
             ,
             and
             reasoning
             amongst
             themselves
             ,
             upon
             the
             difference
             of
             a
             Clause
             Irritant
             ,
             in
             an
             Infeftment
             Feu
             ,
             and
             the
             benefit
             of
             the
             Act
             of
             Parliament
             ,
             they
             found
             that
             if
             the
             Pursuer
             insisted
             upon
             the
             Act
             of
             Parliament
             ,
             the
             Defender
             might
             purge
             the
             Failzie
             by
             payment
             at
             the
             Bar
             ,
             but
             if
             he
             insisted
             upon
             the
             Clause
             in
             the
             Infeftment
             ,
             it
             behoved
             to
             be
             considered
             ,
             whether
             that
             Clause
             was
             in
             the
             real
             Right
             ,
             by
             the
             Charter
             and
             Seasine
             ,
             either
             specially
             or
             generally
             ,
             under
             the
             provisions
             contained
             in
             the
             Disposition
             :
             Or
             if
             it
             was
             only
             in
             the
             Disposition
             .
          
           
             In
             which
             case
             ,
             though
             it
             might
             operat
             against
             the
             Vassal
             ,
             or
             his
             Heirs
             ,
             yet
             not
             against
             the
             Appryzer
             ,
             unless
             the
             Seasine
             had
             been
             immediatly
             upon
             the
             Disposition
             .
             In
             which
             case
             the
             Disposition
             serves
             for
             a
             Charter
             .
          
           
             And
             therefore
             ordained
             the
             Pursuer
             to
             condescend
             ,
             and
             it
             is
             like
             ,
             that
             in
             favours
             of
             the
             Appryzer
             ,
             being
             a
             stranger
             ,
             they
             would
             suffer
             him
             to
             purge
             at
             the
             Bar
             ,
             utcunque
             in
             this
             Cause
             ,
             it
             was
             not
             found
             necessar
             to
             cite
             all
             Parties
             at
             the
             Mereat
             Cross
             ,
             albeit
             the
             Letters
             bear
             so
             .
          
        
         
           
             Veatch
             contra
             Paterson
             .
             December
             2.
             1664.
             
          
           
             PAterson
             having
             set
             some
             Lands
             to
             Veatch
             in
             Anno
             1645.
             
             The
             Tack
             contained
             a
             Clause
             ,
             that
             the
             Tennents
             should
             be
             relieved
             of
             all
             publick
             Burdens
             ;
             and
             having
             left
             the
             Land
             in
             1653.
             two
             or
             three
             years
             thereafter
             ,
             he
             raised
             a
             Pursuit
             against
             Paterson
             the
             Heretor
             ,
             for
             payment
             to
             him
             of
             all
             the
             publick
             Burdens
             he
             had
             payed
             out
             ,
             and
             renews
             the
             same
             Pursuit
             ,
             and
             produces
             the
             Receipts
             of
             the
             publick
             Burdens
             ,
             and
             alleadges
             that
             there
             was
             a
             Penalty
             in
             the
             Tack
             of
             an
             hundred
             pound
             ,
             that
             he
             should
             Possesse
             Veatch
             ,
             at
             the
             Entry
             of
             the
             Tack
             ,
             wherein
             he
             failzied
             .
          
           
           
             The
             Defender
             alleadged
             ,
             that
             it
             must
             be
             presumed
             ,
             that
             all
             the
             Tickets
             and
             publick
             burden
             ,
             was
             allowed
             in
             the
             Rent
             ,
             or
             otherwise
             past
             from
             by
             the
             Pursuer
             ,
             seing
             he
             voluntarly
             payed
             his
             hail
             Rent
             ;
             Or
             otherwise
             all
             the
             publick
             burdens
             in
             Scotland
             ,
             payed
             by
             Tennent
             ,
             may
             infer
             a
             Distress
             upon
             their
             Masters
             to
             repay
             the
             same
             .
             The
             Pursuer
             answered
             ,
             that
             that
             presumption
             could
             not
             take
             away
             his
             Writ
             ,
             viz.
             the
             Tickets
             produced
             ;
             but
             if
             the
             Defender
             gave
             Discharges
             ,
             he
             ought
             to
             have
             made
             mention
             of
             the
             allowance
             of
             the
             publick
             Burdens
             therein
             .
          
           
             The
             Lords
             having
             considered
             the
             Case
             ,
             as
             of
             Importance
             for
             the
             preparative
             ,
             found
             the
             Defense
             upon
             the
             Presumption
             Relevant
             ,
             unless
             the
             Pursuer
             instruct
             by
             Writ
             ,
             or
             the
             Defenders
             Oath
             ,
             that
             these
             Tickets
             were
             not
             allowed
             in
             the
             Rent
             :
             And
             as
             for
             the
             Penalty
             ,
             the
             Lords
             found
             ,
             that
             it
             ought
             to
             be
             restricted
             to
             the
             damnage
             ,
             and
             that
             the
             same
             was
             not
             now
             probable
             otherwise
             ,
             then
             by
             the
             Defenders
             Oath
             .
          
        
         
           
             Iames
             Wilson
             contra
             Alexander
             Home
             of
             Linthill
             .
             Eodem
             die
             .
          
           
             
               JAmes
               Wilson
            
             having
             pursued
             
               Alexander
               Home
            
             of
             Linthill
             ,
             as
             Sheriff
             of
             the
             Shire
             ,
             for
             the
             Debt
             of
             a
             Rebel
             ,
             whom
             he
             suffered
             to
             Escape
             .
          
           
             In
             which
             ,
             this
             Defense
             was
             found
             Relevant
             ,
             that
             the
             Rebel
             in
             the
             taking
             ,
             had
             wounded
             these
             that
             were
             taking
             him
             ,
             and
             had
             Escaped
             
               vi
               majore
            
             ,
          
        
         
           
             The
             Laird
             of
             Clerkingtoun
             contra
             The
             Laird
             of
             Corsbie●
             December
             3.
             1664.
             
          
           
             
               SIr
               William
               Dick
            
             having
             Appryzed
             some
             Lands
             ,
             holden
             of
             the
             Town
             of
             Irving
             ,
             and
             charged
             the
             Magistrates
             to
             receive
             him
             .
             The
             Laird
             of
             Corsbie
             having
             Compryzed
             the
             same
             Lands
             ,
             some
             dayes
             after
             ,
             was
             received
             by
             the
             Town
             ,
             the
             next
             day
             after
             Sir
             Williams
             Charge
             ;
             and
             about
             a
             Month
             after
             ,
             Sir
             William
             was
             also
             Infeft
             .
             Clerkingtoun
             having
             Right
             from
             Sir
             William
             ,
             pursues
             Corsbie
             ;
             First
             ,
             for
             Mails
             and
             Duties
             ,
             Corsbie
             was
             found
             to
             have
             the
             benefit
             of
             a
             possessory
             Judgement
             ,
             by
             seven
             years
             Possession
             ,
             and
             thereupon
             was
             Assoilzied
             .
             Now
             Clerkingtoun
             insists
             in
             a
             Reduction
             on
             this
             Reason
             ,
             that
             he
             having
             first
             Appryzed
             ,
             and
             Charged
             the
             Superiour
             ,
             they
             Colluded
             with
             the
             Defender
             ,
             and
             gave
             him
             a
             voluntar
             infeftment
             ,
             the
             next
             Day
             after
             his
             Charge
             ;
             and
             therefore
             his
             Infeftment
             ,
             though
             after
             ,
             ought
             to
             be
             drawn
             back
             to
             his
             Charge
             and
             Diligence
             ,
             and
             he
             preferred
             .
             The
             Defender
             answered
             ,
             that
             the
             Reason
             ought
             to
             be
             Repelled
             ,
             because
             the
             weight
             of
             the
             Reason
             is
             the
             Pursuers
             Diligence
             ,
             and
             the
             Superiours
             Collusion
             ,
             which
             hold
             not
             ,
             because
             all
             the
             Diligence
             Sir
             
               William
               Dick
            
             did
             ,
             was
             the
             first
             Charge
             upon
             the
             Letters
             of
             four
             Forms
             ,
             which
             bear
             only
             with
             Certification
             ,
             that
             in
             Case
             of
             Disobedience
             ,
             Letters
             of
             Horning
             would
             be
             direct
             simpliciter
             ,
             and
             this
             is
             no
             more
             then
             a
             Premonition
             ,
             and
             put
             no
             Obligation
             upon
             the
             Superiour
             ,
             
             until
             the
             second
             Charge
             ,
             which
             was
             Horning
             :
             Neither
             did
             Sir
             William
             ever
             insist
             any
             further
             then
             the
             first
             Requisition
             .
          
           
             The
             Lords
             found
             that
             the
             first
             Charge
             was
             sufficient
             ,
             in
             this
             case
             ,
             where
             the
             Superiour
             gave
             an
             Infeftment
             before
             the
             Expyring
             of
             the
             first
             Charge
             ,
             and
             before
             the
             second
             Charge
             could
             be
             given
             ,
             and
             thereby
             that
             a
             Superiour
             might
             prefer
             an
             Appryzer
             ,
             though
             posterior
             to
             a
             prior
             ,
             do
             what
             Diligence
             the
             prior
             could
             .
             But
             they
             found
             ,
             that
             seing
             Sir
             
               William
               Dick
            
             had
             been
             silent
             ,
             until
             his
             Legal
             Reversion
             was
             Expyred
             ,
             and
             had
             not
             challenged
             the
             Defender
             ,
             who
             was
             in
             Possession
             ,
             and
             thereby
             had
             Excluded
             him
             from
             the
             benefit
             of
             Redemption
             competent
             to
             him
             ,
             if
             he
             had
             been
             found
             to
             be
             but
             the
             second
             Right
             within
             the
             Legal
             .
             Therefore
             the
             Lords
             found
             Sir
             
               William
               Dicks
            
             Appryzing
             Redeemable
             by
             Corsbie
             ,
             within
             year
             and
             day
             ,
             after
             the
             Sentence
             .
          
        
         
           
             Mr.
             Iames
             Hutcheson
             contra
             Earl
             of
             Cassils
             .
             Eodem
             die
             .
          
           
             MR.
             
               Iames
               Hutcheson
            
             having
             Charged
             the
             Earl
             of
             Cassils
             for
             his
             Stipend
             .
             The
             Earl
             Suspends
             ,
             and
             alleadges
             ,
             first
             ,
             that
             the
             Charger
             had
             no
             right
             to
             the
             Whitsonday
             Term
             ,
             1663.
             because
             that
             Term
             was
             past
             before
             his
             Presentation
             ,
             at
             least
             before
             his
             Institution
             and
             Collation
             .
             2ly
             .
             There
             being
             but
             a
             Decreet
             of
             Modification
             ,
             and
             no
             Locality
             .
             The
             Earl
             alleadged
             Locality
             should
             be
             first
             made
             ,
             and
             he
             lyable
             but
             for
             his
             proportional
             part
             of
             the
             Stipend
             .
          
           
             The
             Lords
             found
             that
             the
             Stipend
             affected
             the
             Teinds
             ,
             and
             the
             Minister
             might
             take
             himself
             to
             any
             of
             the
             Heretors●
             in
             so
             far
             as
             he
             had
             Teind
             ,
             and
             therfore
             sustained
             the
             Condescendence
             ,
             and
             ordained
             the
             Charger
             to
             prove
             what
             Teind
             my
             Lord
             had
             ,
             without
             prejudice
             to
             him
             to
             crave
             his
             Relief
             .
          
        
         
           
             Lady
             Craig
             and
             Greenhead
             her
             Husband
             contra
             Lord
             Luire
             .
             Decemb.
             7●
             1664.
             
          
           
             THe
             Lady
             Craig
             being
             Infeft
             in
             Liferent
             ,
             pursues
             her
             Tennents
             .
             Compearance
             is
             made
             for
             the
             Lord
             Lui●e
             ,
             who
             Appryzed
             the
             Lands
             of
             her
             Husband
             ,
             and
             alleadges
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             he
             stands
             publictly
             I●feft
             ,
             and
             any
             Right
             the
             Lady
             has
             ,
             is
             but
             base
             ,
             holden
             of
             her
             Husband
             ;
             and
             before
             she
             attained
             Possession●
             he
             was
             publickly
             in●eft
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             her
             Husbands
             Possession
             is
             her
             Possession
             ,
             and
             so
             her
             Infeftment
             was
             cled
             with
             Possession
             ,
             from
             the
             Date
             thereof
             :
             It
             was
             answered
             that
             that
             holds
             only
             in
             the
             case
             of
             an
             Infeftment
             to
             a
             Wife
             ,
             upon
             her
             Contract
             of
             Marriage
             ;
             but
             this
             was
             but
             an
             additional
             gratuitous
             Infeftment
             ,
             
               stante
               matrimonio
            
             ,
             she
             being
             competently
             provided
             before
             by
             her
             Contract
             .
          
           
           
             In
             which
             case
             such
             Provisions
             cannot
             prejudge
             Lawful
             Creditors
             ,
             neither
             can
             the
             Hushands
             Possession
             give
             the
             benefit
             of
             a
             possessory
             Judgement
             to
             the
             Wife
             ,
             unless
             she
             had
             Possessed
             seven
             years
             after
             his
             Death
             .
          
           
             The
             Lords
             found
             ,
             that
             such
             Infeftments
             as
             these
             ,
             being
             gratuitous
             and
             voluntar
             ,
             could
             not
             be
             prejudicial
             to
             the
             Husbands
             Creditors
             ,
             nor
             give
             the
             Wife
             a
             possessory
             Iudgement
             :
             And
             the
             case
             here
             being
             with
             a
             Creditor
             of
             the
             Husbands
             ,
             they
             did
             not
             proceed
             further
             to
             consider
             ,
             and
             determine
             ,
             if
             the
             Husbands
             Possession
             ,
             in
             such
             a
             case
             ,
             would
             not
             validat
             the
             base
             Right
             ,
             as
             to
             any
             acquired
             Right
             thereafter
             .
          
        
         
           
             Eccles
             contra
             Eccles.
             Eodem
             die
             .
          
           
             IN
             an
             Action
             of
             a
             Compt
             and
             Reckoning
             betwixt
             these
             two
             Infants
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             he
             being
             pursued
             upon
             his
             Fathers
             back-bond
             ,
             oblieging
             him
             to
             make
             Compt
             and
             Payment
             of
             the
             means
             of
             umquhil
             
               Fergus
               Eccles
            
             his
             Brother
             ,
             to
             
               Thomas
               Eccles●
            
             ,
             and
             umquhil
             
               Andrew
               Eccles
            
             ,
             the
             Pursuers
             Father
             .
             It
             was
             answered
             ,
             upon
             condition
             that
             Mr.
             Hugh
             ,
             the
             Defenders
             Father
             should
             have
             the
             third
             part
             to
             himself
             .
             The
             Question
             was
             concerning
             the
             manner
             of
             Probation
             .
             The
             Pursuer
             alleadged
             ,
             it
             was
             only
             probable
             scripto
             ,
             he
             being
             a
             Pupil
             and
             his
             Father
             dead
             .
             The
             Defender
             alleadged
             ,
             it
             was
             probable
             by
             the
             Tutors
             Oath
             ,
             being
             so
             likely
             in
             it self
             ,
             that
             
               Mr.
               Hugh
            
             being
             the
             third
             Brother
             ,
             should
             have
             the
             third
             share
             ,
             and
             that
             Thomas
             the
             Tutor
             did
             accordingly
             allow
             him
             the
             third
             share
             ;
             and
             there
             was
             produced
             a
             Testificat
             of
             Balloche
             ,
             that
             there
             was
             an
             agreement
          
           
             Notwithstanding
             whereof
             ,
             the
             Lords
             refused
             to
             take
             the
             Tutors
             Oath
             ,
             
               ex
               officio
            
             ,
             seing
             they
             found
             ,
             albeit
             it
             were
             Affirmative
             it
             could
             not
             prove
             against
             the
             P●pil
             .
          
        
         
           
             Scot
             in
             Cairlyle
             contra
             Henderson
             and
             Wilson
             .
             December
             8.
             1664.
             
          
           
             
               RItchard
               Scot
            
             having
             Charged
             Henderson
             and
             Wilson
             upon
             their
             Bonds
             ,
             they
             Suspend
             ,
             and
             offer
             them
             to
             prove
             payment
             of
             a
             part
             ,
             by
             Witnesses
             ,
             and
             alleadges
             that
             it
             being
             the
             Law
             of
             England
             ,
             that
             W●tnesses
             can
             prove
             to
             take
             away
             Writ
             ,
             that
             therefore
             these
             Bonds
             being
             Contracted
             in
             England
             ,
             with
             English
             men
             ,
             the
             Suspenders
             ought
             to
             have
             the
             same
             benefit
             of
             Probation
             ,
             they
             would
             have
             had
             ,
             if
             they
             had
             been
             Arrested
             in
             England
             ,
             upon
             their
             Bonds
             ,
             or
             pursued
             there
             ,
             and
             adduced
             a
             Practick
             of
             Dury
             ,
             in
             Anno
             1628.
             
          
           
           
             The
             Lords
             having
             accuratly
             Considered
             and
             Debated
             this
             Case
             amongst
             themselves
             ,
             and
             finding
             that
             
               locus
               contractus
            
             ,
             was
             in
             England
             .
             But
             the
             Bonds
             bare
             expresly
             a
             Clause
             of
             Registration
             in
             Scotland
             :
             And
             that
             such
             Bonds
             had
             been
             ordinar
             betwixt
             Merchants
             in
             England
             ,
             and
             Merchants
             in
             Scotland
             ;
             and
             in
             no
             time
             such
             a
             Probation
             admitted
             ,
             and
             that
             it
             would
             furnish
             an
             ordinary
             delay
             in
             such
             Cases
             ,
             to
             the
             disadvantage
             of
             Merchants
             ,
             and
             hindering
             of
             Trade
             ,
             by
             always
             offering
             to
             prove
             payment
             in
             England
             ,
             by
             Witnesses
             ,
             which
             could
             require
             long
             time
             .
          
           
             Therefore
             they
             found
             the
             reason
             only
             probable
             ,
             scripto
             vel
             juramento
             .
          
        
         
           
             Mr.
             Cornelius
             Inglis
             contra
             Mr.
             Rodger
             Hogg
             .
             December
             9.
             1664.
             
          
           
             
               MR.
               Cornelius
               Inglis
            
             pursuing
             a
             Removing
             against
             certain
             Tennents
             near
             Dumbar
             ,
             upon
             an
             Infeftment
             and
             Appryzing
             .
             It
             was
             alleadged
             for
             the
             Tennents
             ,
             that
             they
             were
             Tennents
             to
             Mr.
             
               Rodger
               Hogg
            
             ,
             by
             payment
             of
             Mail
             and
             Duty
             to
             him
             ,
             and
             he
             was
             not
             called
             .
             The
             Pursuer
             answered
             
               non
               relevat
            
             ,
             unless
             the
             Defenders
             condescend
             upon
             Mr.
             Rodgers
             Right
             ,
             which
             might
             defend
             him
             and
             them
             .
             The
             Defenders
             answered
             ,
             first
             ;
             that
             they
             could
             not
             be
             oblieged
             to
             Dispute
             their
             Masters
             Right
             ,
             but
             he
             ought
             to
             be
             called
             to
             Dispute
             his
             own
             Right
             .
             2ly
             .
             It
             was
             insinuat
             ,
             that
             Mr.
             Rodger
             had
             an
             Appryzing
             ,
             and
             a
             Charge
             against
             the
             Superiour
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             unless
             the
             Defenders
             condescended
             upon
             such
             a
             Right
             as
             were
             valide
             to
             exclude
             the
             Pursuer
             ,
             being
             prior
             to
             his
             :
             but
             the
             Tennents
             alleadged
             no
             such
             Right
             ,
             and
             Mr.
             Rodgers
             Charge
             was
             posterior
             to
             the
             Pursuers
             Infeftment
             .
          
        
         
           
             Iohn
             Veatch
             younger
             of
             Dawick
             contra
             Alexander
             Williamson
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Veatch
            
             pursues
             Williamson
             upon
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             for
             paying
             to
             him
             of
             his
             proportional
             part
             of
             the
             Mails
             and
             Duties
             of
             Appryzed
             Lands
             ,
             as
             coming
             in
             
               pari
               passu
            
             with
             the
             Defender
             ,
             by
             an
             Appryzing
             ,
             within
             a
             year
             of
             his
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             he
             has
             Right
             to
             the
             first
             Appryzing
             ,
             led
             before
             the
             Act
             of
             Parliament
             ,
             betwixt
             Debitor
             and
             Creditor
             :
             and
             therefore
             he
             has
             the
             benefit
             of
             the
             21.
             
             Act
             of
             the
             last
             Session
             of
             Parliament
             ,
             declaring
             ,
             that
             where
             an
             Appryzer
             ,
             for
             his
             own
             Security
             ,
             had
             redeemed
             a
             prior
             Apprysing
             ,
             and
             gotten
             Right
             thereto
             before
             the
             Act
             ,
             betwixt
             Debitor
             and
             Creditor
             .
             The
             said
             first
             Apprysing
             should
             have
             the
             same
             effect
             ,
             it
             would
             have
             had
             before
             the
             Act
             ,
             Debitor
             and
             Creditor
             ,
             and
             should
             not
             come
             in
             
               pari
               passu
            
             .
             The
             Pursuer
             answered
             ,
             that
             behoved
             only
             to
             be
             understood
             ,
             where
             the
             second
             Appryzer
             had
             upon
             necessity
             to
             shun
             the
             expyring
             of
             the
             legal
             redeemed
             ,
             and
             gotten
             Right
             to
             the
             first
             Apprysing
             ,
             which
             could
             not
             be
             said
             here
             ,
             because
             the
             Debitor
             being
             minor
             ,
             the
             legal
             had
             ,
             and
             has
             a
             long
             course
             to
             run
             .
          
           
           
             The
             Lords
             sustained
             the
             Defense
             without
             any
             such
             limitation
             ,
             in
             respect
             of
             the
             express
             Tenor
             of
             the
             Act
             of
             Parliament
             .
          
        
         
           
             Robert
             Learmonth
             contra
             Laurance
             Russel
             .
             Eodem
             die
             .
          
           
             
               RObert
               Learmonth
            
             being
             pursued
             by
             
               Laurance
               Russel
            
             ,
             for
             the
             price
             of
             Wines
             ,
             and
             the
             matter
             referred
             to
             his
             oath
             ,
             gave
             in
             a
             qualified
             Oath
             ,
             bearing
             ,
             that
             the
             Wines
             in
             question
             were
             sent
             to
             him
             ,
             not
             to
             be
             sold
             till
             further
             order
             ,
             and
             that
             therefore
             he
             keeped
             them
             unsold
             till
             the
             end
             of
             the
             year
             ,
             and
             when
             they
             were
             in
             hazard
             of
             spoilling
             ,
             sold
             them
             for
             12
             pound
             Sterling
             the
             Tun
             ,
             and
             that
             he
             that
             sent
             them
             ,
             was
             Debitor
             to
             him
             by
             Bonds
             and
             Decreets
             ,
             in
             a
             greater
             sum
             .
             It
             was
             alleadged
             ,
             neither
             member
             of
             the
             quality
             was
             competent
             ;
             not
             the
             first
             ,
             because
             it
             was
             offered
             to
             be
             proven
             ,
             that
             the
             Wines
             at
             that
             time
             gave
             20.
             pound
             Sterling
             ;
             and
             not
             the
             second
             ;
             because
             it
             was
             an
             exception
             of
             Compensation
             ,
             and
             relative
             to
             Writ
             .
          
           
             The
             Lords
             sustained
             the
             first
             member
             of
             the
             quality
             ,
             but
             rejected
             the
             second
             ,
             and
             found
             it
             relevant
             to
             be
             proven
             ,
             by
             way
             of
             exception
             .
          
        
         
           
             Goldsmiths
             of
             Edinburgh
             contra
             Robert
             Haliburton
             .
             December
             10
             :
             1664.
             
          
           
             THe
             Goldsmiths
             of
             Edinburgh
             having
             obtained
             Decreet
             against
             Haliburton
             ,
             as
             Heir
             to
             his
             Father
             .
             He
             suspends
             upon
             this
             Reason
             ,
             that
             the
             Goldsmiths
             confirmed
             themselves
             Executors
             Creditors
             to
             his
             Father
             ,
             and
             must
             allow
             the
             Inventar
             ,
             which
             either
             they
             have
             in
             their
             hand
             ,
             or
             at
             least
             should
             have
             done
             Diligence
             therefore
             .
             It
             was
             answered
             for
             the
             Executors
             ,
             that
             they
             being
             Executor
             Creditors
             ,
             are
             not
             lyable
             for
             Diligence
             ,
             having
             Confirmed
             but
             to
             their
             own
             behove
             ,
             for
             their
             payment
             ,
             and
             as
             Creditors
             may
             arrest
             ,
             apprize
             ,
             and
             do
             all
             Dilligence
             ,
             severally
             ,
             the
             one
             but
             prejudice
             of
             the
             other
             ,
             so
             may
             they
             Confirm
             .
             2ly
             .
             They
             found
             ,
             that
             having
             Confirmed
             in
             Edinburgh
             ,
             whereas
             the
             Defunct
             lived
             and
             died
             within
             the
             Diocie
             of
             Glasgow
             ,
             that
             therefore
             their
             Title
             was
             null
             ;
             and
             therefore
             did
             not
             proceed
             .
             And
             lastlie
             oppons
             their
             Decreet
             
               in
               foro
            
             .
             The
             Suspender
             answered
             ,
             that
             they
             can
             never
             object
             against
             the
             nullity
             of
             their
             own
             Title
             .
             2ly
             .
             All
             that
             time
             there
             was
             no
             Commissioriat
             Constitute
             for
             the
             Shire
             of
             Air
             ,
             where
             the
             man
             died
             ,
             and
             so
             Edinburgh
             was
             
               communis
               patria
            
             .
          
           
             The
             Lords
             having
             Debated
             the
             general
             case
             ,
             whether
             Executor
             Creditors
             were
             lyable
             for
             Diligence
             ,
             waved
             the
             same
             ,
             but
             found
             that
             in
             this
             Case
             ,
             in
             respect
             of
             the
             questionableness
             of
             a
             Title
             ,
             they
             would
             not
             find
             them
             lyable
             upon
             their
             negligence
             .
          
        
         
           
           
             Lyon
             of
             Muirask
             contra
             Sir
             Robert
             Farquhar
             .
             Eodem
             die
             .
          
           
             MVirask
             having
             pursued
             a
             Declarator
             of
             Redemption
             of
             the
             Lands
             of
             Balmellie
             ,
             against
             Sir
             
               Robert
               Farquhar
               ,
               Litis●ontestation
            
             was
             made
             in
             the
             Cause
             ,
             wherein
             the
             Order
             was
             sustained
             ,
             proceeding
             upon
             an
             Adjudication
             against
             Sir
             
               Iohn
               Vrquhart
            
             ,
             as
             Heir
             to
             his
             Goodsire
             ,
             and
             it
             was
             offered
             to
             be
             proven
             ,
             that
             he
             died
             in
             the
             Right
             of
             the
             Reversion
             of
             this
             VVodset
             ,
             which
             was
             but
             base
             and
             holden
             of
             the
             granter
             ,
             for
             proving
             whereof
             ,
             his
             Charter
             was
             produced
             ,
             bearing
             the
             Barony
             of
             Craigfintrie
             and
             
               Balmellie
               ,
               per
               expressum
            
             .
             At
             the
             advising
             of
             the
             Cause
             ,
             It
             was
             alleadged
             that
             the
             Defender
             having
             protested
             for
             Reservation
             ,
             
               contra
               producenda
            
             .
             It
             is
             now
             instantly
             verified
             ,
             that
             the
             Grand-Father
             died
             not
             in
             the
             Right
             of
             the
             Reversion
             ,
             but
             that
             he
             was
             denuded
             by
             Disposition
             to
             his
             Son
             ,
             instructed
             by
             his
             Charter
             produced
             .
             The
             Pursuer
             answered
             ,
             that
             he
             opponed
             the
             state
             of
             the
             Process
             .
             And
             if
             such
             a
             Defense
             were
             now
             competent
             ,
             it
             ought
             to
             be
             Repelled
             ,
             because
             he
             hath
             Right
             from
             Sir
             
               Iohn
               Vrquhart
            
             ,
             who
             is
             Heir
             Served
             and
             Retoured
             to
             his
             Father
             ,
             in
             whose
             favours
             his
             Grand-father
             was
             Denuded
             ,
             and
             has
             declared
             ,
             that
             he
             consents
             to
             the
             Declarator
             upon
             that
             Ground
             ,
             and
             Renounces
             all
             other
             Right
             .
             The
             Defender
             answered
             ,
             that
             the
             order
             having
             been
             only
             used
             upon
             the
             Adjudication
             from
             Vrquhart
             ,
             as
             Heir
             to
             his
             Grand-father
             ,
             if
             that
             be
             excluded
             ,
             albeit
             the
             Pursuer
             have
             another
             Right
             ,
             he
             must
             use
             the
             Order
             ,
             
               de
               novo
            
             ,
             and
             redeem
             thereupon
             .
             2ly
             .
             Sir
             
               Iohn
               Vrquharts
            
             Right
             produced
             Renounces
             ,
             but
             does
             not
             Dispone
             any
             Right
             to
             the
             Pursuer
             .
          
           
             The
             Lords
             having
             considered
             the
             state
             of
             the
             Process
             ,
             found
             that
             a
             Reply
             instantly
             verified
             ,
             is
             receiveable
             
               post
               conclusum
               in
               causa
            
             ,
             unless
             it
             were
             alleadged
             to
             have
             been
             known
             to
             the
             Proponer
             ,
             and
             dolose
             omitted
             ;
             by
             which
             the
             Pursuer
             might
             be
             put
             to
             a
             Duply
             ,
             suffering
             new
             Probation
             .
             But
             the
             Lords
             found
             that
             the
             Charter
             produced
             ,
             bearing
             the
             Grand-father
             to
             be
             Denuded
             ,
             did
             not
             instantly
             verifie
             ,
             because
             it
             expressed
             not
             Balmellie
             ,
             and
             would
             not
             allow
             a
             Term
             to
             prove
             ,
             part
             and
             pertinent
             .
          
           
             It
             was
             further
             alleadged
             by
             the
             Defender
             ,
             no
             Declarator
             till
             the
             Sums
             consigned
             were
             reproduced
             at
             the
             Bar
             ;
             especially
             ,
             seing
             it
             was
             offered
             to
             be
             proven
             ,
             that
             the
             Pursuer
             lifted
             them
             himself
             ,
             and
             he
             being
             at
             the
             Bar
             ,
             it
             is
             instantly
             verified
             .
          
           
             The
             Lords
             sustained
             the
             same
             ,
             and
             Declared
             ,
             the
             Sums
             being
             Reproduced
             before
             Extract
             ,
             and
             that
             the
             Pursuer
             shall
             be
             lyable
             for
             Annualrent
             ,
             or
             the
             Wodsetter
             shall
             retain
             the
             Duties
             effeiring
             thereto
             .
          
        
         
           
             Lord
             Rollo
             contra
             His
             Chamberland
             .
             December
             13.
             1664.
             
          
           
             THe
             Lord
             Rollo
             having
             pursued
             his
             Chamberlain
             for
             Intromissions
             ,
             conform
             to
             a
             particular
             accompt
             libelled
             .
             The
             Defenders
             have
             compeared
             ,
             offered
             to
             prove
             he
             was
             Discharged
             ,
             which
             was
             found
             relevant
             ;
             and
             
             now
             producing
             the
             same
             ,
             it
             proves
             but
             for
             a
             part
             ;
             whereupon
             the
             Pursuer
             craved
             Sentence
             for
             the
             rest
             :
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             there
             was
             nothing
             produced
             to
             instruct
             the
             Intromission
             .
             The
             Pursuer
             answered
             that
             the
             Defender
             having
             made
             Litiscontestation
             ,
             upon
             a
             Discharge
             ,
             without
             denying
             the
             Intromission
             ,
             he
             has
             acknowledged
             the
             Libel
             ,
             and
             the
             Pursuer
             cannot
             be
             put
             to
             prove
             the
             same
             ,
             without
             inverting
             the
             Order
             ,
             and
             making
             two
             Litiscontestations
             in
             the
             same
             Cause
             .
             The
             Defender
             answered
             ,
             that
             this
             being
             but
             an
             omission
             of
             the
             Advacats
             or
             Clerks
             ,
             of
             a
             thing
             palpable
             ,
             the
             Lords
             might
             repone
             the
             Defender
             .
          
           
             The
             Lords
             adhered
             to
             the
             Act
             of
             Litiscontestation
             ,
             but
             referred
             to
             some
             of
             their
             number
             ,
             to
             move
             the
             Parties
             to
             what
             was
             equitable
             ;
             and
             it
             was
             thought
             ,
             that
             if
             the
             Defender
             would
             alleadge
             that
             he
             was
             not
             Intrometter
             ,
             for
             these
             particulars
             ,
             but
             that
             they
             were
             in
             the
             Pursuer
             ,
             or
             his
             other
             Chamberlains
             hands
             ,
             and
             were
             instantly
             verified
             by
             his
             oath
             ,
             it
             were
             receivable
             .
          
        
         
           
             Bishop
             of
             the
             Isles
             contra
             Iames
             Hamiltoun
             .
             Eodem
             die
             .
          
           
             THe
             Bishop
             of
             the
             Isles
             pursuing
             Hamiltoun
             a
             Merchant
             in
             Edinburgh
             ,
             for
             his
             Teind
             Fish
             taken
             in
             the
             Isles
             ,
             which
             is
             a
             part
             of
             the
             Bishops
             Patrimony
             .
             The
             Defender
             alleadged
             ●
             that
             he
             being
             a
             Merchant
             ,
             and
             not
             a
             taker
             of
             Herring
             ,
             cannot
             be
             lyable
             for
             the
             Teind
             thereof
             ,
             no
             more
             then
             if
             one
             should
             buy
             Corns
             in
             the
             Mercat
             ,
             or
             out
             of
             the
             Barn-yard
             ;
             he
             could
             be
             conveened
             for
             the
             Teind
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             it
             was
             the
             immemorial
             custom
             that
             the
             first
             buyer
             from
             the
             Fishers
             ,
             should
             be
             lyable
             to
             the
             Bishop
             of
             the
             Isles
             ,
             for
             the
             Teind
             of
             the
             Fish
             ,
             bought
             ,
             and
             for
             proving
             thereof
             ,
             produced
             a
             Decreet
             at
             his
             Predecessors
             instance
             ,
             against
             some
             Merchants
             in
             Edinburgh
             ;
             which
             Decreet
             did
             bear
             ,
             that
             in
             a
             former
             Decreet
             ,
             betwixt
             the
             same
             Parties
             ,
             the
             Bishops
             had
             proven
             immemorial
             Possession
             against
             the
             Merchants
             .
             2ly
             .
             The
             instance
             holds
             not
             of
             buying
             Corns
             in
             the
             Mercat
             ,
             or
             Barn-yeard
             ;
             but
             if
             any
             body
             should
             buy
             the
             whole
             Cropt
             ,
             when
             it
             was
             upon
             the
             Land
             untaken
             off
             ,
             being
             in
             the
             Sheaves
             or
             Stoucks
             ,
             he
             would
             undoubtedly
             be
             lyable
             as
             Intrometter
             for
             the
             Teind
             :
             so
             if
             any
             Merchant
             bought
             not
             upon
             the
             place
             ,
             where
             the
             Fishes
             were
             taken
             ,
             he
             was
             not
             lyable
             :
             but
             buying
             the
             Fish
             fresh
             ,
             as
             they
             were
             taken
             ,
             in
             whole
             Boat-fulls
             ,
             and
             selling
             them
             there
             themselves
             ;
             such
             Merchants
             must
             be
             liable
             as
             Intrometters
             .
             The
             Defender
             answered
             ,
             that
             the
             Immemorial
             custom
             was
             indeed
             Relevant
             ,
             but
             a
             Decreet
             against
             some
             few
             Persons
             ,
             could
             not
             prove
             it
             against
             others
             ,
             being
             
               inter
               alios
               actum
            
             .
             But
             here
             there
             was
             only
             a
             Decreet
             bearing
             ,
             that
             there
             was
             a
             former
             Decreet
             ,
             in
             which
             that
             was
             proven
             .
          
           
             The
             Lords
             sustained
             that
             member
             against
             these
             who
             bought
             the
             hering
             and
             salted
             them
             themselves
             ,
             to
             be
             proven
             by
             their
             Oaths
             ,
             and
             would
             not
             sustain
             the
             Probation
             of
             the
             Custom
             ,
             seing
             the
             principal
             Decreet
             was
             not
             produced
             ,
             unless
             that
             at
             least
             the
             Testimonies
             proving
             that
             Custom
             ,
             were
             repeated
             and
             produced
             out
             of
             the
             old
             Process
             ,
             that
             it
             might
             appear
             ,
             whether
             there
             were
             any
             ground
             of
             Objection
             against
             the
             manner
             of
             Probation
             .
          
        
         
           
           
             Lady
             Colvil
             contra
             Lord
             Colvil
             .
             December
             14.
             1664.
             
          
           
             THe
             Lady
             Colvil
             pursues
             the
             Lord
             Colvil
             to
             relieve
             her
             of
             the
             whole
             Debt
             ,
             hererable
             and
             moveable
             of
             the
             Defunct
             ,
             his
             Predecessor
             ,
             because
             the
             Defunct
             in
             his
             Testament
             ,
             had
             named
             her
             ,
             his
             Lady
             ,
             Executrix
             and
             universal
             Legatrix
             ,
             with
             a
             special
             Clause
             ,
             that
             she
             should
             be
             free
             of
             all
             his
             Debt
             whatsomever
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             no
             Deed
             done
             by
             a
             Defunct
             
               in
               lecto
            
             ,
             or
             in
             Testament
             can
             prejudge
             his
             Heir
             .
             The
             Pursuer
             replyed
             ,
             that
             this
             Testament
             was
             made
             in
             the
             Defuncts
             
               leige
               poustie
            
             .
             The
             Defender
             answered
             ,
             that
             on
             Death-bed
             ,
             and
             by
             Testament
             equiparantur
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             and
             assoilzied
             .
          
        
         
           
             Laird
             of
             Phillorth
             contra
             Forbes
             of
             Aslocon
             .
             December
             16.
             1664.
             
          
           
             PHillorth
             as
             Donatar
             to
             the
             Escheat
             of
             Forbes
             of
             Aslocon
             ,
             and
             having
             obtained
             general
             Declarator
             ,
             insists
             in
             his
             special
             Declarator
             .
             It
             was
             alleadged
             Absolvitor
             ,
             because
             the
             Horning
             ,
             whereupon
             the
             Gift
             was
             granted
             ,
             is
             null
             ,
             in
             so
             far
             as
             being
             beyond
             Dee
             ,
             it
             is
             upon
             six
             dayes
             ,
             contrair
             to
             to
             the
             Act
             of
             Parliament
             1600.
             
             Declaring
             all
             Hornings
             beyond
             Dee
             ,
             on
             less
             then
             fifteen
             dayes
             null
             ,
             conform
             to
             a
             Decision
             in
             Dury
             ,
             albeit
             on
             a
             Bond
             ,
             bearing
             a
             Clause
             of
             Registration
             on
             six
             dayes
             only●
             February
             14.
             1625.
             
             Steuart
             contra
             Bruce
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             the
             Acts
             of
             Parliament
             hinder
             not
             the
             agreements
             of
             Parties
             ;
             but
             is
             expresly
             anent
             Hornings
             ,
             on
             Lawborrows
             or
             the
             like
             ;
             but
             these
             are
             on
             the
             parties
             own
             consent
             by
             the
             Clause
             of
             Registration
             :
             and
             if
             these
             should
             not
             be
             valide
             ,
             all
             the
             Hornings
             and
             other
             Executorials
             thereon
             beyond
             Dee
             ,
             since
             1600.
             would
             be
             null
             ,
             and
             such
             Bonds
             would
             have
             no
             effect
             ;
             seing
             upon
             the
             Clause
             of
             Registration
             ,
             Horning
             could
             not
             be
             otherwise
             direct
             on
             six
             dayes
             ,
             and
             so
             they
             should
             not
             have
             any
             summar
             execution
             .
             The
             Defender
             answered
             that
             the
             Act
             is
             general
             of
             all
             Hornings
             ,
             and
             bears
             a
             general
             Reason
             ,
             because
             it
             is
             impossible
             for
             Parties
             at
             such
             distance
             ,
             to
             come
             to
             Edinburgh
             to
             Suspend
             in
             four
             dayes
             ,
             and
             privat
             pactions
             cannot
             derogat
             from
             general
             Laws
             ,
             where
             the
             express
             reason
             is
             for
             publick
             utility
             ,
             contrair
             to
             which
             ,
             no
             man
             can
             make
             himself
             Rebel
             ,
             more
             then
             he
             can
             give
             power
             to
             Incarcerat
             himself
             ,
             where
             Law
             gives
             no
             warrant
             ,
             but
             prohibits
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             sustained
             the
             Horning
             .
          
        
         
           
             Innes
             contra
             Forbes
             of
             Touchon
             .
             Eodem
             die
             .
          
           
             INnes
             having
             Charged
             Forbes
             of
             Touchon
             on
             an
             Act
             of
             Adjournal
             ,
             for
             an
             Assythment
             ,
             for
             wounding
             him
             ,
             and
             reparation
             of
             his
             Blood.
             He
             
             Suspended
             ,
             and
             alleadge
             the
             Act
             was
             null
             ,
             wanting
             Citation
             ,
             Compearance
             or
             probation
             .
             It
             was
             answered
             ,
             that
             being
             the
             Act
             of
             the
             Justice
             General
             ,
             who
             is
             Supream
             
               in
               criminalibus
            
             ,
             it
             cannot
             be
             recognosced
             by
             the
             Lords
             .
          
           
             The
             Lords
             having
             considered
             the
             case
             amongst
             themselves
             ,
             thought
             that
             in
             what
             was
             truly
             Criminal
             ,
             as
             to
             corporal
             pains
             or
             amerciaments
             in
             way
             of
             punishment
             ,
             they
             would
             not
             medle
             with
             the
             Justice
             Sentences
             ,
             but
             Assythment
             ,
             being
             civil
             for
             the
             Damnage
             and
             Interest
             of
             the
             Party
             ,
             pursuable
             before
             the
             Lords
             ,
             they
             might
             recognosce
             thereon
             ,
             and
             therefore
             in
             respect
             that
             the
             Probation
             of
             the
             Fact
             was
             by
             a
             Process
             before
             the
             Baillies
             ,
             they
             ordained
             that
             Process
             to
             be
             produced
             before
             answer
             ,
             and
             the
             Suspender
             to
             condescend
             if
             there
             was
             any
             exorbitancy
             in
             the
             Sum
             decerned
             for
             the
             Assythment
             .
          
        
         
           
             Mr.
             Thomas
             Paterson
             contra
             Watson
             .
             December
             17.
             1664.
             
          
           
             MR.
             
               Thomas
               Paterson
            
             Charges
             Watson
             to
             remove
             from
             his
             Gleib
             ,
             who
             alleadged
             the
             Designation
             is
             null
             ,
             because
             it
             is
             not
             subscribed
             by
             the
             Ministers
             Designers
             ,
             but
             is
             only
             the
             assertion
             of
             a
             Nottar
             .
             2ly
             .
             By
             the
             Act
             of
             Parliament
             1663.
             anent
             Gleibs
             ,
             there
             is
             an
             exception
             of
             Royal
             Burrows
             ,
             to
             which
             Ministers
             Gleibs
             are
             not
             due
             ,
             
               ita
               est
               ,
               Dysert
            
             is
             a
             Royal
             Burgh
             .
             The
             Charger
             answered
             to
             the
             first
             ,
             that
             the
             having
             a
             warrand
             from
             the
             Bishop
             and
             Presbytrie
             his
             instrument
             of
             Designation
             is
             as
             sufficient
             as
             a
             Seasine
             ,
             to
             give
             Right
             to
             Land.
             And
             to
             the
             second
             ,
             the
             Royal
             Burrows
             excepted
             ,
             must
             only
             be
             understood
             of
             such
             who
             have
             not
             a
             Landwart
             Congregation
             ,
             but
             are
             chiefly
             constitute
             of
             an
             Incorporation
             for
             Trade
             ;
             but
             this
             Burgh
             is
             notourly
             known
             to
             be
             but
             a
             Burgh
             of
             Barony
             ,
             holden
             of
             the
             Lord
             Sinclar
             ;
             albeit
             it
             has
             the
             priviledge
             of
             Vote
             in
             Parliament
             ,
             and
             is
             a
             Parsonage
             .
          
           
             The
             Lords
             Sustained
             the
             Designation
             ,
             but
             before
             Extract
             ,
             ordained
             the
             Testificat
             of
             the
             Ministers
             Designers
             ,
             under
             their
             hands
             to
             be
             produced
             .
          
        
         
           
             Sarah
             Blomart
             contra
             Earl
             of
             Roxburgh
             .
          
           
             
               SArah
               Blomart
            
             pursuing
             the
             Earl
             of
             Roxburgh
             :
             he
             alleadged
             she
             could
             have
             no
             Processes
             ,
             being
             of
             the
             
               Vnited
               Provinces
            
             ,
             who
             are
             declared
             enemies
             to
             His
             Majesty
             .
             It
             was
             answered
             ,
             that
             there
             was
             no
             Denunciation
             of
             War
             by
             His
             Majesty
             ,
             as
             King
             of
             Scotland
             ,
             nor
             any
             Proclamation
             in
             Scotland
             to
             that
             purpose
             .
             It
             was
             replyed
             ,
             that
             there
             was
             a
             Warrant
             by
             the
             King
             and
             Council
             ,
             to
             cease
             upon
             all
             the
             Dutch
             Vessels
             in
             Scotland
             .
          
           
             The
             Lords
             found
             that
             this
             was
             but
             an
             Imbargo
             ,
             and
             no
             Denunciation
             of
             War
             in
             Scotland
             ,
             and
             therefore
             found
             Process
             .
          
        
         
           
           
             Mr.
             Iames
             Reid
             Minister
             of
             North-Leith
             contra
             William
             Melvil
             .
             December
             20.
             1664.
             
          
           
             MR.
             
               James
               Reid
            
             Charges
             
               William
               Melvil
            
             for
             the
             Teind
             of
             hard
             Fish
             ,
             bought
             by
             the
             said
             William
             in
             the
             Lewes
             ,
             and
             imported
             by
             him
             at
             Leith
             .
             He
             Suspends
             on
             this
             Reason
             ,
             that
             he
             bought
             the
             said
             Fish
             from
             Merchants
             in
             the
             Mercat
             ,
             and
             did
             neither
             take
             the
             same
             himself
             ,
             nor
             bought
             them
             immediatly
             when
             they
             were
             green
             from
             the
             Taker
             ,
             and
             so
             can
             be
             lyable
             for
             no
             Teind
             .
             The
             Charger
             answered
             ,
             that
             he
             is
             
               decennalis
               &
               triennalis
            
             Possessor
             of
             getting
             twenty
             shilling
             of
             the
             Last
             ,
             of
             all
             Fish
             imported
             at
             New-haven
             ;
             and
             for
             instructing
             thereof
             ,
             produces
             a
             Decreet
             in
             Anno
             1634.
             and
             another
             in
             Anno
             1662.
             and
             if
             need
             beis
             ,
             offers
             him
             yet
             to
             prove
             Possession
             .
             The
             Defender
             answered
             ,
             that
             these
             Decreets
             are
             expresly
             against
             the
             Fishers
             or
             Takers
             of
             Fish
             ,
             but
             not
             against
             Merchants
             ,
             buying
             and
             importing
             the
             same
             :
             and
             as
             for
             the
             Custome
             ,
             
               non
               Relevat
            
             ,
             unless
             it
             were
             an
             universal
             Custome
             established
             by
             Sentences
             ;
             for
             if
             some
             few
             Merchants
             should
             have
             to
             save
             themselves
             trouble
             ,
             given
             an
             uncertain
             acknowledgement
             ,
             according
             to
             their
             own
             discertion
             ,
             and
             no
             fixed
             Duty
             ,
             nor
             by
             no
             compulsive
             way
             ,
             it
             imports
             not
             .
          
           
             The
             Lords
             Suspended
             the
             Letters
             ,
             except
             only
             for
             such
             Fish
             as
             should
             be
             taken
             by
             the
             Boats
             and
             Fishers
             of
             New-haven
             .
          
        
         
           
             Agnes
             Young
             and
             her
             Husband
             contra
             Buchanans
             .
             Eodem
             die
             .
          
           
             
               AGnes
               Young
            
             pursues
             Buchanans
             ,
             her
             Children
             ,
             for
             her
             third
             of
             her
             Husbands
             Moveables
             ,
             and
             for
             her
             Liferent
             use
             of
             the
             other
             two
             thirds
             ,
             conform
             to
             her
             Contract
             of
             Marriage
             ,
             whereby
             she
             is
             provided
             ,
             to
             his
             Liferent
             of
             all
             Goods
             and
             Geir
             ,
             conquest
             during
             the
             Marriage
             ,
             moveable
             and
             immoveable
             .
             The
             Defenders
             answered
             ,
             that
             the
             Pursuer
             cannot
             both
             have
             the
             third
             and
             the
             Liferent
             of
             the
             whole
             ,
             because
             it
             must
             be
             presumed
             ,
             that
             the
             Liferent
             of
             the
             whole
             ,
             was
             given
             in
             satisfaction
             of
             the
             third
             and
             all
             .
             The
             Pursuer
             answered
             ,
             that
             this
             could
             not
             be
             presumed
             ,
             unless
             it
             had
             been
             so
             exprest
             ,
             no
             more
             then
             a
             Terce
             is
             excluded
             by
             a
             provision
             of
             Liferent
             ,
             unless
             it
             bear
             in
             satisfaction
             of
             a
             Terce
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             that
             the
             Pursuer
             could
             not
             both
             have
             her
             third
             ,
             and
             the
             Liferent
             of
             the
             rest
             ,
             but
             gave
             her
             her
             option
             ,
             either
             of
             the
             third
             ,
             
               provisione
               legis
            
             ,
             or
             of
             her
             Liferent
             of
             the
             whole
             ,
             
               provisione
               hominis
            
             .
          
        
         
           
             Earl
             of
             Athol
             contra
             Iohn
             Scot.
             Eodem
             die
             :
          
           
             THe
             Earl
             of
             Athol
             having
             obtained
             Decreet
             against
             
               Iohn
               Scot
            
             ,
             before
             the
             Commissar
             of
             Dunkeld
             ,
             for
             the
             Teinds
             of
             the
             said
             Iohn
             his
             Lands
             .
             He
             Suspnds
             ,
             and
             raises
             Reduction
             on
             this
             Reason
             ,
             that
             albeit
             the
             Decreet
             bear
             
             a
             Defense
             proponed
             ,
             that
             the
             Teinds
             in
             question
             are
             Mortified
             by
             the
             King
             to
             a
             Kirk
             ,
             and
             that
             the
             same
             was
             found
             Relevant
             ,
             and
             that
             the
             said
             Iohn
             succumbed
             in
             proving
             thereof
             ,
             yet
             he
             offers
             him
             to
             prove
             that
             before
             the
             Term
             elapsed
             ,
             he
             produced
             the
             Mortification
             before
             the
             Commissar
             ,
             and
             thereupon
             took
             Instruments
             ,
             which
             is
             produced
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Mr.
             George
             Norvel
             Advocat
             contra
             Margaret
             Sunter
             .
             Eodem
             die
             .
          
           
             MR.
             
               George
               Norvel
            
             pursuing
             for
             Mails
             and
             Duties
             upon
             an
             Appryzing
             .
             Compearance
             is
             made
             for
             
               Margaret
               Sunter
            
             ,
             who
             alleadged
             absolvitor
             because
             she
             was
             Infeft
             in
             Liferent
             ,
             before
             Mr.
             Georges
             Right
             ;
             which
             being
             found
             relevant
             for
             instructing
             thereof
             ,
             she
             produced
             her
             Seasine
             .
          
           
             Which
             the
             Lords
             found
             not
             to
             instruct
             without
             an
             Adminicle
             ,
             and
             therefore
             sustained
             the
             Decreet
             .
          
           
             The
             said
             
               Margaret
               raised
               Reduction
            
             of
             this
             Decreet
             ,
             on
             this
             Reason
             ,
             that
             now
             she
             produced
             an
             Adminicle
             ,
             viz.
             her
             Contract
             of
             Marriage
             .
             2ly
             .
             That
             the
             Decreet
             is
             null
             ,
             because
             the
             quantities
             are
             not
             proven
             .
             The
             Charger
             answered
             to
             the
             first
             ,
             that
             the
             Lords
             having
             found
             the
             Exception
             not
             proven
             ,
             the
             Pursuer
             could
             not
             be
             admitted
             in
             the
             second
             instance
             against
             a
             Decreet
             ,
             
               in
               foro
            
             ,
             upon
             production
             of
             that
             which
             she
             should
             have
             produced
             at
             first
             .
             As
             to
             the
             second
             ,
             he
             needed
             not
             prove
             the
             quantities
             ;
             seing
             her
             exception
             was
             total
             ,
             without
             denying
             the
             quantities
             .
          
           
             The
             Lords
             found
             the
             Decreet
             valide
             ,
             but
             ordained
             some
             of
             their
             number
             to
             deal
             with
             Mr.
             George
             ,
             to
             show
             favour
             to
             the
             poor
             woman
             .
          
        
         
           
             Doctor
             Ramsay
             contra
             Mr.
             William
             Hogg
             and
             Alexander
             Seton
             .
             December
             22.
             1664.
             
          
           
             THese
             three
             Parties
             having
             appryzed
             the
             same
             Lands
             ,
             the
             first
             Appryzer
             being
             Infeft
             ,
             the
             second
             not
             being
             ,
             and
             the
             third
             being
             Infeft
             :
             The
             first
             Appryzer
             declared
             he
             would
             not
             insist
             for
             the
             Mails
             and
             Duties
             of
             the
             whole
             ,
             but
             only
             possessed
             a
             part
             .
             The
             question
             came
             ,
             whether
             the
             second
             Apprizer
             ,
             not
             having
             Charged
             ,
             should
             be
             preferred
             to
             the
             third
             ,
             who
             was
             Infeft
             .
             It
             was
             alleadged
             for
             the
             second
             Appryzer
             ,
             that
             he
             needed
             not
             be
             Infeft
             ,
             because
             the
             first
             Appryzer
             being
             Infeft
             in
             all
             ,
             he
             had
             the
             only
             
               jus
               proprietatis
            
             ,
             and
             there
             was
             nothing
             remaining
             ,
             but
             
               jus
               reversionis
            
             ,
             which
             the
             Appryzing
             alone
             carryed
             :
             and
             as
             the
             second
             Appryzer
             might
             redeem
             the
             first
             ;
             as
             having
             the
             right
             of
             his
             Reversion
             ;
             so
             he
             might
             force
             him
             ,
             either
             to
             possess
             the
             whole
             ,
             whereby
             his
             Appryzing
             might
             be
             satisfied
             ,
             or
             give
             warrant
             to
             the
             second
             to
             Possess
             the
             remainder
             ,
             so
             likewise
             he
             might
             use
             Redemption
             .
             It
             was
             alleadged
             for
             the
             third
             Appryzer
             ,
             that
             if
             the
             question
             were
             of
             the
             Redemption
             of
             the
             Land
             ,
             the
             second
             had
             good
             Right
             ;
             but
             the
             question
             being
             for
             the
             Mails
             and
             Duties
             ,
             a
             right
             of
             Reversion
             ,
             could
             never
             carry
             these
             without
             a
             Seasine
             .
          
           
           
             The
             Lords
             considering
             the
             Point
             in
             Law
             and
             the
             great
             disadvantage
             the
             Leiges
             should
             sustain
             ,
             if
             all
             Appryzers
             were
             necessitat
             to
             take
             Infeftment
             ,
             They
             prefered
             the
             second
             Appryzer
             .
          
        
         
           
             Cornelius
             Inglis
             contra
             Mr.
             Rodger
             Hog
             .
             Eodem
             die
             :
          
           
             MR.
             
               Cornelius
               Inglis
            
             being
             Infest
             upon
             an
             Appryzing
             ,
             pursues
             a
             Removing
             ;
             compearance
             is
             made
             for
             
               Mr.
               Rodger
               Hog
            
             :
             who
             alleadged
             that
             he
             is
             also
             Infeft
             ,
             and
             had
             charged
             the
             Superiour
             ,
             though
             ,
             after
             the
             first
             Appryzer
             ,
             and
             had
             possessed
             seven
             years
             ,
             by
             lifting
             the
             Mails
             and
             Duties
             ;
             and
             therefore
             craved
             the
             benefit
             of
             a
             Possessorie
             Judgement
             .
          
           
             The
             Lords
             having
             considered
             the
             Case
             amongst
             themselves
             ,
             whether
             an
             Appryzing
             and
             Charge
             ,
             without
             Infeftment
             could
             give
             the
             benefit
             of
             a
             Possessorie
             Iudgement
             .
             They
             were
             equally
             divided
             in
             their
             Votes
             ,
             and
             the
             President
             resolved
             before
             he
             gave
             his
             Vote
             to
             settle
             the
             Parties
             .
          
        
         
           
             contra
             Edmistoun
             of
             Carden
             .
             Ianuary
             6.
             1665.
             
          
           
             EDmistoun
             of
             Carden
             being
             pursued
             by
             a
             Creditor
             of
             his
             Fathers
             ,
             as
             Lucrative
             Successor
             to
             his
             Father
             ,
             by
             accepting
             of
             a
             Disposition
             of
             his
             Fathers
             Lands
             ,
             after
             contracting
             of
             the
             Pursuers
             Debt
             ,
             alleadged
             absolvitor
             ;
             because
             ,
             being
             pursued
             beforeby
             another
             Creditor
             of
             his
             Fathers
             ,
             he
             did
             then
             alleadge
             ,
             that
             his
             Disposition
             was
             not
             Lucrative
             ;
             but
             for
             a
             Cause
             onerous
             ,
             equivalent
             to
             the
             worth
             of
             the
             Land
             ,
             which
             he
             proved
             ,
             by
             instructing
             the
             Rental
             ,
             and
             Rate
             of
             the
             Land
             ,
             at
             the
             time
             of
             the
             Disposition
             ,
             by
             Witnesses
             ,
             and
             the
             Sums
             undertaken
             for
             it
             by
             Writ
             ,
             whereupon
             he
             was
             Assoilzyed
             ,
             and
             can
             never
             be
             again
             conveened
             upon
             that
             ground
             ;
             
               nam
               obest
               exceptio
               rei
               judicatae
            
             ,
             for
             if
             he
             had
             been
             condemned
             as
             Lucrative
             Successor●
             upon
             the
             other
             Creditors
             Probation
             :
             It
             would
             now
             have
             proven
             against
             him
             ,
             and
             therefore
             ,
             his
             beng
             Assoilzied
             must
             be
             profitable
             to
             him
             against
             others
             ;
             unless
             Collusion
             were
             alleadged
             and
             Instructed
             .
             The
             Pursuer
             answered
             ,
             that
             this
             absolvitor
             was
             
               res
               inter
               alios
               acta
            
             :
             and
             albeit
             a
             Condemature
             would
             have
             been
             effectual
             against
             the
             Defender
             ,
             
               non
               sequitur
            
             ,
             that
             an
             absolvitor
             should
             also
             be
             effectuall
             for
             him
             ;
             because
             he
             was
             called
             to
             that
             Condemnature
             ,
             but
             this
             Creditor
             was
             not
             at
             all
             called
             to
             the
             absolvitor
             .
             2.
             
             Even
             in
             a
             Condemnature
             ,
             if
             the
             Defender
             had
             omitted
             any
             thing
             ,
             that
             he
             might
             have
             alleadged
             ,
             in
             the
             one
             case
             competent
             ,
             and
             omitted
             ,
             would
             not
             hinder
             him
             to
             propone
             the
             same
             against
             another
             Creditor
             .
             Therefore
             the
             Defender
             can
             only
             repeit
             the
             grounds
             of
             that
             absolvitor
             ;
             which
             if
             he
             do
             ,
             the
             Pursuer
             will
             alleadge
             .
             That
             whereas
             ,
             in
             the
             absolvitor
             ,
             the
             Defender
             was
             admitted
             to
             prove
             the
             Rental
             .
             The
             Pursuer
             omitted
             to
             crave
             the
             benefit
             of
             Probation
             ,
             which
             he
             would
             have
             gotten
             ;
             and
             this
             Pursuer
             offers
             him
             to
             prove
             ,
             that
             whereas
             the
             Rental
             was
             proven
             to
             but
             18.
             
             Chalders
             of
             Victual
             ,
             the
             true
             Rental
             was
             worth
             30.
             
             Chalder
             .
             3dly
             .
             A
             part
             of
             the
             onerous
             Cause
             ,
             was
             the
             Portion
             of
             the
             Defuncts
             Children
             ,
             which
             would
             not
             Prejudge
             the
             Pursuer
             being
             an
             anterior
             Creditor●
          
           
           
             The
             Lords
             found
             ,
             that
             the
             absolvitor
             could
             not
             prejudge
             this
             Pursuer
             ,
             as
             to
             these
             points
             omitted
             ;
             and
             that
             it
             could
             not
             have
             effect
             
               inter
               alios
            
             ,
             except
             it
             had
             been
             
               in
               re
               antiqua
            
             ,
             where
             the
             Witness
             had
             died
             ,
             that
             in
             that
             case
             ,
             the
             Testimonies
             out
             of
             the
             former
             Process
             ,
             might
             be
             repeited
             ;
             but
             as
             to
             the
             Rental
             ,
             the
             Lords
             would
             not
             give
             the
             Pursuer
             the
             sole
             Probation●
             being
             so
             lubrick
             a
             point
             ,
             as
             not
             only
             what
             it
             payed
             ,
             but
             what
             the
             Lands
             were
             worth
             ,
             and
             it
             might
             have
             payed
             ;
             and
             ordained
             Witnesses
             to
             be
             examined
             ,
             
               hinc
               inde
            
             ;
             and
             found
             ,
             that
             the
             Bairns
             Portions
             not
             being
             payed
             
               bona
               fide
            
             ,
             before
             the
             intenting
             of
             this
             Cause
             ,
             could
             not
             prejudge
             the
             Creditor
             :
             but
             ordained
             the
             Defender
             to
             Suspend
             on
             double
             Poynding
             ,
             against
             the
             Pursuer
             and
             the
             Bairns
             ;
             but
             in
             regard
             of
             so
             much
             ground
             ,
             in
             the
             matter
             ,
             they
             declared
             they
             would
             not
             sustain
             the
             Passive
             Title
             ,
             to
             make
             him
             Successor
             universal
             ,
             but
             only
             as
             to
             the
             just
             Price
             ,
             and
             the
             Cause
             Onerous
             .
          
        
         
           
             Grahame
             of
             Blackwood
             contra
             Brouns
             .
             Ianuary
             7.
             1665.
             
          
           
             JOhn
             and
             
               William
               Brouns
            
             ,
             having
             Appryzed
             certain
             Lands
             ;
             and
             
               William
               Grahame
            
             having
             Appryzed
             the
             same
             ,
             within
             a
             year
             after
             ,
             pursues
             an
             Accompt
             and
             Reckoning
             against
             the
             first
             Appryzer
             ,
             upon
             the
             last
             Act
             of
             Parliament
             ,
             betwixt
             Debitor
             and
             Creditor
             ;
             and
             craves
             to
             come
             in
             
               pari
               passu
            
             with
             the
             first
             Appryzer
             ,
             not
             only
             as
             to
             there
             Mails
             and
             Duties
             of
             the
             Lands
             Intrometted
             with
             by
             the
             Appryzer
             ,
             since
             the
             said
             Act
             of
             Parliament
             ;
             but
             also
             for
             these
             Duties
             that
             were
             Intrometted
             with
             before
             the
             said
             Act
             ;
             and
             that
             ,
             because
             the
             Act
             bears
             expresly
             ,
             
               That
               such
               Appryzing
               shall
               come
               in
            
             pari
             passu
             ,
             as
             if
             there
             had
             been
             one
             Appryzing
             led
             for
             both
             .
             It
             was
             answered
             ,
             for
             the
             first
             Appryzer
             ,
             that
             what
             he
             did
             uplift
             
               bona
               fide
            
             ,
             before
             any
             Process
             intented
             against
             him
             ,
             at
             this
             Pursuers
             instance
             ,
             he
             cannot
             pay
             back
             a
             part
             thereof
             to
             the
             Pursuer
             ;
             because
             he
             is
             
               bona
               fide
            
             Possessor
             :
             and
             because
             the
             Act
             of
             Parliament
             bears
             ;
             
               That
               such
               Appryzings
               shall
               come
               in
            
             pari
             passu
             :
             which
             being
             in
             the
             future
             ,
             must
             be
             understood
             to
             be
             from
             their
             intenting
             of
             Process
             ,
             at
             least
             from
             the
             date
             of
             the
             Act
             ,
             but
             not
             from
             the
             beginning
             .
          
           
             The
             Lords
             having
             considered
             the
             Tenor
             of
             the
             Act
             of
             Parliament
             ,
             found
             that
             such
             Appryzings
             should
             only
             come
             in
             
               pari
               passu
            
             ,
             from
             the
             date
             of
             the
             Act
             ;
             but
             that
             the
             bygones
             uplifted
             by
             the
             first
             Appryzer
             ,
             before
             the
             Act
             should
             be
             accompted
             to
             him
             in
             his
             Sum
             ,
             but
             no
             part
             thereof
             repeited
             to
             the
             second
             Appryzer
             ;
             and
             found
             that
             the
             Sums
             Appryzed
             for
             Principal
             and
             Annualrent
             of
             both
             Parties
             ,
             should
             be
             restricted
             ,
             as
             they
             were
             the
             time
             of
             the
             Act
             of
             Parliament
             ,
             in
             one
             total
             Sum
             ;
             and
             the
             Rent
             to
             be
             received
             from
             that
             time
             proportionally
             ,
             to
             the
             total
             Sums
             ;
             and
             that
             the
             first
             Appryzer
             should
             have
             allowance
             in
             his
             preceeding
             Intromission
             of
             the
             expenses
             of
             the
             composition
             to
             the
             Superiour
             ,
             and
             the
             charges
             of
             the
             Appryzing
             ,
             without
             compelling
             the
             second
             Appryzer
             ,
             to
             pay
             him
             the
             same
             .
          
        
         
           
           
             Normand
             Lesly
             contra
             Gilbert
             Gray
             .
             Ianuary
             10.
             1665.
             
          
           
             
               NOrmand
               Lesly
            
             ,
             charges
             
               Gilbert
               Gray
            
             Provost
             in
             Aberdeen
             ,
             to
             pay
             2000
             merk
             ,
             for
             which
             he
             was
             Cautioner
             for
             
               William
               Gray
            
             .
             He
             Suspends
             ,
             and
             alleadges
             ,
             that
             the
             Charger
             had
             gotten
             an
             Assignation
             from
             the
             said
             
               William
               Gray
            
             ,
             to
             an
             Bond
             granted
             by
             the
             Earl
             of
             Errol
             ,
             to
             him
             and
             therefore
             craved
             ,
             that
             the
             Charger
             might
             be
             decerned
             to
             transfer
             that
             Assignation
             to
             him
             ,
             being
             given
             for
             the
             security
             of
             the
             same
             Sum.
             It
             was
             answered
             ,
             that
             the
             Charger
             was
             only
             oblidged
             to
             give
             a
             discharge
             to
             his
             Cautioner
             ,
             and
             not
             an
             Assignation
             of
             the
             Bond
             it self
             ,
             and
             much
             less
             of
             any
             security
             
               ex
               post
               facto
            
             he
             had
             gotten
             therefore
             .
          
           
             The
             Lords
             declared
             ,
             they
             would
             not
             give
             the
             Charger
             Process
             ,
             till
             he
             Assigned
             the
             Bond
             ,
             and
             all
             security
             gotten
             therefore
             to
             the
             Cautioner
             .
          
        
         
           
             William
             Reid
             contra
             John
             Reid
             .
             Eodem
             die
             .
          
           
             
               WIlliam
               Reid
            
             pursues
             
               Iohn
               Reid
            
             ,
             as
             his
             Tutor
             ,
             to
             deliver
             all
             Writs
             belonging
             to
             the
             Pupils
             Father
             ,
             or
             which
             were
             in
             his
             Custody
             ;
             and
             Possession
             
               quovis
               modo
            
             Intrometted
             with
             ,
             by
             the
             Tutor
             .
             Who
             alleadged
             ,
             the
             Pupil
             could
             have
             no
             interest
             in
             any
             Writs
             ,
             but
             these
             which
             belonged
             to
             his
             Father
             .
          
           
             The
             Lords
             found
             ,
             that
             Pupil
             had
             interest
             to
             call
             for
             Exhibition
             ,
             and
             Delivery
             of
             all
             Writs
             that
             were
             in
             his
             Fathers
             Possession
             
               quovis
               modo
            
             ,
             and
             ordained
             the
             Tutor
             to
             exhibit
             all
             ,
             but
             prejudice
             to
             any
             Partie
             having
             interest
             ,
             to
             crave
             the
             delivery
             of
             these
             Writs
             if
             they
             belonged
             to
             them
             .
          
        
         
           
             Campbel
             contra
             Mary
             Bryson
             .
             Eodem
             die
             .
          
           
             
               GEorge
               Campbel
            
             having
             right
             by
             Adjudication
             ,
             to
             the
             Reversion
             of
             a
             Wodset
             ,
             of
             some
             of
             the
             Lands
             of
             Newlistoun
             ,
             Wodset
             by
             the
             Laird
             of
             Newlistoun
             ;
             to
             
               Andrew
               Bryson
            
             Baillie
             of
             Edinburgh
             ,
             whereupon
             he
             was
             publickly
             Infeft
             ;
             and
             thereafter
             did
             dispone
             the
             same
             to
             his
             Daughter
             
               Marry
               Bryson
            
             ,
             and
             she
             was
             Infeft
             ,
             holden
             of
             her
             Father
             ;
             which
             Disposition
             contained
             a
             power
             to
             the
             Father
             ,
             to
             dispone
             on
             the
             Sum
             in
             the
             Wodset
             Right
             ,
             during
             his
             Lifetime
             ,
             without
             her
             Consent
             ;
             after
             all
             
               Andrew
               Bryson
            
             obtained
             a
             Confirmation
             of
             the
             foresaid
             Wodset
             :
             with
             Addition
             of
             16.
             aikers
             of
             Land
             more
             ,
             for
             the
             same
             Sum
             ,
             which
             was
             conceived
             in
             favours
             of
             himself
             ,
             and
             the
             Heirs
             of
             the
             Marriage
             ,
             whereupon
             he
             was
             Infeft
             .
             The
             said
             George
             having
             used
             an
             Order
             of
             Redemption
             ;
             craved
             Declarator
             .
             Compearance
             is
             made
             for
             the
             said
             Mary
             ,
             who
             craved
             the
             said
             Sum
             to
             be
             
             delivered
             up
             to
             her
             .
             It
             was
             alleadged
             by
             the
             Pursuer
             ,
             that
             she
             could
             not
             have
             up
             the
             Sum
             ,
             unless
             she
             were
             Infeft
             ,
             as
             Heir
             to
             her
             Father
             ,
             both
             in
             the
             first
             and
             last
             Wodset
             ,
             and
             resigned
             the
             same
             ;
             and
             so
             liberat
             the
             Land
             of
             the
             Burthen
             thereof
             ;
             for
             albeit
             she
             was
             Infeft
             
               proprio
               nomine
            
             ,
             yet
             it
             was
             but
             base
             holden
             of
             her
             Father
             :
             so
             that
             the
             Superiority
             remained
             with
             her
             Father
             ;
             and
             she
             behoved
             to
             be
             Infeft
             as
             Heir
             to
             him
             ,
             and
             renunce
             the
             same
             .
             2.
             
             The
             Corroborative
             Wodset
             stood
             in
             her
             Fathers
             Person
             ,
             who
             by
             her
             Disposition
             had
             a
             Power
             to
             dispose
             of
             the
             first
             Wodset
             ;
             and
             so
             had
             altered
             the
             Fee
             thereof
             to
             himself
             ,
             and
             his
             Heirs
             .
             It
             was
             answered
             ,
             that
             the
             second
             Wodset
             was
             taken
             when
             Maries
             mother
             was
             dead
             ;
             and
             she
             the
             only
             child
             of
             that
             Marriage
             :
             and
             so
             was
             alike
             ,
             as
             if
             her
             name
             had
             been
             expressed
             .
             2.
             
             The
             Declarator
             it self
             will
             sufficiently
             secure
             the
             Redeemer
             ,
             albeit
             there
             were
             no
             Resignation
             .
             3dly
             .
             The
             second
             Wodset
             ,
             is
             but
             accessory
             to
             the
             first
             ;
             so
             that
             the
             said
             Mary
             ,
             having
             power
             to
             renunce
             the
             first
             Wodset
             
               proprio
               nomine
            
             ,
             the
             second
             may
             be
             declared
             to
             be
             extinct
             in
             consequence
             ,
             and
             further
             ,
             offered
             Caution
             ,
             if
             need
             were
             ,
             to
             warrand
             the
             Redeemer
             .
          
           
             The
             Lords
             found
             the
             Lands
             to
             be
             Redeemed
             ,
             but
             ordained
             the
             Money
             not
             to
             be
             given
             up
             ,
             untill
             the
             said
             Mary
             had
             Infeft
             her self
             ,
             as
             Heir
             to
             her
             Father
             ,
             and
             Resigned
             ,
             for
             they
             thought
             ,
             the
             Redeemer
             ought
             to
             put
             upon
             no
             hazard
             of
             repetition
             ,
             or
             of
             the
             danger
             of
             the
             Infeftment
             unrenunced
             ;
             seing
             it
             was
             the
             ordinar
             Course
             to
             be
             Infeft
             ,
             and
             to
             renunce
             .
          
        
         
           
             Magaret
             Arnot
             contra
             Mr.
             Robert
             Arnot
             .
             Ianuary
             11.
             1665.
             
          
           
             
               MArgaret
               Arnot
            
             pursues
             a
             Reduction
             ,
             of
             a
             Decreet
             of
             Exoneration
             ,
             obtained
             by
             
               William
               Arnot
            
             her
             Uncle
             ,
             and
             Executor
             to
             her
             Father
             .
             It
             was
             alleadged
             ,
             for
             Mr.
             
               Robert
               Arnot
            
             ,
             Son
             and
             Successor
             to
             the
             said
             William
             ,
             that
             all
             Parties
             having
             Interest
             were
             not
             called
             .
             viz
             ,
             The
             Creditors
             ,
             and
             Legatars
             ,
             who
             were
             concerned
             in
             the
             event
             of
             the
             Reduction
             ;
             for
             if
             there
             Sums
             and
             Discharges
             were
             not
             allowed
             ,
             according
             to
             the
             Exoneration
             .
             The
             Defender
             behoved
             to
             return
             upon
             them
             ,
             for
             payment
             ;
             and
             therefore
             they
             ought
             to
             be
             called
             to
             defend
             their
             Interest
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             and
             found
             no
             necessity
             to
             call
             the
             Creditors
             and
             Legatars
             ,
             but
             that
             the
             Defender
             might
             intimat
             the
             Plea
             to
             them
             .
          
        
         
           
             Neilson
             and
             Calender
             contra
             Ianuary
             12.
             1665.
             
          
           
             NEilson
             and
             
               Lodovick
               Calender
            
             her
             Spouse
             pursue
             a
             Transferrence
             of
             an
             old
             Summons
             ,
             on
             which
             there
             was
             an
             Inhibition
             used
             .
             It
             was
             alleadged
             ,
             that
             the
             Executions
             ,
             of
             the
             first
             Summons
             were
             new
             ,
             and
             by
             ocular
             inspection
             false
             ,
             and
             craved
             the
             Pursuer
             might
             abide
             thereby
             ,
             who
             refused
             ;
             and
             so
             being
             without
             an
             Execution
             on
             the
             first
             Summons
             ,
             but
             having
             an
             Execution
             on
             the
             second
             were
             null
             ,
             The
             Pursuer
             craved
             them
             to
             be
             Transferred
             
               instatu
               
               quo
            
             ,
             but
             prejudice
             to
             the
             Defender
             ,
             in
             the
             cause
             to
             alleadge
             no
             Process
             ;
             because
             the
             first
             Execution
             was
             wanting
             .
          
           
             The
             Lords
             refused
             to
             transfer
             ,
             but
             some
             were
             of
             opinion
             ,
             that
             a
             new
             Summons
             ,
             
               in
               eadem
               causa
            
             would
             be
             sufficient
             to
             make
             the
             In●ibition
             effectual
             ,
             being
             raised
             on
             the
             Summons
             of
             Registration
             of
             a
             Bond
             ,
             others
             thought
             that
             albeit
             the
             Style
             bear
             ,
             that
             Inhibitions
             were
             not
             granted
             ,
             but
             upon
             fight
             of
             the
             Summons
             execute
             ;
             yet
             it
             was
             ordinar
             to
             give
             it
             on
             an
             unregistrate
             Bond
             ,
             or
             a
             Charge
             to
             enter
             Heir
             Execute
             ,
             though
             there
             was
             neither
             Decreet
             nor
             Dependence
             ;
             and
             therefore
             ,
             though
             Executions
             be
             put
             on
             to
             get
             ,
             these
             raised
             ;
             yet
             they
             are
             not
             adhered
             to
             ,
             but
             now
             used
             so
             ,
             that
             this
             Summons
             ,
             though
             without
             Execution
             ,
             yet
             might
             be
             transferred
             ,
             and
             thereon
             Executions
             might
             be
             used
             ,
             and
             thereby
             the
             Inhibition
             stands
             valid
             ,
             which
             was
             the
             more
             clear
             way
             ,
             for
             albeit
             Summons
             bear
             to
             cite
             to
             such
             a
             day
             next
             to
             come
             and
             so
             ordinarily
             cannot
             be
             used
             ,
             no
             citation
             being
             thereon
             within
             the
             year
             ;
             yet
             the
             Lords
             special
             warrand
             may
             allow
             a
             Summons
             to
             be
             sufficient
             for
             citation
             thereafter
             ,
             as
             well
             as
             they
             may
             give
             other
             priviledges
          
        
         
           
             Janet
             Shand
             contra
             Charles
             Charters
             .
             Ianuary
             13.
             1665.
             
          
           
             CRichtoun
             of
             Castelmain
             ,
             and
             Crichtoun
             of
             
               St.
               Leonard
            
             ,
             granted
             a
             Bond
             to
             
               Iohn
               Shand
            
             ,
             and
             Herren
             his
             Spouse
             ;
             the
             longest
             liver
             of
             them
             two
             :
             and
             their
             Heirs
             ,
             &c.
             
             With
             a
             Clause
             for
             Infeftment
             ,
             whereupon
             there
             was
             an
             Appryzing
             ,
             led
             in
             
               Iohn
               Shands
            
             lifetime
             ,
             against
             one
             of
             the
             Debitors
             :
             thereafter
             ,
             
               Iohn
               Shand
            
             charges
             the
             other
             Debitor
             for
             payment
             ;
             after
             the
             Charge
             ;
             
               Iohn
               Shand
            
             gives
             in
             the
             Appryzings
             ,
             to
             be
             allowed
             ,
             and
             after
             his
             Death
             ,
             his
             Wife
             takes
             Infeftment
             upon
             the
             Appryzing
             ,
             the
             Bond
             being
             now
             produced
             before
             the
             Lords
             ,
             in
             an
             Exhibition
             ,
             pursued
             by
             
               Ianet
               Schand
            
             as
             Heir
             to
             
               Iohn
               Shand.
            
             There
             is
             a
             competition
             for
             delivery
             ,
             betwixt
             
               Ianet
               Shand
            
             ,
             as
             Heir
             to
             
               Iohn
               Shand
            
             ;
             as
             being
             Heritable
             ,
             and
             
               Charles
               Charters
            
             ,
             as
             having
             right
             from
             
               Herrein
               ,
               Iohn
               Shands
            
             Relict
             ,
             as
             being
             moveable
             .
             It
             was
             alleadged
             by
             the
             Heir
             ,
             that
             the
             Sum
             became
             Heretable
             ,
             by
             the
             Superveening
             of
             the
             Appryzing
             .
             It
             was
             answered
             ,
             that
             there
             was
             a
             Charge
             after
             the
             Appryzing
             ,
             which
             returned
             the
             Bond
             to
             be
             moveable
             .
             It
             was
             answered
             ,
             that
             the
             Charge
             was
             not
             against
             the
             Partie
             ,
             whose
             Lands
             was
             Appryzed
             ,
             but
             against
             the
             other
             Party
             .
             2ly
             .
             The
             Charge
             could
             only
             return
             the
             Bond
             to
             its
             first
             condition
             ,
             before
             the
             Appryzing
             :
             So
             that
             the
             Bond
             being
             since
             1641.
             the
             Relict
             is
             excluded
             ;
             and
             the
             Charge
             cannot
             bring
             her
             in
             .
             3ly
             .
             Albeit
             it
             could
             ,
             yet
             after
             the
             Charge
             the
             Defunct
             returned
             to
             his
             Heretable
             Right
             ,
             by
             obtaining
             that
             Appryzing
             allowed
             ,
             which
             allowance
             ,
             the
             Relict
             produced
             ,
             and
             took
             Infeftment
             :
             so
             that
             these
             last
             Acts
             being
             upon
             the
             Real
             Right
             ,
             the
             Heir
             must
             be
             preferred
             ;
             and
             therefore
             the
             ground
             of
             preference
             of
             the
             Executor
             ,
             or
             Heir
             ,
             is
             the
             will
             of
             the
             Defunct
             ,
             either
             to
             make
             use
             of
             his
             Heretable
             or
             Moveable
             Right
             ,
             which
             is
             still
             ambulatorie
             ,
             and
             in
             his
             power
             ;
             and
             whatever
             Right
             he
             last
             makes
             use
             of
             ,
             evidences
             his
             choise
             ,
             and
             according
             thereto
             ,
             the
             Right
             is
             either
             Heretable
             or
             Moveable
             :
             but
             here
             he
             did
             last
             make
             use
             of
             his
             Real
             Right
             ,
             by
             allowance
             of
             the
             Appryzing
             ,
             after
             the
             Charge
             ,
             which
             the
             Relict
             homologat
             ,
             by
             taking
             Infeftment
             conform
             .
             It
             was
             answered
             ,
             for
             the
             Creditor
             of
             the
             Relict
             ;
             that
             this
             being
             on
             Debt
             ,
             though
             due
             by
             many
             Debitors
             .
             
             The
             Charge
             against
             one
             ,
             did
             sufficiently
             show
             the
             purpose
             of
             the
             Defunct
             ,
             to
             make
             use
             of
             his
             Right
             ;
             and
             the
             Charge
             doth
             render
             the
             Bond
             simply
             moveable
             :
             and
             doth
             not
             return
             to
             the
             condition
             it
             was
             before
             the
             Appryzing
             .
             To
             the
             3.
             passing
             from
             the
             Charge
             must
             either
             be
             express
             ,
             or
             a
             Deed
             of
             evident
             consequence
             ,
             but
             the
             allowance
             of
             the
             Appryzing
             is
             not
             such
             ;
             which
             might
             be
             done
             only
             
               ad
               hunc
               effectum
            
             ,
             that
             if
             the
             Appryzer
             should
             pass
             from
             his
             Charge
             ,
             the
             Appryzing
             might
             revive
             ,
             and
             be
             secure
             .
          
           
             The
             Lords
             found
             the
             Sum
             Heretable
             .
          
        
         
           
             Charles
             Charters
             contra
             a
             Skipper
             .
             Eodem
             die
             .
          
           
             
               CHarles
               Charters
            
             having
             fraughted
             a
             Ship
             to
             Queensburgh
             ,
             by
             Charter
             Partie
             .
             The
             Skipper
             was
             to
             ly
             so
             many
             lye
             dayes
             ,
             and
             to
             bring
             a
             Fraught
             thence
             ;
             he
             returned
             without
             full
             Fraught
             ,
             whereupon
             Charles
             refuses
             full
             payment
             ;
             and
             being
             decerned
             by
             the
             Baillies
             of
             Leith
             to
             pay
             the
             rest
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Skipper
             ought
             to
             get
             the
             Fraught
             only
             proportionally
             to
             the
             Loading
             ,
             and
             offers
             to
             prove
             the
             third
             part
             less
             then
             the
             full
             Loading
             brought
             home
             ,
             and
             that
             the
             Skipper
             could
             not
             have
             his
             full
             Fraught
             ,
             unless
             he
             instruct
             that
             he
             intimat
             to
             the
             Factor
             at
             Queensburgh
             ,
             to
             whom
             he
             was
             direct
             ,
             of
             his
             coming
             ,
             and
             that
             he
             lay
             his
             lye
             dayes
             ,
             and
             after
             Intimation
             to
             the
             Factor
             to
             give
             him
             any
             Ware
             he
             had
             ,
             he
             took
             Instrument
             ,
             or
             protested
             thereon
             .
          
           
             The
             Lords
             found
             ,
             he
             ought
             to
             prove
             the
             Intimation
             ,
             
               ut
               supra
            
             ,
             by
             Witnesses
             but
             required
             no
             Protest
             ,
             or
             Instrument
             thereon
             .
          
        
         
           
             Edgar
             .
             contra
             Edgar
             .
             January
             17.
             1665.
             
          
           
             
               ISobel
               Edgar
            
             pursues
             for
             4000
             merks
             ,
             provided
             in
             her
             Mothers
             Contract
             of
             Marriage
             ,
             by
             this
             Clause
             ;
             whereby
             her
             Father
             having
             married
             her
             Mother
             to
             his
             second
             Wife
             ,
             oblidged
             him
             ,
             and
             the
             Heirs
             of
             the
             first
             marriage
             ;
             which
             failzing
             ,
             his
             Heirs
             and
             Executors
             to
             pay
             to
             his
             Bairns
             of
             the
             second
             Marriage
             ,
             4000
             merks
             ,
             albeit
             there
             were
             but
             one
             of
             them
             ;
             and
             if
             there
             were
             more
             ,
             the
             same
             Sum
             to
             be
             divided
             among
             them
             ,
             the
             Portions
             of
             the
             Male
             Children
             to
             be
             payed
             at
             their
             age
             of
             21.
             and
             the
             Femal
             at
             the
             age
             of
             18.
             
             And
             to
             pay
             them
             five
             of
             each
             hundreth
             after
             his
             Death
             ,
             till
             the
             Terms
             of
             payment
             .
             
               Ita
               est
            
             ,
             the
             Heirs
             of
             the
             first
             Marriage
             failzied
             by
             decease
             ,
             and
             there
             was
             four
             Bairns
             survived
             of
             the
             second
             Marriage
             ,
             whereof
             two
             died
             ,
             before
             they
             attained
             to
             their
             age
             mentioned
             in
             the
             Clause
             ,
             and
             now
             there
             remains
             but
             two
             ,
             the
             Pursuer
             and
             her
             Brother
             ,
             who
             is
             become
             Heir
             ;
             whereupon
             she
             alleadges
             ,
             that
             she
             hath
             the
             benefit
             of
             the
             whole
             4000
             merks
             .
             It
             was
             answered
             ,
             for
             the
             Brother
             ,
             that
             he
             hath
             right
             to
             the
             half
             ,
             because
             he
             is
             a
             Bairn
             of
             the
             Marriage
             as
             well
             as
             she
             ;
             and
             albeit
             he
             be
             become
             Heir
             ,
             yet
             that
             takes
             not
             away
             his
             Share
             ,
             by
             this
             oblidgment
             as
             a
             Bairn
             of
             the
             second
             Marriage
             .
             2ly
             .
             Albeit
             his
             being
             Heir
             would
             exclude
             
             him
             ,
             yet
             the
             Portions
             of
             the
             two
             that
             are
             deceased
             having
             become
             Heirs
             by
             there
             survivancy
             transmit
             the
             same
             to
             their
             nearest
             of
             kine
             ,
             and
             so
             he
             and
             the
             Pursuer
             are
             equally
             nearest
             of
             Kin.
             The
             Pursuer
             answered
             ,
             that
             the
             Heirs
             of
             the
             first
             Marriage
             having
             failled
             ,
             the
             Clause
             stands
             now
             as
             if
             it
             had
             been
             conceived
             thus
             ;
             that
             the
             Father
             had
             oblidged
             himself
             ,
             and
             his
             Heirs
             ,
             which
             comprehends
             all
             Heirs●
             to
             pay
             to
             the
             Bai●ns
             of
             the
             second
             Marriage
             ;
             which
             must
             be
             understood
             of
             Bairns
             ,
             beside
             the
             Heir
             ;
             because
             the
             Heir
             is
             constitute
             Debitor
             ;
             and
             so
             cannot
             be
             thought
             to
             be
             Creditor
             in
             the
             same
             Clause
             .
          
           
             The
             Lords
             found
             the
             conception
             of
             the
             Clause
             ,
             that
             the
             Brother
             ,
             by
             falling
             now
             Heir
             ,
             was
             excluded
             ;
             seing
             it
             was
             clear
             ,
             by
             the
             meaning
             of
             the
             Defunct
             ,
             that
             his
             Heir
             should
             have
             his
             Lands
             ,
             and
             his
             Bairns
             of
             his
             second
             Marriage
             ,
             should
             have
             ,
             though
             but
             one
             ,
             4000
             merks
             :
             but
             here
             the
             Heir
             ,
             of
             the
             first
             Marriage
             was
             never
             served
             Heir
             ,
             They
             also
             found
             ,
             that
             the
             Portions
             of
             the
             Children
             being
             to
             an
             uncertain
             day
             ,
             and
             not
             conceived
             to
             their
             Heirs
             ,
             or
             Assigneys
             ,
             that
             they
             dying
             before
             that
             day
             ,
             had
             no
             right
             to
             the
             Stock
             ,
             but
             only
             the
             Annualrent
             ,
             
               medio
               tempore
            
             ,
             so
             that
             the
             Stock
             accresced
             to
             the
             surviving
             Children
             ;
             as
             if
             the
             Defuncts
             had
             never
             existed
             ,
             and
             that
             their
             Assigneys
             ,
             or
             Creditors
             could
             not
             have
             affected
             the
             same
             :
             and
             so
             found
             the
             Brother
             had
             no
             right
             ,
             as
             nearest
             of
             Kin
             to
             the
             two
             deceasing
             Children
             ,
             not
             attaining
             the
             Age
             mentioned
             in
             the
             Contract
             .
          
        
         
           
             William
             Stewart
             contra
             Stewarts
             .
             Ianuary
             18.
             1665.
             
          
           
             
               WIlliam
               Stewart
            
             pursues
             a
             Poynding
             of
             the
             Ground
             ,
             of
             the
             Lands
             of
             Errol
             ,
             upon
             an
             Infeftment
             of
             Annualrent
             ,
             granted
             to
             his
             Grand-Father
             by
             the
             Earl
             of
             Errol
             ,
             by
             his
             Bond
             ,
             and
             Infeftment
             following
             thereupon
             :
             in
             which
             Bond
             ,
             there
             were
             Cautioners
             ,
             the
             Annualrent
             was
             for
             a
             Sum
             of
             7000
             merk
             .
             and
             a
             Sum
             of
             8000
             merk
             .
             Compearance
             is
             made
             for
             the
             Pursuers
             Brothers
             and
             Sisters
             ,
             who
             alleadged
             ,
             that
             as
             to
             the
             Sum
             of
             7000
             merks
             ,
             it
             became
             moveable
             ;
             and
             belongs
             to
             them
             ,
             as
             nearest
             of
             Kine
             :
             In
             so
             far
             as
             their
             Father
             made
             Requisition
             for
             the
             same
             :
             It
             was
             answered
             ,
             the
             Instrument
             of
             Requisition
             is
             null
             ;
             and
             being
             disconform
             to
             the
             Clause
             of
             Requisition
             :
             in
             respect
             ,
             that
             the
             Original
             Bond
             was
             to
             the
             Husband
             and
             Wife
             ,
             the
             longest
             liver
             of
             them
             two
             ,
             in
             Conjunctfee
             ,
             and
             their
             Heirs
             ,
             &c.
             
             And
             the
             Requisition
             bears
             expresly
             ,
             
               That
               if
               the
               Husband
               ,
               or
               his
               Heirs
               required
               ,
               with
               consent
               of
               the
               Wife
               ,
               then
               the
               Debitor
               shall
               pay
               ,
            
             ita
             est
             
               the
               Instrumenet
               bears
               no
               consent
            
             .
             It
             was
             answered
             ,
             that
             albeit
             some
             Points
             of
             the
             Requisition
             were
             omitted
             ;
             yet
             seing
             the
             mind
             of
             the
             Defunct
             appears
             to
             take
             himself
             to
             his
             Personal
             Right
             ,
             and
             consequenly
             to
             prefer
             his
             Executor
             to
             his
             Heir
             ,
             it
             is
             sufficient
             .
             The
             Pursuer
             answered
             ,
             
               non
               relevat
            
             ,
             because
             every
             Intimation
             of
             the
             Defuncts
             Intention
             is
             not
             enough
             ;
             but
             it
             must
             be
             
               haili
               modo
            
             ,
             and
             the
             ground
             whereupon
             the
             Sums
             become
             moveable
             ,
             is
             ,
             because
             the
             Requisition
             looses
             ,
             and
             takes
             away
             the
             Infeftment
             ;
             and
             therefore
             if
             the
             Requisition
             be
             null
             ,
             the
             Infeftment
             is
             valid
             :
             and
             he
             Bairns
             can
             never
             have
             access
             .
          
           
             The
             Lords
             found
             the
             Requisition
             null
             ,
             and
             preferred
             the
             Heir
             .
          
        
         
           
           
             Stewart
             contra
             Stewart
             .
             Ianuary
             19.
             1665.
             
          
           
             IN
             the
             foresaid
             Cause
             ,
             it
             was
             further
             alleadged
             ,
             for
             the
             8000
             merk
             ,
             that
             it
             was
             also
             moveable
             ;
             because
             ,
             as
             to
             it
             ,
             there
             was
             no
             Liferenter
             ,
             and
             the
             Fear
             himself
             did
             require
             .
             It
             was
             answered
             ,
             for
             the
             Children
             ,
             that
             the
             Requisition
             is
             null
             ,
             because
             it
             mentions
             not
             the
             production
             of
             a
             Procuratory
             ,
             nor
             the
             production
             of
             the
             Right
             it self
             .
             2ly
             .
             The
             Requisition
             is
             made
             to
             Bogie
             as
             Cautioner
             for
             the
             Earl
             of
             Kinnoul
             ,
             whereas
             he
             was
             Cautioner
             for
             the
             Earl
             of
             Errol
             ,
             granter
             of
             the
             first
             Bond.
             It
             was
             replyed
             ,
             oppones
             the
             Requisition
             ,
             bearing
             ,
             
               That
               the
               Procurators
               power
               was
               sufficiently
               known
               to
               the
               Notar
               .
               2ly
               non
               Relevat
               ,
            
             unless
             the
             Person
             required
             ,
             had
             called
             for
             the
             Procuratory
             or
             Right
             ,
             and
             had
             been
             refused
             .
             3ly
             .
             The
             Procuratory
             is
             now
             produced
             ,
             with
             the
             Right
             ,
             and
             the
             Defunct
             acknowledged
             the
             Procuratory
             ;
             and
             Right
             ,
             because
             he
             raised
             horning
             thereupon
             .
          
           
             The
             Lords
             sustained
             the
             Requisition
             ,
             and
             found
             the
             Sum
             moveable
             ,
             and
             preferred
             the
             Bairns
             thereto
             .
          
        
         
           
             Shaw
             contra
             Lewens
             .
             Eodem
             die
             .
          
           
             
               WIlliam
               Shaw
            
             ,
             being
             a
             Factor
             at
             London
             ,
             and
             dieing
             there
             ;
             and
             having
             Means
             both
             in
             England
             and
             Scotland
             :
             There
             falls
             a
             Competition
             betwixt
             his
             Executors
             nuncupative
             in
             England
             ,
             and
             his
             nearest
             of
             Kine
             ,
             Executors
             in
             
               Scotland
               .
               Anna
               Lewens
            
             Executrix
             confirmed
             in
             England
             ;
             produces
             a
             Sentence
             of
             the
             Court
             of
             
               Probat
               of
               wills
            
             in
             England
             ,
             bearing
             ,
             
               That
               upon
               the
               Examination
               of
               Witnesses
               ,
               that
               Court
               found
               ,
               that
            
             William
             Shaw
             
               did
               nominat
               Anna
               Lewens
               his
               Executrix
               ,
               and
               universal
               Legatrix
               .
            
             And
             that
             being
             asked
             by
             her
             ,
             what
             he
             would
             leave
             to
             his
             friends
             in
             Scotland
             .
             He
             declared
             he
             would
             leave
             her
             all
             ,
             and
             them
             nothing
             ,
             because
             they
             had
             dealt
             unnaturally
             with
             him
             .
             It
             was
             alleadged
             ,
             for
             the
             Defuncts
             Cusigns
             ,
             Executors
             Confirmed
             in
             Scotland
             ,
             that
             they
             ought
             to
             be
             preferred
             ,
             because
             as
             to
             the
             Defuncts
             Means
             ,
             and
             Moveables
             in
             Scotland
             ,
             the
             same
             must
             be
             regulat
             according
             to
             the
             Law
             in
             Scotland
             ,
             where
             a
             nuncupative
             Testament
             hath
             no
             use
             at
             all
             :
             and
             albeit
             ,
             a
             Legacy
             may
             be
             left
             by
             word
             ,
             yet
             it
             cannot
             exceed
             a
             100
             
               lib.
               Scots
            
             .
             It
             was
             answered
             ,
             that
             as
             to
             the
             Succession
             ,
             the
             Law
             of
             Scotland
             must
             regulat
             :
             so
             that
             what
             is
             Heretable
             ,
             cannot
             be
             left
             by
             Testament
             ,
             though
             made
             out
             of
             Scotland
             .
             As
             was
             found
             in
             the
             Case
             of
             the
             Successors
             of
             
               Col
               Henderson
            
             dying
             in
             Holland
             ,
             and
             in
             the
             Case
             of
             contra
             Meldrum
             ;
             yet
             as
             to
             the
             Solemnity
             of
             Acts
             to
             the
             Law
             ,
             and
             Custom
             of
             the
             Place
             ,
             where
             such
             Acts
             are
             done
             ,
             takes
             place
             ,
             as
             where
             an
             Act
             is
             done
             in
             Scotland
             :
             albeit
             it
             be
             only
             probable
             by
             Writ
             ,
             or
             Oath
             of
             Parties
             :
             yet
             being
             done
             in
             England
             ,
             it
             is
             probable
             by
             Witnesses
             though
             it
             were
             of
             the
             greatest
             moment
             ,
             and
             though
             the
             Law
             of
             Scotland
             ,
             in
             Writs
             of
             Importance
             ,
             requires
             the
             Subscription
             of
             the
             Partie
             before
             Witnesses
             ,
             or
             of
             two
             Nottars
             ,
             and
             four
             Witnesses
             :
             yet
             Writs
             made
             in
             France
             
             and
             Holland
             ,
             by
             the
             Instrument
             of
             one
             Nottar
             ,
             are
             valid
             ;
             so
             here
             there
             being
             no
             difference
             from
             the
             Law
             of
             Scotland
             :
             which
             always
             preferres
             Executors
             nominat
             ,
             before
             nearest
             of
             Kin
             ;
             and
             the
             difference
             only
             as
             to
             the
             Solemnities
             ,
             and
             manner
             of
             Probation
             ,
             that
             there
             it
             may
             be
             proven
             by
             Witnesses
             ,
             there
             was
             a
             Nomination
             ,
             and
             here
             only
             by
             Writ
             .
          
           
             The
             Lords
             having
             considered
             the
             Reasons
             ,
             and
             former
             Decisions
             ,
             preferred
             the
             Executors
             ,
             confirmed
             in
             Scotland
             ,
             for
             they
             found
             ,
             that
             the
             Question
             was
             not
             here
             of
             the
             manner
             of
             Probation
             ,
             of
             a
             Nomination
             ,
             In
             which
             case
             ,
             they
             would
             have
             followed
             the
             Law
             of
             the
             Place
             ,
             but
             it
             was
             upon
             the
             Constitution
             of
             the
             essentialls
             of
             a
             Right
             ,
             viz.
             A
             nomination
             ,
             which
             ,
             albeit
             it
             were
             certainly
             known
             to
             have
             been
             by
             word
             ;
             yea
             ,
             if
             it
             were
             offered
             to
             be
             proven
             by
             the
             nearest
             of
             Kin
             ,
             that
             they
             were
             Witnesses
             thereto
             ,
             yet
             the
             Solemnitie
             of
             writ
             not
             being
             interposed
             ,
             the
             Nomination
             is
             in
             it self
             defective
             ,
             and
             null
             
               in
               substantialibus
            
             .
          
        
         
           
             Lord
             Lour
             contra
             Ianuary
             20.
             1665.
             
          
           
             IN
             a
             Process
             ,
             for
             making
             arrested
             Sums
             furth-coming
             ,
             two
             Arresters
             ,
             viz.
             my
             Lord
             Lour
             ,
             and
             another
             Competing
             .
             It
             was
             alleadged
             ,
             for
             Lour
             ,
             that
             the
             first
             Arrestment
             ,
             is
             null
             ,
             because
             the
             Partie
             was
             out
             off
             the
             Countrey
             ,
             when
             it
             was
             only
             made
             at
             his
             dwelling
             house
             ,
             which
             is
             not
             Legal
             ;
             seing
             all
             Summonds
             ,
             Intimations
             ,
             Premonitions
             ,
             Requisitions
             ,
             and
             all
             Denunciations
             against
             Parties
             out
             of
             the
             Countrey
             ,
             must
             be
             by
             Letters
             of
             Supplement
             from
             the
             Lords
             ,
             Execute
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ,
             and
             Peir
             ,
             and
             Shore
             of
             Leith
             :
             So
             must
             Arrestments
             ,
             against
             these
             who
             are
             out
             of
             the
             Countrey
             be
             there
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             and
             preferred
             the
             second
             Arrestment
             Personal
             .
          
        
         
           
             Litle
             contra
             Earl
             of
             Nithsdail
             .
             Eodem
             die
             .
          
           
             LItle
             pursues
             an
             Improbation
             ,
             and
             Reduction
             against
             the
             Earl
             of
             Nithsdaile
             ,
             of
             the
             Rights
             of
             some
             Lands
             ;
             Wherein●
             the
             Lords
             sustained
             the
             Pursuers
             Interest
             ,
             on
             a
             Compryzing
             ,
             and
             Charge
             ,
             without
             Infeftment
             ,
             and
             though
             the
             Appryzing
             was
             on
             Litles
             own
             Band
             ,
             simulat
             and
             assigned
             to
             himself
             ;
             and
             found
             such
             Deeds
             might
             make
             him
             lyable
             ,
             as
             behaving
             as
             Heir
             ,
             if
             he
             Intrometted
             ,
             and
             were
             sufficient
             Titles
             any
             other
             way
             .
          
           
             The
             Lords
             also
             found
             ,
             that
             Certification
             ought
             to
             be
             granted
             against
             Retours
             ,
             and
             Charters
             ,
             though
             in
             publick
             Registers
             ,
             but
             not
             against
             Writs
             Registrate
             in
             the
             Books
             of
             Session
             ,
             the
             date
             being
             condescended
             on
             ,
             by
             the
             Defender
             ,
             were
             sustained
             against
             all
             Writs
             ,
             granted
             to
             the
             Defender
             ,
             and
             his
             Authors
             ,
             but
             such
             as
             Seem
             to
             represent
             them
             are
             called
             ,
             nor
             against
             Writs
             ,
             granted
             by
             the
             Pursuer
             ,
             his
             Predecessors
             ,
             or
             Authors
             ,
             but
             only
             his
             Predecessors
             ,
             to
             whom
             he
             doth
             Succeed
             ,
             
               jure
               sanguinis
            
             ,
             and
             such
             Authors
             ,
             as
             he
             produces
             Right
             from
             ,
             but
             they
             would
             not
             admit
             Certification
             against
             Appryzing
             ,
             if
             the
             Infeftment
             thereupon
             were
             produced
             .
          
        
         
           
           
             Sir
             John
             Baird
             contra
             The
             Magistrats
             of
             Elgine
             .
             Ianuary
             25.
             1665.
             
          
           
             SIr
             
               Iohn
               Baird
            
             pursues
             the
             Magistrats
             of
             Elgine
             ,
             for
             the
             Debt
             of
             a
             Rebel
             ,
             whom
             they
             suffered
             to
             escape
             forth
             of
             their
             Prison
             .
             It
             was
             alleadged
             ,
             for
             the
             Magistrats
             absolvitor
             ;
             because
             they
             could
             be
             oblidged
             no
             further
             ,
             but
             for
             their
             ordinar
             diligence
             of
             Custodie
             ,
             but
             not
             
               contra
               vim
               majorem
            
             ,
             and
             offered
             to
             prove
             ,
             that
             about
             six
             a
             clock
             at
             night
             ,
             in
             the
             winter
             time
             ,
             the
             Rebels
             Lady
             going
             in
             to
             Sup
             with
             him
             ,
             the
             keeper
             opening
             the
             Prison
             Door
             to
             let
             her
             in
             ,
             six
             or
             seven
             Armed
             men
             pressed
             in
             with
             her
             ,
             and
             that
             there
             was
             sixty
             more
             at
             the
             Gate
             .
             The
             Pursuer
             answered
             ,
             
               non
               relevat
            
             ,
             because
             it
             was
             the
             Keepers
             fault
             to
             let
             in
             any
             body
             at
             that
             time
             of
             night
             .
          
           
             The
             Lords
             found
             the
             Defense
             relevant
             ,
             to
             be
             proven
             by
             Witnesses
             ,
             above
             exception
             ,
             which
             were
             condescended
             on
             .
          
        
         
           
             Parson
             of
             Dysart
             contra
             Watson
             .
             Eodem
             die
             .
          
           
             ANderson
             Parson
             of
             Dysart
             having
             a
             designation
             of
             four
             Aikers
             of
             
               Iohn
               Watsons
            
             Land
             ,
             which
             was
             Bishops
             Land
             ;
             charges
             him
             to
             remove●
             Watson
             Suspends
             on
             this
             Reason
             ,
             that
             there
             are
             Parsons
             Lands
             in
             the
             Paroch
             ,
             more
             ewest
             to
             the
             Kirk
             ,
             and
             lying
             about
             the
             Parsons
             Mans
             ,
             and
             therefore
             ,
             according
             to
             the
             Order
             of
             the
             Act
             of
             Parliament
             :
             anent
             Designation
             of
             Glebs
             ,
             the
             Parsons
             Lands
             must
             be
             designed
             in
             the
             first
             place
             ,
             before
             the
             Defenders
             Lands
             ,
             which
             are
             Bishops
             Lands
             .
             It
             is
             answered
             ,
             for
             the
             Charger
             ,
             that
             the
             Parsons
             Lands
             were
             Feued
             out
             before
             the
             said
             Act
             of
             Parliament
             ,
             and
             are
             all
             build
             with
             houses
             incorporat
             within
             the
             Town
             of
             Dysart
             .
             It
             was
             answered
             ,
             that
             the
             said
             Act
             of
             Parliament
             bears
             ,
             That
             the
             Parsons
             Lands
             shall
             be
             first
             Designed
             ,
             although
             they
             be
             Feued
             out
             before
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             and
             Ordained
             the
             Parsons
             Land
             to
             be
             cognosced
             ,
             what
             quantitie
             was
             wanting
             thereof
             to
             be
             made
             out
             of
             the
             Bishops
             Land.
             
          
        
         
           
             William
             Menzies
             contra
             Laird
             of
             Drum.
             Eodem
             die
             .
          
           
             
               WIlliam
               Menzies
            
             ,
             as
             Executor
             to
             
               Alexander
               Menzies
            
             ,
             and
             umquhil
             
               Margart
               Gordon
            
             the
             other
             Executor
             ;
             having
             obtained
             Decreet
             against
             the
             Laird
             of
             Drum
             ,
             for
             8000
             merk
             :
             The
             said
             Margaret
             being
             dead
             ,
             William
             charges
             for
             the
             whole
             ,
             Margaret
             having
             died
             at
             the
             Horn
             Compearance
             is
             made
             for
             the
             Donatar
             .
             It
             was
             alleadged
             for
             Drum
             ,
             that
             he
             could
             not
             be
             conveened
             at
             the
             instance
             of
             this
             Pursuer
             ,
             without
             concourse
             of
             the
             other
             
             Executor
             ,
             or
             some
             to
             represent
             her
             had
             been
             called
             .
             For
             they
             might
             have
             alleadged
             ,
             that
             this
             Charger
             is
             satisfied
             of
             the
             half
             of
             his
             Executry
             .
          
           
             The
             Lords
             found
             ,
             that
             seing
             the
             Testament
             was
             execute
             by
             a
             Sentence
             ;
             the
             other
             Executor
             needed
             not
             be
             called
             .
          
           
             
               2ly
               .
               Drum
            
             alleadged
             ,
             that
             he
             could
             not
             be
             lyable
             to
             this
             Executor
             ,
             but
             for
             the
             half
             .
             It
             was
             alleadged
             for
             the
             Donatar
             ,
             that
             he
             craved
             preference
             for
             the
             other
             half
             .
             It
             was
             answered
             ,
             that
             the
             Donatar
             could
             have
             no
             interest
             ,
             because
             the
             Sum
             was
             Heretable
             ;
             It
             was
             answered
             ,
             that
             albeit
             it
             was
             Heretable
             ,
             yet
             it
             became
             moveable
             ,
             by
             the
             Executors
             taking
             a
             Decreet
             therefore
             ,
             in
             the
             same
             Case
             ,
             as
             if
             Requisition
             had
             been
             used
             .
          
           
             In
             this
             the
             Lords
             did
             not
             decide
             ,
             some
             being
             of
             opinion
             ,
             that
             it
             was
             Moveable
             ,
             others
             contrair
             ,
             because
             an
             Executor
             being
             but
             a
             Successor
             ,
             as
             a
             Decreet
             of
             Registration
             ,
             or
             Transferrence
             ,
             would
             not
             change
             the
             Nature
             of
             the
             first
             Bond
             ,
             so
             neither
             would
             this
             Decreet
             .
          
        
         
           
             The
             Heretors
             of
             the
             Fishing
             of
             Don
             contra
             The
             Town
             of
             Aberdeen
             and
             their
             Feuers
             .
             Ianuary
             26.
             1665.
             
          
           
             THe
             Heretors
             having
             Salmond
             Fishing
             in
             the
             Water
             of
             Don
             ,
             above
             Aberdeen
             ,
             pursue
             a
             Declarator
             of
             their
             Right
             of
             Salmond
             Fishing
             ;
             and
             that
             they
             ought
             to
             be
             Free
             of
             the
             prejudice
             sustained
             by
             the
             Cruives
             built
             at
             Aberdeen
             ,
             and
             insist
             upon
             these
             Particulars
             .
             That
             the
             Town
             of
             Aberdeen
             hath
             no
             Right
             to
             Cruives
             ,
             but
             is
             only
             Infeft
             
               cum
               piscationibus
               &
               piscarijs
            
             ,
             and
             within
             such
             a
             bounds
             ,
             which
             cannot
             carry
             Salmond
             Fishing
             ,
             being
             
               inter
               regalia
            
             ,
             much
             less
             Cruives
             .
             It
             was
             answered
             ,
             that
             such
             a
             Clause
             granted
             to
             an
             Incorporation
             ,
             or
             Community
             ,
             or
             being
             in
             Baronia
             ,
             with
             Immemorial
             Possession
             is
             sufficient
             ;
             and
             that
             there
             is
             a
             later
             Right
             granted
             to
             the
             Town
             ,
             with
             power
             of
             Cruives
             ,
             within
             the
             said
             Bounds
             ,
             
               uti
               possidebantur
            
             .
             It
             was
             answered
             ,
             that
             the
             Pursuers
             had
             their
             Cruives
             established
             before
             that
             time
             .
          
           
             The
             Lords
             found
             the
             Town
             of
             Aberdeens
             Title
             to
             Cruives
             ,
             albeit
             conceived
             ,
             but
             conform
             to
             the
             first
             Clause
             ,
             with
             long
             Possession
             was
             sufficient
             .
          
           
             2ly
             .
             The
             Pursuers
             insisted
             against
             the
             Transporting
             of
             the
             Cruives
             from
             one
             place
             to
             another
             ,
             which
             they
             could
             not
             do
             ;
             Cruives
             being
             a
             Servitude
             ,
             
               strictissimi
               juris
            
             :
             as
             a
             way
             being
             once
             chosen
             ,
             and
             fixed
             ,
             cannot
             be
             changed
             :
             especially
             ,
             in
             respect
             of
             the
             Clauses
             
               uti
               possidebantur
            
             .
             It
             was
             answered
             ;
             that
             there
             being
             a
             Bounds
             expressed
             ,
             and
             mentioning
             Cruives
             to
             have
             been
             there
             before
             ,
             the
             meaning
             can
             be
             no
             other
             ,
             then
             that
             these
             Cruives
             should
             be
             removed
             ,
             if
             Inundations
             alter
             the
             present
             stans
             ,
             and
             
               uti
               possidebantur
            
             is
             only
             understood
             of
             the
             way
             of
             building
             ,
             as
             before
             .
          
           
             The
             Lords
             found
             ,
             by
             the
             said
             Clause
             that
             the
             Cruives
             might
             be
             Trasplanted
             within
             the
             Bounds
             having
             but
             one
             Cruive
             Dyck
             ,
             and
             the
             former
             Dyck
             demolished
             ,
             so
             that
             the
             Fishings
             above
             be
             in
             no
             worse
             condition
             then
             formerly
             .
          
           
             3ly
             .
             They
             insisted
             for
             the
             wydnesse
             of
             the
             Heeks
             ,
             whereanent
             it
             was
             alleadged
             ,
             that
             by
             an
             Act
             of
             Parliament
             King
             Iames
             the
             fourth
             ,
             Hecks
             were
             appointed
             to
             be
             five
             Inches
             wyde
             ;
             which
             is
             confirmed
             ,
             by
             an
             Act
             1661.
             
             It
             was
             answered
             ,
             that
             the
             Act
             King
             Iames
             the
             4th
             .
             did
             relate
             to
             a
             former
             Act
             of
             King
             Davids
             ,
             which
             was
             not
             to
             be
             found
             ,
             but
             there
             were
             two
             Acts
             by
             King
             Iames
             the
             3.
             
             Relating
             to
             the
             old
             Act
             by
             King
             Alexander
             ,
             which
             was
             found
             to
             bear
             three
             Inch.
             So
             that
             the
             Act
             K.
             Iames
             the
             4th
             .
             though
             posterior
             ,
             being
             but
             Relative
             ,
             and
             the
             Act
             Related
             not
             known
             .
          
           
           
             The
             Lords
             found
             ,
             it
             was
             a
             mistake
             ,
             in
             the
             writing
             of
             the
             Act
             ;
             and
             that
             in
             the
             stead
             of
             
               King
               David
            
             ,
             it
             should
             have
             expressed
             
               King
               Alexander
            
             ;
             and
             so
             born
             only
             three
             Inches
             ,
             seing
             otherwayes
             five
             Inch
             would
             let
             the
             greatest
             part
             of
             Salmond
             passe
             .
          
           
             4ly
             .
             They
             Insisted
             for
             the
             Saturndays
             Slop
             ;
             and
             craved
             ,
             that
             on
             Saturnday
             the
             whole
             Cruives
             might
             stand
             open
             :
             So
             that
             no
             Fish
             might
             be
             taken
             thereby
             ;
             according
             to
             the
             old
             Statute
             of
             
               King
               Alexander
            
             ;
             from
             the
             Even
             Sun
             on
             Saturnday
             ,
             till
             the
             Sun
             rising
             on
             Munday
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Saturndays
             slop
             ought
             to
             be
             of
             the
             whole
             Cruives
             ,
             and
             that
             from
             Saturnday
             at
             six
             a
             clock
             ,
             till
             Munday
             at
             Sunrising
             .
          
           
             5ly
             .
             They
             Insisted
             for
             the
             Hight
             of
             the
             Cruives
             ,
             and
             alleadged
             ,
             that
             the
             same
             ought
             to
             be
             no
             higher
             then
             the
             water
             ,
             in
             its
             ordinar
             Course
             ,
             neither
             the
             time
             of
             the
             Flood
             ,
             nor
             of
             Drought
             ;
             otherwayes
             they
             might
             build
             the
             same
             as
             high
             as
             they
             pleased
             ,
             and
             that
             it
             ought
             not
             to
             be
             builded
             perpendicular
             ,
             which
             will
             hinder
             the
             Salmonds
             up-coming
             ,
             but
             slopping
             from
             the
             Ground
             to
             the
             top
             .
          
           
             The
             Lords
             considering
             ,
             that
             there
             was
             no
             particular
             Law
             ,
             as
             to
             the
             hight
             of
             Cruives
             ,
             and
             that
             ●hir
             Parties
             had
             suffered
             the
             other
             to
             enjoy
             the
             Cruives
             above
             40.
             
             Years
             ,
             that
             therefore
             the
             same
             should
             be
             
               uti
               possidebantur
            
             ,
             no
             higher
             then
             the
             old
             Cruives
             were
             .
          
           
             6ly
             .
             They
             Insisted
             for
             the
             Liberty
             of
             the
             Midlestream
             ,
             beside
             and
             attour
             Saturndays
             Slop
             ,
             which
             is
             specially
             contained
             in
             the
             Acts
             of
             Parliament
             of
             
               King
               Alexander
            
             ,
             and
             
               King
               Iames
            
             the
             third
             and
             fourth
             ,
             and
             is
             renewed
             in
             the
             late
             Act
             of
             Parliament
             of
             
               King
               Charles
            
             the
             second
             .
             The
             least
             quantity
             of
             which
             bears
             ,
             
               That
               five
               foot
               of
               the
               middle
               Stream
               must
               be
               constantly
               free
               .
            
          
           
             It
             was
             answered
             1.
             
             That
             the
             old
             Acts
             anent
             the
             midle
             Stream
             were
             wholly
             in
             desuetude
             ,
             and
             were
             in
             effect
             derogate
             ,
             by
             the
             Act
             of
             
               King
               Iames
            
             the
             sixt
             ,
             anent
             Cruives
             ;
             which
             ordains
             the
             Saturndays
             Slop
             to
             be
             keeped
             ,
             but
             mentions
             not
             the
             midle
             Stream
             .
             And
             as
             for
             the
             late
             Act
             of
             Parliament
             ;
             it
             was
             Impetrat
             by
             these
             same
             Parties
             ,
             and
             never
             past
             in
             Articles
             ,
             or
             noticed
             by
             the
             Parliament
             ,
             but
             as
             an
             ordinar
             Confirmation
             .
             It
             was
             answered
             ,
             that
             there
             was
             no
             prescription
             of
             publick
             Rights
             ,
             against
             standing
             Laws
             ,
             and
             albeit
             the
             desuetude
             of
             such
             Laws
             could
             be
             effectual
             ,
             yet
             the
             late
             Law
             Revives
             and
             Confirms
             them
             all
             ,
             
               per
               expressum
            
             ,
             which
             is
             not
             a
             particular
             Confirmation
             ;
             bearing
             mention
             of
             any
             particular
             Partie
             ,
             or
             particular
             Right
             ;
             but
             as
             a
             general
             Confirmation
             of
             general
             Laws
             ,
             anent
             all
             the
             Cruives
             in
             Scotland
             .
          
           
             The
             Lords
             considering
             that
             the
             midle
             Stream
             has
             been
             long
             in
             desuetude
             ,
             and
             that
             this
             late
             Ratification
             was
             past
             without
             notice
             ;
             therefore
             ,
             before
             answer
             ;
             They
             Ordained
             the
             Parties
             to
             adduce
             Witnesses
             ,
             whether
             the
             midestream
             was
             accustomed
             in
             any
             Cruives
             in
             Scotland
             ,
             and
             whether
             the
             same
             would
             be
             beneficial
             ,
             or
             hurtful
             to
             the
             Salmond
             Fishing
             of
             the
             Kingdom
             ,
             in
             general
             ,
             and
             whether
             it
             were
             destructive
             to
             the
             Cruives
             in
             Common
             :
             and
             likewise
             ,
             they
             gave
             Commission
             to
             examine
             the
             Witnesses
             
               hinc
               inde
            
             ,
             whether
             their
             new
             Cruives
             were
             builded
             upon
             challes
             ,
             or
             they
             otherways
             builded
             then
             the
             former
             Cruives
             ,
             to
             the
             prejudice
             of
             the
             Fishing
             above
             in
             the
             water
             .
          
        
         
           
           
             George
             Hutcheson
             contra
             Dickson
             of
             Lonhead
             .
             Eodem
             die
             .
          
           
             
               GEorge
               Hutcheson
            
             pursues
             Dickson
             ,
             for
             a
             Sum
             of
             money●
             and
             for
             the
             Annualrent
             since
             the
             denunciation
             of
             the
             Horning
             .
             Whereupon
             the
             Defender
             answered
             ,
             that
             the
             Horning
             was
             only
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ,
             where
             the
             Defender
             dwelled
             not
             ,
             and
             so
             was
             null
             ,
             and
             could
             not
             give
             Annualrent
             .
             It
             was
             answered
             ,
             that
             albeit
             such
             Hornings
             be
             not
             sufficient
             for
             an
             Escheat
             ,
             yet
             they
             are
             sufficient
             for
             Caption
             ;
             and
             so
             are
             not
             null
             :
             and
             therefore
             Annualrents
             having
             so
             much
             ground
             ,
             in
             equity
             ,
             and
             by
             the
             civil
             Law
             ,
             being
             due
             
               ex
               mora
            
             ;
             such
             denunciations
             should
             be
             sufficient
             for
             Annualrent
             .
          
           
             The
             Lords
             found
             such
             Hornings
             null
             ,
             and
             would
             not
             allow
             Annualrent
             .
          
        
         
           
             Logan
             contra
             Galbraith
             .
             Eodem
             die
             .
          
           
             LOgan
             charges
             Galbraith
             to
             remove
             from
             a
             House
             ;
             who
             Suspends
             ,
             and
             alleadges
             ,
             that
             she
             is
             Served
             ,
             and
             Kenned
             to
             a
             Terce
             of
             the
             House
             ,
             which
             Terce
             she
             brukes
             
               pro
               indiviso
            
             ,
             with
             the
             two
             thirds
             .
             The
             Charger
             answered
             ,
             the
             Reason
             ought
             to
             be
             repelled
             ,
             because
             ,
             albeit
             the
             Defense
             
               pro
               indiviso
            
             be
             relevant
             against
             such
             ,
             who
             can
             obtain
             division
             :
             It
             being
             their
             own
             fault
             ,
             that
             they
             do
             not
             first
             divide
             ,
             or
             they
             pursue
             Removing
             ;
             but
             where
             it
             is
             a
             House
             being
             
               unum
               tenementum
               indivisibile
            
             ,
             the
             Heir
             ,
             or
             Successor
             of
             the
             Husband
             ,
             who
             has
             two
             thirds
             ,
             and
             continues
             in
             his
             Possession
             as
             well
             as
             the
             Relict
             in
             her
             third
             ,
             ought
             to
             be
             preferred
             in
             the
             Possession
             ,
             
               quia
               majus
               trahit
               minus
            
             .
          
           
             The
             Lords
             found
             the
             answers
             relevant
             ,
             to
             elide
             the
             Reason
             ,
             and
             decerned
             the
             Relict
             to
             remove
             with
             this
             quality
             ,
             that
             if
             the
             Feear
             did
             not
             dwell
             in
             the
             House
             himself
             ,
             the
             Relict
             should
             be
             preferred
             ,
             giving
             as
             much
             Mail
             as
             any
             other
             Tennant
             ,
             and
             giving
             Caution
             for
             the
             two
             part
             .
          
        
         
           
             Lairds
             of
             Berfoord
             and
             Binstoun
             ,
             contra
             Lord
             Kingstoun
             .
             Ianuary
             21.
             1665.
             
          
           
             BErfoord
             and
             Binstoun
             pursues
             the
             Lord
             Kingstoun
             ,
             for
             Spuilzie
             of
             certain
             Corns
             ;
             he
             alleadged
             absolvitor
             ,
             because
             he
             Legally
             drew
             the
             same
             ,
             as
             their
             Teynd
             ,
             by
             vertue
             of
             his
             Tack
             from
             the
             present
             Minister
             ,
             and
             Inhibition
             thereon
             .
             It
             was
             answered
             ,
             First
             ,
             That
             was
             not
             sufficient
             summarly
             to
             draw
             the
             Defenders
             Teynds
             ,
             unless
             there
             had
             been
             a
             Sentence
             on
             the
             Inhition
             ,
             which
             is
             but
             as
             a
             warning
             ,
             and
             so
             must
             not
             infer
             Removing
             ,
             
               brevi
               manu
               ad
               vitandum
               tumultum
               ,
               2ly
               .
            
             If
             he
             had
             Legally
             pursued
             them
             for
             a
             Spuilzie
             ,
             they
             would
             have
             alleadged
             ,
             and
             now
             alleadge
             ,
             that
             they
             have
             
             Tacks
             standing
             from
             the
             Minister
             for
             the
             time
             ,
             who
             ,
             though
             deposed
             ,
             yet
             lives
             ;
             and
             all
             incumbents
             Tacks
             serve
             during
             their
             natural
             life
             ,
             and
             no
             Tack
             from
             the
             next
             incumbent
             Prejudges
             during
             the
             life
             of
             the
             former
             ,
             conform
             to
             an
             expresse
             Act
             of
             Parliament
             .
             The
             Defender
             duplyed
             ,
             that
             albeit
             an
             Act
             of
             Parliament
             required
             removing
             not
             to
             be
             summarly
             ,
             in
             Lands
             it
             did
             not
             so
             in
             Teynds
             .
             2ly
             .
             The
             Pursuers
             Tacks
             are
             null
             ,
             without
             consent
             of
             the
             Patron
             .
             The
             Pursuer
             triplyed
             ,
             that
             they
             are
             standing
             cled
             with
             seven
             years
             possession
             ,
             and
             their
             Tacks
             are
             subscribed
             by
             the
             Patron
             Quadruplyed
             ,
             he
             was
             not
             then
             Patron
             ,
             but
             was
             standing
             Fore-faulted
             unrestored
             .
             Quadruplyed
             ,
             it
             is
             sufficient
             
               coloratus
               Titulus
               cum
               possessione
            
             ,
             till
             the
             Reduction
             ;
             And
             the
             Lord
             Bothwells
             Son
             Patron
             ,
             was
             after
             restored
             whereby
             it
             revived
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Pursuers
             Tacks
             ,
             and
             found
             the
             Defender
             might
             not
             
               brevi
               manu
            
             intromet
             ,
             there
             being
             any
             pretence
             of
             Title
             ,
             but
             they
             desired
             the
             Pursuer
             to
             restrict
             ,
             to
             wrongous
             intromission
             and
             without
             Oath
             
               in
               litem
            
          
        
         
           
             Sir
             John
             Scot
             and
             Walter
             Scot
             contra
             Sir
             John
             Fletcher
             .
             Eodem
             die
             .
          
           
             
               WAlter
               Scot
            
             ,
             as
             being
             Assigney
             ,
             by
             Sir
             
               Iohn
               Scot
            
             of
             Scotstarvet
             ,
             to
             an
             
               Atlas
               Major
            
             ,
             of
             the
             late
             Edition
             ;
             pursues
             Sir
             
               Iohn
               Fletcher
            
             for
             delivering
             thereof
             ,
             as
             belonging
             to
             the
             Pursuer
             ,
             and
             now
             in
             his
             hand
             .
             The
             Defender
             answered
             ,
             
               non
               Relevat
            
             ,
             unlesse
             it
             were
             condescended
             
               qu●
               Titulo
            
             ;
             for
             if
             it
             came
             in
             the
             Defenders
             hands
             ,
             by
             emption
             or
             Gift
             ,
             it
             is
             his
             own
             :
             and
             
               in
               mobilibus
               possessio
               presumit
               Titulum
            
             ,
             seing
             in
             these
             Writ
             ,
             nor
             Witnesses
             uses
             not
             to
             be
             interposed
             ,
             and
             none
             can
             seek
             recovery
             of
             such
             ,
             unless
             he
             condescend
             
               quo
               modo
               desijt
               possedere
            
             ,
             else
             all
             commerce
             would
             be
             destroyed
             ,
             and
             who
             ever
             could
             prove
             that
             once
             any
             thing
             was
             his
             ,
             might
             recover
             it
             
               per
               mille
               manus
            
             ,
             unless
             they
             instruct
             their
             title
             to
             it
             .
             2.
             
             Though
             it
             should
             be
             condescended
             ,
             that
             they
             were
             lent
             ,
             yet
             it
             must
             be
             proven
             only
             
               scripto
               vel
               juramento
            
             ,
             being
             a
             matter
             above
             an
             hundred
             pound
             .
             The
             Pursuer
             answered
             ,
             that
             in
             liquid
             Sums
             ,
             or
             Promises
             ,
             Witnesses
             are
             not
             receivable
             above
             that
             Sum
             ,
             but
             
               in
               corporibus
            
             ,
             or
             facts
             ,
             as
             in
             bargains
             of
             Victual
             ,
             made
             and
             delivered
             ,
             Witnesses
             are
             sufficient
             ,
             though
             for
             greater
             Value
             .
          
           
             The
             Lords
             found
             the
             Pursuer
             behoved
             to
             condescended
             upon
             the
             way
             the
             books
             was
             delivered
             ,
             and
             found
             it
             probable
             by
             Witnesses
             .
          
        
         
           
             Mr.
             William
             Kintor
             Advocat
             contra
             John
             Boyd
             Baillie
             in
             Edinburgh
             ,
             Eodem
             die
             .
          
           
             MR.
             
               William
               Kintor
            
             and
             
               Iohn
               Boyd
            
             having
             both
             adjudged
             the
             Lands
             of
             Mountlouthian
             pursue
             mutual
             Reductions
             of
             each
             others
             Rights
             ;
             Mr.
             Williams
             Right
             was
             upon
             a
             Decreet
             ,
             
               cognitionis
               causa
            
             ,
             against
             the
             Appearand
             Heir
             renuncing
             :
             against
             which
             
               Iohn
               Boyd
            
             ,
             alleadged
             ,
             that
             the
             Adjudication
             was
             null
             ,
             proceeding
             upon
             a
             null
             Decreet
             ,
             
               cognitionis
               causa
               .
               First
            
             ,
             In
             so
             far
             as
             it
             was
             lybelled
             at
             the
             instance
             of
             Kintor
             ,
             as
             Assigney
             by
             his
             Brother
             ,
             who
             was
             Heir
             to
             his
             Father
             ,
             and
             Execut-Executor
             ,
             
             and
             neither
             Retour
             nor
             Testament
             produced
             ,
             and
             so
             was
             null
             ,
             for
             want
             of
             probation
             .
             The
             Pursuer
             answered
             ,
             that
             he
             had
             now
             produced
             ,
             in
             supplement
             of
             the
             Decreet
             ,
             the
             Writs
             .
          
           
             The
             Lords
             sustained
             the
             Decreet
             only
             as
             
               ab
               hoc
               tempore
            
             .
          
           
             
               2ly
               .
               Boyd
            
             alleadged
             ,
             that
             the
             Decreet
             ,
             
               cognitionis
               causa
            
             proceeded
             on
             six
             hundered
             merks
             ,
             which
             was
             Heretable
             by
             Infeftment
             ,
             and
             contained
             Clause
             of
             Requisition
             ,
             and
             no
             Requisition
             produced
             .
          
           
             The
             Lords
             found
             the
             Decreet
             null
             
               pro
               tanto
            
             ,
             and
             to
             stand
             for
             the
             rest
             ,
             being
             upon
             diverse
             Articles
             .
          
           
             
               3ly
               .
               Boyd
            
             alleadged
             ,
             that
             the
             said
             Decreet
             ought
             to
             be
             Reduced
             ,
             in
             so
             far
             as
             it
             proceeded
             against
             the
             Cautioner
             of
             a
             Tutor
             ,
             for
             payment
             of
             the
             Annualrent
             of
             his
             Pupils
             money
             ,
             during
             the
             Tutorie
             ;
             and
             for
             the
             Annualrent
             of
             that
             Annualrent
             
               a
               tut●la
               finita
            
             ,
             because
             the
             Tutor
             had
             uplifted
             ,
             at
             least
             ought
             to
             have
             uplifted
             ,
             and
             imployed
             the
             same
             for
             the
             Pupills
             behove
             ,
             
               ex
               officio
            
             .
             It
             was
             answered
             ,
             that
             albeit
             Tutors
             are
             oblidged
             for
             their
             Pupils
             Rent
             ,
             which
             are
             in
             Tennents
             hands
             ;
             yet
             not
             for
             the
             Annualrent
             of
             their
             Money
             ,
             being
             in
             secure
             hands
             then
             ,
             and
             now
             if
             the
             Tutor
             had
             lifted
             it
             ,
             it
             would
             have
             been
             lost
             he
             being
             broken
             ;
             and
             the
             Cautioner
             also
             :
             and
             the
             Debitors
             being
             great
             men
             ,
             as
             the
             Marquess
             of
             Hamiltoun
             and
             Lord
             Burghlie
             ,
             they
             would
             easily
             have
             Suspended
             ,
             and
             lost
             the
             Pursuers
             pains
             .
          
           
             The
             Lords
             found
             ,
             that
             Tutors
             were
             oblidged
             to
             uplift
             their
             Pupils
             Annualrents
             ,
             though
             the
             Creditors
             were
             secure
             ,
             and
             to
             imploy
             them
             for
             Annualrents
             ,
             but
             not
             for
             each
             year
             they
             were
             due
             ,
             but
             
               ante
               finitam
               tutelam
            
             ,
             because
             ,
             though
             he
             had
             them
             ,
             he
             was
             not
             oblidged
             every
             year
             to
             imploy
             them
             severally
             ,
             and
             so
             sustained
             the
             Decreet
             .
          
           
             
               4ly
               .
               Boyd
            
             alleadged
             ,
             that
             the
             years
             of
             the
             Tutorie
             ought
             to
             have
             been
             proven
             ,
             which
             was
             not
             ,
             and
             so
             the
             Decreet
             is
             null
             .
          
           
             The
             Lords
             sustained
             the
             Decreet
             ,
             seing
             it
             was
             lybelled
             
               in
               communi
               forma
            
             ,
             unless
             it
             were
             alleadged
             ,
             that
             some
             of
             these
             years
             were
             
               post
               sinitam
               tutelam
            
             ,
             here
             a
             Testificat
             of
             the
             Pupils
             age
             was
             produced
             .
          
        
         
           
             Lord
             Borthwick
             contra
             .
             Mr.
             Mark
             Ker.
             Ianuary
             last
             .
             1665.
             
          
           
             THe
             Lord
             Borthwick
             pursues
             a
             Reduction
             ,
             
               ex
               capite
               inhibitionis
            
             of
             all
             Rights
             made
             by
             Sir
             
               Mark
               Ker
            
             ,
             to
             Andrew
             or
             Mr.
             
               Marks
               Ker
            
             of
             Moristoun
             ,
             of
             certain
             Lands
             .
             The
             Defenders
             alleadged
             no
             Process
             ,
             because
             none
             to
             represent
             Sir
             
               Mark
               Ker
            
             were
             called
             ,
             who
             being
             bound
             in
             warrandice
             to
             the
             Defenders
             ,
             ought
             to
             be
             called
             ;
             whereas
             ,
             of
             old
             Processes
             sisted
             till
             warrands
             were
             first
             discussed
             ;
             so
             now
             the
             warrand
             ought
             at
             least
             to
             be
             called
             .
             The
             Pursuer
             answered
             ,
             that
             he
             was
             not
             craving
             Reduction
             of
             Sir
             Marks
             own
             Right
             ,
             but
             of
             Moristouns
             Right
             ,
             granted
             by
             Sir
             Mark
             ,
             who
             was
             common
             Author
             to
             both
             .
             And
             as
             to
             the
             warrandice
             ,
             the
             Defender
             might
             intimat
             the
             plea
             ,
             if
             he
             pleased
             .
          
           
             The
             Lords
             found
             no
             Process
             till
             the
             warrand
             were
             called
             .
          
        
         
           
           
             Alison
             Kello●
             contra
             Pringle
             .
             Eodem
             die
             .
          
           
             
               ALison
               Kello
            
             pursues
             a
             Reduction
             against
             the
             Lairds
             of
             Wadderburn●
             and
             Pringle
             ;
             and
             craves
             Certification
             .
             It
             was
             alleadged
             for
             Pringle
             ,
             no
             Certification
             ;
             because
             he
             was
             minor
             ,
             
               &
               non
               tenetur
               placitare
               de
               Haereditate
               Paterna
               .
            
             The
             Pursuer
             answered
             ,
             
               primo
               non
               relevat
            
             ,
             against
             the
             Production
             ,
             but
             the
             Minor
             must
             produce
             ;
             and
             may
             alleadge
             ,
             that
             in
             the
             Debate
             against
             the
             Reason
             .
             
               2ly
               .
               Non
               constat
            
             ,
             that
             it
             is
             
               Hareditas
               Paterna
            
             ,
             and
             therefore
             he
             must
             produce
             ,
             at
             least
             his
             Fathers
             Infeftment
             .
             3ly
             ,
             All
             he
             alleadges
             ,
             is
             ,
             that
             his
             Father
             had
             an
             Heretable
             Disposition
             ,
             without
             Infeftment
             ;
             which
             cannot
             make
             
               Haereditatem
               Paternam
            
             ,
             else
             an
             Heretable
             Bond
             were
             not
             Reduceable
             ,
             against
             a
             Minor
             ,
             or
             an
             Appryzing
             ,
             and
             Tack
             .
             4ly
             .
             Albeit
             the
             alleadgeance
             were
             proponed
             ,
             in
             the
             discussing
             of
             the
             Reason
             ;
             yet
             the
             Reason
             being
             
               super
               dolo
               &
               metu
            
             ,
             upon
             which
             the
             Defenders
             Original
             Right
             was
             granted
             ,
             and
             not
             upon
             the
             poynt
             of
             Preference
             of
             Right
             ;
             the
             brocard
             holds
             not
             in
             that
             Case
             ,
             as
             it
             would
             not
             hold
             in
             Improbation
             ,
             
               in
               casu
               falsi
            
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Defender
             ought
             to
             produce
             his
             Fathers
             Infeftment
             ;
             and
             that
             a
             naked
             Disposition
             would
             not
             be
             sufficient
             :
             which
             being
             produced
             ,
             they
             would
             sustain
             the
             Defense
             ,
             
               quoad
               reliqua
            
             ,
             against
             the
             Production
             ;
             but
             that
             they
             would
             examine
             Witnesses
             ,
             upon
             any
             point
             of
             fact
             ,
             in
             the
             Reason
             to
             remain
             
               in
               retentis
            
             ,
             that
             the
             Witnesses
             might
             not
             die
             in
             the
             mean
             time
             ,
             without
             discussing
             the
             Reason
             ,
             but
             prejudice
             of
             their
             Defenses
             .
          
        
         
           
             Anderson
             and
             Proven
             contra
             Town
             of
             Edinburgh
             .
             Eodem
             die
             .
          
           
             ANderson
             being
             Creditor
             to
             Proven
             ,
             arrests
             in
             the
             hands
             of
             Gairdner
             all
             Sums
             due
             by
             him
             to
             Proven
             ,
             and
             thereupon
             pursues
             before
             the
             Commissaries
             of
             
               Edinburgh
               :
               Gairdner
            
             gives
             his
             Oath
             ,
             that
             he
             is
             Debitor
             to
             Proven
             no
             way
             ,
             but
             for
             the
             Tack
             Dutie
             of
             the
             Customs
             of
             Edinburgh
             ;
             whereunto
             he
             was
             Sub-tacks-man
             to
             Proven
             ,
             conform
             to
             his
             Bond
             produced
             ;
             whereupon
             ,
             the
             Commissaries
             decerned
             ,
             Gairdner
             Suspends
             on
             double
             poynding
             .
             It
             was
             alleadged
             for
             the
             Town
             of
             Edinburgh
             ,
             that
             the
             Sum
             in
             question
             ,
             being
             a
             Sub-tack
             dutie
             ,
             they
             had
             the
             common
             priviledge
             of
             all
             Masters
             against
             their
             Tennents
             ,
             and
             Sub-tennents
             ,
             that
             they
             might
             pursue
             either
             of
             them
             ,
             as
             they
             pleased
             ,
             without
             an
             Arrestment
             ,
             or
             any
             Diligence
             ,
             and
             were
             alwayes
             preferable
             ,
             for
             their
             Tack-dutie
             to
             any
             other
             Creditor
             of
             the
             principal
             Tacksman
             .
             It
             was
             answered
             ,
             that
             Custom
             was
             not
             in
             the
             case
             of
             Rents
             of
             Lands
             ;
             wherein
             their
             is
             
               tacita
               hipotheca
            
             ,
             and
             that
             the
             principal
             Tacks-man
             was
             only
             their
             direct
             Debitor
             ;
             and
             the
             Sub-tacksman
             paying
             to
             the
             Principal
             Tacksman
             ;
             or
             which
             is
             equivalent
             ,
             to
             his
             Creditor
             ,
             is
             for
             ever
             free
             :
             and
             the
             Town
             of
             Edinburgh
             ,
             hath
             secured
             themselves
             ,
             by
             taking
             Caution
             of
             the
             Sub-tacksman
             .
          
           
             The
             Lords
             found
             the
             Town
             of
             Edinburgh
             preferable
             ,
             for
             their
             Tack-dutie
             ,
             
             and
             that
             they
             had
             immediat
             Action
             against
             the
             Sub-tacksman
             ,
             unless
             he
             had
             made
             payment
             ,
             
               bona
               fide
            
             before
             ,
             that
             they
             might
             exclude
             any
             other
             Creditor
             of
             the
             Principal
             Tacks-man
             ,
             for
             their
             Tack-dutie
             .
          
        
         
           
             George
             Baptie
             contra
             Christian
             Barclay
             .
             Eodem
             die
             .
          
           
             
               CHristian
               Barclay
            
             having
             pursued
             
               George
               Baptie
            
             ,
             before
             the
             Commissares
             ,
             of
             Edinburgh
             ,
             for
             Solemnizing
             Marriage
             with
             her
             ;
             because
             he
             had
             gotten
             her
             with
             Child
             ,
             under
             promise
             of
             Marriage
             ;
             as
             was
             instructed
             by
             his
             Bond
             produced
             ,
             obtained
             Decreet
             against
             him
             ;
             he
             Suspends
             ,
             and
             raises
             Reduction
             ,
             on
             this
             Reason
             ,
             that
             his
             Bond
             was
             vitiat
             ,
             
               in
               substantialibus
            
             ,
             by
             ocular
             inspection
             .
             2.
             
             That
             it
             was
             Conditional
             ,
             so
             soon
             as
             he
             was
             in
             readinesse
             .
             3ly
             .
             That
             the
             Charger
             threatned
             she
             would
             drown
             her self
             ,
             for
             preventing
             whereof
             ,
             he
             had
             granted
             this
             Bond.
             4ly
             .
             That
             after
             the
             granting
             thereof
             ,
             she
             had
             carried
             her self
             unchastly
             ,
             and
             born
             another
             Bairn
             ;
             albeit
             it
             cannot
             be
             alleadged
             ,
             that
             ever
             he
             co-habited
             ,
             or
             conversed
             with
             her
             at
             all
             after
             this
             Bond
             :
             which
             as
             it
             would
             dissolve
             the
             Marriage
             ,
             though
             it
             were
             Solemnized
             ,
             
               multo
               magis
            
             should
             it
             hinder
             the
             Solemnization
             .
             The
             Charger
             answered
             ,
             to
             the
             first
             ,
             oppons
             the
             Bond
             ,
             wherein
             albeit
             there
             be
             three
             or
             four
             words
             delet
             in
             that
             place
             ,
             thereof
             oblidging
             him
             to
             Solemnize
             ;
             yet
             the
             acknowledgment
             of
             the
             Childs
             being
             gotten
             under
             promise
             of
             Marriage
             is
             clear
             ,
             and
             sufficient
             by
             it self
             .
             To
             the
             2.
             
             There
             is
             nothing
             alleadged
             ,
             that
             the
             Suspender
             is
             not
             in
             readiness
             .
             To
             the
             3.
             
               non
               relevat
            
             ,
             there
             being
             neither
             vis
             nor
             metus
             .
             To
             the
             
               4th
               .
               non
               relevat
            
             ,
             because
             there
             being
             a
             second
             Child
             born
             after
             this
             Bond
             ,
             which
             constituts
             the
             essentials
             of
             a
             Marriage
             ,
             the
             Child
             is
             presumed
             to
             be
             the
             Suspenders
             ,
             
               nam
               Pater
               est
               quem
               matrimonia
               monstrant
               ,
            
             and
             it
             cannot
             be
             alleadged
             ,
             or
             proven
             ,
             that
             the
             Child
             belongs
             to
             any
             other
             ,
             or
             that
             the
             Charger
             used
             any
             evil
             carriage
             with
             any
             other
             .
          
           
             The
             Lords
             having
             considered
             the
             Case
             ,
             found
             that
             the
             presumption
             was
             not
             sufficient
             ,
             unless
             it
             had
             been
             a
             formal
             Marriage
             ,
             and
             therefore
             Ordained
             the
             Charger
             to
             instruct
             ,
             the
             second
             Child
             was
             the
             Suspenders
             ;
             and
             if
             there
             had
             been
             any
             familiarity
             betwixt
             them
             since
             the
             Bond.
             
          
        
         
           
             Kirktouns
             contra
             Laird
             of
             Hunthill
             .
             Ianuary
             ult
             .
             1665.
             
          
           
             TWo
             Sisters
             called
             Kirktouns
             ,
             having
             obtained
             Decreet
             against
             the
             Laird
             of
             Hunthill
             ,
             for
             their
             Mothers
             Executrie
             ,
             who
             left
             Hunthill
             her
             Brother
             ,
             and
             two
             other
             ,
             Tutors
             to
             her
             Children
             ,
             in
             so
             far
             ,
             as
             concerned
             the
             means
             ,
             left
             them
             by
             their
             Mother
             ;
             Hunthill
             Suspends
             ,
             and
             raises
             Reduction
             ,
             on
             this
             Reason
             .
             First
             ,
             That
             the
             only
             ground
             of
             the
             Decreet
             being
             a
             Confirmed
             Testament
             ,
             bearing
             ,
             That
             Hunthill
             
               compeared
               ,
               and
               made
               Faith
               ,
               and
               accepted
               the
               Office
               of
               Tutory
            
             ;
             this
             cannot
             be
             sufficient
             of
             it self
             ,
             to
             instruct
             he
             was
             Tutor
             :
             Seing
             Acts
             of
             inferiour
             Courts
             prove
             not
             in
             any
             thing
             ,
             but
             in
             points
             of
             form
             of
             Process
             ,
             which
             are
             ordinary
             ,
             ●but
             
               in
               alijs
            
             ,
             prove
             not
             without
             a
             Warrand
             ,
             and
             therefore
             ,
             unless
             the
             Warrand
             of
             this
             acceptance
             
             were
             produced
             ,
             it
             cannot
             prove
             more
             then
             an
             Act
             of
             Tutorie
             ,
             or
             Curatrie
             ,
             or
             Cautionrie
             ,
             will
             prove
             without
             its
             warrand
             ;
             and
             therefore
             now
             they
             crave
             Certification
             against
             the
             same
             .
             2ly
             .
             Neither
             their
             Subscription
             to
             the
             Act
             nor
             the
             Principal
             Testament
             it self
             ,
             can
             be
             found
             ,
             though
             the
             Registers
             of
             that
             Commissariot
             ,
             be
             searched
             ,
             and
             others
             ,
             about
             that
             time
             found
             neither
             can
             it
             be
             astructed
             with
             the
             least
             Act
             of
             medling
             any
             way
             .
             3ly
             .
             A
             mother
             cannot
             name
             Tutors
             ,
             but
             the
             Father
             only
             ,
             it
             being
             
               Patriae
               potestatis
            
             .
             It
             was
             answered
             ,
             that
             albeit
             
               in
               Recenti
            
             the
             warrands
             of
             such
             Acts
             ,
             ought
             to
             be
             produced
             ,
             or
             they
             are
             not
             effectual
             with
             out
             the
             same
             :
             yet
             it
             being
             thertie
             seven
             years
             since
             this
             Confirmation
             ,
             after
             so
             may
             troubles
             ,
             the
             Chargers
             are
             not
             oblidged
             to
             produce
             the
             Warrands
             ,
             being
             such
             inconsiderable
             Litle
             Papers
             as
             they
             are
             ,
             but
             they
             must
             be
             presumed
             ,
             that
             they
             were
             so
             done
             ,
             as
             is
             expressed
             in
             the
             publick
             Record
             ;
             seing
             this
             Process
             has
             lasted
             these
             twvelve
             years
             ,
             and
             before
             ,
             nor
             since
             ;
             till
             within
             a
             year
             ,
             no
             mention
             thereof
             .
             It
             was
             answered
             ,
             that
             there
             was
             no
             prescription
             run
             ,
             during
             which
             ,
             if
             at
             first
             ,
             the
             Chargers
             were
             oblidged
             to
             produce
             ,
             they
             are
             still
             so
             unless
             they
             could
             fortifie
             ,
             and
             astruct
             the
             truth
             aliunde
             ,
             and
             their
             silence
             saith
             nothing
             ,
             because
             it
             was
             the
             Chargers
             fault
             ,
             that
             pursued
             not
             till
             within
             these
             twelve
             years
             ,
             whereas
             ,
             if
             they
             had
             pursued
             timeously
             the
             Suspender
             would
             then
             have
             pursued
             a
             Reduction
             .
             It
             was
             answered
             ,
             they
             were
             Minors
             ,
             in
             the
             Suspenders
             own
             house
             the
             former
             time
             ,
             who
             would
             not
             have
             keeped
             and
             intertained
             them
             at
             all
             ,
             if
             he
             had
             not
             known
             of
             the
             Tutory
             ,
             and
             that
             they
             had
             means
             .
          
           
             The
             Lords
             found
             that
             this
             naked
             Testament
             was
             not
             sufficient
             to
             astruct
             the
             acceptance
             ,
             without
             further
             adminicles
             .
          
        
         
           
             Elphinstoun
             of
             Selmes
             contra
             The
             Lord
             Rollo
             ,
             and
             the
             Laird
             of
             Niddrie
             .
             1
             February
             1665.
             
          
           
             THe
             Lord
             Rollo
             being
             addebted
             in
             a
             Sum
             ,
             to
             umquhil
             Mr.
             
               David
               Anderson
            
             of
             
               Hill
               ,
               Margaret
               Anderson
            
             his
             Daughter
             ,
             gave
             a
             Procuratorie
             to
             intromet
             with
             all
             Papers
             ,
             and
             to
             uplift
             all
             Sums
             belonging
             to
             her
             in
             Scotland
             ,
             to
             
               Iohn
               Anderson
            
             ,
             whereupon
             
               Iohn
               Anderson
            
             discharges
             the
             Lord
             Rollo
             ,
             and
             takes
             a
             new
             Bond
             from
             him
             ,
             and
             assignesit
             to
             Niddrie
             .
             Thereafter
             Selmes
             getting
             Assignation
             from
             the
             said
             
               Margaret
               ,
               Rollo
            
             Suspends
             on
             double
             Poynding
             ;
             Selmes
             alleadged
             ,
             that
             he
             ,
             as
             Assigney
             ,
             had
             Right
             to
             the
             Sum.
             It
             was
             answered
             ,
             that
             Rollo
             was
             discharged
             by
             the
             Procurator
             ,
             before
             the
             Assignation
             .
             It
             was
             answered
             ,
             primo
             ,
             that
             the
             Procuratory
             was
             null
             ,
             because
             it
             wanted
             the
             Designation
             of
             the
             Writer
             ,
             and
             Witnesses
             .
             2ly
             .
             It
             was
             offered
             to
             be
             improven
             as
             false
             and
             fenzied
             .
             It
             was
             answered
             to
             the
             first
             ,
             that
             the
             Procuratory
             was
             made
             in
             
               Ireland
               ,
               secundum
               consuetudinem
               loci
            
             ,
             where
             designation
             of
             Witnesses
             is
             not
             required
             ,
             but
             a
             writ
             ,
             being
             Sealed
             ,
             Subscribed
             and
             delivered
             before
             Witnesses
             ,
             albeit
             they
             be
             not
             designed
             ,
             the
             writ
             is
             effectual
             .
             To
             the
             second
             ,
             the
             Lord
             Rollo
             ,
             having
             made
             payment
             
               bona
               fide
            
             to
             a
             Procurator
             ,
             albeit
             the
             Porcuratory
             should
             be
             improven
             ;
             the
             Debitor
             not
             being
             accessory
             ,
             but
             paying
             
               bona
               fide
            
             ,
             could
             not
             repeit
             ,
             otherwayes
             all
             commerce
             would
             be
             marred
             ,
             and
             no
             body
             will
             be
             secure
             to
             pay
             to
             any
             Assigney
             ,
             or
             Procurator
             ,
             but
             as
             payment
             made
             ,
             
               bona
               fide
            
             to
             them
             that
             have
             no
             Right
             ,
             is
             relevant
             ,
             only
             because
             it
             is
             done
             
               bona
               fide
            
             ,
             and
             necessarly
             ;
             so
             must
             it
             be
             good
             ,
             though
             they
             have
             forged
             the
             Procuratory
             .
             It
             was
             answered
             ,
             that
             payment
             was
             
             not
             yet
             made
             ,
             but
             only
             a
             new
             Bond
             granted
             ,
             and
             that
             it
             could
             not
             be
             
               bona
               fide
            
             ;
             seing
             the
             Procuratory
             ,
             wanting
             the
             ordinar
             Solemnity
             of
             Witnesses
             designed
             ,
             might
             have
             given
             just
             ground
             of
             doubt
             ,
             and
             the
             Debitor
             was
             not
             to
             have
             payed
             without
             Sentence
             .
          
           
             The
             Lords
             repelled
             the
             first
             alleadgeance
             ,
             and
             sustained
             the
             Writ
             ,
             according
             to
             the
             custom
             of
             Ireland
             ;
             being
             Nottour
             to
             themselves
             .
             As
             to
             the
             other
             point
             :
             the
             Lords
             did
             not
             decide
             in
             it
             till
             it
             appeared
             ,
             whether
             Niddrie
             would
             prev●●●
             upon
             the
             new
             Bond
             ,
             and
             make
             it
             equivalent
             to
             payment
             :
             but
             they
             thought
             that
             payment
             made
             
               bona
               fide
            
             would
             be
             sufficient
             ,
             albeit
             the
             Writ
             were
             improven
             ,
             where
             there
             was
             no
             ground
             to
             doubt
             .
          
        
         
           
             Sir
             John
             Fletcher
             Supplicant
             .
             February
             3.
             1665.
             
          
           
             SIr
             
               Iohn
               Fletcher
            
             having
             bought
             the
             Lands
             of
             Crainstoun
             ,
             and
             finding
             that
             there
             was
             an
             Appryzing
             to
             be
             deduced
             thereof
             for
             his
             Authors
             Debt
             ,
             which
             might
             cost
             him
             trouble
             ;
             he
             craved
             Assessors
             to
             be
             appointed
             by
             the
             Lords
             ,
             who
             considering
             the
             matter
             amongst
             themselves
             .
             It
             carried
             by
             the
             plurality
             of
             one
             or
             two
             ,
             to
             name
             two
             Advocats
             Assessors
             ,
             but
             many
             were
             on
             the
             contrary
             ,
             conceiving
             the
             example
             of
             it
             ,
             would
             be
             of
             great
             inconveniency
             ,
             seing
             Appryzings
             were
             not
             with
             continuation
             of
             dayes
             ,
             and
             if
             Parties
             compeared
             ,
             and
             alleadged
             they
             were
             Infeft
             ,
             yet
             there
             may
             be
             Inhibition
             ,
             anterior
             Reversion
             ,
             or
             Trust
             ,
             or
             nullities
             in
             their
             Right
             :
             and
             if
             these
             were
             denyed
             ,
             they
             behoved
             to
             be
             instructed
             ,
             and
             so
             Terms
             of
             Probation
             run
             ,
             while
             in
             the
             mean
             time
             the
             anterior
             Diligence
             of
             others
             ,
             Appryzings
             in
             the
             countrey
             ,
             before
             the
             Sheriff
             would
             prevent
             them
             ,
             and
             it
             would
             hinder
             any
             Appryzings
             ever
             to
             be
             deduced
             at
             Edinburgh
             ,
             and
             it
             were
             hand
             to
             put
             Creditors
             ,
             who
             knew
             not
             there
             Debitors
             Charter
             Chist
             ,
             to
             disput
             their
             Rights
             as
             in
             an
             executive
             Process
             .
          
           
             But
             the
             Lords
             inclined
             ,
             that
             Sir
             Johns
             Infeftment
             should
             be
             rather
             produced
             ,
             and
             reserved
             out
             of
             the
             Appryzing
             ,
             then
             the
             Appryzing
             stopped
             .
          
        
         
           
             Falconer
             contra
             Earl
             of
             Kinghorn
             .
             Eodem
             die
             .
          
           
             FAlconer
             pursues
             the
             Earl
             of
             Kinghorn
             ,
             for
             payment
             of
             a
             Bond
             ,
             wherein
             his
             Father
             was
             Cautioner
             .
             It
             was
             alleadged
             the
             Bond
             was
             null
             ,
             as
             to
             Kinghorn
             ;
             because
             it
             mentioned
             in
             the
             first
             place
             ,
             three
             Witnesses
             to
             another
             Parties
             Subscription
             ,
             
               per
               expressum
            
             ,
             mentioning
             two
             ,
             without
             their
             designation
             ,
             or
             expressing
             whether
             they
             were
             Witnesses
             to
             either
             ,
             or
             both
             the
             two
             Cautioners
             :
             and
             therefore
             the
             Bond
             was
             null
             ,
             by
             the
             Act
             of
             Parliament
             .
             It
             was
             answered
             ,
             that
             according
             to
             the
             ordinar
             custome
             ,
             they
             offered
             to
             design
             .
             It
             was
             Replyed
             ,
             that
             the
             designation
             behoved
             to
             be
             of
             living
             Witnesses
             ;
             for
             seing
             in
             it self
             ,
             the
             Bond
             is
             null
             ,
             by
             the
             Act
             of
             Parliament
             ,
             and
             that
             the
             Lords
             ,
             by
             custom
             ,
             have
             supplyed
             such
             Bonds
             ,
             
               per
               equivalentiam
            
             .
             The
             intent
             of
             the
             Act
             of
             Parliament
             being
             only
             ,
             that
             by
             the
             Designation
             ,
             the
             Witnesses
             might
             be
             known
             :
             and
             thereby
             a
             means
             of
             improbation
             afforded
             ,
             if
             the
             Writ
             were
             quarrelled
             ;
             but
             after
             the
             Witnesses
             
             are
             dead
             ,
             the
             Degsination
             of
             them
             cannot
             attain
             that
             effect
             .
          
           
             The
             Lords
             Ordained
             the
             Pursuer
             to
             Design
             living
             Witnesses
             ,
             or
             otherways
             ,
             to
             condescend
             upon
             other
             Adminicles
             ,
             to
             astruct
             the
             verity
             of
             the
             Subscription
             of
             the
             Bond.
             
          
        
         
           
             Beg
             contra
             Beg.
             February
             4.
             1665.
             
          
           
             
               THomas
               Beg
            
             in
             Edinburgh
             ,
             having
             a
             Son
             of
             his
             first
             Marriage
             ,
             and
             providing
             his
             Children
             of
             two
             subsequent
             Marriages
             to
             his
             Means
             .
             The
             Son
             of
             the
             first
             Marriage
             pursues
             his
             Father
             ,
             for
             his
             Mothers
             third
             ,
             and
             craves
             Annualrent
             therefore
             ,
             he
             being
             Minor
             ,
             and
             his
             Father
             his
             Tutor
             of
             Law
             ,
             and
             therefore
             lyable
             ,
             as
             other
             Tutors
             for
             Annualrent
             .
          
           
             Which
             the
             Lords
             found
             relevant
             .
          
        
         
           
             Paterson
             contra
             Pringle
             Eodem
             die
             .
          
           
             
               ISobel
               Paterson
            
             having
             lent
             to
             Pringles
             Wife
             a
             100.
             lib.
             scots
             ,
             and
             having
             received
             a
             Bond
             of
             Pringles
             in
             Pand
             thereof
             ,
             he
             thereafter
             seeking
             a
             sight
             of
             the
             Bond
             ,
             took
             it
             away
             without
             warrant
             ,
             whereupon
             she
             obtained
             Decreet
             against
             him
             ,
             before
             the
             Commissaries
             ,
             which
             He
             and
             his
             Wife
             Suspended
             ,
             on
             this
             Reason
             ,
             that
             he
             never
             borrowed
             any
             Sum
             from
             the
             Charger
             ,
             and
             if
             his
             Wife
             did
             borrow
             the
             same
             ,
             he
             knew
             nothing
             thereof
             ,
             or
             that
             it
             was
             applyed
             to
             his
             use
             ,
             and
             that
             she
             Impignorat
             his
             Bond
             without
             his
             knowledge
             ,
             or
             warrant
             .
          
           
             The
             Lords
             found
             ,
             that
             her
             having
             of
             the
             Bond
             ,
             in
             her
             hand
             did
             infer
             a
             warrant
             to
             borrow
             the
             Money
             ,
             and
             oblidge
             her
             Husband
             being
             a
             matter
             of
             small
             importance
             .
          
        
         
           
             Peter
             Pallat
             contra
             Thomas
             Fairholm
             .
             ●
             February
             7.
             1665.
             
          
           
             
               THomas
               Fairholm
            
             Merchant
             in
             Edinburgh
             ,
             having
             written
             a
             Letter
             to
             
               Peter
               Pallat
            
             Factor
             at
             Burdeoux
             ,
             to
             Loaden
             him
             30
             Tun
             of
             Wine
             .
             The
             tenor
             of
             the
             Letter
             ,
             is
             ,
             that
             in
             respect
             Fairholm
             was
             not
             acquainted
             with
             Pallat
             ,
             he
             had
             written
             upon
             the
             Credit
             of
             his
             Brother
             
               Ninian
               Williamson
            
             Factor
             at
             London
             ,
             who
             was
             Pallats
             ordinar
             correspondent
             ,
             to
             Load
             these
             Wines
             in
             that
             Ship
             ,
             which
             carried
             the
             Letter
             ,
             upon
             Fairholms
             accompt
             ;
             and
             bore
             ,
             That
             Williamson
             
               had
               Provisions
               to
               satisfie
               the
               same
               ,
               and
               that
               he
               would
               either
               remit
               to
            
             Pallat
             ,
             
               or
               draw
               upon
               him
               ,
               as
               he
               found
               convenient
               .
            
             This
             Letter
             being
             sent
             under
             a
             cover
             of
             Williamsons
             to
             Pallat
             ,
             the
             Wines
             were
             sent
             into
             Scotland
             ,
             and
             Williamson
             broke
             about
             a
             year
             thereafter
             whereupon
             Pallat
             pursues
             for
             his
             Money
             from
             Fairholm
             ,
             who
             alleadged
             absolvitor
             ,
             because
             he
             having
             demanded
             the
             VVines
             ,
             not
             upon
             his
             own
             
             Credit
             ,
             but
             Williamsons
             ,
             and
             Williamson
             having
             sent
             under
             his
             own
             cover
             ,
             as
             Palla●s
             Letter
             bears
             ,
             the
             said
             Order
             ,
             in
             which
             there
             being
             mention
             ,
             that
             Williamson
             ,
             had
             Provisions
             in
             his
             hand
             :
             his
             sending
             the
             Letter
             of
             that
             Tenor
             ,
             under
             his
             own
             cover
             ,
             is
             an
             acknowledgment
             ,
             that
             he
             had
             those
             Provisions
             ,
             and
             thereby
             he
             constitute
             himself
             Debitor
             to
             Pallat
             ,
             and
             freed
             Fairholm
             :
             likeas
             ,
             Pallat
             acquiesced
             therein
             ,
             and
             drew
             Bills
             upon
             Williamson●
             which
             were
             accepted
             ,
             but
             not
             payed
             ;
             and
             was
             silent
             ,
             never
             demanding
             Money
             from
             Fairholm
             ,
             till
             Williamson
             was
             broken
             ,
             so
             that
             first
             ,
             Fairholm
             is
             free
             ,
             by
             the
             tenor
             of
             the
             Letter
             ,
             and
             next
             ,
             though
             ,
             thereby
             he
             had
             been
             bound
             ,
             yet
             the
             damnage
             sustained
             by
             Pallats
             silence
             ,
             till
             Williamson
             was
             broken
             ,
             whereby
             Fairholm
             was
             hindred
             to
             draw
             his
             Provisions
             out
             of
             Williamsons
             hand
             ,
             and
             thereby
             lost
             the
             same
             through
             Pallats
             fault
             ,
             ought
             to
             compence
             Pallat
             ,
             and
             exclude
             him
             .
             Pallat
             answered
             to
             the
             first
             ,
             that
             he
             opponed
             the
             Letters
             ;
             which
             bore
             expresly
             the
             Wines
             to
             be
             sent
             for
             Fairholms
             accompt
             ;
             so
             that
             albeit
             it
             mention
             Williamsons
             Credit
             ,
             and
             that
             he
             had
             Provisions
             ,
             it
             makes
             him
             but
             expromissor
             ,
             and
             liberats
             not
             Fairholm
             :
             as
             to
             the
             second
             ,
             anent
             the
             damnage
             ,
             Pallat
             being
             secured
             ,
             both
             by
             Fairhlom
             ,
             and
             Williamson
             ,
             might
             at
             his
             option
             ,
             take
             himself
             to
             either
             ,
             or
             to
             both
             ;
             and
             cannot
             be
             accompted
             to
             have
             done
             any
             fault
             ,
             in
             forbearance
             of
             either
             ,
             though
             an
             unexpected
             accident
             ,
             of
             Williamsons
             breaking
             interveened
             ;
             so
             much
             the
             more
             ,
             as
             Fairholms
             Letter
             does
             not
             order
             to
             draw
             upon
             Williamson
             ;
             but
             bears
             ,
             That
             Fairholme
             
               would
               either
               draw
               ,
               or
               remit
               ,
               at
            
             Williamsons
             conveniency
             :
             So
             that
             Pallat
             has
             not
             failed
             ,
             in
             the
             strick
             observance
             of
             the
             Order
             .
             And
             if
             need
             be
             ,
             Pallat
             offers
             him
             to
             prove
             ,
             by
             the
             custom
             of
             Merchants
             ,
             in
             the
             most
             eminent
             places
             abroad
             ,
             that
             such
             Letters
             did
             never
             liberat
             the
             Writer
             .
             And
             Fairholm
             offered
             to
             prove
             ,
             that
             such
             Letters
             did
             liberat
             the
             Writer
             ,
             unless
             the
             receiver
             had
             protested
             ,
             and
             intimat
             to
             the
             Writer
             ,
             that
             he
             would
             not
             acquiesce
             therein
             simply
             ,
             but
             also
             in
             the
             Credit
             of
             the
             Writer
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Letter
             did
             not
             liberat
             Fairholm
             ,
             notwithstanding
             of
             his
             forbearance
             to
             demand
             ,
             and
             therefore
             repelled
             the
             Defenses
             ,
             and
             decerned
             ,
             but
             liberat
             Fairholm
             from
             the
             exchange
             ,
             and
             re-exchange
             :
             in
             regard
             of
             Pallats
             silence
             ,
             neither
             would
             the
             Lords
             delay
             the
             matter
             ,
             upon
             the
             opinion
             of
             Merchants
             .
          
        
         
           
             David
             Graham
             contra
             George
             Bruce
             and
             Doctor
             Mairten
             .
             Eodem
             die
             .
          
           
             
               DAvid
               Graham
            
             ,
             upon
             the
             sight
             of
             a
             Bond
             unregistrat
             ,
             of
             
               George
               Bruces
            
             ,
             obtained
             Arrestment
             ;
             and
             therewith
             Arrested
             a
             Sum
             ,
             in
             Doctor
             Martines
             hand
             ,
             which
             was
             loosed
             ,
             and
             after
             the
             loosing
             ,
             Assignation
             being
             made
             by
             
               George
               Bruce
            
             ,
             to
             his
             Sister
             .
          
           
             In
             which
             case
             ,
             the
             Lords
             found
             ,
             That
             the
             Arrestment
             being
             upon
             the
             Bond
             ,
             before
             Registration
             might
             be
             loosed
             ,
             and
             notwithstanding
             of
             the
             loosing
             ,
             seing
             it
             was
             not
             now
             payed
             by
             the
             Debitor
             ;
             they
             ordained
             it
             to
             be
             made
             forthcomand
             to
             the
             Arrester
             ,
             and
             preferred
             him
             to
             the
             Assigney
             ,
             albeit
             it
             was
             alleadged
             ,
             that
             the
             tenor
             of
             the
             Arrestment
             was
             but
             till
             Caution
             
             was
             found
             ,
             which
             being
             found
             :
             albeit
             the
             Debitor
             could
             not
             oppose
             to
             make
             it
             forthcoming
             ;
             yet
             an
             Assigney
             ,
             after
             loosing
             the
             Arrestment
             may
             let
             .
          
           
             The
             Lords
             considered
             ,
             that
             the
             Caution
             found
             ,
             in
             loosing
             Arrestments
             ,
             is
             overlie
             ,
             and
             insufficient
             ,
             and
             so
             would
             not
             insecure
             Creditors
             ,
             doing
             diligence
             by
             Arrestment
             .
          
        
         
           
             Lyon
             of
             Muirask
             contra
             Heretors
             of
             the
             Shire
             .
             Eodem
             die
             .
          
           
             LYon
             of
             Muirask
             ,
             having
             been
             Commissioner
             in
             the
             Parliament
             1648.
             did
             ,
             by
             vertue
             of
             the
             Act
             of
             
               Parliament
               ,
               1661.
               
               Allowing
               Commissioners
               Charges
               ,
               to
               these
               who
               served
               in
               Parliament
            
             1648.
             
             Who
             adhered
             to
             the
             Engadgment
             ;
             charges
             the
             ●●eretors
             of
             the
             Shyre
             to
             meet
             ,
             and
             Stent
             ;
             and
             their
             being
             a
             Stent
             made
             ,
             conform
             to
             the
             Valuation
             :
             he
             Charges
             thereupon●
             some
             of
             the
             Heretors
             Suspends
             ,
             and
             alleadge
             ,
             that
             they
             were
             not
             charged
             to
             meet
             ,
             and
             so
             the
             Stent
             Roll
             is
             null
             .
             2ly
             .
             That
             is
             not
             instructed
             ,
             that
             the
             Charger
             attended
             all
             the
             dayes
             in
             the
             Parliament
             .
             3ly
             .
             That
             the
             Roll
             ought
             to
             be
             made
             according
             to
             the
             Retour
             ,
             and
             not
             to
             the
             Valuation
             ,
             conform
             to
             the
             Custom
             before
             the
             troubles
             .
          
           
             The
             Lords
             found
             ,
             that
             ,
             seing
             the
             Heretors
             ,
             who
             met
             ,
             expressed
             in
             the
             Stent
             Roll
             ,
             that
             all
             the
             Heretors
             were
             charged
             ,
             that
             it
             was
             sufficient
             ,
             though
             the
             Executions
             against
             each
             on
             of
             them
             was
             not
             now
             produced
             ,
             and
             because
             the
             Sed●runts
             of
             the
             Parliament
             1648.
             were
             not
             to
             be
             found
             ,
             They
             found
             he
             had
             right
             to
             the
             whole
             Charges
             during
             the
             Parliament
             ,
             unless
             for
             such
             time
             ,
             as
             they
             shall
             prove
             by
             his
             oath
             ,
             that
             he
             was
             absent
             ,
             but
             found
             ,
             that
             the
             Stent
             Roll
             ought
             to
             be
             according
             to
             the
             Retour
             ,
             and
             not
             to
             the
             Valuation
             :
          
        
         
           
             Lady
             Greenhead
             conra
             Lord
             Loure
             .
             February
             10.
             1665.
             
          
           
             THe
             Lady
             Craig
             ,
             and
             the
             Laird
             of
             Greenhead
             her
             second
             Husband
             pursues
             the
             Tenents
             of
             Craig
             wherein
             she
             is
             Infeft
             ,
             for
             Mails
             and
             Duties
             .
             In
             which
             Process
             ,
             my
             Lord
             Loure
             co●●pears
             for
             his
             Interest
             ,
             and
             alleadges
             ,
             that
             he
             having
             Appryzed
             the
             Estate
             of
             Craig
             ,
             and
             being
             Infeft
             ,
             thereupon
             hath
             raised
             Reduction
             of
             the
             Ladies
             Infeftment
             ,
             on
             this
             Reason
             ,
             that
             a
             Part
             of
             his
             Sumes
             being
             anterior
             to
             the
             Ladies
             Infeftment
             ,
             who
             was
             competently
             provided
             ,
             by
             her
             Contract
             of
             Marriage
             ,
             in
             30.
             
             Chalder
             of
             Victuall
             ,
             and
             this
             additional
             Infeftment
             of
             fifty
             Chalder
             of
             Victual
             ,
             being
             betwixt
             most
             Conjunct
             Persons
             ;
             Husband
             and
             Wife
             :
             in
             so
             far
             as
             it
             is
             posterior
             to
             the
             Pursuers
             lawful
             Debt
             ;
             ought
             to
             be
             Reduced
             upon
             the
             Act
             of
             Parliament
             ,
             1621.
             
             The
             Pursuer
             answered
             ,
             the
             Reason
             ought
             to
             be
             repelled
             .
             First
             ,
             Because
             the
             Act
             of
             Parliament
             being
             only
             against
             gratuitous
             Dispositions
             made
             by
             Bankerupts
             ,
             in
             prejudice
             of
             their
             lawful
             Creditors
             ,
             is
             not
             relevant
             :
             seing
             Craig
             the
             Disponer
             was
             not
             a
             Bankerupt
             ;
             2ly
             .
             As
             
             he
             was
             not
             a
             Bankerupt
             ,
             so
             neither
             was
             he●
             insolvendo
             ;
             because
             the
             Reversion
             of
             his
             Estate
             is
             sufficient
             to
             pay
             his
             Debt
             ,
             albeit
             the
             Same
             were
             affected
             with
             this
             additional
             Joynture
             .
             It
             was
             answered
             ,
             for
             the
             Defender
             ,
             that
             albeit
             the
             Title
             ,
             and
             Narrative
             of
             the
             Act
             ,
             be
             against
             Bankerupts
             ,
             yet
             the
             Statutory
             part
             thereof
             ,
             is
             against
             all
             gratuitous
             Dispositions
             ,
             by
             Conjunct
             Persons
             :
             so
             that
             the
             Defender
             needs
             not
             alleadge
             ,
             that
             either
             the
             Disponer
             was
             Bankerupt
             ,
             or
             insolvendo
             ,
             but
             that
             the
             Ladies
             Infeftment
             is
             betwixt
             Conjunct
             Persons
             :
             without
             an
             onerous
             Cause
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Disponer
             was
             neither
             Bankerupr
             ,
             nor
             insolvendo
             ;
             and
             the
             Defender
             can
             have
             no
             Interest
             :
             unless
             there
             were
             fraud
             or
             prejudice
             which
             the
             Defender
             cannot
             alleadge
             ;
             because
             the
             Pursuer
             is
             content
             ,
             that
             the
             Defender
             have
             access
             by
             his
             Appryzing
             to
             the
             Joynture
             Lands
             ,
             In
             so
             far
             as
             will
             satisfie
             his
             Annualrents
             ,
             and
             by
             the
             Act
             betwixt
             Debitor
             and
             Creditor●
             the
             Lords
             are
             impowred
             to
             restrict
             Appryzings
             to
             their
             Annualrent
             ,
             and
             so
             he
             can
             pretend
             no
             prejudice
             ;
             providing
             he
             assigne
             the
             Lady
             to
             his
             Appryzing
             ,
             in
             so
             far
             as
             he
             satisfies
             his
             Annualrent
             ,
             out
             of
             her
             Additional
             Joynture
             .
          
           
             The
             Lords
             found
             the
             answer
             to
             the
             Reduction
             Relevant
             ,
             upon
             purging
             of
             the
             Appryzers
             prejudice
             ,
             not
             only
             by
             admitting
             him
             to
             have
             access
             to
             the
             Appryzed
             Lands
             upon
             Assignation
             ,
             as
             said
             is
             ,
             during
             the
             Legal
             ,
             but
             with
             Declaration
             ,
             that
             if
             the
             Lady
             Redeemed
             not
             within
             the
             Legall
             ,
             the
             Lands
             should
             be
             irredeemable
             ,
             and
             the
             Lady
             totally
             excluded
          
        
         
           
             Earl
             of
             Lauderdail
             contra
             Lord
             Oxfuird
             .
             February
             11.
             1665.
             
          
           
             THe
             Earl
             of
             Lauderdail
             his
             Guidsir
             ,
             being
             Infeft
             in
             the
             Barony
             of
             Musselburgh
             ,
             which
             is
             a
             part
             of
             the
             Abbacy
             of
             Dumferling
             by
             a
             Gift
             from
             King
             Iames
             ,
             in
             Anno
             1584.
             
             Excepted
             by
             the
             Act
             of
             Parliament
             ,
             for
             Annexation
             of
             Kirklands
             ,
             in
             Anno
             1587.
             
             And
             repeited
             in
             the
             Act
             of
             Parliamet
             1593.
             
             His
             Father
             got
             a
             Gift
             in
             Anno
             1641.
             
             And
             Oxfuird
             got
             another
             the
             same
             year
             from
             the
             King
             ,
             as
             Heir
             to
             Queen
             Ann
             his
             Mother
             ,
             who
             had
             a
             Heretable
             Disposition
             of
             the
             whole
             Lordship
             of
             Dumferling
             from
             the
             King
             ,
             after
             Lauderdails
             first
             Right
             ;
             Lauderdail
             obtained
             Conformation
             of
             his
             first
             and
             subsequent
             Rights
             ,
             in
             the
             Parliament
             1661.
             
             Declaring
             all
             Rights
             formerly
             granted
             by
             the
             King
             since
             Lauderdails
             first
             Right
             ,
             void
             .
             Which
             Ratification
             ,
             bears
             ,
             an
             express
             provision
             ,
             That
             it
             shall
             not
             be
             prejudged
             by
             the
             Act
             
               salvo
               jure
               cu●uslibet
            
             .
             The
             Defender
             alleadged
             ,
             absolvitor
             
               in
               hoc
               judicio
               possessorio
            
             ;
             because
             his
             Father
             was
             Infeft
             by
             the
             King
             ,
             in
             Anno
             1641.
             
             And
             by
             vertue
             thereof
             in
             possession
             ,
             twenty
             years
             before
             this
             persuit
             :
             and
             as
             for
             his
             Ratification
             ,
             the
             Defender
             not
             being
             called
             thereto
             ;
             it
             cannot
             take
             away
             his
             Right
             ,
             being
             founded
             
               super
               jure
               communi
            
             untill
             the
             Pursuer
             insist
             in
             Reduction
             .
             In
             which
             case
             ,
             the
             Defender
             shall
             answer
             ,
             but
             is
             not
             oblidged
             to
             answer
             
               in
               hoc
               judicio
            
             ,
             and
             as
             for
             the
             exception
             of
             the
             Act
             
               salvo
               jur
            
             :
             It
             s
             against
             the
             common
             Law
             :
             and
             the
             Act
             
               salvo
               jure
            
             ;
             is
             posterior
             without
             repeiting
             that
             exception
             .
             The
             Pursuer
             opponed
             his
             Ratificatiom
             ,
             excepting
             the
             Act
             
               salvo
               
               jure
            
             ,
             which
             being
             done
             upon
             the
             King
             and
             Parliaments
             certain
             knowledge
             upon
             consideration
             of
             Lauderdails
             prior
             Right
             .
             The
             Lords
             cannot
             be
             Judges
             to
             reduce
             the
             Sentence
             ,
             and
             Statute
             of
             Parliament
             ;
             as
             Durie
             observes
             to
             have
             been
             found
             in
             the
             Case
             of
             the
             Earl
             ,
             of
             Rothes
             and
             
               Iohn
               Stewart
            
             of
             coldinghame
             .
             The
             Defender
             repei●ed
             his
             answer
             ;
             and
             for
             these
             Decisions
             ,
             opponed
             the
             Tennor
             of
             the
             Act
             
               salvo
               jure
            
             1633.
             
             And
             repeited
             ,
             1661.
             
             Whereby
             the
             Lords
             are
             ordained
             to
             decide
             ,
             in
             the
             Rights
             of
             privat
             Parties
             ,
             according
             to
             Law
             ,
             without
             respect
             of
             Ratification
             ,
             or
             other
             privat
             Statuts
             ,
             in
             favours
             of
             particular
             Persons
             ,
             such
             as
             this
             ,
             which
             being
             after
             this
             decisions
             ,
             clears
             and
             enlarges
             the
             power
             of
             the
             Lords
             .
             The
             Pursuer
             opponed
             his
             Ratification
             ,
             and
             exception
             of
             the
             Act
             
               salvo
               jure
            
             ,
             which
             bears
             expresly
             ,
             That
             it
             should
             stand
             as
             a
             publick
             Law
             ,
             and
             so
             was
             no
             privat
             Statute
             ,
             mentioned
             in
             these
             Acts
             ,
             
               Salvo
               jure
            
             .
          
           
             The
             Lords
             having
             considered
             the
             Case
             ,
             and
             that
             such
             exceptions
             from
             the
             Act
             
               Salvo
               jure
            
             were
             of
             dangerous
             consequence
             to
             the
             Leidges
             .
             They
             ordained
             the
             Parties
             before
             answer
             ,
             to
             dispute
             the
             point
             of
             Right
             as
             if
             such
             an
             exception
             of
             the
             Act
             
               Salvo
               jure
            
             ,
             had
             not
             been
             granted
             ,
             but
             they
             thought
             that
             Defense
             upon
             a
             possessory
             Iudgement
             ,
             being
             but
             a
             point
             of
             form
             ,
             whereby
             the
             Rights
             of
             Parties
             were
             not
             competent
             by
             exception
             ,
             or
             reply
             :
             the
             Parliament
             might
             dispense
             therewith
             ,
             and
             also
             might
             repone
             Parties
             ,
             as
             to
             the
             matter
             of
             Prescription
             ,
             or
             
               quoad
               minor
               non
               tenetur
               placitare
            
             ,
             but
             if
             without
             these
             and
             such
             ,
             the
             Pursuer
             had
             a
             prior
             valid
             Right
             .
             The
             Lords
             were
             loath
             to
             enter
             upon
             the
             case
             of
             the
             exception
             of
             the
             Act
             
               Salvo
               Jure
            
             .
          
        
         
           
             Scot
             of
             Thirlston
             contra
             Scot
             of
             Braidmeadow
             Eodem
             die
             .
          
           
             SCot
             of
             Thirlston
             having
             right
             to
             the
             Teynd
             of
             midshef
             ;
             and
             pursues
             the
             possessor
             for
             24.
             
             Years
             bygone
             ,
             and
             in
             time
             coming
             ,
             who
             alleadged
             absolvitor
             ;
             because
             these
             Teynds
             are
             allocal
             to
             the
             Church
             ,
             co●●or●
             to
             a
             Decreet
             of
             locality
             ,
             produced
             :
             bearing
             ,
             
               such
               a
               Stipend
               and
               locatting
               ,
               so
               much
               of
               it
               ,
               and
               for
               the
               rest●
               that
               the
               Minister
               had
               the
               Teynds
               of
               midshef
               .
            
             It
             was
             alleadged
             ,
             that
             this
             could
             not
             instruct
             ,
             that
             those
             whole
             Teynds
             were
             allocal
             ;
             but
             so
             much
             ,
             as
             made
             up
             that
             rest
             :
             and
             the
             Teynd
             is
             worth
             twice
             as
             much
             ,
             and
             therefore
             the
             Minister
             had
             but
             the
             twenty
             Lamb
             ,
             for
             the
             Teynd
             ,
             which
             is
             but
             half
             Teynd
             and
             was
             lyable
             to
             the
             Pursuer
             for
             the
             rest
             .
             It
             was
             answered
             ,
             that
             Teynds
             are
             
               secundum
               consuetudinem
               loci
            
             ,
             and
             if
             Tyends
             had
             never
             been
             payed
             ,
             none
             would
             be
             due
             ,
             and
             if
             the
             twenty
             Lambs
             was
             all
             ever
             payed
             ,
             they
             could
             be
             lyable
             for
             no
             more
             :
          
           
             The
             Lords
             found
             ,
             that
             before
             the
             intenting
             of
             the
             cause
             ,
             they
             would
             not
             allow
             any
             more
             nor
             then
             what
             was
             accustomed
             to
             be
             payed
             ,
             unless
             the
             Pursuer
             ,
             offer
             him
             to
             prove
             ,
             that
             there
             was
             a
             Tack
             ,
             or
             use
             of
             payment
             of
             more
             ,
             which
             they
             would
             allow
             accordingly
             .
          
        
         
           
           
             Sir
             William
             Thomson
             contra
             Town
             of
             Edinburgh
             ,
             February
             14.
             1665.
             
          
           
             THe
             Magistrats
             of
             Edinburgh
             ,
             having
             deposed
             Sir
             
               William
               Thomson
            
             Town
             Clerk
             ,
             from
             his
             Office
             ,
             on
             this
             ground
             ,
             That
             a
             Tack
             of
             the
             new
             Imposition
             ,
             and
             Excise
             being
             set
             to
             their
             Tacks-men
             ,
             (
             which
             was
             to
             have
             been
             subscribed
             by
             him
             ,
             as
             Clerk
             ,
             for
             the
             Deacons
             of
             the
             Crafts
             ,
             )
             he
             had
             given
             it
             up
             to
             the
             Tacks-man
             ,
             and
             had
             not
             taken
             their
             subscription
             thereto
             ,
             neither
             to
             their
             own
             double
             ,
             nor
             taken
             another
             double
             for
             the
             Town
             ,
             albeit
             the
             Tack
             duty
             was
             fourscore
             thousand
             merks
             yearly
             ,
             for
             two
             years
             ;
             and
             that
             it
             being
             an
             uncertain
             casuality
             ,
             the
             value
             of
             it
             was
             most
             difficult
             to
             prove
             ,
             and
             not
             but
             by
             the
             Tacks-mens
             own
             Oath
             .
             Sir
             William
             raised
             Reduction
             ,
             on
             several
             Reasons
             ,
             especially
             that
             the
             sentence
             was
             unjust
             ,
             in
             so
             far
             as
             it
             was
             the
             puting
             on
             of
             an
             exorbitant
             ,
             and
             incommensurable
             punishment
             ,
             of
             deprivation
             from
             an
             Office
             of
             so
             great
             Value
             ,
             upon
             a
             Fault
             of
             meer
             negligence
             ,
             or
             escape
             :
             and
             that
             before
             the
             Sentence
             ,
             the
             Tack-dutie
             was
             all
             payed
             ,
             but
             four
             monethes
             ,
             and
             now
             all
             is
             payed
             ,
             and
             that
             Sir
             William
             was
             still
             willing
             for
             to
             have
             made
             up
             the
             Towns
             damnage
             .
             It
             was
             answered
             ,
             that
             here
             was
             no
             Process
             to
             put
             a
             punishment
             commensurable
             on
             a
             Fault
             ,
             but
             Sir
             William
             having
             ,
             by
             the
             free
             Gift
             of
             the
             Town
             had
             so
             profitable
             a
             place
             for
             his
             life
             ,
             upon
             consideration
             of
             his
             Fidelity
             and
             Diligence
             ,
             there
             is
             implyed
             in
             it
             ,
             as
             effectualy
             ,
             as
             if
             exprest
             ,
             that
             it
             is
             
               ad
               vitam
               aut
               ad
               culpam
            
             :
             so
             that
             the
             cognoscing
             of
             the
             Fault
             is
             the
             termination
             of
             the
             Gift
             freely
             given
             ,
             so
             if
             their
             be
             a
             fault
             Justly
             found
             by
             the
             Town
             ,
             they
             might
             well
             take
             back
             their
             Gift
             ,
             they
             gave
             upon
             that
             condition
             implyed
             ,
             for
             it
             was
             not
             the
             loss
             
               in
               eventu
            
             ;
             nor
             
               dolus
               in
               proposito
            
             ,
             that
             made
             such
             a
             Fault
             ;
             else
             all
             negligences
             imaginable
             would
             not
             make
             it
             up
             ,
             though
             a
             Servant
             should
             leave
             his
             Masters
             House
             ,
             and
             Coffers
             open
             ,
             if
             nothing
             happened
             to
             follow
             ;
             yet
             the
             Fault
             was
             the
             same
             ,
             and
             could
             not
             be
             taken
             away
             ,
             by
             making
             up
             the
             damnage
             ,
             but
             here
             was
             a
             Fault
             of
             knowledge
             and
             importance
             :
             for
             Sir
             Wil●iam
             could
             not
             by
             meer
             negligence
             ,
             nor
             ommission
             give
             away
             the
             Tack
             to
             the
             Tacks-men
             ,
             and
             neither
             see
             them
             subscribe
             their
             own
             double
             ,
             or
             any
             other
             ,
             nor
             subscribe
             himself
             ,
             this
             Fault
             was
             likeas
             in
             his
             Office
             ,
             he
             had
             a
             particular
             gratuitie
             ,
             as
             Clerk
             to
             the
             excise
             .
          
           
             The
             Lords
             repelled
             the
             Reason
             of
             Reduction
             ,
             and
             found
             the
             Sentence
             not
             to
             be
             unjust
             ,
             upon
             this
             ground
             ;
             because
             they
             thought
             that
             Sir
             William
             being
             a
             common
             Servant
             ,
             who
             by
             his
             Act
             of
             admission
             ,
             had
             specially
             engadged
             never
             to
             quarrel
             the
             pleasure
             of
             the
             Magistrats
             ,
             they
             ,
             as
             all
             Masters
             have
             a
             latitude
             ,
             in
             cognoscing
             their
             Servants
             Faults
             ,
             wherein
             ,
             though
             they
             might
             have
             been
             wished
             to
             forbear
             rigor
             ,
             yet
             having
             done
             it
             by
             their
             power
             ,
             as
             Masters
             over
             their
             Servants
             ;
             The
             Lords
             could
             not
             say
             they
             had
             done
             unjustly
             ,
             but
             found
             that
             the
             committing
             such
             a
             Fault
             terminat
             their
             free
             Gift
             ,
             being
             of
             knowledge
             and
             importance
             ,
             but
             found
             that
             if
             it
             could
             be
             proven
             ,
             that
             the
             Tack
             was
             duelie
             subscribed
             ,
             and
             lost
             thereafter
             ,
             which
             was
             not
             of
             knowledge
             ,
             
             but
             of
             meer
             omission
             ,
             incident
             to
             any
             Person
             ,
             of
             the
             greatest
             diligence
             ,
             they
             would
             not
             find
             that
             a
             sufficient
             ground
             to
             depose
             him
             .
          
        
         
           
             Bishop
             of
             Dumblain
             contra
             Earl
             of
             Cassils
             .
             February
             15.
             1665.
             
          
           
             THe
             Bishop
             of
             Dumblain
             pursues
             the
             Earls
             Tennents
             ,
             for
             the
             Teynds
             of
             the
             Abbacy
             of
             Cor●regual
             ,
             as
             a
             part
             of
             his
             Patrimony
             annexed
             thereto
             ,
             by
             the
             Act
             of
             Parliament
             1617.
             
             The
             Defender
             alleadged
             no
             Process
             ,
             till
             the
             Act
             of
             Annexation
             ,
             being
             but
             an
             Act
             unprinted
             were
             produced
             .
             2ly
             .
             Absolvitor
             ,
             because
             the
             Defender
             had
             Tacks
             from
             the
             King
             ,
             in
             Anno
             1641.
             
             And
             by
             vertue
             thereof
             was
             in
             possession
             ,
             and
             could
             pay
             no
             more
             then
             the
             Duties
             therein
             contained
             ,
             till
             they
             were
             reduced
             .
             It
             was
             answered
             to
             the
             first
             ,
             it
             was
             nottour
             ,
             and
             if
             the
             Defender
             alleadged
             any
             thing
             in
             his
             favour
             ,
             in
             the
             Act
             ,
             he
             might
             extract
             it
             .
             2ly
             .
             The
             Defender
             could
             not
             claim
             the
             benefit
             of
             his
             Tack
             ,
             1641.
             because
             the
             Bishops
             are
             restored
             to
             all
             they
             possessed
             in
             Anno
             1637.
             
             And
             so
             not
             only
             Right
             ,
             but
             Possession
             ,
             is
             restored
             to
             them
             as
             then
             ,
             which
             is
             as
             sufficient
             an
             interruption
             by
             publick
             Law
             ,
             as
             if
             it
             were
             by
             Inhibition
             ,
             ot
             citation
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             being
             
               in
               recenti
            
             after
             the
             Act
             ,
             and
             never
             acknowledged
             by
             the
             Bishops
             .
          
        
         
           
             Boyd
             of
             Pinkill
             contra
             Tennents
             of
             Cairsluth
             .
             Eodem
             die
             .
          
           
             PInkill
             ,
             as
             Donatar
             to
             the
             waird
             of
             Cairsluth
             ,
             pursues
             removing
             against
             the
             Tennents
             ,
             whose
             Master
             compears
             ,
             and
             alleadges
             ,
             that
             the
             Gift
             was
             to
             the
             behove
             of
             the
             Minor
             ,
             his
             Superiour
             ;
             who
             ,
             as
             representing
             his
             Father
             and
             Guidsire
             ,
             was
             oblidged
             ,
             in
             absolute
             warrandice
             ,
             against
             Wairds
             
               per
               expressum
            
             .
          
           
             THe
             Lords
             considering
             ,
             whether
             that
             could
             be
             understood
             of
             any
             other
             Wairds
             ,
             then
             such
             as
             had
             fallen
             before
             the
             warrandice
             ,
             or
             if
             it
             could
             extend
             to
             all
             subsequent
             Wairds
             ,
             of
             the
             Superiours
             Heir
             ,
             and
             so
             to
             non-entries
             ,
             &c.
             which
             they
             thought
             hard
             ;
             seing
             all
             holdings
             were
             presumed
             Waird
             ,
             unlesse
             the
             contrary
             appear
             ,
             and
             the
             Superiour
             could
             not
             be
             thought
             to
             secure
             against
             subsequent
             Wairds
             ,
             unlesse
             it
             were
             so
             specially
             exprest
             ,
             all
             Wairds
             past
             and
             to
             come
             :
             Yet
             seing
             it
             was
             found
             formerly
             that
             if
             the
             Superiour
             take
             such
             a
             Gift
             ,
             and
             be
             bound
             in
             warrandice
             ,
             that
             the
             same
             should
             accresce
             to
             the
             Vassals
             paying
             their
             proportional
             part
             of
             the
             expense
             ,
             and
             composition
             ,
             they
             found
             the
             Defense
             ,
             that
             this
             Gift
             was
             to
             the
             behove
             of
             the
             Superiour
             
               relevant
               ,
               ad
               hunc
               effectum
            
             ,
             to
             restrict
             it
             to
             a
             proportional
             part
             of
             the
             expense
             .
          
        
         
           
           
             Hellen
             Hepburn
             contra
             Adam
             Nisbit
             .
             February
             16.
             1665.
             
          
           
             
               HEllen
               Hepburn
            
             pursues
             
               Adam
               Nisbit
            
             ,
             to
             remove
             from
             a
             Tennement
             in
             Edinburgh
             ,
             who
             alleadged
             absolvitor
             ,
             because
             he
             had
             a
             Tack
             standing
             for
             Terms
             to
             run
             .
             It
             was
             replyed
             ,
             that
             the
             Tack
             bore
             expresly
             ,
             if
             two
             Terms
             run
             in
             the
             third
             unpayed
             ,
             the
             Tack
             should
             expire
             and
             be
             null
             ,
             
               ipso
               facto
            
             ,
             without
             Declarator
             .
             It
             was
             answered
             ,
             that
             notwithstanding
             clauses
             so
             conceived
             .
             The
             Lords
             hath
             been
             accustomed
             to
             put
             them
             to
             Declarator
             ,
             in
             which
             case
             they
             have
             the
             priviledge
             to
             purge
             the
             Failzie
             at
             the
             Bar
             ,
             and
             if
             need
             beis
             ,
             the
             Defender
             will
             now
             purge
             .
          
           
             The
             Lords
             found
             the
             reply
             relevant
             ,
             in
             respect
             of
             the
             conception
             of
             the
             Clause
             ,
             and
             would
             not
             suffer
             the
             Defender
             to
             purge
             ,
             for
             albeit
             in
             Declarators
             against
             Feues
             ,
             
               ob
               non
               solutum
               canonem
            
             ,
             the
             Lords
             will
             suffer
             the
             Defenders
             to
             purge
             at
             the
             Bar
             ,
             when
             the
             pursuite
             is
             upon
             the
             Act
             of
             Parliament
             yet
             they
             will
             hardly
             suffer
             them
             to
             purgewhere
             that
             Clause
             Irritant
             is
             exprest
             in
             the
             Infeftment
             :
             so
             Proprietars
             may
             pursue
             their
             Tennents
             for
             failzing
             to
             pay
             the
             Duties
             of
             their
             Tack
             ,
             and
             to
             find
             Caution
             in
             time
             coming
             ;
             else
             to
             remove
             when
             there
             is
             no
             such
             Clauses
             Irritant
             ,
             and
             then
             they
             may
             purge
             ,
             but
             when
             the
             Clause
             Irritant
             is
             exprest
             ,
             there
             is
             far
             less
             reason
             they
             should
             have
             liberty
             to
             purge
             in
             Tacks
             then
             in
             Feus
             ,
             where
             the
             penalty
             is
             much
             greater
             .
          
        
         
           
             Pringle
             of
             Torsonce
             contra
             Ker
             of
             Sunderland-hall
             .
             February
             17.
             1665.
             
          
           
             PRringle
             having
             appryzed
             the
             Right
             of
             a
             Wodset
             ,
             from
             the
             Heirs
             of
             Sir
             
               George
               Ramsay
            
             ,
             does
             thereupon
             require
             and
             charge
             for
             the
             Money
             .
             It
             was
             alleadged
             ,
             that
             he
             cannot
             have
             the
             Wodset
             Sum
             ,
             unless
             he
             not
             only
             Infest
             himself
             in
             the
             Wodset
             ,
             and
             renounce
             the
             same
             ,
             but
             put
             the
             Defender
             in
             peaceable
             possession
             ,
             as
             he
             did
             possesse
             the
             Wodsetter
             ,
             from
             whom
             the
             Pursuer
             appryzed
             :
             and
             who
             can
             be
             in
             no
             better
             Case
             ,
             then
             the
             Wodsetter
             himself
             .
             The
             pur●uer
             answered
             ,
             that
             he
             was
             willing
             to
             renounce
             all
             Right
             and
             Possession
             ,
             but
             could
             not
             put
             the
             Defender
             in
             Possession
             ;
             because
             a
             thrid
             Partie
             had
             intruded
             himself
             ,
             without
             the
             Pursuer
             ,
             or
             his
             Authors
             Fault
             ,
             and
             the
             Wodset
             being
             but
             a
             Pledge
             ,
             the
             Hipothecar
             is
             not
             lyable
             
               contra
               vim
               major●m
            
             ,
             but
             only
             
               pro
               culpa
               lata
               &
               levi
            
             .
             Therefore
             if
             a
             Pledge
             be
             taken
             away
             by
             force
             ,
             it
             hinders
             not
             the
             Creditor
             to
             demand
             his
             Sum.
             The
             like
             must
             be
             in
             intrusion
             ,
             which
             is
             an
             Act
             of
             force
             ,
             and
             the
             Pursuer
             ,
             who
             hath
             only
             his
             Annualrent
             ,
             is
             not
             oblidged
             to
             consume
             the
             same
             upon
             recovery
             ,
             but
             the
             Defender
             may
             do
             the
             same
             .
             The
             Defender
             answered
             ,
             that
             whatever
             might
             be
             alleadged
             ,
             in
             the
             Case
             of
             Intrusion
             ,
             if
             in
             continent
             ,
             the
             Wodsetter
             had
             intimate
             the
             same
             ,
             and
             required
             his
             Money
             ,
             yet
             this
             intruder
             has
             continued
             a
             long
             time
             .
          
           
           
             The
             Lords
             found
             the
             defense
             and
             duply
             relevant
             to
             stop
             the
             payment
             of
             the
             money
             till
             the
             possession
             were
             delivered
             ,
             seing
             the
             intrussion
             was
             
               ex
               inter
               vallo
            
             .
          
        
         
           
             James
             Butter
             contra
             Gray
             of
             Balbrino
             .
             Eodem
             die
             .
          
           
             
               JAmes
               Butter
            
             having
             pursued
             Gray
             for
             payment
             of
             a
             Sum
             of
             Money
             ,
             he
             alleadged
             prescription
             ,
             because
             fourty
             years
             had
             run
             from
             the
             date
             of
             the
             Bond
             ,
             being
             the
             last
             of
             December
             1624.
             before
             any
             Judicial
             Act
             ,
             or
             other
             interruption
             done
             thereon
             .
             The
             Pursuer
             replyed
             ,
             that
             he
             had
             cited
             the
             Defender
             ,
             upon
             the
             first
             Summons
             upon
             the
             24
             of
             December
             .
             1664.
             which
             was
             six
             days
             within
             the
             fourty
             years
             ,
             from
             the
             date
             .
             2ly
             .
             It
             was
             much
             more
             within
             the
             40
             years
             ,
             from
             the
             Term
             of
             payment
             of
             the
             Bond
             ,
             from
             which
             only
             ,
             and
             not
             from
             the
             date
             prescription
             runs
             ,
             
               quia
               contra
               non
               valentem
               agere
               ,
               non
               currit
               prescriptio
               .
            
             The
             Defender
             answered
             ,
             that
             the
             citation
             on
             the
             first
             Summons
             ,
             was
             not
             sufficient
             ,
             unless
             there
             had
             been
             an
             Act
             of
             Continuation
             or
             some
             Judicial
             Act
             within
             the
             40
             year
             ;
             Because
             the
             Act
             of
             Parliament
             bears
             expresly
             ,
             If
             the
             Creditor
             follow
             not
             ,
             and
             take
             document
             within
             40
             years
             ,
             the
             Bond
             shall
             expire
             .
          
           
             The
             Lords
             found
             the
             reply
             relevant
             ,
             and
             that
             the
             Citation
             on
             the
             first
             Summons
             was
             sufficient
             ,
             being
             within
             40
             years
             of
             the
             term
             of
             payment
             .
          
        
         
           
             Sir
             John
             Baird
             contra
             Magistrats
             of
             Elgine
             Eodem
             die
             .
          
           
             
               SIr
               Iohn
               Baird
            
             pursues
             the
             Magistrats
             of
             Elgine
             ,
             for
             the
             Debt
             of
             a
             Rebel
             ,
             escaping
             out
             of
             their
             Prison
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             Rebel
             had
             the
             benefit
             of
             the
             Act
             ,
             Debitor
             and
             Creditor
             ;
             and
             produced
             the
             Clerk
             of
             the
             Bills
             Certificat
             thereupon
             ,
             when
             he
             was
             offered
             to
             Prison
             ,
             and
             being
             Imprisoned
             joyntly
             for
             an
             other
             Debt
             .
             The
             Magistrats
             protested
             ,
             that
             they
             excepted
             him
             not
             prisoner
             for
             this
             Debt
             .
             It
             was
             answered
             ,
             that
             the
             benefit
             of
             the
             Act
             contains
             an
             express
             nullitie
             ,
             if
             the
             Annualrents
             be
             not
             payed
             conform
             thereto
             .
             The
             Defenders
             answered
             ,
             that
             they
             could
             not
             be
             Judge
             to
             the
             discharge
             ,
             and
             that
             upon
             the
             like
             case
             ,
             of
             a
             Protection
             of
             the
             Kings
             ,
             the
             Magistrats
             of
             Strivling
             were
             liberat
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             unless
             the
             Clerks
             attest
             ,
             the
             discharge
             had
             been
             first
             produced
             ,
             or
             shown
             to
             the
             Magistrats
             before
             the
             Prisoner
             was
             let
             go
             .
             In
             which
             case
             ,
             they
             might
             either
             have
             refused
             him
             ,
             or
             let
             him
             goe
             free
             .
          
        
         
           
             Marquess
             of
             Huntly
             contra
             Gordoun
             of
             Lesmore
             .
             February
             22.
             1665.
             
          
           
             THe
             Marquess
             of
             Huntly
             ,
             as
             Donatar
             to
             the
             Forefaulture
             of
             the
             Marquess
             of
             Argyle
             ,
             as
             to
             the
             Estate
             of
             Huntly
             ,
             obtained
             Decreet
             of
             Parliament
             against
             Gordoun
             of
             Lesmore
             ,
             for
             payment
             of
             the
             Mails
             and
             Duties
             of
             certain
             
             Lands
             ,
             and
             for
             removing
             therefrom
             .
             He
             Suspends
             ,
             on
             these
             Reasons
             ,
             First
             ,
             That
             the
             Decreet
             was
             null
             ,
             not
             preceeding
             upon
             lawful
             Citation
             ,
             but
             far
             fewer
             dayes
             then
             is
             appointed
             by
             Law
             ,
             and
             that
             he
             was
             absent
             ,
             and
             now
             alleadges
             ,
             that
             his
             Right
             to
             the
             Lands
             in
             question
             ,
             was
             by
             excambion
             with
             the
             Marquess
             of
             Argyle
             ,
             for
             Lands
             holden
             of
             the
             Marquess
             of
             Huntly
             ,
             which
             he
             had
             possessed
             thirtie
             or
             fourtie
             years
             before
             ,
             and
             thereefore
             ,
             if
             the
             Pursuer
             were
             dispossessed
             of
             the
             Lands
             in
             question
             ,
             he
             behoved
             to
             possesse
             him
             in
             other
             Lands
             .
             2ly
             .
             The
             Decreet
             is
             null
             ,
             as
             not
             proceeding
             upon
             tryal
             of
             an
             Inquest
             ,
             cognoscing
             ,
             the
             Marquess
             of
             Argyle
             Heretable
             possessor
             five
             years
             before
             ;
             conform
             to
             the
             Act
             of
             Parliament
             :
             nor
             could
             that
             be
             cog●o●●ed
             ,
             because
             ,
             the
             Defender
             himself
             was
             Heretable
             possessor
             these
             years
             .
             3ly
             .
             The
             Defenders
             Right
             from
             the
             Marquess
             of
             Argyle
             ,
             albeit
             it
             was
             
               post
               comissum
               crimen
            
             ,
             yet
             the
             cryme
             was
             latent
             ,
             proceeding
             upon
             missive
             Letters
             of
             his
             ,
             that
             was
             found
             out
             of
             the
             English
             hands
             ,
             which
             the
             Defender
             could
             not
             know
             .
             The
             Pursuer
             answered
             to
             the
             whole
             ;
             that
             he
             opponed
             the
             Decreet
             of
             Parliament
             ,
             which
             ought
             not
             to
             have
             been
             Suspended
             ,
             by
             the
             Lords
             of
             Session
             ,
             who
             are
             not
             Judges
             to
             Decreets
             of
             Parliament
             ,
             who
             may
             dispence
             with
             the
             Dyets
             ,
             and
             Solemnities
             of
             Law
             ,
             and
             the
             Pursuer
             insists
             not
             upon
             the
             benefit
             of
             the
             five
             years
             possession
             ,
             but
             upon
             this
             ground
             ,
             that
             the
             Defenders
             Rights
             from
             the
             House
             of
             Huntlie
             ,
             or
             from
             Argyle
             were
             holden
             base
             of
             Argyle
             ,
             and
             not
             confirmed
             by
             the
             King
             ,
             and
             therefore
             by
             the
             Forefaulture
             of
             Argyle
             the
             Superiour
             ,
             who
             ,
             by
             his
             Right
             came
             in
             Huntlies
             place
             ,
             these
             unconfirmed
             base
             Rights
             fall
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             and
             in
             the
             same
             Process
             ,
             Mails
             and
             Duties
             being
             but
             generally
             decerned
             ,
             without
             expressing
             the
             quantities
             .
          
           
             The
             Lords
             ordained
             the
             Pursuer
             to
             condescend
             upon
             the
             quantities
             ,
             and
             gave
             him
             a
             term
             to
             prove
             .
          
        
         
           
             Viscount
             of
             Kingstoun
             contra
             Collonel
             Fullertoun
             .
             Eodem
             die
             .
          
           
             THe
             Viscount
             of
             Kingstoun
             pursues
             
               Collonel
               Fullertoun
            
             ,
             upon
             the
             warrandice
             of
             an
             Assignation
             ,
             made
             by
             the
             said
             Collonel
             ,
             to
             Sir
             
               Arthur
               dowglass
            
             of
             whittinghame
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             Assignation
             was
             only
             made
             in
             trust
             ,
             which
             he
             offered
             to
             instruct
             by
             many
             Adminicles
             ,
             of
             which
             these
             were
             the
             chief
             ;
             that
             by
             the
             Witnesses
             adduced
             ,
             it
             was
             cleared
             ,
             that
             this
             Assignation
             remained
             in
             the
             hands
             of
             one
             Cranstoun
             ,
             who
             was
             filler
             up
             of
             the
             date
             ,
             and
             Witnesses
             therein
             ;
             that
             it
             was
             never
             delivered
             to
             Whittinghame
             ,
             and
             that
             the
             Right
             Assigned
             ,
             was
             still
             retained
             by
             the
             Collonel
             ,
             who
             thereupon
             obtained
             two
             Decreets
             before
             the
             Lords
             ,
             and
             uplifted
             the
             Money
             from
             Sir
             
               William
               Thomson
            
             Debitor
             ,
             Cranstoun
             ,
             who
             keeped
             the
             Assignation
             ,
             being
             an
             Agent
             in
             the
             house
             ,
             never
             questioning
             the
             same
             ,
             nor
             Sir
             Arthur
             ,
             or
             any
             of
             his
             ,
             owning
             the
             same
             for
             the
             space
             of
             20
             year
             ,
             till
             of
             late
             ;
             Kingstoun
             gave
             300.
             merk
             ,
             to
             get
             the
             Assignation
             out
             of
             the
             hands
             of
             one
             Ienkin
             ,
             who
             got
             it
             from
             Cranstoun
             ,
             and
             that
             the
             Money
             was
             to
             have
             been
             presently
             imployed
             for
             the
             levying
             of
             Souldiers
             for
             
               a
               French
               Regement
            
             ,
             whereof
             Fullertoun
             was
             Collonel
             ,
             and
             Sir
             Arthur
             Livetenant
             Collonel
             ,
             there
             were
             also
             two
             Letters
             of
             Sir
             Arthurs
             produced
             by
             the
             Collonel
             ,
             acknowledging
             the
             trust
             thereof
             ,
             the
             one
             was
             alleadged
             to
             be
             holograph
             ,
             but
             nothing
             adduced
             to
             prove
             the
             same
             ,
             but
             three
             other
             writs
             ,
             subscribed
             before
             Witnesses
             ,
             for
             comparing
             the
             Subscriptions
             therein
             ,
             with
             the
             Subscriptions
             of
             the
             Letters
             .
             The
             
             Pursuer
             answered
             ,
             that
             so
             solemn
             a
             Write
             ,
             subscribed
             before
             Witnesses
             ,
             could
             not
             be
             taken
             away
             by
             Presumptions
             ,
             or
             Witnesses
             ,
             but
             either
             by
             Writ
             ,
             or
             Oath
             of
             Partie
             ;
             and
             as
             to
             the
             Presumptions
             adduced
             ,
             there
             are
             stronger
             Presumptions
             with
             the
             solemn
             Writ
             then
             against
             it
             :
             Fullartoun
             a
             most
             circumspect
             man
             ,
             would
             never
             have
             given
             an
             Assignation
             in
             trust
             ,
             without
             a
             Back-bond
             ,
             and
             that
             Sir
             Arthur
             died
             shortly
             thereafter
             ,
             Anno
             1642.
             and
             Cranstoun
             died
             Auno
             1645.
             
             And
             Whittinghams
             Successors
             were
             strangers
             to
             the
             business
             ,
             and
             the
             missives
             adduced
             were
             not
             proven
             holograph
             ,
             and
             were
             suspect
             .
          
           
             The
             Lords
             found
             the
             Defense
             founded
             upon
             the
             foresaid
             adminicles
             relevant
             and
             proven
             and
             therefore
             assoilzied
             .
          
        
         
           
             Sir
             George
             Mouat
             contra
             Dumbar
             of
             Hembrigs
             .
             Eodem
             die
             .
          
           
             SIr
             
               George
               Mouat
            
             ,
             as
             Assigney
             to
             a
             Tochar
             of
             5000
             merk
             ,
             whereunto
             umquhile
             Dumbaith
             was
             contracter
             ,
             pursues
             Hemprigs
             ,
             as
             representing
             him
             for
             payment
             .
             The
             Clause
             of
             the
             Contract
             bore
             ,
             That
             the
             Husband
             should
             have
             the
             Tochar
             ,
             out
             of
             the
             first
             ,
             and
             readiest
             Goods
             of
             the
             wifs
             Father
             ;
             and
             that
             he
             should
             have
             Annualrent
             therefore
             ,
             but
             did
             not
             expresly
             oblidge
             Dumbaith
             to
             pay
             ,
             and
             therefore
             he
             is
             not
             lyable
             personally
             ,
             unless
             he
             had
             intrometted
             with
             the
             Defuncts
             means
             .
          
           
             The
             Lords
             found
             the
             Defender
             lyable
             ,
             seing
             the
             Clause
             being
             
               in
               re
               dotali
            
             ,
             it
             behoved
             to
             be
             interpret
             
               cum
               effectu
            
             ,
             and
             if
             it
             did
             import
             only
             a
             consent
             ,
             not
             to
             hinder
             the
             Husband
             ,
             it
             signified
             nothing
             ;
             and
             because
             in
             Cases
             conceived
             passivè
             ,
             where
             it
             does
             not
             appear
             ,
             who
             is
             oblidged
             ,
             the
             Contracter
             is
             understood
             oblidged
             .
          
        
         
           
             Campbel
             contra
             Campbel
             .
             Eodem
             die
             .
          
           
             A
             Wife
             pursuing
             her
             Father
             in
             Law
             ,
             for
             imployment
             of
             her
             Tochar
             ,
             conform
             to
             her
             Contract
             .
             He
             alleadged
             absolvitor
             ,
             because
             the
             Clause
             bore
             expresly
             ,
             that
             so
             soon
             as
             the
             Tochar
             was
             payed
             compleatly
             ,
             he
             should
             imploy
             it
             ;
             and
             so
             much
             more
             for
             the
             Wifs
             Liferent
             use
             ,
             so
             that
             ,
             unless
             it
             were
             shown
             ,
             that
             the
             Tochar
             was
             compleatly
             payed
             ,
             he
             was
             not
             oblidged
             .
             The
             Pursuer
             answered
             ,
             that
             she
             was
             not
             oblidged
             to
             pay
             the
             Tochar
             ,
             but
             her
             Father
             ,
             and
             if
             any
             neglect
             or
             defect
             were
             therein
             ,
             it
             was
             not
             her
             fault
             ,
             but
             the
             Defender
             ought
             to
             have
             done
             diligence
             ,
             
               debito
               ●●mpore
            
             ,
             and
             therefore
             ,
             albeit
             the
             Tochar
             were
             not
             payed
             ,
             at
             least
             he
             must
             imploy
             his
             own
             part
             proportionable
             to
             what
             of
             the
             Tochar
             he
             hath
             received
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             and
             if
             the
             Pursuer
             had
             not
             restricted
             her self
             to
             that
             proportion
             they
             would
             have
             sustained
             it
             simply
             ,
             for
             all
             the
             Defnders
             own
             part
             .
          
        
         
           
             Kennedy
             contra
             Weir
             February
             23.
             1665.
             
          
           
             KEnnedy
             of
             Auchtifardel
             ,
             having
             charged
             
               William
               Weir
            
             ,
             upon
             a
             Bond
             of
             300
             merk
             .
             He
             Suspends
             ,
             and
             raises
             Reduction
             ,
             upon
             Minority
             and
             Lesion
             .
             
             The
             Charger
             answered
             ,
             Minority
             takes
             no
             place
             where
             the
             Minor
             is
             
               in
               dolo
            
             ,
             as
             
               si
               minor
               sein
               majorem
               dixerit
            
             ,
             but
             in
             this
             Bond
             ,
             the
             Suspender
             expresly
             acknowledged
             himself
             to
             be
             then
             Major
             .
             The
             Suspender
             answered
             ,
             that
             
               eadem
               facilitate
            
             ,
             that
             he
             was
             induced
             to
             subscribe
             the
             Bond
             ,
             he
             might
             be
             induced
             to
             insert
             that
             Clause
             ,
             which
             therefore
             cannot
             prove
             ,
             unless
             it
             were
             otherways
             proven
             ,
             that
             he
             did
             induce
             the
             Charger
             to
             lend
             him
             Money
             on
             that
             ground
             .
          
           
             The
             Lords
             found
             ,
             his
             acknowledgement
             in
             the
             Bond
             was
             sufficient
             ,
             unlesse
             he
             instructed
             ,
             that
             he
             was
             induced
             to
             insert
             that
             Clause
             ,
             not
             on
             his
             own
             motion
             ,
             or
             that
             the
             Charger
             knew
             that
             he
             was
             Minor
             ,
             or
             was
             oblidged
             to
             know
             the
             same
             ,
             by
             being
             his
             Tutor
             or
             Curator
             ,
             or
             might
             have
             visibly
             known
             the
             same
             ,
             by
             the
             sight
             of
             his
             age
             ,
             and
             thought
             it
             not
             reasonable
             to
             put
             it
             to
             the
             Debitors
             oath
             ,
             to
             disappoint
             the
             Creditor
             .
          
        
         
           
             Jack
             contra
             Pollock
             and
             Rutherfoord
             .
             Eodem
             die
             .
          
           
             
               MArion
               Rutherfoord
            
             Married
             
               David
               Clerk
            
             ,
             and
             had
             no
             Contract
             of
             Marriage
             with
             him
             ,
             but
             he
             having
             acquired
             a
             little
             ruinous
             Tennement
             ,
             took
             it
             to
             her
             and
             him
             in
             Conjunct-fee
             ,
             and
             in
             the
             time
             of
             the
             Plague●
             he
             provided
             her
             to
             the
             Annualrent
             of
             5000
             merk
             .
             His
             Heirs
             raises
             Reduction
             of
             the
             provision
             ,
             as
             being
             
               in
               lecto
               agritudinis
            
             ,
             after
             he
             had
             keeped
             his
             house
             upon
             suspition
             of
             the
             plague
             ,
             of
             which
             he
             died
             .
             It
             was
             alleadged
             ,
             for
             the
             said
             Marton
             ,
             that
             keping
             the
             house
             upon
             suspition
             of
             the
             plague
             could
             not
             be
             as
             
               in
               lecto
               aegritudinis
            
             ,
             unless
             it
             were
             proven
             ,
             that
             he
             was
             infected
             with
             the
             Desease
             ,
             before
             the
             provision
             was
             granted
             .
             2ly
             .
             Even
             in
             that
             Case
             ,
             Defuncts
             are
             not
             hindered
             to
             give
             Liferents
             to
             their
             Wives
             ,
             for
             which
             there
             is
             a
             natural
             obligation
             ,
             according
             to
             Craigs
             opinion
             .
          
           
             The
             Lords
             repelled
             the
             first
             alleadgence
             ,
             but
             found
             the
             second
             relevant
             ,
             in
             so
             far
             as
             might
             extend
             to
             a
             competent
             provision
             to
             the
             Wife
             ,
             and
             therefore
             having
             examined
             many
             Witnesses
             
               hinc
               inde
            
             ,
             upon
             the
             Estate
             of
             the
             Husband
             ,
             and
             the
             Tochar
             ,
             and
             frugality
             of
             the
             Wife
             ,
             and
             finding
             his
             means
             did
             consist
             in
             a
             Tenement
             worth
             500
             merk
             by
             year
             ,
             beside
             that
             inconsiderable
             Tenement
             ,
             wherein
             she
             was
             Infeft
             ,
             they
             restricted
             her
             Annualrent
             ,
             which
             came
             to
             300
             merk
             ,
             to
             123.
             lib.
             which
             was
             about
             the
             Terce
             of
             the
             Tenement
             ,
             albeit
             Terces
             of
             Houses
             within
             Burgh
             are
             not
             due
             .
          
           
             In
             this
             Process
             ,
             the
             VVife
             and
             her
             second
             Husband
             ,
             a●d
             having
             repaired
             the
             other
             little
             Tenement
             ,
             which
             was
             ruinous
             ,
             and
             builded
             it
             much
             better
             then
             ever
             it
             was
             ;
             for
             which
             they
             pursued
             for
             the
             Reparations
             .
          
           
             The
             Lords
             found
             ,
             that
             they
             ought
             to
             have
             the
             Reparations
             decerned
             ,
             not
             only
             in
             so
             far
             as
             is
             necessary
             ,
             but
             
               in
               quantum
            
             ,
             the
             Heir
             will
             lucrari
             ,
             by
             getting
             greater
             mail
             to
             be
             payed
             at
             the
             Wifes
             death
             ,
             she
             leaving
             the
             Tenement
             in
             as
             good
             case
             as
             now
             it
             is
             .
          
        
         
           
           
             Sir
             James
             Mersser
             of
             Aldie
             contra
             William
             Rouan
             .
             February
             24.
             1665.
             
          
           
             SIr
             
               Iames
               Mersser
            
             of
             Aldie
             ,
             as
             Donatar
             to
             the
             Gift
             of
             
               ultimus
               haeres
            
             ,
             of
             umquhil
             
               Iohn
               Rouan
            
             ,
             pursues
             a
             Reduction
             of
             the
             Retour
             ,
             and
             Service
             of
             
               William
               Rouan
            
             ,
             Served
             Heir
             to
             the
             Defunct
             ,
             as
             his
             Goodsirs
             Brothers
             Oye
             :
             and
             having
             obtained
             Certification
             ,
             
               contra
               non
               producta
            
             ;
             there
             being
             nothing
             produced
             ,
             but
             the
             Retour
             ,
             Service
             ,
             Brive
             and
             Executions
             ,
             but
             no
             Warrand
             of
             the
             Service
             ,
             either
             bearing
             the
             Testimony
             of
             Witnesses
             ,
             adduced
             to
             prove
             the
             propinquity
             of
             Blood
             ;
             or
             bearing
             ,
             that
             the
             Inquest
             of
             proper
             knowledge
             ,
             knew
             the
             same
             .
             The
             Pursuer
             now
             insists
             in
             his
             Reason
             of
             Reduction
             ,
             that
             the
             Service
             is
             without
             Warrant
             ,
             and
             without
             Probation
             by
             Writ
             or
             Witnesses
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             as
             it
             is
             lybelled
             ,
             bearing
             only
             that
             it
             is
             without
             probation
             by
             Writ
             or
             Witnesses
             ,
             whereas
             it
             might
             proceed
             upon
             the
             proper
             knowledge
             of
             the
             Inquest
             ,
             or
             any
             two
             of
             them
             .
             The
             Pursuer
             answered
             ,
             that
             neither
             were
             there
             any
             Probation
             by
             Writ
             or
             Witnesses
             ,
             nor
             by
             the
             Minuts
             of
             Processe
             ,
             bearing
             ,
             that
             the
             Persons
             of
             Inquest
             ,
             of
             their
             proper
             knowledge
             did
             Serve
             .
          
           
             The
             Lords
             considering
             ,
             that
             the
             Minuts
             of
             these
             Process
             upon
             Service
             ,
             for
             Serving
             general
             Heirs
             ,
             which
             may
             be
             before
             any
             Judicature
             ,
             use
             not
             to
             be
             exactly
             keeped
             ,
             would
             not
             instantly
             Reduce
             for
             want
             of
             the
             Warrants
             ;
             but
             ordained
             the
             Persons
             of
             Inquest
             to
             be
             produced
             ,
             to
             condescend
             whether
             they
             proceeded
             upon
             proper
             knowledge
             ,
             and
             what
             was
             the
             Reason
             of
             their
             knowledge
             .
          
        
         
           
             Mc.
             Gregor
             contra
             Menzies
             .
             Eodem
             die
             .
          
           
             THere
             being
             a
             question
             arising
             betwixt
             Mc.
             Gregor
             and
             Menzies
             ,
             upon
             a
             Decreet
             Arbitral
             .
          
           
             The
             Lords
             found
             the
             Decreet
             Arbitral
             null
             ,
             proceeding
             upon
             a
             Submission
             of
             this
             Tenor
             ,
             submitting
             to
             the
             Arbiters
             ,
             ay
             and
             while
             they
             meet
             ,
             at
             any
             Day
             and
             Place
             they
             found
             convenient
             ,
             with
             power
             of
             Prorogation
             ,
             without
             any
             particular
             Day
             ,
             for
             giving
             their
             Sentence
             blank
             ,
             or
             filled
             up
             ,
             because
             the
             Decreet
             Arbitral
             was
             not
             within
             a
             year
             of
             the
             Date
             of
             the
             Submission
             ,
             nor
             any
             Prorogation
             during
             that
             time
             .
          
        
         
           
             Dam
             Elizabeth
             Dowglass
             and
             Sir
             Robert
             Sinclar
             of
             Longformacus
             contra
             Laird
             of
             Wedderburn
             .
             Eodem
             die
             .
          
           
             THe
             Lady
             Longformacus
             ,
             as
             Heir
             to
             her
             Goodsire
             ,
             
               William
               Dowglas
            
             of
             Eveling
             ,
             who
             was
             Donatar
             to
             the
             Escheat
             and
             Liferent
             of
             
               Iohn
               Stewart
            
             of
             Coldinghame
             ,
             pursues
             the
             Laird
             of
             Wedderburn
             ,
             for
             the
             Teinds
             of
             his
             Lands
             ,
             which
             Teinds
             pertained
             to
             the
             Abbots
             of
             Coldinghame
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             he
             has
             Tack
             to
             run
             ,
             flowing
             
             from
             the
             Earl
             of
             Hoom
             ,
             who
             was
             Infeft
             in
             the
             Lordship
             of
             Coldinghame●
             and
             before
             that
             was
             Commendator
             thereof
             by
             His
             
               Majesty
               .
               2ly
               .
               Iohn
               Stewart
            
             had
             ratified
             all
             Rights
             ,
             flowing
             from
             the
             Earl
             of
             Hoom
             ;
             and
             consequently
             this
             Tack
             after
             which
             ,
             the
             Donatar
             of
             his
             Escheat
             could
             not
             challenge
             the
             same
             ;
             for
             the
             Ratification
             is
             equivalent
             ,
             as
             if
             the
             Tack
             were
             granted
             by
             the
             Ratifier
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defense
             upon
             the
             Tack
             ,
             and
             the
             Earl
             of
             Hooms
             Right
             ought
             to
             be
             Repelled
             ,
             because
             the
             Earl
             of
             Hoomes
             Right
             ,
             is
             Reduced
             by
             the
             Parliament
             1621.
             on
             this
             consideration
             ,
             that
             the
             Earl
             of
             Bothwel
             being
             Commendator
             of
             Coldinghame
             ,
             had
             demitted
             the
             same
             in
             his
             Majesties
             hands
             ,
             whereupon
             the
             said
             
               Iohn
               Stewart
            
             his
             Son
             ,
             was
             provided
             by
             the
             King
             ,
             Commendator
             of
             Coldinghame
             ,
             and
             thereafter
             the
             Earl
             of
             Bothwel
             being
             Forefault
             ,
             the
             said
             Iohn
             and
             his
             other
             Children
             were
             Dishabilitate
             ,
             and
             declared
             incapable
             to
             bruik
             and
             joy
             his
             Land
             and
             Heritage
             ,
             or
             to
             succeed
             to
             any
             Person
             within
             this
             Realm
             ,
             by
             Sentence
             of
             Parliament
             ;
             whereupon
             the
             King
             provided
             the
             Earl
             of
             Hoom
             to
             be
             Commendator
             of
             Coldinghame
             ;
             and
             thereafter
             on
             the
             Earls
             own
             Resignation
             ,
             Infeft
             him
             therein
             ,
             in
             an
             erected
             Lordship
             ,
             and
             thereafter
             in
             the
             Parliament
             1621.
             
             The
             King
             and
             Estates
             ,
             upon
             express
             consideration
             ,
             that
             
               Iohn
               Stewart
            
             was
             an
             Infant
             ,
             no
             wayes
             accessory
             to
             his
             Fathers
             Crimes
             ,
             did
             therefore
             annul
             his
             Dishabilitation
             ,
             and
             Rehabilitate
             him
             ,
             and
             declared
             that
             he
             should
             have
             Right
             to
             the
             Abbacy
             of
             Coldinghame
             ,
             in
             the
             same
             manner
             as
             he
             had
             before
             his
             Dishabilitation
             ;
             and
             Resci●ded
             all
             Rights
             and
             Infeftments
             of
             the
             said
             Abbacy
             ,
             granted
             by
             His
             Majesty
             ;
             to
             any
             Person
             of
             the
             said
             Abbacy
             ,
             since
             the
             said
             Dishabilitation●
             in
             so
             far
             as
             the
             samine
             might
             be
             prejudicial
             to
             Iohn
             Stewart's
             Provision
             ,
             that
             he
             had
             before
             .
             After
             all
             which
             ,
             
               Iohn
               Stewart
            
             upon
             his
             own
             Resignation
             ,
             was
             Infeft
             in
             the
             Property
             of
             Coldinghame
             ;
             so
             that
             the
             Earl
             of
             
             Hoom's
             Right
             being
             Reduced
             in
             Parliament
             ,
             and
             falling
             in
             consequence
             with
             
               Iohn
               Stewarts
            
             D●shabilitation
             ;
             whereupon
             it
             was
             founded
             :
             the
             Defenders
             Tack
             following
             thereupon●
             falls
             also
             in
             Consequence
             ,
             as
             was
             already
             found
             by
             the
             Lords
             ,
             in
             Anno
             1628.
             betwixt
             the
             said
             
               William
               Dowglas
            
             of
             Evelen
             and
             the
             Laird
             of
             Wedderburn
             ,
             conform
             to
             an
             Interlocutor
             ,
             Extracted
             and
             produced
             ;
             which
             is
             sufficient
             
               inter
               easdem
               partes
            
             ,
             and
             cannot
             be
             questioned
             ,
             
               super
               eisdem
               deductis
            
             now
             ;
             albeit
             at
             that
             time
             Wedderburn
             past
             from
             his
             compearance
             ,
             and
             so
             the
             Decreet
             against
             him
             was
             in
             absence
             ,
             yet
             the
             Interlocutor
             was
             ordained
             to
             be
             Extracted
             against
             him
             by
             the
             Lords
             ,
             which
             is
             sufficient
             :
             and
             as
             for
             the
             Ratification
             of
             the
             Tacks
             granted
             by
             the
             Earl
             of
             Hoom
             ,
             the
             samine
             was
             after
             
               Iohn
               Stewart
            
             had
             Resigned
             his
             Comendatorship
             ,
             and
             before
             he
             was
             Infeft
             in
             Property
             .
             The
             Defender
             answered
             ;
             First
             ,
             That
             the
             said
             Reduction
             of
             the
             Earl
             of
             
             Hoom's
             Right
             ,
             was
             without
             calling
             of
             the
             Defender
             :
             or
             of
             the
             Earl
             of
             Hoom
             himself●
             2ly
             .
             It
             mentions
             no
             particular
             Right
             ,
             or
             any
             Person
             ,
             but
             in
             general
             ,
             all
             Right
             ;
             and
             so
             is
             but
             a
             privat
             Right
             ,
             impetrat
             from
             the
             Parliament
             ,
             without
             hearing
             of
             Parties
             ;
             and
             therefore
             falls
             under
             the
             Act
             of
             Parliament
             ,
             
               salvo
               jure
            
             .
             And
             as
             to
             the
             former
             Interlocutor
             of
             the
             Lords
             .
             The
             reason
             why
             the
             Lords
             sustained
             the
             said
             Rescissory
             Act
             ,
             was
             because
             they
             found
             themselves
             not
             competent
             to
             Judge
             ,
             as
             to
             Sentences
             of
             Parliament
             ,
             or
             to
             annul
             the
             same
             ,
             upon
             the
             not
             calling
             of
             the
             Parties
             ,
             in
             respect
             that
             the
             Act
             salvo
             1621.
             relates
             to
             Ratifications
             ;
             but
             not
             to
             such
             Sentences
             as
             this
             :
             but
             by
             Act
             salvo
             ,
             1633.
             
             It
             is
             expresly
             declared
             ,
             that
             that
             Act
             ,
             and
             all
             former
             Acts
             salvo
             ,
             should
             not
             only
             extend
             to
             Ratifications
             ;
             but
             to
             all
             other
             privat
             Acts
             impetrat
             without
             hearing
             of
             Parties
             ,
             and
             prejudicial
             to
             other
             Parties
             Rights
             :
             and
             therefore
             now
             the
             Lords
             ought
             to
             proceed
             upon
             the
             Parties
             Right
             ,
             without
             consideration
             of
             that
             Act
             Rescissory
             .
          
           
           
             2ly
             .
             The
             Act
             of
             Parliament
             Prohibits
             and
             annuls
             all
             Restitution
             of
             Forefaulture
             by
             way
             of
             Grace
             ,
             in
             so
             far
             as
             may
             be
             prejudicial
             to
             these
             ,
             who
             
               bona
               fide
            
             ,
             acquired
             Rights
             from
             the
             King
             ,
             
               medio
               tempore
            
             :
             and
             so
             the
             Rehabilitation
             of
             
               Iohn
               Stewart
            
             ,
             cannot
             prejudge
             the
             Earl
             of
             Hoom
             :
             or
             the
             Defender
             who
             had
             Right
             from
             the
             Earl.
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             there
             was
             no
             difference
             in
             the
             two
             Acts
             
               salvo
               jure
            
             ;
             albeit
             the
             last
             was
             more
             express
             then
             the
             first
             ,
             containing
             the
             same
             in
             effect
             .
             
               2ly
               .
               Iohn
               Stewart
            
             being
             Dishabilitat
             by
             the
             Parliament
             ,
             without
             Citation
             or
             Crime
             ,
             might
             justly
             be
             Rahabilitate
             ,
             
               eodem
               modo
            
             ,
             without
             Citation
             ,
             and
             that
             not
             by
             way
             of
             Grace
             ,
             but
             in
             Justice
             ,
             as
             not
             accessory
             to
             the
             Crimes●
             and
             albeit
             Forefaultures
             may
             not
             be
             taken
             away
             by
             way
             of
             Reduction
             ,
             by
             the
             Act
             of
             Parliament
             ,
             1584.
             cap.
             135.
             yet
             that
             cannot
             be
             extended
             to
             the
             Dishabilitation
             of
             their
             Children
             ,
             so
             that
             the
             Parliament
             doing
             nothing
             prejudicial
             to
             any
             Parties
             Right
             ,
             but
             restoring
             
               Iohn
               Stewart
            
             to
             his
             just
             Right
             ,
             
               eo
               ipso
            
             ,
             the
             Earl
             of
             Hooms
             Right
             fell
             in
             consequence
             ,
             as
             founded
             upon
             
               Iohn
               Stewarts
            
             Dishabilitation
             ,
             and
             with
             it
             the
             Defenders
             Tack
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             upon
             the
             Tack
             ,
             in
             respect
             of
             the
             Reply
             ,
             for
             albeit
             the
             Act
             of
             Parliament
             ,
             1633.
             be
             much
             larger
             then
             the
             Act
             salvo
             ,
             1621.
             so
             that
             thereby
             the
             Lords
             might
             have
             cognosced
             upon
             
               John
               Stewarts
            
             Rehabilitation
             as
             without
             Citation
             ,
             if
             it
             had
             wronged
             any
             other
             Persons
             Right
             ,
             but
             finding
             that
             it
             was
             an
             Act
             of
             Iustice
             ,
             wronging
             no
             Persons
             Right
             ,
             they
             found
             the
             same
             Relevant
             .
          
        
         
           
             Town
             of
             Edinburgh
             contra
             Sir
             William
             Thomson
             .
             Iune
             6.
             1665.
             
          
           
             THe
             ordinar
             Council
             of
             Edinburgh
             ,
             having
             Deposed
             Sir
             William
             from
             his
             Office
             of
             Town
             Clerk
             ,
             he
             raised
             a
             Reduction
             of
             the
             Sentence
             ,
             on
             four
             Reasons
             ;
             first
             ,
             that
             the
             samine
             was
             null
             ,
             because
             it
             proceeded
             without
             Citation
             ,
             or
             necessar
             Solemnities
             of
             Process
             .
             2ly
             .
             Because
             the
             Town
             could
             not
             be
             Judge
             in
             their
             own
             Cause
             .
             3ly
             .
             Because
             by
             the
             Sett
             ,
             or
             the
             Kings
             Decreet
             Arbitral
             ,
             for
             the
             Government
             of
             the
             Town
             ,
             no
             Person
             could
             be
             admitted
             to
             any
             Office
             or
             Benefice
             therein
             ,
             but
             by
             the
             great
             Council
             consisting
             of
             the
             ordinar
             Council
             and
             their
             Deacons
             ;
             and
             consequently
             none
             could
             be
             Deposed
             from
             such
             Offices
             ,
             but
             by
             the
             same
             great
             Council
             ,
             and
             this
             Sentence
             was
             by
             the
             ordinar
             Council
             .
             4ly
             .
             That
             the
             Sentence
             was
             exorbitant
             and
             unjust
             ,
             in
             Deposing
             him
             for
             an
             Omission
             ,
             
               sine
               dolo
               ,
               lata
               culpa
               ,
               aut
               damno
               .
            
          
           
             The
             Lords
             having
             discussed
             the
             fourth
             Reason
             ,
             and
             heard
             the
             whole
             Dispute
             at
             length
             
               in
               praesentia
            
             .
             The
             Defender
             after
             Interlocutor
             ,
             but
             not
             pronounced
             on
             the
             fourth
             Reason
             ,
             borrowed
             the
             Process
             ,
             and
             refused
             to
             re-deliver
             it
             .
             The
             Town
             called
             upon
             a
             Copy
             ,
             and
             represented
             the
             manner
             of
             abstracting
             the
             Process
             .
             The
             question
             was
             ,
             what
             should
             be
             done
             ,
             and
             whither
             
               Sir
               William
            
             might
             before
             Litiscontestation
             ,
             or
             any
             Interlocutor
             pronounced
             ,
             take
             up
             his
             Process
             .
          
           
           
             The
             Lords
             admitted
             Protestation
             on
             the
             Copy
             ,
             and
             ordained
             an
             Act
             of
             Sederunt
             ,
             prohibiting
             the
             Clerks
             to
             give
             up
             any
             Process
             to
             the
             Pursuer
             ,
             after
             it
             was
             Dispute
             to
             the
             full
             in
             all
             the
             Members
             thereof
             ,
             though
             no
             Interlocutor
             were
             past
             ,
             or
             pronounced
             thereupon
             ,
             lest
             after
             so
             long
             Debate
             ,
             and
             hearing
             ,
             the
             Lords
             should
             at
             the
             discretion
             of
             Parties
             ,
             lifting
             their
             Process
             ,
             lose
             their
             time
             ,
             but
             what
             had
             been
             Dispute
             ,
             should
             be
             advised
             ,
             
               de
               recenti
            
             .
          
        
         
           
             Iune
             8.
             1665.
             
          
           
             The
             Lords
             upon
             Supplication
             ,
             ordained
             an
             Appryzing
             to
             be
             allowed
             ,
             albeit
             not
             only
             the
             Debitor
             against
             whom
             it
             was
             deduced
             ,
             was
             dead
             ,
             but
             the
             threescore
             days
             were
             long
             since
             expired
             ,
             and
             ordained
             the
             allowance
             to
             be
             Registrat
             ,
             in
             respect
             that
             the
             late
             Act
             of
             Parliament
             ,
             declares
             that
             such
             Appryzings
             as
             are
             not
             Registrat
             within
             threescore
             ,
             shall
             not
             be
             preferred
             to
             posterior
             Appryzings
             first
             Registrate
             ,
             so
             that
             the
             Lords
             thought
             ,
             that
             where
             the
             allowance
             was
             Registrate
             ,
             albeit
             after
             the
             threescore
             dayes
             ,
             it
             would
             be
             preferred
             to
             any
             other
             Appryzing
             Registrat
             thereafter
             .
          
        
         
           
             Eodem
             die
             .
          
           
             The
             Lords
             intimat
             to
             the
             Writers
             ,
             Keeper
             of
             the
             Signet
             ,
             and
             Clerk
             of
             the
             Bills
             ,
             an
             Act
             of
             Sederunt
             ,
             prohibiting
             general
             Letters
             ,
             upon
             Presentations
             or
             Collations
             of
             Ministers
             ,
             whether
             having
             Benefices
             ,
             or
             modified
             Stipends
             ,
             until
             every
             Incumbent
             obtain
             a
             Decreet
             conform
             ,
             albeit
             they
             should
             produce
             their
             Predecessors
             Decreet
             conform
             ,
             or
             a
             Decreet
             of
             Locality
             ,
             containing
             the
             Stipend
             particularly
             .
          
        
         
           
             Swintoun
             contra
             Notman
             .
             Iune
             10.
             1665.
             
          
           
             SWintoun
             in
             his
             Testament
             ,
             having
             named
             his
             Wife
             Tutrix
             to
             his
             Children
             ,
             and
             Notman
             and
             others
             ,
             Overseers
             .
             His
             Relict
             within
             a
             year
             ,
             was
             married
             ,
             and
             so
             her
             Tutory
             ended
             ;
             shortly
             after
             Notman
             received
             from
             her
             a
             number
             of
             several
             Tickets
             ,
             belonging
             to
             the
             Defunct
             ,
             and
             gave
             his
             Recept
             Thereof
             ,
             bearing
             ,
             that
             he
             had
             received
             them
             in
             his
             Custodie
             ,
             and
             keeping●
             thereafter
             ,
             he
             uplifted
             the
             Sums
             ,
             contained
             in
             some
             of
             the
             Tickets
             ,
             and
             gave
             a
             Discharge
             to
             the
             Relict
             and
             second
             Husband
             ,
             of
             some
             particulars
             ,
             and
             consented
             with
             the
             Pupil
             ,
             to
             a
             Discharge
             to
             a
             Debitor
             ,
             which
             expresly
             boor
             ,
             him
             to
             be
             Tutor
             Testamentar
             ,
             and
             did
             intromet
             with
             the
             Rents
             of
             some
             Tenements
             ,
             and
             Disposed
             upon
             some
             Sheep
             ,
             whereupon
             Swintoun
             the
             Pupil
             pursues
             him
             as
             Tutor
             or
             Pro-tutor
             ,
             not
             only
             for
             all
             he
             Intrometted
             with
             ,
             but
             for
             the
             Annualrent
             thereof
             ,
             and
             for
             all
             the
             rest
             of
             the
             Defuncts
             means
             ,
             which
             he
             ought
             to
             have
             intrometted
             with
             ,
             and
             to
             have
             called
             the
             Tutrix
             to
             an
             account
             therefore
             ,
             and
             condescended
             upon
             the
             insight
             and
             plenishing
             of
             the
             Defuncts
             House
             ,
             the
             Goods
             in
             his
             Shop
             ,
             he
             being
             a
             Merchant
             ,
             the
             Debts
             in
             his
             Compt
             Books
             ,
             and
             these
             due
             by
             his
             Tickets
             ,
             not
             only
             received
             by
             Notman
             ,
             but
             by
             others
             ,
             and
             for
             the
             remander
             of
             his
             Sheep
             ,
             and
             other
             Moveables
             ,
             and
             for
             the
             rest
             of
             his
             Rents
             ,
             not
             uplifted
             by
             Notman
             .
             It
             was
             alleadged
             for
             Notman
             ;
             1.
             
             That
             that
             member
             of
             the
             Libel
             was
             not
             Relevant
             ,
             whereby
             he
             was
             pursued
             ,
             not
             only
             for
             that
             he
             Intrometted
             with
             ,
             but
             what
             he
             omitted
             ,
             because
             a
             Pro-tutor
             is
             not
             obliged
             as
             far
             as
             a
             Tutor
             for
             the
             Pupils
             whole
             Means
             ,
             but
             this
             far
             only
             ,
             that
             whatsoever
             he
             
             intromets
             with
             ,
             as
             to
             that
             he
             is
             obliged
             as
             a
             Tutor
             ,
             to
             imploy
             it
             ,
             and
             preserve
             it
             ,
             and
             so
             is
             lyable
             for
             Annualrent
             therefore
             ,
             and
             in
             that
             he
             differs
             from
             another
             ,
             
               negotiorum
               gestor
            
             ,
             who
             is
             not
             lyable
             for
             Annualrent
             ,
             but
             he
             is
             not
             lyable
             for
             other
             particulars
             of
             other
             kinds
             ,
             that
             he
             medled
             not
             with
             ,
             as
             albeit
             he
             had
             medled
             with
             the
             Tickets
             ,
             yet
             that
             would
             not
             oblige
             him
             to
             medle
             with
             the
             Compt
             Books
             ,
             Plenishing
             ,
             or
             Cattel
             ;
             there
             being
             no
             Law
             to
             oblige
             him
             ,
             neither
             was
             there
             any
             possibility
             ,
             that
             he
             could
             meddle
             therewith
             ,
             being
             neither
             obliged
             ,
             nor
             able
             so
             to
             do
             ,
             having
             no
             active
             title
             in
             his
             Person
             ;
             for
             Overseer
             ,
             
               non
               est
               momen
               juris
            
             ,
             and
             by
             our
             Custom
             ,
             i●
             doth
             oblige
             to
             nothing
             ,
             but
             is
             as
             the
             
               fidei
               commissa
            
             ,
             were
             in
             the
             ancient
             Roman
             Law
             in
             the
             arbitriment
             of
             him
             ,
             to
             whom
             they
             were
             committed
             without
             any
             obligation
             or
             legal
             compulsion
             ,
             
               ex
               mera
               pietate
            
             ,
             so
             that
             his
             being
             Overseer●●
             could
             oblige
             him
             in
             nothing
             ,
             and
             his
             meddling
             thereafter
             to
             preserve
             the
             means
             of
             the
             Pupil
             ,
             when
             his
             Tutrix
             and
             Mother
             had
             superinduced
             a
             second
             Husband
             ,
             ought
             not
             to
             be
             hurtful
             to
             him
             ;
             otherwayes
             no
             Overseer
             will
             ever
             meddle
             in
             any
             case
             ,
             with
             any
             thing
             of
             the
             Pupils
             ,
             whereby
             their
             Means
             may
             be
             destroyed
             .
             2ly
             .
             He
             cannot
             be
             lyable
             as
             Tutor
             notwithstanding
             of
             the
             Discharge
             ,
             subscribed
             by
             him
             ,
             
               hoc
               nomine
            
             ;
             because
             albeit
             that
             would
             prove
             him
             Tutor
             ,
             where
             the
             case
             did
             not
             otherwayes
             appear
             ,
             seing
             the
             contrair
             is
             manifest
             ;
             that
             whereas
             the
             Discharge
             bears
             him
             Tutor
             Testamentar
             .
             The
             Testament
             produced
             ,
             bears
             him
             only
             to
             be
             Overseer
             ,
             
               &
               fa●sa
               designatio
               non
               obest
            
             .
             3.
             
             The
             Ticket
             or
             receipt
             of
             the
             Bonds
             cannot
             obliege
             him
             for
             all
             these
             Bonds
             ,
             but
             such
             thereof
             ,
             whereof
             he
             uplifted
             the
             Money
             ,
             and
             only
             from
             that
             time
             that
             he
             uplifted
             the
             same
             ;
             especially
             seeing
             the
             Ticket
             bears
             ,
             that
             he
             received
             them
             in
             his
             Custodie
             ,
             which
             any
             friend
             might
             do
             ,
             especially
             an
             Overseer
             ;
             and
             does
             not
             import
             his
             purpose
             of
             Intromission
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             his
             Lybel
             was
             most
             Relevant
             ,
             not
             only
             for
             Intromission
             ,
             but
             Omission
             ;
             because
             a
             Pro-tutor
             in
             Law
             is
             oblieged
             in
             all
             points
             as
             a
             Tutor
             ,
             not
             only
             
               pro
               commissis
               sed
               p●o
               omissis
            
             :
             and
             albeit
             he
             had
             no
             active
             Title
             ,
             whereby
             to
             Intromet
             ,
             that
             cannot
             free
             him
             from
             being
             lyable
             passive
             more
             then
             a
             vitious
             Intromettor
             ,
             or
             one
             behaving
             as
             Heir
             ;
             but
             he
             ought
             either
             to
             have
             forborn
             ,
             or
             procured
             to
             himself
             a
             Tutory
             dative
             ,
             and
             unless
             Pro-tutors
             be
             universally
             lyable
             ,
             Pupils
             will
             be
             destroyed
             ,
             because
             any
             body
             will
             meddle
             with
             their
             Means
             ,
             knowing
             they
             are
             lyable
             but
             for
             what
             they
             meddle
             with
             ,
             and
             the
             A●nualrent
             thereof
             ,
             which
             perhaps
             will
             not
             be
             made
             out
             against
             them
             ;
             but
             if
             they
             be
             universally
             lyable
             ,
             they
             will
             either
             wholly
             abstain
             ,
             or
             orderly
             Intromet
             ,
             by
             procuring
             a
             Title
             :
             and
             albeit
             Overseers
             be
             not
             lyable
             in
             the
             first
             place
             ,
             yet
             they
             are
             
               tutores
               honorari
            
             ,
             lyble
             after
             the
             other
             Tutors
             are
             discussed
             .
             As
             to
             the
             third
             ,
             the
             receipt
             of
             the
             Bonds
             ,
             albeit
             it
             bear
             in
             Custody
             ,
             yet
             it
             is
             proven
             by
             the
             Writs
             produced
             ,
             
               quod
               se
               immiscuit
            
             ,
             by
             uplifting
             the
             sums
             contained
             in
             some
             of
             the
             Bonds
             ,
             and
             therefore
             is
             lyable
             for
             the
             whole
             .
          
           
             The
             Lords
             having
             heard
             and
             considered
             this
             case
             at
             length
             ,
             found
             ,
             that
             seing
             there
             was
             no
             Law
             nor
             Custom
             of
             ours
             to
             make
             a
             Pro-tutor
             lyable
             in
             all
             points
             as
             a
             Tutor
             ,
             and
             that
             the
             Civil
             Law
             oblieges
             not
             us
             ,
             but
             only
             we
             ought
             to
             consider
             the
             equity
             and
             expediency
             thereof
             ,
             and
             therefore
             they
             found
             ,
             that
             they
             could
             not
             condemn
             the
             Defender
             for
             omissions
             ,
             seing
             there
             is
             no
             Antecedent
             ,
             Law
             ,
             nor
             Custom
             :
             and
             therefore
             found
             ,
             that
             as
             Overseer
             ,
             he
             was
             oblieged
             to
             nothing
             ,
             and
             that
             as
             Intrometter
             ,
             he
             was
             lyable
             for
             what
             he
             intrometted
             with
             ,
             and
             the
             annualrent
             thereof
             ,
             after
             his
             Intromission
             ,
             and
             found
             him
             lyable
             for
             the
             hail
             Bonds
             in
             his
             Tickets
             ,
             seing
             he
             meddled
             with
             a
             part
             of
             the
             Money
             thereof
             ,
             and
             found
             ,
             that
             if
             he
             had
             
             meddled
             with
             a
             part
             of
             the
             Sheep
             ,
             that
             would
             make
             him
             lyable
             for
             the
             whole
             Sheep
             of
             that
             Flock
             ,
             and
             the
             Annualrent
             thereof
             ,
             and
             found
             that
             his
             being
             Designed
             Tutor
             ,
             contrair
             to
             the
             Testament
             ,
             did
             not
             instruct
             :
             but
             the
             Lords
             Declared
             ,
             that
             in
             cases
             occurring
             in
             all
             time
             coming●
             they
             would
             find
             Pro-tutors
             lyable
             in
             all
             points
             as
             Tutors
             ,
             and
             ordained
             an
             Act
             of
             Sederunt
             to
             be
             made
             thereupon
             and
             published
             in
             the
             House
             ,
             to
             all
             the
             whole
             Advocats
             ,
             that
             none
             pretend
             Ignorance
             .
          
        
         
           
             Sir
             Alexander
             Hoom
             contra
             Iune
             10.
             1665.
             
          
           
             〈…〉
             pursues
             for
             mails
             and
             Duties
             of
             certain
             Lands
             .
             It
             was
             alleadged
             for
             the
             Tennents
             ,
             no
             Process
             ,
             because
             they
             offered
             them
             to
             prove
             ,
             that
             they
             were
             Tennents
             by
             payment
             of
             Mail
             and
             Duty
             to
             Sir
             
               Alexander
               Hoom
            
             their
             Minister
             ,
             before
             intenting
             of
             this
             Cause
             ,
             and
             he
             was
             not
             called
             .
             2ly
             .
             Absolvitor
             ,
             because
             they
             were
             Tennents
             to
             the
             said
             Sir
             Alexander
             ,
             who
             had
             a
             right
             of
             an
             Appryzing
             ,
             and
             Diligence
             thereupon
             ,
             anteriour
             to
             the
             Pursuers
             Right
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             
               non
               relevat
            
             ,
             in
             an
             action
             of
             Mails
             and
             Duties
             ;
             albeit
             it
             would
             be
             relevant
             in
             a
             Removing
             .
             In
             which
             two
             Actions
             ,
             the
             Lords
             have
             still
             keeped
             that
             difference
             ,
             that
             in
             Removings
             the
             Heretor
             should
             be
             called
             ,
             because
             thereby
             his
             Possession
             was
             to
             be
             interverted
             :
             but
             in
             Mails
             and
             Duties
             ,
             the
             Tennents
             might
             Suspend
             on
             Double
             Poinding
             ,
             and
             thereupon
             call
             both
             Parties
             :
             Or
             if
             a
             Tennent
             did
             collude
             ,
             the
             master
             ,
             might
             use
             the
             Tennents
             name
             ,
             but
             double
             Poinding
             could
             not
             have
             place
             in
             Removings
             .
          
           
             To
             the
             second
             ,
             it
             is
             not
             competent
             to
             the
             Tennents
             to
             Dispute
             their
             Masters
             Right
             ,
             which
             is
             to
             them
             
               jus
               tertij
            
             ;
             but
             they
             should
             have
             intimate
             to
             their
             Master
             ,
             to
             compear
             and
             defend
             his
             own
             Right
             ,
             who
             if
             he
             will
             ,
             compear
             and
             produce
             his
             Interest
             ,
             may
             be
             heard
             .
          
           
             The
             Lords
             Repelled
             both
             Defenses
             ,
             unless
             Sir
             Alexander
             compear
             and
             produce
             his
             Interest
             .
          
        
         
           
             A
             Letter
             from
             the
             KING
             .
             Iune
             14.
             1665.
             
          
           
             THe
             Lord
             Ballantine
             The
             saurer
             Depute
             compeared
             ,
             and
             produced
             a
             Letter
             from
             His
             Majesty
             to
             the
             Lords
             ,
             bearing
             ,
             that
             His
             Majesty
             having
             heard
             a
             doubt
             moved
             before
             him
             ,
             whether
             Declarators
             of
             Ward
             ,
             Non-entries
             ,
             &c.
             should
             be
             discussed
             before
             the
             Lords
             of
             Session
             ,
             or
             Lords
             of
             Exchequer
             ;
             His
             Majesty
             Declared
             His
             Pleasure
             ,
             that
             in
             the
             mean
             time
             ,
             till
             H●s
             Majesty
             got
             further
             evidence
             ,
             and
             clearing
             therein
             ,
             such
             Actions
             should
             be
             pursued
             before
             the
             Lords
             of
             Session
             .
          
           
             Which
             Letter
             was
             ordained
             to
             be
             Recorded
             in
             the
             Books
             of
             Sederunt
             .
          
        
         
           
           
             Aikman
             contra
             Iune
             15.
             1665.
             
          
           
             AIkman
             having
             Charged
             upon
             a
             Bond
             of
             borrowed
             Money
             .
             Suspended
             ,
             and
             alleadged
             that
             the
             Charge
             was
             truely
             for
             a
             Prentis●
             fee
             ,
             for
             a
             Royto
             a
             Writter
             ,
             who
             was
             oblieged
             to
             Educat
             him
             three
             years
             ,
             and
             it
             is
             offered
             to
             be
             proven
             by
             Witnesses
             ,
             that
             he
             beat
             the
             Prentise
             ,
             and
             put
             him
             away
             with
             evil
             usage
             ,
             within
             a
             year
             and
             an
             half
             ,
             and
             so
             can
             have
             no
             more
             at
             most
             ,
             then
             effeirand
             to
             that
             time
             .
             The
             Charger
             answered
             ,
             that
             he
             could
             not
             devide
             the
             Probation
             ,
             in
             one
             single
             Defense
             ,
             both
             by
             Oath
             and
             Witnesses
             ,
             and
             that
             he
             could
             not
             take
             away
             Writting
             by
             Witnesses
             ,
             in
             whole
             or
             in
             part
             .
          
           
             The
             Lords
             sustained
             the
             Probation
             by
             Oath
             and
             Witnesses
             ,
             as
             proponed
             .
          
        
         
           
             Cruikshank
             contra
             Cruikshank
             .
             Iune
             16.
             1665.
             
          
           
             
               GEorge
               Cruikshank
            
             pursues
             the
             Rel●ct
             and
             Executrix
             of
             Cruicksshank
             his
             Uncle
             ,
             for
             payment
             of
             a
             Bond
             of
             400.
             
             Pound
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             Defunct
             had
             granted
             an
             Assignation
             of
             certain
             Sums
             of
             Money
             to
             
               David
               Cruikshanks
            
             ,
             the
             Pursuers
             Brother
             ,
             wherein
             there
             was
             a
             Provision
             in
             favours
             of
             the
             Pursuer
             ,
             that
             the
             said
             David
             should
             pay
             to
             him
             a●thousand
             Pound
             ,
             which
             must
             be
             understood
             to
             be
             in
             satisfaction
             of
             this
             Debt
             ,
             in
             the
             first
             place
             ,
             
               nam
               nemo
               presumitur
               donare
               quamdiu
               deb●t
               .
            
             The
             Pursuer
             answered
             ,
             that
             the
             foresaid
             Rule
             hath
             many
             exceptions
             ,
             for
             it
             being
             but
             a
             presumption
             ,
             a
             stronger
             presumption
             in
             the
             contrair
             will
             elide
             it
             as
             in
             this
             case
             .
             The
             Defunct
             had
             no
             Children
             ,
             and
             had
             a
             considerable
             fortone
             ,
             and
             the
             Pursuer
             and
             the
             said
             David
             his
             Brother
             ,
             were
             the
             Defuncts
             nearest
             of
             Kin
             :
             and
             albeit
             the
             foresaid
             Disposition
             be
             not
             in
             the
             express
             terms
             of
             a
             Legacy
             ,
             yet
             it
             is
             
               donatio
               mortis
               causa
            
             ;
             for
             it
             contains
             an
             express
             power
             to
             the
             Defunct
             ,
             to
             Dispone
             otherwise
             ,
             during
             his
             life
             ,
             and
             in
             another
             Provision
             therein
             ,
             it
             bears
             expresly
             ,
             to
             be
             in
             satisfaction
             of
             Debt
             ,
             due
             to
             that
             other
             Party
             ,
             and
             says
             not
             so
             as
             to
             the
             Pursuer
             ;
             all
             which
             are
             stronger
             extensive
             presumptions
             ,
             that
             the
             Defunct
             meaned
             to
             Gift
             no
             less
             then
             the
             whole
             thousand
             pounds
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             William
             Wright
             contra
             George
             Shiel
             .
             Eodem
             die
             .
          
           
             
               WIlliam
               Wright
            
             as
             assigney
             by
             
               Iohn
               Shiel
            
             in
             Carlowrie
             ,
             obtained
             Decreet
             against
             
               George
               Shiel
            
             in
             Nortoun
             as
             Heir
             to
             
               Iohn
               Shiel
            
             his
             Brother●
             for
             payment
             of
             two
             Bonds
             .
             
               George
               Shiel
            
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Assignation
             was
             gratuitous
             ,
             without
             onerous
             Cause
             ,
             which
             he
             offered
             
             to
             prove
             by
             the
             Assigneys
             Oath
             ,
             and
             offered
             to
             prove
             by
             the
             Cedents
             Oath
             that
             the
             Debt
             was
             satisfied
             .
          
           
             The
             Lords
             having
             at
             length
             considered
             ,
             and
             Debated
             this
             Case
             among
             themselves
             ,
             whether
             the
             Cedents
             Oath
             could
             prove
             against
             an
             Assigney
             ,
             when
             the
             Assignation
             was
             gratuitous
             ,
             some
             were
             of
             opinion
             ,
             that
             it
             could
             not
             ,
             because
             nothing
             can
             prove
             but
             Writ
             or
             two
             Witnesses
             ,
             or
             Oath
             of
             Party
             ,
             and
             the
             Cedent
             is
             not
             the
             party
             ,
             but
             the
             Assigney
             :
             and
             albeit
             the
             Cedent
             could
             be
             a
             Witness
             ,
             he
             is
             but
             one
             ;
             and
             because
             it
             is
             a
             Rule
             with
             us
             ,
             that
             the
             Cedent
             cannot
             Depone
             in
             prejudice
             of
             the
             Assigney
             ,
             unless
             the
             Charge
             be
             to
             the
             Cedents
             behove
             :
             and
             we
             have
             no
             Exception
             ,
             whether
             it
             be
             gratuitous
             or
             onerous
             ;
             but
             the
             most
             part
             were
             of
             opinion
             ,
             that
             in
             gratuitous
             Assignations
             ,
             the
             Cedents
             Oath
             should
             prove
             ;
             because
             an
             Assigney
             is
             but
             Procurator
             ,
             
               in
               rem
               suam
            
             ,
             and
             doth
             not
             proceed
             upon
             his
             own
             Right
             ,
             but
             ,
             
               utitur
               jure
               authoris
            
             :
             and
             therefore
             ,
             albeit
             for
             Commerce
             ,
             our
             Custom
             hath
             not
             allowed
             the
             Oath
             of
             the
             Cedent
             ,
             in
             prejudice
             of
             the
             Assigney
             ;
             Yet
             the
             case
             in
             a
             gratuitous
             Assignation
             ,
             hath
             neither
             been
             Debated
             nor
             decided
             ;
             and
             therefore
             in
             it
             ,
             the
             Cedents
             should
             be
             sufficient
             ,
             seing
             it
             cannot
             be
             presumed
             ,
             that
             he
             who
             voluntarly
             gifted
             ,
             will
             swear
             to
             his
             Assigneys
             prejudice
             ;
             and
             that
             truely
             the
             Cedent
             is
             Party
             ,
             and
             the
             Assigney
             pursues
             but
             as
             Procurator
             ,
             
               in
               rem
               suam
            
             .
             And
             seing
             we
             have
             no
             Law
             regulating
             this
             case
             ,
             equity
             and
             expedience
             ought
             to
             rule
             it
             :
             but
             in
             equity
             no
             man
             can
             put
             his
             Debitor
             in
             a
             worse
             condition
             ,
             without
             his
             consent
             ,
             either
             as
             to
             the
             matter
             ,
             or
             as
             to
             the
             manner
             of
             Probation
             ;
             and
             in
             expedience
             ,
             the
             excluding
             of
             the
             Cedents
             Oath
             in
             this
             case
             ,
             opens
             a
             way
             for
             Fraud
             ,
             that
             after
             Debts
             are
             payed
             ,
             they
             may
             be
             assigned
             ,
             even
             freely
             ,
             and
             the
             Debitor
             is
             excluded
             from
             his
             Probation
             of
             the
             payment
             .
          
           
             The
             Lords
             before
             answer
             ,
             Ordained
             the
             Assigneys
             Oath
             to
             be
             taken
             ,
             whether
             Assignation
             was
             for
             a
             Cause
             onerous
             or
             not
             .
          
        
         
           
             Bruces
             contra
             Earl
             of
             Mortoun●
             Eodem
             die
             .
          
           
             BRuces
             pursues
             the
             Earl
             of
             Mortoun
             for
             payment
             of
             a
             Bond
             ,
             who
             alleadged
             that
             the
             Bond
             was
             assigned
             by
             the
             Defunct
             ,
             and
             the
             Assignation
             intimat
             ,
             and
             a
             Decreet
             obtained
             against
             him
             thereupon
             .
             The
             Pursuers
             answered
             ,
             that
             this
             was
             
               jus
               tertij
            
             to
             the
             Defender
             ,
             who
             could
             not
             Dispute
             the
             Assigneys
             Right
             .
             The
             Defender
             answered
             ,
             that
             it
             was
             
               exclusio
               juris
               agentis
            
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             as
             being
             
               super
               jure
               tertij
            
             ,
             and
             decerned
             ,
             but
             ordained
             Suspension
             to
             pass
             ,
             without
             Caution
             or
             Consignation
             ,
             that
             the
             Assigney
             may
             be
             called
             ,
             and
             Dispute
             his
             Right
             .
          
        
         
           
           
             Gideon
             Murray
             contra
             Iune
             17.
             1665.
             
          
           
             
               GIdeon
               Murray
            
             having
             obtained
             Decreet
             against
             for
             certain
             Merchant
             Ware
             ,
             wherein
             he
             was
             holden
             as
             confest
             ,
             and
             thereafter
             reponed
             ,
             and
             the
             Decreet
             turned
             in
             a
             Libel
             .
             The
             Receipt
             of
             the
             Goods
             was
             found
             probable
             ,
             
               pro
               ut
               de
               jure
            
             ,
             and
             was
             accordingly
             proven
             ,
             and
             the
             Cause
             being
             concluded
             ,
             and
             the
             Depositions
             advised
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             first
             ,
             that
             he
             produced
             and
             instantly
             verified
             ,
             that
             the
             Pursuer
             had
             granted
             him
             a
             Bond
             ,
             after
             the
             furnishing
             of
             the
             Account
             of
             a
             greater
             sum
             ,
             which
             must
             be
             presumed
             to
             have
             included
             satisfaction
             of
             the
             Accompt
             ,
             2ly
             .
             The
             Decreet
             was
             more
             then
             three
             year
             after
             the
             furnishing
             ,
             and
             so
             was
             not
             probable
             by
             Witnesses
             ;
             but
             that
             manner
             of
             Probation
             was
             prescribed
             by
             the
             Act
             of
             Parliament
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             both
             those
             Exceptions
             were
             competent
             and
             omitted
             ,
             and
             now
             after
             Probation
             taken
             ;
             there
             was
             no
             reason
             to
             sustain
             that
             alleadgence
             ,
             for
             after
             Litiscontestation
             ,
             no
             new
             exceptions
             can
             be
             admitted
             ,
             unless
             they
             be
             instantly
             verified
             and
             emergent
             ,
             or
             at
             least
             new
             come
             to
             knowledge
             ,
             as
             this
             is
             not
             ,
             for
             it
             was
             obvious
             ,
             being
             founded
             upon
             so
             known
             a
             Law
             ,
             as
             to
             the
             Prescription
             :
             and
             as
             to
             the
             other
             ,
             it
             is
             but
             a
             weak
             presumption
             ,
             no
             way
             relevant
             ,
             unless
             the
             posterior
             Bond
             had
             exprest
             to
             have
             been
             after
             Compt
             and
             Reckoning
             .
             The
             Defender
             answered
             ,
             that
             the
             Lords
             might
             
               ex
               nobile
               officio
            
             ,
             repone
             Parties
             to
             Defenses
             ,
             instantly
             verified
             ,
             after
             Litiscontestation●
             and
             albeit
             they
             ordinarly
             repone
             them
             when
             the
             Exceptions
             are
             emergent
             ,
             or
             new
             come
             to
             knowledge
             :
             yet
             in
             other
             Cases
             ,
             
               ex
               officio
            
             ,
             they
             may
             ,
             as
             when
             there
             is
             so
             pregnant
             a
             presumption
             concurring
             .
             2ly
             Albeit
             Prescription
             hinder
             Pursuits
             active
             :
             Yet
             seing
             the
             Defender
             was
             Creditor
             by
             Bond
             ,
             in
             a
             greater
             Sum.
             The
             Pursuer
             needed
             not
             pursue
             for
             the
             Accompt
             ,
             
               quia
               intus
               habuit
            
             ,
             and
             the
             other
             Party
             might
             have
             compensed
             upon
             the
             Bond
             ;
             and
             therefore
             ,
             as
             in
             the
             Civil
             Law
             ,
             
               in
               debitis
               naturalibus
               &
               non
               civilibus
               licet
               non
               dat
               actionem
               dat
               tamen
               exceptionem
               :
            
             so
             here
             the
             Pursuer
             may
             except
             upon
             account
             after
             three
             years
             .
          
           
             The
             Lords
             found
             the
             presumption
             not
             Relevant
             ,
             and
             found
             that
             the
             manner
             of
             Probation
             being
             prescribed
             ,
             it
             could
             not
             be
             made
             use
             of
             ,
             either
             by
             Action
             or
             Exception
             ,
             albeit
             there
             was
             a
             compensation
             competent
             ,
             yet
             it
             befell
             not
             ,
             
               ipso
               jure
            
             ,
             seing
             it
             was
             not
             liquid
             ,
             but
             liquidable
             by
             the
             other
             Parties
             Oath
             .
             But
             as
             to
             reponing
             in
             this
             state
             of
             the
             Process
             ,
             though
             many
             of
             the
             Lords
             were
             in
             the
             contrary
             ,
             yet
             seing
             the
             exception
             was
             but
             a
             Prescription
             ,
             which
             is
             but
             by
             positive
             Law
             ,
             and
             odious
             ,
             so
             that
             the
             Pursuer
             might
             as
             well
             have
             craved
             to
             be
             reponed
             against
             the
             Prescription
             ,
             as
             the
             Defender
             against
             his
             omission
             of
             a
             palpable
             Defense
             ,
             yet
             in
             respect
             of
             the
             Prescription
             ,
             and
             that
             the
             Party
             was
             poor
             ,
             the
             Lords
             Reponed
             .
          
        
         
           
             Christian
             Braidie
             contra
             Laird
             of
             Fairny
             .
             Iune
             21.
             1665.
             
          
           
             
               CHristian
               Braidy
            
             Relict
             of
             
               Iames
               Sword
            
             ,
             having
             Inhibite
             
               George
               Glassfuird
            
             upon
             his
             Bond
             ,
             pursues
             a
             Reduction
             of
             a
             Disposition
             ,
             granted
             
             by
             George
             to
             the
             Laird
             of
             Fairny
             ,
             of
             certain
             Lands
             ,
             as
             being
             done
             after
             her
             Inhibition
             .
             Fairny
             having
             produced
             the
             Disposition
             ,
             it
             bear
             to
             be
             Holograph
             ,
             whereupon
             it
             was
             alleadged
             ,
             that
             it
             was
             null
             by
             the
             Act
             of
             Parliament
             ,
             requiring
             all
             Writs
             of
             importance
             to
             be
             subscribed
             before
             Witnesses
             ;
             and
             this
             Disposition
             wanted
             Witnesses
             .
             The
             Defender
             offered
             to
             prove
             it
             was
             Holograph
             .
             The
             Pursuer
             Replyed
             ,
             that
             the
             question
             being
             
               de
               data
            
             ,
             not
             that
             it
             was
             subscribed
             ,
             but
             when
             it
             was
             subscribed
             ,
             whether
             prior
             or
             posterior
             to
             the
             Inhibition
             ,
             Witnesses
             could
             not
             be
             received
             ,
             where
             the
             question
             was
             not
             against
             the
             granter
             of
             the
             Writ
             ,
             or
             his
             heir
             ,
             but
             against
             a
             third
             Party
             .
          
           
             The
             Lords
             before
             answer
             ,
             did
             appoint
             Witnesses
             to
             be
             examined
             ,
             
               omni
               exceptione
               majores
            
             ,
             who
             being
             now
             Examined
             ,
             both
             Deponed
             that
             they
             saw
             the
             Disposition
             subscribed
             ,
             and
             that
             it
             was
             long
             before
             the
             Inhibition
             .
          
           
             It
             was
             then
             alleadged
             ,
             that
             this
             being
             done
             ,
             but
             before
             answer
             ,
             it
             was
             intire
             to
             Discuss
             the
             Relevancy
             of
             the
             alleadgence
             ,
             whether
             a
             Date
             might
             be
             instructed
             by
             Witnesses
             .
             2ly
             .
             Albeit
             Witnesses
             
               omni
               exceptione
               majores
            
             were
             receivable
             ,
             for
             such
             an
             effect
             ,
             that
             these
             Witnesses
             were
             not
             such
             ,
             the
             one
             being
             but
             a
             Town
             Officer
             ,
             and
             the
             other
             Procuratorfiscal
             of
             a
             Sheriff
             Court
             ,
             especially
             seing
             there
             were
             strong
             presumptions
             of
             fraud
             ,
             as
             that
             nothing
             followed
             upon
             this
             Disposition
             ,
             that
             it
             remained
             Clandestine
             for
             several
             years
             ,
             that
             thereby
             the
             Disponer
             becoming
             Bankrupt
             ,
             had
             excluded
             some
             of
             his
             Creditors
             ,
             and
             preferred
             others
             ,
             and
             that
             there
             was
             no
             
               penuria
               testium
            
             ,
             seing
             both
             thir
             Witnesses
             assert
             they
             saw
             it
             subscribed
             ,
             and
             the
             one
             Deponed
             ,
             that
             he
             Dited
             it
             so
             ,
             that
             their
             Names
             might
             easily
             have
             been
             insert
             ;
             and
             therefore
             it
             must
             be
             thought
             ,
             it
             was
             done
             for
             some
             Fraudulent
             intent
             ,
             as
             to
             be
             of
             an
             anterior
             Date
             to
             the
             Inhibition
             :
             and
             therefore
             in
             such
             a
             case
             ,
             the
             Witnesses
             should
             be
             Persons
             of
             Fame
             ,
             and
             known
             Reputation
             .
             It
             was
             answered
             ,
             that
             the
             Witnesses
             adduced
             ,
             were
             sufficient
             ,
             seing
             they
             were
             above
             exception
             .
             Frst
             ,
             because
             they
             were
             publickly
             called
             to
             the
             Bar
             ,
             and
             received
             without
             any
             objection
             ,
             so
             that
             now
             none
             is
             competent
             .
             2ly
             .
             That
             there
             is
             no
             relevant
             Exception
             yet
             alleadged
             ,
             for
             the
             being
             a
             Town
             Officer
             ,
             is
             no
             legal
             Exception
             ,
             neither
             to
             be
             of
             a
             mean
             condition
             ,
             nor
             to
             be
             of
             a
             small
             Estate
             ,
             if
             he
             were
             worth
             the
             Kings
             Unlaw
             and
             for
             the
             presumptions
             ,
             they
             were
             but
             meer
             conjectures
             ;
             for
             it
             was
             free
             for
             a
             man
             to
             make
             his
             Disposition
             all
             with
             his
             own
             hand
             ,
             or
             before
             Witnesses
             ,
             and
             what
             his
             motives
             has
             been
             to
             do
             it
             ,
             cannot
             be
             known
             ,
             and
             so
             ought
             not
             to
             be
             presumed
             fraudulent
             ,
             
               nam
               nullum
               vitium
               presumitur
            
             .
          
           
             The
             Lords
             having
             fully
             considered
             this
             case
             ,
             and
             having
             Debated
             ,
             whether
             Witnesses
             at
             all
             were
             receivable
             to
             astruct
             the
             Date
             of
             a
             holograph
             Writ
             ;
             and
             also
             ,
             whether
             these
             Witnesses
             adduced
             were
             sufficient
             :
             they
             found
             that
             in
             respect
             of
             the
             presumptions
             of
             Fraud
             ,
             adduced
             these
             two
             Witnesses
             ,
             were
             not
             sufficient
             to
             astruct
             without
             further
             Adminic●es
             ,
             either
             by
             Witnesses
             of
             unquestionable
             Credit
             ,
             or
             by
             Writ
             .
          
        
         
           
           
             Procuratorfiscal
             of
             the
             Commissariot
             of
             Edinburgh
             contra
             Thomas
             Fairholm
             .
             Iune
             23.
             1665.
             
          
           
             
               THomas
               Fairholm
            
             being
             Charged
             to
             give
             up
             an
             Inventar
             of
             the
             Goods
             and
             Gear
             pertaining
             to
             umquhil
             
               Alexander
               Deninstoun
            
             ,
             whose
             Daughter
             he
             had
             married
             .
             He
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Defunct
             had
             granted
             a
             Disposition
             to
             one
             of
             his
             Daughters
             ,
             of
             his
             hail
             moveable
             Goods
             ,
             and
             sums
             of
             Money
             ,
             so
             that
             he
             had
             nothing
             the
             time
             of
             his
             Death
             ,
             and
             there
             needed
             no
             Confirmation
             ,
             but
             he
             might
             lawfully
             possess
             ,
             by
             vertue
             of
             his
             Disposition
             ;
             and
             there
             was
             no
             Law
             to
             force
             Persons
             in
             such
             a
             Case
             to
             Confirm
             ,
             neither
             had
             it
             ever
             been
             sustained
             by
             the
             Lords
             .
             It
             was
             answered
             ,
             that
             it
             was
             
               juris
               publici
            
             ,
             to
             have
             the
             Goods
             of
             Defuncts
             Confirmed
             ,
             that
             nearest
             of
             Kin
             ,
             Children
             ,
             Creditors
             ,
             and
             Legatars
             ,
             might
             know
             the
             condition
             thereof
             ;
             and
             this
             Defuncts
             moveables
             ,
             albeit
             Disponed
             ,
             yet
             not
             Delivered
             ,
             remained
             
               in
               bonis
               defuncti
            
             ,
             and
             so
             behoved
             to
             be
             Confirmed
             .
          
           
             The
             Lords
             having
             Read
             the
             Disposition
             ,
             and
             finding
             it
             to
             be
             general
             ,
             
               omnium
               bonorum
            
             ,
             that
             he
             had
             ,
             or
             should
             have
             ,
             the
             time
             of
             his
             Death
             ,
             and
             there
             being
             nothing
             alleadged
             of
             any
             onerous
             Cause
             ,
             or
             that
             it
             was
             before
             his
             sickness
             ,
             albeit
             the
             Case
             was
             new
             ,
             yet
             they
             found
             there
             was
             necessity
             of
             Confirmation
             in
             this
             Case
             :
             But
             if
             it
             had
             been
             a
             Disposition
             only
             of
             special
             things
             ,
             as
             Bonds
             or
             Goods
             ,
             or
             had
             been
             for
             any
             onerous
             Cause
             ,
             or
             had
             been
             made
             in
             
               leidg
               pousti
            
             ,
             and
             any
             symbolical
             Delivery
             ,
             the
             Lords
             were
             not
             so
             clear
             in
             it
             ,
             but
             resolved
             to
             hear
             such
             Cases
             in
             their
             own
             presence
             ,
             when
             they
             should
             occur
             .
          
        
         
           
             Collonel
             James
             Montgomery
             contra
             Wallace
             and
             Bouie
             .
             Iune
             24.
             1665.
             
          
           
             THe
             Collonel
             as
             Heretor
             of
             the
             Miln
             of
             Tarboltoun
             ,
             having
             pursued
             Bouie
             for
             abstracted
             Multures
             of
             Drumlie
             .
             It
             was
             alleadged
             for
             Bouie
             and
             Wallace
             of
             Garricks
             ,
             who
             had
             Disponed
             to
             him
             ,
             with
             warrandice
             absolvitor
             ;
             because
             Wallace
             and
             his
             authors
             were
             Infeft
             in
             the
             Milns
             and
             Multures
             ,
             before
             the
             Pursuers
             Infeftment
             of
             the
             Miln
             .
             The
             Pursuer
             Replyed
             ,
             that
             the
             Thirlage
             was
             Constitute
             by
             a
             Decreet
             in
             Anno.
             1569.
             against
             the
             Tennents
             of
             Drumlie
             therein
             mentioned
             .
             The
             Defender
             answered
             ;
             First
             ,
             that
             the
             Heretor
             was
             not
             called
             .
             2ly
             .
             That
             it
             did
             not
             appear
             ,
             that
             these
             Tennents
             did
             dwell
             in
             
               Drumlie
               Wallace
            
             ,
             there
             being
             two
             Drumlies
             lying
             contigue
             ,
             one
             called
             the
             
               Dinks
               Drumlie
            
             ,
             the
             other
             called
             
               Drumlie
               Wallace
               .
               3ly
            
             .
             That
             for
             any
             Possession
             ,
             they
             offered
             them
             to
             prove
             that
             it
             was
             interrupted
             from
             time
             to
             time
             ,
             by
             going
             to
             other
             Milns
             .
             
               The
               Lords
               having
               Ordained
               Witnesses
               to
               be
               Examined
               ,
            
             hinc
             inde
             ,
             
               whether
               the
               Tennents
               in
               the
               old
               Decreet
               ,
               did
               possess
            
             Drumlie
             Wallace
             ,
             or
             the
             
               Dinks
               Drumlie
            
             .
          
           
           
             2ly
             .
             What
             Possession
             the
             Pursuer
             and
             his
             authors
             had
             .
             3ly
             .
             What
             Interruptions
             the
             Defender
             and
             their
             authors
             had
             ,
             many
             Witnesses
             being
             Examined
             ,
             
               hinc
               inde
            
             .
             It
             was
             clear
             ,
             that
             since
             the
             year
             1653.
             when
             Capringtoun
             ,
             the
             Pursuers
             author
             died
             ,
             there
             was
             no
             Possession
             ,
             and
             there
             was
             not
             above
             twenty
             eight
             years
             Possession
             ,
             proven
             before
             ,
             because
             there
             was
             no
             Witness
             of
             that
             age
             ,
             that
             could
             have
             been
             of
             Discretion
             fourty
             years
             before
             the
             year
             1653.
             but
             they
             found
             it
             proven
             ,
             that
             the
             Persons
             mentionate
             in
             the
             old
             Decreet
             ,
             or
             some
             of
             them
             were
             Possessors
             of
             
               Drumlie
               Wallace
            
             ,
             and
             also
             there
             was
             a
             Tack
             produced
             ,
             set
             by
             the
             Pursuers
             author
             to
             one
             of
             the
             Tennents
             of
             Drumlie
             ,
             wherein
             it
             was
             provided
             ,
             that
             the
             Tennent
             should
             relieve
             him
             of
             the
             Multures
             ,
             and
             did
             not
             express
             what
             Miln
             .
          
           
             The
             Lords
             found
             the
             old
             Decreet
             ,
             although
             the
             Master
             was
             not
             called
             thereto
             ,
             was
             not
             sufficient
             alone
             ,
             yet
             with
             a
             long
             Possession
             thereafter
             ,
             they
             found
             the
             same
             was
             sufficient
             to
             Constitute
             the
             astriction
             ,
             and
             found
             the
             Interruptions
             by
             going
             to
             other
             Milns
             ,
             were
             not
             so
             frequent
             and
             long
             ,
             but
             that
             they
             might
             have
             been
             private
             and
             Clandestine
             ,
             and
             the
             Probation
             during
             memory
             ,
             before
             this
             contraversie
             was
             found
             to
             instruct
             anterior
             Possession
             ,
             to
             compleat
             prescription
             .
          
        
         
           
             Irwing
             contra
             Strachan
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Strachan
            
             as
             Assigney
             by
             
               Patrick
               Gordon
            
             ,
             Charges
             
               Iohn
               Irving
            
             to
             make
             payment
             of
             a
             Bond
             of
             500.
             merks
             ,
             which
             being
             Suspended
             on
             this
             Reason
             ,
             that
             the
             Cedent
             was
             Debitor
             to
             the
             Suspender
             in
             a
             greater
             sum
             ,
             being
             oblieged
             for
             the
             grouth
             of
             certain
             Lands
             ,
             of
             the
             Cropt
             1633.
             and
             certain
             Bolls
             of
             Meal
             ,
             as
             the
             Duty
             thereof
             .
             The
             Charger
             answered
             ,
             that
             this
             was
             not
             liquidat
             against
             him
             ,
             nor
             against
             his
             Cedent
             ,
             before
             his
             Assignation
             .
             The
             Suspender
             answered
             ,
             that
             it
             was
             liquidate
             before
             in
             so
             far
             as
             there
             was
             a
             Decreet
             of
             Liquidation
             obtained
             against
             the
             principal
             Party
             for
             whom
             the
             Cedent
             was
             Cautioner
             in
             the
             Contract
             ,
             which
             must
             be
             sufficient
             against
             the
             Cautioner
             ,
             albeit
             he
             was
             not
             called
             ,
             because
             his
             obligation
             was
             but
             accessory
             ,
             unless
             he
             could
             instruct
             Collusion
             ;
             and
             this
             Decreet
             of
             liquidation
             ,
             proceeds
             upon
             Probation
             of
             Witnesses
             .
          
           
             The
             Lords
             sustained
             the
             Compensation
             ,
             and
             found
             the
             Liquidation
             sufficient
             ,
             being
             against
             the
             Cautioner
             ,
             though
             he
             was
             not
             called
             ,
             and
             against
             this
             Assigney
             ,
             seing
             the
             Decreet
             was
             before
             the
             Assignation
             .
          
        
         
           
             Alexander
             Ferguson
             contra
             Steuart
             of
             Askeoge
             .
             Iune
             27.
             1665.
             
          
           
             
               ALexander
               Ferguson
            
             having
             obtained
             a
             Presentation
             from
             the
             King
             ,
             as
             one
             of
             the
             Prebenders
             of
             the
             Chapel-Royal
             ,
             and
             thereupon
             a
             Decreet
             conform
             ;
             and
             having
             Charged
             Steuart
             of
             Askeoge
             ,
             he
             gives
             in
             his
             special
             Charge
             ,
             that
             the
             Paroch
             of
             Inchgarth
             ,
             which
             is
             now
             annexed
             to
             Rothesay
             ,
             belonged
             to
             his
             Pr●bendrie
             ,
             as
             being
             a
             part
             of
             the
             Patrimony
             of
             
             the
             Chapel-Royal
             .
             It
             was
             answered
             for
             Askeoge
             ,
             that
             he
             bruiks
             the
             Teinds
             by
             vertue
             of
             a
             Tack
             granted
             by
             Mr.
             
               Ninian
               Steuart
            
             Minister
             of
             Rothesay
             ,
             whereof
             this
             Kirk
             ,
             now
             annext
             is
             a
             part
             ,
             and
             that
             there
             is
             nothing
             appears
             to
             instruct
             that
             these
             Teinds
             were
             ever
             Mortified
             to
             the
             Chapel-Royal
             ,
             or
             that
             the
             Chapel-Royal
             was
             in
             Possession
             thereof
             .
             The
             Pursuer
             answered
             ,
             that
             seing
             he
             had
             the
             Kings
             Gift
             ,
             and
             Decreet
             conform
             ,
             it
             was
             sufficient
             ,
             unless
             the
             Defender
             would
             alleadge
             ,
             that
             the
             said
             Mr.
             
               Ninian
               Steuart
            
             had
             a
             better
             Right
             ,
             or
             was
             in
             Possession
             ;
             for
             the
             King
             being
             the
             Common
             Author
             ,
             and
             Fountain
             of
             Rights
             ,
             His
             Majesties
             Gift
             is
             sufficient
             against
             any
             that
             show
             not
             a
             better
             Right
             :
             and
             as
             for
             the
             Tack
             produced
             ,
             it
             is
             null
             ,
             being
             for
             nineteen
             years
             ,
             without
             consent
             of
             the
             Patron
             .
             The
             Defender
             answered
             ,
             that
             albeit
             both
             Parties
             were
             in
             
               acquirenda
               possessione
            
             ;
             yet
             
               decimae
               debentur
               Parocho
               ejusque
               praesumuntur
               nisi
               aliter
               appareat
               :
            
             and
             therefore
             unless
             these
             Teinds
             have
             been
             Transmitted
             from
             the
             Parson
             of
             the
             Paroch
             ,
             by
             long
             Possession
             ,
             or
             Mortification
             ,
             they
             are
             his
             ,
             and
             the
             Kings
             Gift
             alone
             ,
             cannot
             take
             them
             from
             his
             ;
             but
             here
             the
             Parson
             has
             been
             in
             Possession
             ,
             by
             Setting
             the
             Tack
             produced
             ,
             which
             is
             sufficient
             ,
             as
             to
             Possession
             ,
             albeit
             it
             were
             null
             by
             Exception
             ,
             as
             it
             is
             not
             ;
             and
             the
             nullity
             thereof
             is
             only
             competent
             to
             the
             Person
             of
             the
             granter
             ,
             and
             not
             to
             this
             Pursuer
             .
          
           
             The
             Lords
             found
             the
             Kings
             Gift
             and
             Decreet
             conform
             ,
             with
             Institution
             and
             Collation
             ,
             was
             not
             sufficient
             ,
             unless
             either
             the
             Mortification
             of
             these
             Teinds
             ,
             or
             the
             Prebenders
             Possession
             were
             instructed
             .
          
        
         
           
             Mr.
             Walter
             Caut
             contra
             Iames
             Loch
             .
             Eodem
             die
             .
          
           
             MR
             :
             
               Walter
               Caut
            
             having
             pursued
             
               Iames
               Loch
            
             and
             his
             Mother
             as
             Tutrix
             ,
             for
             her
             Interest
             ,
             for
             the
             Mails
             and
             Duties
             of
             some
             Appryzed
             Lands
             ,
             and
             the
             quantities
             being
             referred
             to
             the
             Tutrix
             Oath
             ,
             she
             refused
             to
             Depone
             ,
             alleadging
             that
             she
             had
             forgotten
             the
             quantities
             ,
             whereupon
             the
             Pursuer
             craved
             her
             to
             be
             holden
             as
             confest
             ,
             upon
             the
             Rental
             given
             in
             by
             him
             ,
             as
             if
             she
             had
             acknowledged
             the
             same
             .
          
           
             The
             Lords
             found
             she
             could
             not
             be
             holden
             as
             confest
             ,
             being
             not
             the
             Party
             ,
             but
             Tutrix
             ,
             but
             they
             found
             that
             she
             might
             be
             forced
             to
             Depone
             ,
             by
             Horning
             and
             Caption
             ,
             as
             other
             Witnesses
             .
          
        
         
           
             Alexander
             Monteith
             contra
             Anderson
             .
             Iune
             28.
             1665.
             
          
           
             THere
             being
             mutual
             Reductions
             betwixt
             Monteith
             and
             Anderson
             ,
             the
             former
             having
             Right
             to
             an
             Appryzing
             ,
             led
             in
             Anno
             1619.
             and
             the
             other
             Mr.
             
               Iohn
               Anderson
            
             having
             adjudged
             in
             Anno
             1656.
             
             Mr.
             
               Iohn
               Anderson
            
             insisted
             on
             this
             Reason
             ,
             that
             Monteiths
             Apprizing
             proceeded
             was
             on
             a
             Sum
             of
             5000.
             
             Merks
             ,
             due
             by
             
               Iames
               Nisbet
            
             ,
             the
             common
             debitor
             to
             
               Gilbert
               Gourlay
            
             ,
             after
             that
             Iames
             was
             Rebel
             ,
             at
             Mr.
             
               Iohn
               Andersons
            
             authors
             Instance
             :
             after
             which
             ,
             no
             Bond
             granted
             ,
             could
             prejudge
             the
             other
             Creditor
             ,
             having
             used
             Diligence
             before
             ,
             but
             the
             Bond
             is
             null
             by
             
             the
             Act
             of
             Parliament
             1621.
             against
             Bankrupts
             .
             It
             was
             answered
             for
             Monteith
             ,
             that
             that
             Act
             was
             only
             against
             Fraudulent
             Dispositions
             ,
             between
             confident
             Persons
             ,
             without
             Cause
             onerous●
             but
             here
             a
             Bond
             of
             borrowed
             Money
             ,
             was
             onerous
             ,
             and
             no
             man
             was
             thereby
             hindered
             to
             borrow
             Money
             .
             Anderson
             answered
             ,
             that
             the
             Narrative
             of
             the
             Rebells
             Bond
             ,
             bearing
             borrowed
             Money
             ,
             could
             not
             instruct
             against
             a
             Creditor
             using
             prior
             Diligence
             .
          
           
             This
             the
             Lords
             Repelled
             .
          
           
             Anderson
             insisted
             upon
             this
             Reason
             ,
             that
             Gourleys
             Bond
             was
             granted
             by
             
               Iames
               Nisbet
               ,
               Iames
            
             and
             
               William
               Arnolds
            
             ,
             all
             Conjunct
             Principals
             ,
             without
             a
             Clause
             of
             Relief
             ;
             and
             this
             Bond
             was
             assigned
             by
             Gourley
             ,
             with
             this
             express
             Provision
             ,
             that
             no
             Execution
             should
             proceed
             thereupon
             ,
             or
             upon
             the
             Bond
             ,
             or
             Inhibition
             against
             the
             Arnolds
             :
             and
             so
             if
             the
             Assigney
             had
             been
             pursuing
             
               Iames
               Nisbit
            
             for
             all
             ,
             he
             might
             have
             answered
             ,
             that
             the
             Assigney
             had
             accepted
             his
             Assignation
             ,
             with
             this
             provision
             ,
             that
             
               Iames
               Nisbet
            
             could
             not
             use
             Execution
             against
             the
             other
             two
             Co-principals
             ;
             and
             therefore
             he
             being
             excluded
             from
             his
             Relief
             ,
             could
             be
             only
             lyable
             for
             his
             third
             part
             ,
             for
             he
             would
             not
             have
             subscribed
             the
             Bond
             ,
             but
             upon
             consideration
             of
             his
             Relief
             .
             Monteith
             answered
             ,
             that
             all
             the
             three
             principals
             being
             bound
             conjunctly
             and
             severally
             ,
             the
             Creditor
             might
             renounce
             all
             Execution
             against
             two
             of
             them
             ,
             and
             yet
             crave
             the
             whole
             from
             the
             third
             ,
             and
             there
             was
             no
             more
             done
             in
             this
             case
             :
             and
             albeit
             there
             be
             no
             Clause
             of
             mutual
             relief
             exprest
             ,
             yet
             
               hoc
               in
               est
               de
               natura
               rei
               :
            
             So
             that
             albeit
             Nisbet
             ,
             by
             vertue
             of
             the
             Assignation
             ,
             thought
             it
             had
             been
             transferred
             to
             him
             could
             not
             have
             pursued
             the
             two
             Arnots
             ,
             yet
             by
             the
             obliegement
             of
             mutual
             Relief
             ,
             implyed
             he
             might
             ,
             not
             as
             Assigney
             ,
             but
             as
             
               coreus
               debendi
               .
               Anderson
            
             answered
             ,
             that
             if
             the
             Clause
             had
             born
             only
             a
             Provision
             ,
             that
             no
             execution
             should
             pass
             upon
             the
             Assignation
             ,
             it
             might
             have
             been
             consistant
             ;
             but
             it
             bears
             ,
             that
             no
             Execution
             should
             pass
             upon
             the
             Assignation
             ,
             or
             Bond.
             
          
           
             The
             Lords
             found
             ,
             that
             the
             Obliegement
             of
             mutual
             Relief
             ,
             was
             implyed
             ,
             where
             parties
             were
             bound
             conjunctly
             and
             severally
             ,
             albeit
             not
             exprest
             ,
             and
             that
             the
             Provision
             related
             only
             to
             the
             Bond
             ,
             
               quantum
               ad
               creditorum
            
             ,
             and
             did
             not
             restrict
             the
             implyed
             obliegement
             of
             the
             Co-principal
             ,
             and
             therefore
             repelled
             this
             Reason
             also
             .
          
        
         
           
             Robert
             Keill
             contra
             Iohn
             Seaton
             .
             Iune
             28.
             1665.
             
          
           
             
               GEorge
               Seaton
            
             as
             principal
             ,
             and
             the
             said
             
               Iohn
               Seaton
            
             his
             Cautioner
             having
             granted
             Bond
             to
             
               Robert
               Keill
            
             ,
             and
             being
             Charged
             thereupon
             ,
             both
             did
             suspend
             ,
             and
             having
             alleadged
             payment
             ,
             they
             succumbed
             ,
             and
             were
             Decerned
             ;
             Iohn
             Suspends
             again
             ,
             and
             raises
             Reduction
             upon
             minority
             and
             lesion
             .
             The
             Charger
             answered
             ,
             First
             ,
             That
             this
             Reason
             was
             competent
             and
             omitted
             in
             the
             former
             Decreet
             .
             2ly
             .
             That
             proponing
             payment
             ,
             did
             homologat
             the
             Debt
             ,
             as
             if
             an
             Heir
             proponed
             payment
             ,
             he
             would
             not
             be
             admitted
             fo
             renounce
             thereafter
             ,
             or
             to
             deny
             the
             passive
             Title
             .
             The
             Suspender
             answered
             ,
             that
             the
             former
             Process
             being
             in
             a
             Suspension
             ,
             nothing
             was
             competent
             but
             what
             was
             instantly
             verified
             .
             and
             so
             minority
             and
             laesion
             was
             
             not
             competent
             .
             The
             Charger
             answered
             ,
             that
             the
             Decreet
             of
             Registration
             was
             turned
             in
             a
             Libel
             ,
             as
             being
             Registrat
             at
             the
             Assigneys
             Instance
             ,
             not
             having
             Intimat
             during
             the
             Cedents
             Life
             ,
             and
             at
             that
             time
             the
             Suspender
             had
             raised
             his
             Reduction
             ,
             and
             so
             it
             was
             competent
             .
             The
             Suspender
             answered
             ,
             that
             he
             was
             not
             oblieged
             to
             insist
             in
             his
             Reduction
             ,
             and
             that
             the
             reasons
             thereof
             were
             not
             proper
             ,
             even
             in
             an
             ordinary
             Action
             ,
             but
             only
             by
             a
             Reduction
             .
             It
             was
             furder
             alleadged
             ,
             that
             competent
             and
             omitted
             ,
             took
             no
             place
             in
             Suspensions
             .
          
           
             The
             Lords
             had
             no
             regard
             to
             the
             last
             alleadgence
             ,
             but
             repelled
             the
             alleadgence
             upon
             homologation
             ,
             and
             upon
             competent
             and
             omitted
             ,
             in
             respect
             that
             minority
             and
             laesion
             is
             neither
             competent
             by
             way
             of
             Suspension
             or
             exception
             ,
             but
             by
             way
             of
             Action
             of
             Reduction
             ,
             wherein
             the
             Suspender
             was
             not
             oblieged
             to
             insist
             .
          
        
         
           
             Iames
             Pitcairn
             contra
             Isobel
             Edgar
             .
             Iune
             28.
             1665.
             
          
           
             UMquhil
             
               David
               Edgar
            
             by
             his
             Contract
             of
             Marriage
             ,
             provided
             4000.
             merks
             to
             be
             payed
             by
             him
             and
             his
             Heir
             of
             the
             first
             Marriage
             ,
             which
             failling
             ,
             any
             other
             his
             Heirs
             ,
             to
             the
             Bairns
             of
             the
             second
             Marriage
             .
             The
             portion
             of
             the
             Daughters
             payable
             at
             their
             age
             of
             18.
             and
             the
             Sons
             at
             21.
             with
             five
             merks
             yearly
             of
             annualrent
             ,
             after
             his
             death
             ,
             for
             the
             Childrens
             subsistence
             .
             Isobel
             one
             of
             the
             Children
             ,
             having
             married
             after
             her
             Fathers
             death
             ,
             
               Iames
               Pitcairn
            
             her
             Husbands
             Creditor
             ,
             pursues
             for
             the
             sum
             ,
             as
             belonging
             to
             the
             Husband
             ,
             
               jure
               mariti
            
             .
             It
             was
             answered
             ,
             that
             the
             sum
             was
             Heretable
             ,
             bearing
             Annualrent
             ,
             and
             the
             Term
             of
             payment
             of
             the
             Annualrent
             was
             come
             before
             the
             marriage
             ,
             and
             therefore
             it
             did
             not
             belong
             to
             the
             Husband
             ,
             
               jure
               mariti
            
             .
             It
             was
             answered
             ,
             that
             it
             was
             not
             properly
             an
             Annualrent
             ,
             but
             an
             aliment
             of
             five
             percent
             ,
             and
             that
             the
             Term
             of
             payment
             of
             the
             Annualrent
             ,
             was
             after
             the
             Act
             of
             Parliament
             1641.
             declaring
             such
             Bonds
             moveable
             :
             and
             albeit
             the
             Fisk
             and
             Relict
             be
             there
             excluded
             ;
             yet
             the
             
               jus
               mariti
            
             is
             not
             ,
             but
             is
             only
             added
             by
             the
             Act
             1661.
             
          
           
             The
             Lords
             found
             ,
             that
             seing
             this
             Provision
             bear
             Annualrent
             ,
             whether
             more
             or
             less
             ,
             and
             that
             the
             marriage
             was
             after
             the
             Term
             of
             payment
             ,
             that
             it
             was
             Heretable
             ,
             and
             fell
             not
             to
             the
             Husband
             ,
             
               jure
               mariti
            
             ,
             but
             only
             the
             Annualrents
             thereof
             ,
             till
             his
             death
             ,
             albeit
             there
             was
             no
             Contract
             of
             Marriage
             ,
             nor
             a
             Tocher
             ,
             and
             that
             the
             Husband
             had
             after
             the
             marriage
             given
             some
             provision
             to
             the
             Wife
             .
          
        
         
           
             Mr.
             George
             Norvel
             contra
             Margaret
             Hunter
             .
             Iune
             29.
             1665.
             
          
           
             MR.
             
               George
               Norvel
            
             having
             Apprized
             certain
             Lands
             ,
             pursued
             for
             Mails
             and
             Duties
             against
             
               Margaret
               Hunter
            
             Possessor
             ,
             she
             compeared
             ,
             and
             proponed
             a
             Defense
             ,
             that
             she
             stood
             Infeft
             in
             the
             Lands
             ,
             by
             a
             Right
             from
             her
             Husband
             before
             the
             Appryzing
             ,
             but
             for
             proving
             thereof
             ,
             she
             only
             produced
             her
             Seasine
             .
          
           
           
             Which
             the
             Lords
             found
             not
             to
             prove
             without
             a
             Warrant
             ,
             and
             therefore
             Decerned
             .
          
           
             She
             Suspends
             ,
             and
             now
             produces
             her
             Contract
             of
             Marriage
             ,
             as
             the
             Warrant
             of
             the
             Seasine
             ,
             and
             offers
             to
             make
             Faith
             ,
             that
             she
             had
             found
             it
             out
             since
             the
             Decreet
             :
             And
             farder
             alleadged
             ,
             that
             through
             neglect
             of
             the
             Advocats
             ,
             or
             Clerks
             ,
             her
             Defense
             was
             not
             proponed
             ,
             no
             ways
             acknowledging
             the
             quantities
             libelled
             ,
             which
             she
             offers
             to
             prove
             to
             be
             exorbitant
             .
             It
             was
             answered
             ,
             first
             ,
             that
             
               praetextu
               instrumentorum
               de
               novo
               repertorum
               sententiae
               non
               sunt
               retractandae
               .
               2ly
               .
            
             The
             Contract
             produced
             is
             not
             the
             Warrant
             of
             the
             Seasine
             ,
             but
             a
             Bond
             granted
             for
             Implement
             of
             the
             Contract
             ,
             and
             relating
             to
             the
             Seasine
             .
          
           
             The
             Lords
             Reponed
             the
             Suspender
             ,
             as
             to
             the
             circumduction
             of
             the
             Term
             ,
             she
             making
             Faith
             ,
             &c.
             and
             found
             the
             Contract
             of
             Marriage
             a
             sufficient
             Adminicle
             ,
             to
             astruct
             the
             Seasine
             ,
             seing
             it
             related
             to
             a
             Bond
             for
             the
             same
             Cause
             ,
             but
             refused
             to
             Repone
             her
             as
             to
             the
             quantities
             .
          
        
         
           
             Heretors
             of
             the
             Miln
             of
             Keithick
             contra
             Feuers
             .
             Eodem
             die
             .
          
           
             THe
             Heritors
             of
             the
             Miln
             of
             Keithick
             ,
             pursues
             certain
             Feuers
             for
             abstract
             Multures
             ,
             who
             alleadged
             absolvitor
             ,
             because
             they
             are
             Infeft
             ,
             
               ab
               eodem
               authore
            
             ,
             without
             astriction
             before
             the
             Pursuer
             .
             It
             was
             replyed
             the
             Pursuer
             is
             Infeft
             in
             this
             Miln
             ,
             which
             is
             the
             Miln
             of
             the
             Barony
             ,
             and
             
               per
               expressum
            
             in
             the
             Multures
             of
             the
             Lands
             in
             question
             ;
             and
             offers
             to
             prove
             ,
             that
             there
             is
             a
             distinct
             in-sucken
             Multure
             ,
             and
             out-sucken
             Multure
             ,
             and
             that
             the
             Pursuer
             has
             been
             in
             Possession
             of
             the
             In-sucken
             Multure
             ,
             these
             40.
             years
             bygone
             ,
             out
             of
             thir
             Lands
             .
             Duplyed
             the
             Defender
             offers
             him
             to
             prove
             ,
             that
             the
             Possession
             has
             been
             Interrupted
             by
             his
             going
             to
             other
             Milns
             frequently
             ,
             and
             without
             any
             challenge
             ,
             or
             Sentence
             against
             them
             :
             And
             seing
             the
             coming
             to
             a
             Miln
             is
             but
             voluntatis
             ,
             unless
             they
             enacted
             themselves
             so
             to
             do
             .
             And
             that
             the
             Pursuers
             Infeftment
             ,
             though
             expresse
             ,
             was
             latent
             and
             unknown
             to
             the
             Defender
             ,
             all
             that
             is
             alleadged
             cannot
             infer
             an
             astriction
             .
          
           
             The
             Lords
             Repelled
             the
             Duply
             ,
             and
             thought
             that
             going
             to
             other
             Milns
             sometimes
             ,
             as
             is
             ordinar
             in
             all
             Thirlage
             ,
             was
             no
             sufficient
             Interruption
             ,
             if
             they
             came
             ordinarly
             to
             this
             Miln
             ,
             and
             payed
             in-sucken
             Multure
             ,
             and
             therefore
             found
             the
             Reply
             relevant
             .
          
        
         
           
             Richard
             Thorntoun
             contra
             William
             Miln
             .
             Eodem
             die
             .
          
           
             THorntoun
             as
             Assigney
             by
             
               Patrick
               Seaton
            
             ,
             having
             obtained
             Decreet
             before
             the
             Baillies
             of
             Edinburgh
             ,
             against
             
               William
               Miln
            
             ,
             he
             Suspends
             and
             alleadges
             Compensation
             ,
             upon
             a
             Compt
             due
             by
             the
             Cedent
             ,
             and
             a
             Ticket
             subjoyned
             by
             him
             ,
             acknowledging
             the
             Compt
             to
             be
             due
             ,
             subscribed
             before
             Witnesses
             ,
             which
             must
             prove
             against
             this
             Assigney
             .
             It
             was
             answered
             ,
             that
             
             the
             Ticket
             wanted
             a
             date
             ,
             and
             so
             could
             not
             instruct
             it self
             to
             be
             anterior
             to
             the
             Assignation
             .
             It
             was
             replyed
             ,
             that
             it
             was
             offered
             to
             be
             proven
             by
             the
             Witnesses
             insert
             ,
             that
             it
             was
             truly
             subscribed
             before
             the
             Assignation
             .
          
           
             Which
             the
             Lords
             sustained
             .
          
        
         
           
             Stevenson
             contra
             Crawfoord
             .
             Iune
             30.
             1665.
             
          
           
             STevinson
             being
             surrogat
             Executor
             dative
             ,
             
               ad
               omissa
            
             ,
             and
             having
             licence
             to
             pursue
             ,
             insists
             against
             Crawford
             for
             a
             Debt
             of
             the
             Defuncts
             ,
             alleadged
             omitted
             forth
             of
             the
             principal
             Testament
             .
             The
             Defense
             was
             ,
             no
             Process
             ,
             until
             the
             Executor
             Dative
             ,
             
               ad
               omissa
            
             ,
             be
             Confirmed
             ;
             but
             he
             cannot
             insist
             upon
             a
             Licence
             to
             pursue
             ,
             because
             the
             principal
             Executor
             having
             made
             Faith
             ,
             that
             the
             Inventar
             given
             up
             by
             him
             ,
             is
             a
             full
             Inventar
             ,
             any
             that
             crave
             to
             be
             Dative
             ,
             
               ad
               omissa
            
             ,
             are
             never
             admitted
             ,
             but
             upon
             certain
             knowledge
             ,
             and
             so
             must
             Confirm
             ,
             and
             gets
             no
             Licence
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             especially
             seing
             the
             Pursuer
             was
             a
             Creditor
             .
          
        
         
           
             Younger
             contra
             Iohnstoun
             .
             Eodem
             die
             .
          
           
             AN
             Porteous
             Merchant
             in
             Edinburgh
             ,
             having
             died
             Infeft
             in
             several
             Tenements
             in
             Edinburgh
             ,
             above
             50.
             years
             agoe
             ,
             his
             Relict
             possessing
             them
             as
             Liferenter
             to
             this
             time
             .
             Shortly
             after
             his
             Death
             ,
             one
             
               Patrick
               Porteous
            
             was
             Served
             nearest
             and
             lawful
             Heir
             to
             him
             ,
             and
             thereupon
             Infeft
             ,
             so
             that
             his
             Right
             came
             by
             progress
             to
             Iohnstoun
             ,
             40.
             years
             after
             ;
             Younger
             takes
             a
             Right
             from
             one
             
               Stephen
               Porteous
            
             ,
             residenter
             in
             Polland
             ,
             and
             gets
             him
             Served
             nearest
             Heir
             to
             the
             Defunct
             ,
             and
             thereupon
             raises
             Reduction
             of
             the
             first
             Retour
             ,
             and
             all
             the
             Infeftments
             following
             thereupon
             ,
             Defense
             absolvitor
             ,
             because
             the
             Defenders
             Author
             being
             Served
             Heir
             40.
             years
             before
             the
             Pursuers
             Authors
             Service
             .
             It
             is
             prescribed
             ,
             and
             likeways
             being
             Infeft
             40.
             years
             since
             ,
             all
             quarrel
             against
             ,
             the
             Infeftment
             is
             prescribed
             :
             For
             the
             first
             Point
             ,
             they
             condescend
             upon
             the
             second
             Act
             of
             Parliament
             ,
             anent
             Prescription
             ,
             of
             the
             Reduction
             of
             Retours
             ,
             which
             bears
             ,
             that
             if
             they
             be
             not
             pursued
             within
             20.
             year
             ,
             they
             shall
             never
             be
             quarrellable
             thereafter
             .
          
           
             The
             Lords
             having
             considered
             this
             case
             at
             length
             ,
             most
             part
             thought
             that
             the
             Retour
             could
             not
             prescrive
             by
             the
             first
             Act
             of
             Parliament
             ,
             because
             it
             excepted
             Minors
             ,
             and
             absents
             out
             of
             the
             Countrey
             ,
             which
             they
             found
             not
             to
             be
             meaned
             of
             Absents
             ,
             
               Reipublicae
               causa
            
             ,
             but
             of
             any
             absence
             ,
             nor
             that
             it
             fell
             not
             directly
             within
             the
             second
             Act
             ,
             which
             bears
             expresly
             ,
             Retours
             to
             have
             been
             reduced
             thereafter
             ,
             should
             be
             only
             reduceable
             within
             twenty
             year
             .
             Others
             thought
             the
             Act
             might
             not
             be
             extended
             ;
             but
             bearing
             expresly
             ,
             to
             the
             future
             ,
             it
             could
             not
             be
             drawn
             back
             ,
             and
             the
             Act
             of
             Prescription
             ,
             1617.
             meets
             not
             this
             case
             ;
             for
             if
             under
             the
             prescription
             of
             Actions
             ,
             not
             pursued
             within
             fourty
             year
             ,
             Serving
             of
             Persons
             to
             their
             Predecessors
             Heirs
             ;
             were
             comprehended
             ,
             it
             would
             impede
             any
             Person
             to
             Serve
             themselves
             Heir
             to
             any
             Defunct
             ,
             after
             fourty
             year
             ,
             which
             is
             yet
             ordinar
             ,
             and
             as
             to
             the
             
             Infefment
             ,
             they
             fand
             ,
             that
             it
             fell
             not
             in
             the
             Case
             of
             the
             Act
             of
             Parliament
             1617.
             because
             it
             was
             not
             cled
             with
             Possession
             ,
             in
             respect
             of
             the
             Liferenters
             life
             ,
             whose
             possession
             behoved
             to
             be
             the
             possession
             of
             the
             true
             Heir
             of
             her
             Husband
             .
          
           
             But
             the
             Lords
             did
             not
             decide
             it
             ,
             seing
             the
             Case
             was
             rarely
             occuring
             ,
             and
             Johnstouns
             Infeftment
             very
             old
             ,
             unquarrelled
             ;
             and
             recomended
             the
             parties
             to
             agree
             .
          
        
         
           
             Mr.
             James
             Nasmith
             contra
             Alexander
             Bower
             .
             Iuly
             1.
             1665.
             
          
           
             THis
             being
             a
             concluded
             Cause
             ,
             a
             Question
             arose
             ,
             upon
             the
             Probation
             ;
             an
             accompt
             being
             produced
             between
             two
             Merchants
             ,
             referred
             to
             Bowers
             Oath
             ,
             that
             it
             was
             his
             hand
             writ
             ,
             and
             yet
             resting
             :
             he
             deponed
             it
             was
             his
             hand
             writ
             ,
             but
             not
             resting
             .
             The
             question
             arose
             ,
             whether
             he
             behoved
             to
             condescend
             ,
             and
             instruct
             how
             it
             was
             payed
             ;
             because
             ,
             though
             the
             accompt
             written
             with
             his
             hand
             unsubscribed
             ,
             was
             of
             it self
             sufficient
             Probation
             ,
             the
             quality
             was
             not
             competent
             ;
             but
             he
             behoved
             to
             prove
             payment
             ,
             it
             being
             alleadged
             that
             Merchants
             hand
             writ
             is
             sufficient
             :
             and
             that
             a
             Note
             upon
             the
             back
             of
             a
             Bond
             ,
             or
             foot
             of
             a
             Compt
             ,
             by
             the
             Debitors
             own
             hand
             writ
             ,
             though
             not
             subscribed
             ,
             has
             been
             found
             probative
             .
          
           
             The
             Lords
             found
             ,
             that
             if
             this
             had
             been
             a
             current
             Compt-book
             ,
             it
             would
             have
             been
             probative
             ,
             but
             having
             been
             only
             some
             feu
             scheduls
             of
             Paper
             ,
             found
             it
             not
             probative
             ,
             without
             subscription
             ,
             albeit
             it
             was
             acknowledged
             by
             the
             Oath
             ,
             to
             be
             the
             deponents
             hand
             writ
             .
          
        
         
           
             John
             Boyd
             late
             Baillie
             in
             Edinburgh
             ,
             contra
             Mr.
             William
             Kintore
             .
             Iuly
             4.
             1665.
             
          
           
             THere
             being
             mutual
             Reductions
             ,
             betwixt
             Mr.
             
               William
               Kintore
            
             and
             
               Iohn
               Boyd
            
             as
             to
             the
             Rights
             of
             the
             Lands
             of
             
               Moutlothian
               .
               Iohn
               Loyd
            
             deriving
             Right
             from
             Mr.
             
               Robert
               Logan
            
             ,
             to
             
               whom
               Logan
            
             of
             Coatfield
             ,
             with
             consent
             of
             Mr.
             
               Iames
               Raith
            
             ,
             and
             who
             ,
             for
             all
             Right
             he
             had
             to
             the
             Land
             of
             Mounlothian
             ,
             disponed
             the
             same
             .
             And
             Mr.
             
               William
               Kintore
            
             having
             Appryzed
             upon
             a
             Decreet
             against
             Coatfield
             ,
             as
             Cautioner
             for
             a
             Tutor
             ;
             and
             upon
             the
             Act
             of
             Caution
             inhibited
             .
             It
             was
             alleadged
             for
             
               Iohn
               Boyd
            
             ,
             that
             whereas
             ,
             by
             a
             former
             Interlocutor
             the
             day
             of
             he
             having
             objected
             against
             Kintor's
             Decreet
             ,
             that
             thereby
             the
             Tutor
             ,
             and
             his
             Cautioner
             were
             found
             lyable
             to
             uplift
             the
             Annualrent
             ,
             of
             Sums
             that
             were
             in
             the
             hands
             of
             secure
             Creditors
             ,
             which
             the
             Tutors
             had
             not
             uplifted
             ,
             and
             to
             be
             lyable
             for
             Annualrent
             
               post
               finitam
               tutelam
            
             :
             now
             he
             produces
             a
             Decision
             ,
             out
             of
             
               Dury
               ,
               Iuly
            
             18.
             1629.
             
             Nasmith
             contra
             Nasmith
             ,
             whereby
             it
             was
             found
             ,
             that
             a
             Tutor
             having
             uplifted
             his
             Pupils
             Annualrent
             ,
             though
             very
             considerable
             ,
             was
             not
             lyable
             for
             any
             Annualrent
             therefore
             .
             2ly
             .
             The
             reason
             of
             the
             Lords
             Decision
             then
             being
             ,
             that
             albeit
             the
             Tutor
             was
             not
             lyable
             to
             uplift
             ,
             and
             imploy
             the
             Annualrent
             every
             year
             ,
             as
             it
             was
             due
             ;
             yet
             he
             was
             lyable
             ,
             once
             in
             the
             Tutory
             :
             but
             it
             is
             offered
             to
             be
             proven
             ,
             that
             he
             died
             two
             years
             before
             the
             Tutory
             expired
             :
             in
             which
             time
             ,
             he
             might
             both
             have
             upl●fted
             this
             Annualrent
             ,
             and
             re-imployed
             
             it
             :
             and
             therefore
             being
             prevented
             by
             death
             ,
             he
             ought
             to
             be
             free
             ,
             both
             of
             the
             Annualrent
             it self
             ,
             and
             of
             the
             Annualrent
             thereof
             .
          
           
             The
             Lords
             having
             considered
             the
             Decision
             ,
             found
             it
             so
             short
             ,
             and
             not
             to
             hold
             forth
             fully
             the
             Case
             ,
             notwithstanding
             thereof
             ,
             they
             adhered
             to
             the
             former
             Interlocutor
             ,
             and
             found
             ,
             that
             Tutors
             are
             oblidged
             to
             uplift
             ,
             and
             once
             in
             their
             Tutory
             ,
             to
             re-imploy
             the
             Annualrents
             of
             the
             Pupil
             ;
             albeit
             the
             Debitor
             were
             secure
             ,
             but
             if
             the
             Case
             had
             been
             of
             Rents
             of
             Lands
             ,
             the
             Lords
             thought
             these
             ought
             to
             have
             been
             uplifted
             yearly
             ,
             and
             to
             be
             imployed
             on
             Annualrent
             ;
             but
             they
             found
             the
             second
             alleadgance
             Relevant
             ,
             not
             to
             free
             the
             Tutor
             of
             payment
             of
             the
             Annualrent
             it self
             ,
             though
             in
             secure
             hands
             ,
             because
             he
             ought
             to
             have
             uplifted
             it
             ,
             and
             had
             it
             ready
             ,
             but
             found
             him
             free
             of
             the
             Annualrent
             thereof
             ,
             there
             being
             a
             competent
             time
             ,
             in
             which
             he
             might
             have
             given
             it
             forth
             ,
             before
             the
             Pupillarity
             past
             ,
             if
             he
             had
             not
             been
             prevented
             by
             death
             ;
             but
             ordained
             Kintore
             to
             assigne
             to
             Boyd
             the
             Right
             of
             the
             Annualrent
             ,
             that
             he
             might
             recover
             the
             same
             from
             the
             Debitors
             .
          
           
             It
             was
             further
             alleadged
             for
             Kintore
             ,
             that
             Coatfield
             the
             common
             Author
             ,
             his
             Disposition
             to
             Mr.
             
               Robert
               Logan
               ,
               Iohn
               Boyds
            
             Author
             ,
             was
             after
             Kintors
             Authors
             Inhibition
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Disposition
             by
             Coatfield
             to
             Mr.
             
               Robert
               Logan
            
             be
             posterior
             ,
             yet
             Mr.
             
               Iames
               Raith
            
             had
             a
             Disposition
             of
             the
             same
             Lands
             anterior
             ;
             who
             ,
             by
             consenting
             ,
             and
             joynt
             Disponing
             to
             Mr.
             
               Robert
               Logan
            
             ,
             the
             Lands
             of
             Mountlothian
             ;
             did
             in
             effect
             constitute
             him
             Assigney
             to
             his
             anterior
             Disposition
             ,
             which
             is
             now
             accomplished
             by
             the
             Adjudication
             ,
             adjudging
             the
             Right
             of
             the
             Lands
             from
             Coatfild●
             Heirs
             ,
             and
             thereupon
             Infeftment
             has
             followed
             ,
             by
             precepts
             out
             of
             the
             Chancellary
             ,
             for
             supplying
             Coatfilds
             procuratory
             of
             Resignation
             ,
             which
             took
             no
             effect
             in
             his
             life
             .
             It
             was
             answered
             ,
             that
             
               Mr.
               Iames
               Raiths
            
             Right
             being
             but
             a
             Wodset
             ,
             his
             consent
             cannot
             import
             the
             transmitting
             of
             his
             Right
             ,
             albeit
             he
             joyntly
             Dispond
             :
             seing
             he
             transmits
             no
             part
             of
             the
             Sums
             in
             the
             Wodset
             ;
             and
             therefore
             does
             no
             more
             in
             effect
             ,
             but
             restrict
             his
             Wodset
             to
             the
             remanent
             Lands
             :
             and
             consents
             ,
             that
             Coatfield
             should
             Dispone
             these
             Lands
             to
             
               Mr.
               Robert
               Logan
            
             ,
             and
             so
             it
             imports
             but
             
               non
               repugnantiam
            
             ,
             and
             a
             Provision
             that
             he
             nor
             his
             Successor
             should
             not
             quarrel
             their
             Right
             upon
             his
             anterior
             Right
             .
          
           
             Which
             the
             Lords
             sustained
             .
          
        
         
           
             Mr.
             Walter
             Innes
             contra
             George
             Wilson
             .
             Iuly
             4.
             1665.
             
          
           
             INnes
             of
             Auchbuncart
             ,
             being
             pursued
             as
             Heir
             to
             his
             Father
             ,
             upon
             all
             the
             passive
             Titles
             alleadged
             that
             his
             Father
             was
             denounced
             Rebel
             ,
             and
             his
             Escheat
             gifted
             ,
             and
             the
             Defender
             had
             Right
             ,
             or
             warrand
             from
             the
             Donatar
             before
             intenting
             of
             this
             Cause
             .
             The
             Pursuer
             answered
             ,
             
               non
               relevat
            
             ,
             except
             the
             Gift
             had
             been
             declared
             ,
             and
             that
             the
             Defenders
             Intromission
             had
             been
             after
             Declarator
             ,
             and
             the
             warrand
             ,
             but
             the
             Intromission
             being
             anterior
             ,
             cannot
             be
             purged
             ,
             
               ex
               post
               facto
            
             .
             The
             Defender
             answered
             ,
             that
             as
             the
             confirmation
             of
             an
             Executor
             ,
             excluds
             vitious
             Intromission
             ,
             had
             before
             the
             Confirmation
             
               ante
               motam
               litem
            
             :
             so
             the
             Gift
             and
             VVarrand
             ,
             though
             without
             Declarator
             ,
             purges
             anterior
             Intromission
             ,
             
               ante
               motam
               litem
            
             .
          
           
             Which
             the
             Lords
             found
             relevant
             .
          
        
         
           
           
             Commissar
             of
             S.
             Andrews
             contra
             Boussi
             .
             Iuly
             4.
             1665.
             
          
           
             THe
             Commissar
             of
             St.
             Andrews
             having
             charged
             Hay
             of
             Boussi
             to
             Confirm
             his
             Fathers
             Testament
             ,
             he
             Suspends
             ,
             and
             alleadges
             his
             Father
             had
             Disponed
             all
             his
             Moveable
             Goods
             and
             Gear
             to
             him
             ,
             and
             so
             
               nihil
               habuit
               in
               bonis
            
             ,
             and
             offered
             him
             to
             prove
             that
             he
             was
             in
             possession
             of
             the
             whole
             Goods
             before
             his
             Death
             .
             It
             was
             answered
             ,
             the
             Disposition
             was
             but
             simulat
             ,
             in
             so
             far
             as
             it
             contained
             a
             power
             to
             the
             Disponer
             ,
             to
             dispose
             upon
             any
             part
             of
             his
             Moveables
             ,
             during
             all
             the
             days
             of
             his
             life
             ,
             and
             if
             such
             a
             Disposition
             were
             sustained
             ,
             there
             should
             never
             be
             another
             Testament
             confirmed
             ;
             and
             all
             people
             would
             follow
             this
             course
             :
             which
             would
             not
             only
             exclude
             the
             Quot
             ,
             but
             keep
             the
             Means
             of
             Defuncts
             
               in
               obs●uro
            
             .
          
           
             The
             Lords
             ,
             in
             respect
             of
             the
             generality
             of
             the
             Disposition
             ,
             and
             the
             Clause
             foresaid
             ,
             repelled
             the
             Reason
             .
          
        
         
           
             George
             Dumbar
             contra
             Earl
             of
             Dundie
             .
             July
             5.
             1665.
             
          
           
             
               GEorge
               Dumbar
            
             having
             charged
             the
             Earl
             of
             Dundie
             as
             Cautioner
             for
             the
             Laird
             of
             Craig
             to
             pay
             8000
             merks
             of
             Tochar
             ,
             provided
             by
             Craigs
             Sisters
             Contract
             of
             Marriage
             ,
             the
             Earl
             of
             Dundie
             Suspends
             on
             this
             Reason
             ,
             that
             he
             is
             but
             lyable
             for
             his
             half
             ,
             because
             they
             were
             not
             bound
             conjunctly
             and
             severally
             .
             The
             Charger
             answered
             ,
             that
             he
             was
             bound
             as
             Cautioner
             ,
             and
             full
             Debitor
             ,
             which
             was
             sufficient
             .
          
           
             Which
             the
             Lords
             sustained
          
        
         
           
             Mackie
             contra
             Stewart
             .
             Iuly
             5.
             1665.
             
          
           
             
               JAmes
               Mackie
            
             ,
             as
             Assigney
             by
             
               Agnes
               Schaw
            
             ,
             conveens
             Stewart
             of
             Mains
             as
             as
             representing
             his
             Father
             ,
             who
             was
             Cautioner
             for
             imploying
             a
             Sum
             of
             Money
             to
             her
             in
             Liferent
             .
             It
             was
             answered
             ,
             First
             ,
             the
             Contract
             is
             prescribed
             .
             2ly
             .
             It
             bears
             these
             words
             that
             the
             Tochar
             being
             payed
             :
             The
             Principal
             and
             Cautioner
             obligded
             them
             to
             imploy
             it
             upon
             security
             ;
             so
             that
             the
             obligation
             is
             conditional
             .
             And
             if
             it
             be
             not
             instructed
             ,
             that
             the
             Tochar
             was
             payed
             ,
             the
             Defender
             is
             not
             lyable
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             
               contra
               non
               valentem
               agere
               ,
               non
               currit
               prescriptio
            
             ;
             she
             being
             a
             VVife
             cled
             with
             a
             Husband
             her
             not
             pursuing
             her
             own
             Husband
             ,
             or
             his
             Cautioner
             ,
             cannot
             prescrive
             her
             Right
             ,
             To
             the
             second
             ,
             The
             prescription
             is
             run
             against
             the
             Husband
             ,
             and
             his
             Cautioner
             ,
             who
             were
             free
             to
             have
             pursued
             for
             the
             Tochar
             ,
             and
             did
             not
             ;
             and
             after
             40.
             years
             she
             cannot
             be
             put
             to
             instruct
             ,
             that
             the
             Tochar
             was
             payed
             ,
             
             albeit
             she
             had
             been
             Debitor
             therefore
             her self
             ;
             much
             more
             ,
             when
             another
             is
             Debitor
             .
          
           
             The
             Lords
             found
             both
             these
             replyes
             relevant
             .
          
        
         
           
             Mr.
             John
             Colvil
             contra
             The
             Lord
             Balmirino
             .
             Iuly
             6.
             1665.
             
          
           
             MR.
             
               Iohn
               Colvil
            
             ,
             as
             Executor
             confirmed
             to
             Umquhil
             Mr.
             
               Iohn
               Colvil
            
             ,
             Minister
             at
             Kirknewtoun
             ,
             pursues
             the
             Lord
             Balmirino
             ,
             for
             the
             Stipend
             ,
             the
             year
             1663.
             and
             for
             the
             profit
             of
             the
             Gleib
             .
             The
             Defender
             alleadged
             absolvitor
             ;
             because
             payment
             is
             made
             
               bona
               fide
            
             to
             the
             intrant
             ,
             before
             intenting
             of
             this
             Cause
             .
             It
             was
             answered
             ,
             it
             could
             not
             be
             payed
             
               bona
               fide
            
             ,
             because
             the
             Minister
             died
             after
             Ianuary
             1663.
             
             VVhich
             being
             so
             notour
             to
             my
             Lord
             Balmirino
             ,
             to
             whom
             the
             most
             of
             the
             Paroch
             belongs
             ;
             and
             he
             being
             so
             near
             it
             ,
             he
             ought
             to
             have
             made
             payment
             to
             no
             other
             of
             that
             year
             ,
             which
             belonged
             to
             the
             Defunct
             Minister
             ,
             as
             his
             Ann
             ,
             extending
             to
             the
             whole
             years
             ,
             
               quia
               annus
               inchoatus
               habe●ur
               pro
               completo
            
             ;
             as
             to
             the
             Ann
             :
             so
             that
             if
             the
             Minister
             lived
             till
             the
             first
             of
             Ianuary
             ,
             he
             has
             that
             whole
             year
             .
             The
             Defender
             answered
             ,
             that
             an
             Ann
             is
             only
             due
             to
             the
             VVife
             ,
             and
             Bairns
             of
             the
             Defunct
             Minister
             ,
             and
             this
             Minister
             had
             none
             .
             2ly
             .
             That
             the
             point
             is
             so
             dubious
             in
             Law
             ,
             he
             knew
             not
             that
             it
             would
             be
             his
             ,
             unless
             ,
             he
             had
             lived
             till
             
               Whitsunday
               .
               3ly
            
             .
             The
             benefit
             of
             the
             Gleib
             must
             be
             the
             intrants
             ,
             and
             falls
             not
             under
             the
             Ann
             ,
             as
             a
             part
             of
             the
             Stipend
             ,
             no
             more
             then
             the
             Manss
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             as
             to
             the
             Stipend
             ,
             and
             found
             it
             belonged
             to
             the
             Executor
             ,
             as
             nearest
             of
             kin
             ,
             and
             that
             the
             Defunct
             surviving
             the
             first
             of
             January
             ,
             gave
             him
             that
             whole
             year
             ,
             but
             found
             that
             the
             Gleib
             did
             not
             fall
             under
             the
             Ann
             nor
             did
             belong
             to
             the
             Defunct
             ,
             but
             only
             the
             Crop
             thereof
             ;
             if
             it
             were
             sowen
             by
             himself
             ,
             before
             he
             dyed
             .
          
        
         
           
             Earl
             of
             Argyl
             contra
             Mcdougalls
             of
             Dumolich
             and
             Ziner
             .
             Iuly
             14.
             1665.
             
          
           
             THe
             Earl
             of
             Argyl
             having
             raised
             a
             double
             poynding
             ,
             in
             name
             of
             the
             Tennents
             of
             certain
             Lands
             ,
             calling
             himself
             ,
             on
             the
             one
             part
             ,
             and
             Mcdougals
             on
             the
             other
             ,
             as
             both
             claming
             right
             to
             the
             Mails
             and
             Duties
             ;
             Mcdougals
             produce
             a
             Decreet
             of
             Parliament
             ,
             whereby
             they
             having
             pursued
             the
             late
             Marquess
             of
             Argyl
             ;
             alleadging
             ,
             that
             he
             had
             obtained
             the
             Right
             and
             Possession
             of
             these
             by
             Force
             ,
             and
             Oppression
             during
             the
             troubles
             ,
             whereupon
             his
             Rights
             were
             reduced
             ,
             and
             they
             restored
             to
             their
             Possession
             .
             The
             Earl
             of
             Argyl
             produced
             his
             Seasine
             ,
             upon
             the
             Kings
             Gift
             ,
             with
             two
             Dispositions
             of
             these
             Lands
             ,
             granted
             to
             his
             Father
             ,
             one
             in
             Anno
             1632.
             and
             another
             in
             Anno
             1639.
             
             And
             thereupon
             craved
             to
             be
             preferred
             .
             Mcdougals
             produced
             a
             disclamation
             of
             the
             Process
             ,
             in
             name
             of
             the
             Tennents
             ,
             and
             alleadged
             no
             Process
             ;
             because
             the
             Tennents
             ,
             who
             were
             pursuers
             ,
             past
             from
             the
             pursute
             .
             It
             was
             answered
             ,
             that
             their
             names
             was
             but
             used
             ,
             that
             the
             Parties
             might
             discusse
             their
             Rights
             ,
             and
             so
             they
             could
             not
             disclame
             it
             ,
             being
             ordinar
             to
             
             use
             Tennents
             names
             in
             double
             poyndings
             .
             It
             was
             answered
             ,
             that
             there
             was
             no
             Reason
             ,
             that
             Tennants
             should
             be
             forced
             to
             make
             use
             of
             their
             names
             ,
             to
             intervert
             their
             Masters
             Possession
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Tennants
             could
             not
             disclame
             ;
             especially
             the
             possession
             being
             but
             late
             ,
             by
             Decreet
             of
             Parliament
             ,
             and
             was
             contraverse
             .
          
           
             It
             was
             further
             alleadged
             for
             Mcdougals
             ,
             that
             there
             was
             nothing
             particularly
             lybelled
             ,
             as
             Rents
             due
             by
             the
             Tennants
             ;
             and
             therefore
             there
             could
             be
             no
             sentence
             .
          
           
             The
             Lords
             repelled
             the
             alleadgeance
             ,
             and
             found
             the
             Sentence
             might
             be
             in
             general
             ,
             to
             be
             answered
             ,
             of
             the
             Mails
             and
             Duties
             ,
             as
             is
             ordinar
             in
             Decreets
             conform
             .
          
           
             It
             was
             further
             alleadged
             for
             Mcdougals
             ,
             that
             seing
             this
             double
             poynding
             was
             in
             effect
             ,
             now
             used
             as
             a
             Declarator
             of
             Right
             ,
             no
             Process
             thereupon
             ;
             because
             in
             all
             Declarators
             ,
             Law
             allows
             the
             Defenders
             21
             days
             upon
             the
             first
             Summons
             ,
             and
             six
             on
             the
             next
             ,
             that
             they
             may
             prepare
             ,
             and
             produce
             their
             Rights
             ;
             and
             here
             there
             is
             but
             one
             Summons
             on
             6
             days
             .
             2ly
             .
             No
             Process
             ,
             because
             Mcdougals
             being
             founded
             upon
             a
             Decreet
             of
             Parliament
             ;
             my
             Lord
             Argyl
             produces
             no
             Title
             ,
             but
             only
             a
             Seasine
             not
             expressing
             these
             Lands
             .
             3ly
             .
             Decreets
             ,
             especially
             of
             Parliament
             ,
             cannot
             be
             taken
             away
             ,
             but
             by
             Reduction
             ,
             and
             not
             thus
             summarly
             .
             It
             was
             answered
             ,
             that
             my
             Lord
             Argyl
             insisted
             here
             for
             taking
             away
             the
             pretended
             Decreet
             ,
             in
             Parliament
             ,
             and
             restoring
             the
             King
             ,
             and
             Donatar
             to
             the
             possession
             of
             the
             Lands
             :
             so
             that
             in
             effect
             it
             is
             not
             so
             much
             a
             Declarator
             of
             a
             Right
             ,
             as
             a
             possessory
             Judgement
             .
             And
             as
             for
             the
             Title
             ,
             it
             is
             sufficient
             to
             produce
             a
             Siasine
             ,
             seing
             in
             the
             Decreet
             of
             Parliament
             ,
             My
             Lord
             Argyls
             Right
             and
             possession
             is
             quarrelled
             as
             wrong
             ,
             and
             therefore
             was
             acknowledged
             to
             have
             been
             ,
             and
             seing
             Mcdougals
             produces
             no
             other
             Right
             ,
             and
             the
             King's
             Advocat
             concurres
             ;
             and
             if
             need
             beis
             ,
             my
             Lord
             Argyl
             offers
             to
             prove
             the
             Lands
             in
             question
             ,
             are
             parts
             and
             pertinents
             of
             the
             Lordship
             of
             Lorn
             ,
             exprest
             in
             his
             Seasine
             :
             and
             albeit
             this
             be
             pretended
             to
             be
             a
             Decreet
             of
             Parliament
             ,
             yet
             by
             Sentence
             of
             Parliament
             since
             ,
             it
             is
             remitted
             to
             the
             Lords
             ,
             and
             is
             in
             it self
             visibly
             null
             ,
             as
             having
             been
             intented
             against
             my
             Lord
             Argyl
             ,
             and
             pronounced
             after
             his
             death
             ,
             and
             Forefaulture
             without
             calling
             the
             Kings
             Officers
             .
          
           
             The
             Lords
             repelled
             these
             Defenses
             ,
             in
             respect
             of
             the
             replyes
             .
          
        
         
           
             James
             Mathison
             contra
             Harie
             Gib
             .
             Eodem
             die
             .
          
           
             
               JAmes
               Mathison
            
             ,
             having
             obtained
             a
             Decreet
             before
             the
             Commissars
             of
             Edinburgh
             ,
             against
             Gib
             ,
             he
             Suspends
             ,
             and
             alleadges
             it
             was
             not
             a
             cause
             consistorial
             ,
             being
             a
             bargain
             of
             Victual
             ,
             and
             that
             it
             was
             not
             probable
             any
             other
             ways
             but
             by
             his
             Oath
             ,
             now
             after
             12.
             or
             13.
             years
             .
             In
             respect
             of
             the
             Act
             of
             Parliament
             ,
             anent
             house
             Mails
             ,
             and
             others
             ,
             which
             comprehens
             this
             case
             .
          
           
             The
             Lords
             repelled
             the
             alleadgeance
             ,
             and
             found
             that
             bargain
             of
             Victual
             not
             comprehended
             under
             that
             Act
             of
             Parli●ment
             .
          
        
         
           
           
             James
             Borthwick
             contra
             Janet
             Skeen
             Iuly
             15.
             1665.
             
          
           
             
               JAmes
               Borthwick
            
             ,
             being
             Infeft
             in
             the
             Lands
             of
             Oversneip
             ,
             pursues
             Reduction
             ,
             and
             Removing
             against
             
               Ianet
               Skeen
            
             the
             Liferentrix
             .
             It
             was
             alleadged
             ,
             that
             the
             Feer
             being
             minor
             ,
             
               non
               tenetur
               placitare
               super
               haereditate
               paterna
               ,
            
             And
             for
             the
             Liferenter
             ,
             that
             the
             minor
             was
             oblidged
             to
             warrand
             her
             Liferent-right
             ,
             and
             her
             Possession
             was
             the
             minors
             Possession
             ;
             so
             that
             if
             her
             Right
             were
             reduced
             ,
             and
             she
             removed
             ,
             the
             priviledge
             of
             the
             minor
             were
             altogether
             overthrown
             .
             It
             was
             answered
             ,
             That
             the
             priviledge
             was
             personal
             ,
             and
             
               stricti
               juris
            
             ,
             and
             was
             to
             be
             extended
             to
             Majors
             ;
             and
             as
             for
             the
             warrandice
             ,
             it
             was
             never
             sustained
             as
             a
             ground
             ,
             to
             exclude
             a
             Reduction
             ,
             because
             warrandice
             would
             be
             inferred
             against
             a
             Minor
             ,
             which
             is
             but
             a
             personal
             obligement
             ,
             and
             not
             haereditas
             .
          
           
             The
             Lords
             repelled
             the
             alleadgance
             for
             the
             Liferenter
             .
             Who
             alleadged
             further
             ,
             that
             her
             Right
             being
             Reduced
             ,
             the
             Fee
             was
             absolute
             in
             the
             person
             of
             the
             Minor
             ,
             who
             would
             not
             suffer
             the
             Liferentrix
             to
             be
             removed
             ,
             but
             she
             did
             possesse
             by
             the
             Minors
             tollerance
             .
          
           
             It
             was
             answered
             ,
             that
             the
             Pursuers
             Reduction
             ,
             behoved
             to
             accresce
             to
             him
             and
             his
             Right
             ,
             and
             not
             to
             the
             Minors
             Right
             ,
             that
             he
             behoved
             to
             enter
             to
             the
             Liferenters
             possession
             ,
             which
             would
             not
             prejudge
             the
             Minor
             ;
             for
             if
             the
             Liferenter
             dyed
             during
             the
             Minors
             Minoritie
             ,
             he
             might
             return
             to
             the
             possession
             in
             the
             same
             way
             ,
             as
             if
             the
             Liferenter
             were
             in
             possession
             ;
             but
             as
             for
             the
             tollerance
             ,
             now
             the
             Liferenter
             having
             entered
             by
             the
             Liferent
             Right
             ,
             and
             it
             being
             reduced
             in
             favours
             of
             the
             Pursuer
             ,
             as
             the
             Minor
             could
             not
             thereby
             attain
             possession
             ;
             so
             neither
             can
             he
             give
             tollerance
             to
             defend
             the
             Liferenter
             .
          
           
             The
             Lords
             repelled
             also
             this
             second
             Defense
             .
          
        
         
           
             Patrick
             Urquhart
             contra
             Thomas
             Blair
             .
             Eodem
             die
             .
          
           
             
               PAtrick
               Vrquhart
            
             having
             charged
             
               Thomas
               Blair
            
             ,
             upon
             a
             Bond
             granted
             by
             him
             and
             
               William
               Young
            
             ,
             as
             co-principalls
             ,
             
               Thomas
               Blair
            
             Suspends
             ,
             and
             alleadges
             ,
             that
             
               William
               Young
            
             has
             payed
             the
             whole
             .
             It
             was
             answered
             ,
             that
             this
             was
             not
             instructed
             ,
             and
             therefore
             not
             receivable
             ,
             being
             in
             a
             Suspension
             :
             It
             was
             answered
             ,
             that
             though
             in
             a
             Suspension
             ,
             yet
             a
             terme
             is
             always
             granted
             ,
             where
             it
             is
             another
             mans
             Right
             .
             It
             was
             answered
             ,
             that
             the
             Suspender
             is
             in
             hazard
             of
             breaking
             ,
             and
             has
             not
             found
             a
             good
             sufficient
             Cautioner
             ,
             and
             therefore
             if
             he
             get
             delay
             ,
             he
             ought
             to
             give
             better
             Caution
             :
             It
             was
             answered
             ,
             that
             he
             had
             found
             Caution
             who
             was
             accepted
             ,
             and
             he
             was
             oblidged
             to
             do
             no
             more
             .
          
           
             The
             Lords
             ordained
             him
             to
             make
             faith
             
               de
               calumnia
            
             upon
             the
             Reason
             ,
             but
             would
             not
             put
             him
             to
             find
             new
             Caution
             .
          
        
         
           
           
             Robert
             Scot
             contra
             Silvertounhill
             .
             Eodem
             die
             .
          
           
             
               RObert
               Scot
            
             pursuing
             a
             Poynding
             of
             the
             Ground
             ,
             for
             an
             Annualrent
             ,
             Silvertounhill
             compeared
             ,
             and
             alleadged
             possession
             ,
             by
             vertue
             of
             a
             prior
             Annualrent
             ,
             and
             that
             the
             Pursuers
             Infeftment
             was
             base
             ,
             not
             cled
             with
             Possession
             .
             For
             proving
             Possession
             ,
             
               Robert
               Scot
            
             produced
             discharges
             granted
             by
             the
             Annualrenter
             to
             the
             Hetetor
             for
             the
             time
             ,
             for
             himself
             ,
             and
             in
             name
             of
             the
             Tenents
             ,
             which
             had
             Witnesses
             ,
             But
             designed
             not
             the
             Writers
             name
             ,
             and
             being
             alleadged
             to
             be
             null
             for
             want
             thereof
             .
          
           
             The
             Lords
             ordained
             Scot
             to
             condescend
             upon
             the
             writer
             of
             the
             discharge
             in
             respect
             the
             Annualrent
             did
             extend
             to
             80.
             lib.
             and
             it
             did
             prefer
             one
             Annualrent
             to
             another
             .
          
        
         
           
             Johnstoun
             of
             Scheens
             contra
             Alexander
             Brown
             Eodem
             die
             .
          
           
             JOhnstoun
             being
             pursued
             to
             remove
             from
             certain
             Lands
             .
             It
             was
             alleadged
             ,
             no
             Process
             ;
             because
             all
             Parties
             having
             interest
             ,
             were
             not
             called
             ,
             viz.
             The
             Defenders
             wife
             ,
             in
             respect
             he
             possest
             ,
             but
             by
             her
             Right
             
               jure
               mariti
            
             ,
             and
             she
             was
             not
             warned
             .
          
           
             Which
             the
             Lords
             found
             relevant
             .
          
        
         
           
             Mr.
             Thomas
             Johnstoun
             contra
             Mcgregor
             .
             Iuly
             19.
             1665.
             
          
           
             
               MR.
               Thomas
               Iohnstoun
            
             having
             obtained
             the
             Gift
             of
             Bastardie
             of
             one
             Mcgregor
             ,
             and
             declared
             in
             general
             ;
             insists
             now
             ,
             in
             his
             special
             Declarator
             against
             
               Patrick
               Mcgregor
            
             ,
             for
             2000
             merks
             belonging
             to
             the
             Bastard
             .
             It
             was
             alleadged
             absolvitor
             ;
             because
             there
             was
             a
             Gift
             granted
             in
             the
             Usurpers
             time
             ,
             and
             declared
             ,
             whereupon
             the
             Defender
             had
             transacted
             with
             the
             Donatar
             ,
             and
             satisfied
             him
             ,
             and
             obtained
             his
             discharge
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             because
             in
             the
             Act
             of
             Parliament
             ,
             confirming
             Judicial
             Precedor
             ,
             under
             the
             Usurpers
             ,
             Gifts
             of
             Bastardry
             ,
             and
             all
             following
             thereupon
             ,
             are
             excepted
             :
             so
             that
             the
             Defender
             ,
             had
             no
             Defense
             in
             the
             point
             of
             Right
             ,
             and
             as
             for
             his
             
               bona
               fides
            
             ,
             it
             only
             relevant
             for
             what
             was
             truly
             payed
             ,
             but
             not
             for
             what
             was
             in
             his
             hand
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             .
          
        
         
           
             Mr.
             James
             Winerham
             conra
             Lady
             Idingtoun
             .
             Iuly
             19.
             1665.
             
          
           
             
               MR.
               Iames
               Winerham
            
             pursues
             the
             Lady
             Idingtoun
             personally
             ,
             for
             Feu-Duties
             out
             of
             certain
             Lands
             Liferented
             by
             her
             .
             It
             was
             answered
             ,
             
             
               non
               relevat
            
             ,
             for
             any
             years
             before
             the
             Ladies
             possession
             ,
             because
             Feu
             Duties
             may
             be
             Pursued
             ,
             either
             really
             ,
             by
             poynding
             of
             the
             Ground
             ,
             or
             personally
             ,
             against
             the
             Intrometters
             with
             their
             profits
             ;
             and
             because
             the
             Feu-duties
             are
             as
             the
             yearly
             Rent
             ;
             yet
             that
             cannot
             be
             extended
             further
             ,
             than
             during
             the
             years
             the
             Possessors
             intrometted
             .
             The
             Pursuer
             answered
             ,
             that
             the
             whole
             profits
             being
             lyable
             ,
             for
             the
             whole
             Feu-duties
             ,
             whether
             of
             that
             ,
             or
             preceeding
             years
             ,
             the
             Lady
             was
             lyable
             ,
             not
             only
             for
             the
             years
             of
             her
             possession
             ,
             but
             for
             bygones
             .
          
           
             The
             Lords
             repelled
             the
             alleadgeance
             ,
             and
             found
             the
             Lady
             lyable
             personally
             ,
             only
             for
             the
             years
             of
             her
             possession
             .
          
        
         
           
             Ryce
             Gum
             contra
             Mckewn
             .
             Eodem
             die
             .
          
           
             
               RYce
               Gum
            
             having
             obtained
             Decreet
             before
             the
             Baillies
             of
             the
             Cannongate
             ,
             against
             Mckewn
             ,
             to
             repone
             him
             to
             an
             Assignation
             ,
             he
             Suspends
             ,
             on
             this
             Reason
             ,
             that
             the
             Decreet
             was
             null
             ,
             wanting
             Probation
             ,
             proceeding
             only
             upon
             the
             alleadged
             judicial
             confession
             of
             the
             Suspender
             ,
             without
             proponing
             any
             defense
             ,
             acknowledging
             the
             Lybel
             ,
             and
             succumbing
             in
             the
             Defense
             but
             simply
             confessing
             the
             Lybel
             ,
             which
             cannot
             prove
             against
             him
             ,
             being
             under
             the
             hand
             of
             an
             Clerk
             of
             an
             Inferiour
             Court
             only
             ,
             without
             the
             Suspenders
             subscription
             or
             oath
             .
          
           
             Which
             the
             Lords
             found
             relevant
             .
          
        
         
           
             Mr.
             Robert
             Dickson
             contra
             Mr.
             Mark
             Ker.
             Iuly
             21
             1665.
             
          
           
             THere
             being
             a
             competition
             betwixt
             
               Mr.
               Robert
               Dickson
            
             ,
             and
             
               Mr.
               Mark
               Ker
            
             ,
             as
             both
             having
             the
             Gift
             of
             the
             Escheat
             of
             Hoom
             of
             Garden
             both
             past
             the
             Seal
             in
             one
             day
             ;
             
               Mr.
               Robert
               Dickson
            
             had
             past
             in
             Exchequer
             long
             before
             ,
             and
             his
             Summons
             was
             raised
             two
             dayes
             before
             his
             Gift
             was
             Sealed
             ,
             and
             so
             was
             not
             a
             Regular
             Diligence
             .
             He
             alleadges
             ,
             
               Mr.
               Mark
               Kers
            
             was
             more
             irregular
             ,
             because
             ,
             being
             a
             Declarator
             ,
             his
             Summons
             was
             not
             upon
             21.
             days
             .
             It
             was
             answered
             ,
             the
             Summons
             was
             priviledged
             .
             It
             was
             Replyed
             ,
             that
             the
             priviledge
             was
             granted
             
               periculo
               petentis
            
             upon
             a
             common
             Bill
             ,
             which
             passes
             without
             observation
             .
          
           
             The
             Lords
             considering
             ,
             that
             their
             Gifts
             were
             both
             past
             in
             one
             day
             ,
             and
             that
             there
             diligence
             was
             so
             near
             ,
             conjoyned
             the
             Gift
             ,
             and
             declared
             them
             joyntly
             .
          
        
         
           
             Spreul
             contra
             Miller
             .
             Eodem
             die
             .
          
           
             
               BArbara
               Miller
            
             having
             left
             two
             Legaces
             ,
             and
             named
             
               William
               Wilson
            
             her
             Executor
             ,
             and
             universal
             Legatar
             ,
             he
             nominats
             his
             Wife
             ,
             and
             one
             Giffin
             his
             Executors
             ;
             Spreul
             having
             right
             to
             the
             two
             Legacies
             ,
             pursues
             the
             Relict
             ,
             and
             Executors
             of
             Wilson
             ,
             who
             was
             Executor
             to
             
               Barbara
               Miller
            
             ,
             for
             payment
             of
             the
             Legacies
             .
             He
             alleadges
             absolvitor
             ,
             because
             the
             first
             Testament
             was
             not
             Execute
             .
             
             2ly
             .
             The
             special
             Legacies
             must
             be
             abated
             proportionally
             with
             the
             general
             Legacies
             :
          
           
             The
             Lords
             repelled
             both
             the
             Defenses
             ,
             and
             found
             the
             general
             Legacie
             not
             to
             come
             in
             
               pari
               passu
            
             with
             the
             special
             ,
             and
             found
             that
             the
             Executor
             of
             the
             Executor
             was
             lyable
             ,
             unless
             he
             could
             alleadge
             ,
             that
             the
             first
             Executor
             had
             done
             diligence
             ,
             and
             had
             not
             recovered
             ,
             or
             was
             exhausted
             .
          
        
         
           
             Laird
             of
             Ludquharn
             contra
             Laird
             of
             Gight
             .
             Iuly
             21.
             1665.
             
          
           
             THe
             Laird
             of
             Gight
             having
             Married
             Ludquharns
             Daughter
             ,
             who
             remained
             in
             her
             Fathers
             Family
             ,
             and
             brought
             forth
             a
             Bairn
             to
             Gight
             ,
             and
             dyed
             ;
             Ludquharn
             ,
             the
             Childs
             Guid-sir
             keeped
             her
             in
             his
             Family
             several
             years
             ,
             and
             now
             pursues
             Gight
             for
             her
             Aliment
             ,
             who
             alleadged
             absovitor
             ,
             because
             the
             Pursuer
             never
             having
             required
             a
             promise
             of
             this
             Aliment
             ,
             nor
             desired
             the
             Defender
             to
             take
             home
             his
             Daughter
             ,
             It
             must
             be
             presumed
             ,
             that
             the
             Pursuer
             did
             it
             
               animo
               donandi
            
             ,
             for
             his
             own
             Oye
             .
          
           
             The
             Lords
             found
             this
             Defense
             relevant
             ,
             for
             all
             years
             preceeding
             the
             intenting
             of
             this
             Cause
             .
          
        
         
           
             Thomas
             Rew
             contra
             Viscount
             of
             Stormont
             .
             Iuly
             22.
             1665.
             
          
           
             
               THomas
               Rew
            
             pursues
             a
             Reduction
             of
             a
             Decreet
             obtained
             by
             the
             Viscount
             of
             Stormont
             ,
             who
             alleadged
             no
             Process
             ,
             because
             the
             Citation
             was
             not
             within
             year
             and
             day
             of
             the
             Summons
             ,
             the
             warrant
             thereof
             ,
             which
             bears
             ,
             to
             cite
             the
             Defenders
             to
             compear
             the
             day
             of
             next
             to
             come
             .
          
           
             The
             Lords
             found
             the
             Defense
             relevant
             .
          
        
         
           
             Johnstoun
             contra
             Tennents
             of
             Achincorse
             .
             Eodem
             die
             .
          
           
             JOhnstoun
             having
             Appryzed
             the
             Lands
             of
             Achincorse
             ,
             and
             charged
             the
             Lord
             Dumfries
             his
             Superiour
             ,
             to
             receive
             him
             ,
             pursues
             the
             Tennents
             thereof
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             the
             Lord
             Dumfries
             ,
             Superiour
             ,
             who
             alleadged
             no
             Process
             ,
             till
             a
             years
             Rent
             were
             payed
             to
             him
             ,
             as
             Superiour
             .
             2ly
             ,
             It
             is
             offered
             to
             be
             proven
             that
             Achincorse
             the
             Vassal
             was
             in
             nonentrie
             ,
             or
             the
             Liferent
             Escheat
             fallen
             by
             his
             Rebellion
             ,
             and
             therefore
             the
             Superiour
             ought
             to
             be
             preferred
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             seing
             it
             was
             the
             Superiours
             fault
             ,
             he
             received
             not
             him
             upon
             the
             charge
             ,
             albeit
             he
             offered
             to
             receive
             him
             now
             ,
             he
             could
             not
             have
             a
             years
             Rent
             ,
             till
             the
             Pursuer
             insisted
             to
             be
             infeft
             .
             To
             the
             second
             ,
             the
             Defense
             ought
             to
             be
             
             Repelled
             ,
             seing
             there
             was
             no
             Declarator
             intentit
             .
             The
             Defender
             answered
             ,
             that
             seing
             he
             was
             to
             change
             his
             Vassal
             ,
             and
             the
             Appryzer
             sought
             possession
             ,
             before
             he
             had
             access
             ,
             he
             behoved
             to
             pay
             the
             years
             Rent
             ,
             seing
             by
             the
             Appryzing
             ,
             and
             the
             charge
             ,
             the
             Superiour
             will
             be
             excluded
             from
             his
             Casualities
             :
             To
             the
             second
             ,
             the
             Superiour
             being
             acknowledged
             by
             the
             charge
             he
             might
             crave
             the
             Casualities
             of
             the
             Superiority
             ,
             by
             way
             of
             competition
             ,
             and
             offered
             to
             produce
             the
             Horning
             ,
             
               cum
               processu
            
             .
          
           
             The
             Lords
             sustained
             the
             first
             Defense
             ,
             but
             not
             the
             second
             ,
             seing
             there
             was
             no
             Horning
             produced
             ,
             nor
             Declarator
             intentit
             .
          
        
         
           
             Janet
             Brotherstones
             contra
             Ogil
             and
             Orrocks
             .
             Iuly
             26.
             1665.
             
          
           
             
               JAnet
               Brotherstones
            
             ,
             by
             her
             Contract
             of
             Marriage
             ,
             declaring
             ,
             that
             she
             had
             in
             Money
             ,
             Bonds
             and
             Goods
             4000
             merks
             ,
             is
             provided
             to
             all
             the
             conquest
             ,
             and
             to
             the
             Liferent
             of
             the
             whole
             Means
             and
             Moveables
             ,
             she
             pursues
             her
             Husbands
             Heirs
             ,
             for
             implement
             ,
             who
             alleadged
             absolvitor
             ,
             because
             she
             has
             not
             fulfilled
             her
             part
             of
             the
             Contract
             and
             instructs
             not
             that
             she
             delivered
             to
             her
             Husband
             4000.
             merks
             in
             worth
             or
             wair
             .
             It
             was
             answered
             ,
             it
             must
             be
             presumed
             ,
             that
             she
             has
             done
             it
             after
             so
             long
             time
             ,
             seing
             all
             she
             had
             came
             in
             the
             Possession
             of
             her
             Husband
             .
          
           
             The
             Lords
             found
             the
             presumption
             not
             sufficient
             ,
             but
             before
             answer
             ,
             ordained
             the
             pursuer
             to
             condescend
             by
             Witnesses
             ,
             or
             otherwise
             ,
             how
             she
             would
             prove
             ,
             that
             she
             had
             that
             means
             the
             time
             of
             the
             Marriage
             ,
             and
             ordained
             these
             to
             be
             examined
             
               ex
               officio
            
             .
          
        
         
           
             Thomas
             Kennedie
             of
             Kirkhill
             contra
             Agnew
             of
             Lochnaw
             .
             Iuly
             27.
             1665.
             
          
           
             KEnnedie
             of
             Kirkhill
             ,
             as
             Assigney
             by
             
               Thomas
               Hay
            
             of
             Park
             ,
             to
             a
             Bond
             of
             1000
             lib.
             granted
             by
             
               Andrew
               Agnew
            
             younger
             of
             Lochnaw
             ,
             charges
             him
             thereupon
             ,
             who
             Suspends
             ,
             and
             raises
             Reduction
             on
             this
             Reason
             ,
             that
             the
             Bond
             was
             granted
             at
             the
             time
             of
             his
             Contract
             of
             Marriage
             ,
             clandestinelie
             ,
             without
             the
             knowledge
             of
             his
             Father
             ,
             who
             was
             Contracter
             ,
             
               contra
               pacta
               dotalia
               ,
               &
               contra
               bonos
               more
               's
               .
            
             The
             Defender
             answered
             ,
             that
             he
             having
             given
             a
             very
             great
             Tochar
             ,
             
               viz.
               10000.
               lib.
            
             above
             his
             Estate
             ,
             which
             is
             all
             payed
             to
             his
             Good
             Sons
             Father
             ,
             he
             did
             declare
             ,
             that
             he
             was
             not
             able
             to
             give
             so
             much
             ,
             and
             thereupon
             he
             got
             this
             Bond
             ,
             not
             to
             have
             Execution
             ,
             till
             after
             his
             death
             ,
             which
             he
             might
             lawfully
             do
             ,
             having
             given
             a
             Tochar
             suitable
             to
             the
             condition
             of
             the
             Receiver
             ,
             and
             above
             the
             condition
             of
             the
             Giver
             .
          
           
             The
             Lords
             repelled
             the
             Reason
             ,
             in
             respect
             of
             the
             Answer
             .
          
           
             This
             was
             thereafter
             stopt
             to
             be
             further
             heard
             .
          
        
         
           
           
             Lilias
             Hamiltoun
             contra
             Her
             Tennents
             .
             Eodem
             die
             .
          
           
             
               LIlias
               Hamiltoun
            
             being
             Infeft
             by
             her
             Husband
             ,
             in
             Liferent
             ,
             pursues
             her
             Tennents
             ;
             compearance
             is
             made
             for
             their
             present
             Master
             ,
             who
             alleadged
             ,
             that
             her
             Husbands
             Right
             was
             only
             a
             Wodset
             granted
             by
             him
             ;
             and
             that
             he
             had
             used
             an
             Order
             ,
             and
             had
             Redeemed
             the
             Wodset
             ,
             and
             payed
             the
             money
             to
             the
             Pursuers
             Husband
             :
             and
             neither
             knew
             ,
             nor
             was
             oblidged
             to
             know
             the
             Pursuers
             base
             Infeftment
             from
             her
             Husband
             ,
             the
             Wodsetter
             ,
             which
             had
             never
             any
             other
             Possession
             ,
             but
             the
             Husbands
             .
             It
             was
             answered
             ,
             that
             the
             Pursuers
             Seasine
             being
             Registrate
             ,
             he
             was
             oblidged
             to
             know
             the
             same
             ,
             as
             well
             as
             if
             it
             had
             been
             an
             Inhibition
             ,
             especially
             ,
             seing
             there
             was
             no
             Process
             of
             Declarator
             ,
             in
             which
             case
             ,
             all
             Parties
             having
             intress
             ,
             should
             have
             been
             called
             at
             the
             Mercat
             Cross
             ,
             but
             a
             voluntar
             Redemption
             ;
             albeit
             upon
             an
             Order
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             notwithstanding
             of
             the
             Reply
             .
          
        
         
           
             Adam
             Rae
             contra
             Heretors
             of
             Clackmannan
             .
             Eodem
             die
             .
          
           
             UMquhile
             Colonel
             Rae
             ,
             having
             advanced
             Victual
             to
             the
             Armie
             ,
             at
             Leith
             in
             Anno
             1650.
             
             And
             gotten
             an
             Assignation
             to
             the
             Maintenance
             of
             August
             and
             September
             ,
             from
             Sir
             
               Iohn
               Smith
            
             ,
             then
             General
             Commissar
             ,
             in
             satisfaction
             thereof
             ,
             pursues
             the
             Heretors
             of
             Clackmannan
             ,
             for
             their
             proportions
             who
             alleadged
             ,
             that
             by
             their
             quartering
             of
             the
             Kings
             Armie
             ,
             their
             whole
             Rents
             Anno
             1650.
             was
             exhausted
             .
             It
             was
             answered
             ,
             that
             it
             was
             not
             our
             that
             the
             exhausting
             ,
             was
             after
             the
             Battel
             of
             Dumbar
             ,
             which
             was
             upon
             the
             third
             of
             September
             ,
             1650.
             
             And
             so
             could
             not
             extend
             to
             the
             maintenance
             of
             August
             and
             September
             ,
             which
             was
             Assigned
             before
             ,
             for
             so
             onerous
             a
             cause
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             .
          
        
         
           
             Captain
             Muire
             contra
             Frazer
             .
             Iuly
             27.
             1665.
             
          
           
             CAptain
             Muir
             ,
             having
             obtained
             Decreet
             against
             the
             Heir
             of
             Colonel
             
               Hugh
               Frazer
            
             for
             1000
             merks
             ,
             before
             the
             Commissioners
             ,
             in
             Anno
             1658.
             
             Charges
             thereupon
             .
             They
             Suspend
             ,
             and
             raise
             Reduction
             ,
             on
             this
             Reason
             ;
             that
             the
             Decreet
             was
             null
             without
             probation
             ,
             proceeding
             only
             upon
             a
             Copy
             ,
             of
             an
             obligation
             alleadged
             taken
             out
             of
             the
             Register
             ,
             by
             one
             
               William
               Baily
            
             ,
             who
             keeped
             the
             same
             at
             London
             ,
             which
             could
             not
             prove
             ,
             not
             being
             under
             the
             hand
             of
             the
             Clerk
             Register
             ,
             or
             his
             Deputes
             ,
             which
             being
             proponed
             in
             the
             Decreet
             ,
             was
             unjustly
             repelled
             .
             The
             Pursuer
             answered
             ,
             First
             ,
             There
             was
             no
             review
             raised
             within
             a
             year
             ,
             conform
             to
             the
             Act
             of
             Parliament
             ,
             and
             so
             the
             Decreet
             was
             not
             quarrellable
             upon
             iniquity
             ,
             2ly
             .
             Bailies
             Oath
             was
             taken
             by
             Commission
             ,
             that
             the
             Extract
             was
             subscribed
             by
             him
             .
             3ly
             .
             The
             Defender
             proponed
             a
             Defense
             of
             payment
             ,
             and
             so
             acknowledged
             the
             Debt
             
             Debt
             .
             It
             was
             answered
             ,
             that
             the
             Suspenders
             were
             ,
             and
             are
             minors
             ;
             and
             in
             the
             Act
             of
             Parliament
             ,
             there
             is
             an
             exception
             of
             Minors
             ,
             that
             they
             may
             Reduce
             these
             Decreets
             within
             a
             year
             after
             their
             Majority
             .
             2ly
             .
             They
             ought
             to
             be
             reponed
             against
             their
             proponing
             of
             payment
             ,
             being
             Minors
             ,
             and
             as
             to
             Bailies
             Oath
             ,
             neither
             his
             Subscription
             ,
             nor
             Oath
             can
             make
             a
             probative
             Extract
             ;
             unless
             the
             new
             Extract
             were
             now
             produced
             ;
             seing
             the
             Registers
             are
             returned
             .
             The
             Chargers
             answered
             ,
             that
             if
             the
             Suspender
             would
             alleadge
             ,
             that
             any
             Book
             of
             the
             Register
             containing
             ,
             Writs
             Registrat
             about
             the
             time
             of
             this
             Extract
             ,
             were
             extant
             ,
             and
             returned
             relevat
             :
             but
             it
             is
             known
             ,
             that
             several
             of
             the
             Books
             are
             lost
             ,
             and
             this
             amongst
             the
             rest
             .
          
           
             The
             Lords
             would
             not
             sustain
             the
             Decreet
             upon
             Bailies
             extract
             ,
             simplie
             neither
             did
             they
             put
             the
             Charger
             to
             the
             proving
             of
             a
             tenor
             ,
             but
             allowed
             the
             charger
             to
             condescend
             upon
             the
             way
             of
             his
             Instruction
             ,
             that
             such
             a
             Bond
             was
             truly
             subscribed
             by
             the
             Witnesses
             ,
             insent
             ,
             or
             otherwayes
             ,
             and
             ordained
             the
             Witnesses
             to
             be
             examined
             .
          
        
         
           
             Adam
             Rae
             contra
             Heritors
             of
             Clackmannan
             .
             Iuly
             28.
             1665.
             
          
           
             IN
             the
             Cause
             of
             
               Adam
               Rae
            
             mentioned
             yesterday
             ,
             some
             of
             the
             Heretors
             alleadged
             absolvitor
             ;
             because
             they
             were
             singular
             Successors
             ,
             and
             by
             the
             Act
             of
             Parliament
             ,
             for
             the
             Old
             Maintenance
             ,
             Singular
             Successors
             were
             excepted
             .
          
           
             The
             Lords
             repelled
             this
             alleadgeance
             ,
             and
             found
             ,
             that
             exception
             only
             to
             be
             extended
             to
             the
             maintenance
             contained
             in
             that
             Act.
             
          
        
         
           
             Bessie
             Scot
             contra
             Somervail
             .
             Eodem
             die
             .
          
           
             
               BEssie
               Scot
            
             having
             charged
             Somervail
             ,
             who
             was
             Cautioner
             in
             an
             Suspension
             ,
             for
             payment
             of
             an
             Sum
             of
             Money
             contained
             in
             a
             Bond
             Suspended
             .
             He
             Suspends
             on
             this
             Reason
             ;
             That
             the
             Money
             was
             consigned
             in
             the
             hands
             of
             Mr.
             
               George
               Gibson
            
             ,
             Clerk
             to
             the
             Bills
             ,
             for
             the
             time
             .
             It
             was
             answered
             ,
             that
             Mr.
             
               George
               Gibson
            
             was
             now
             out
             of
             Office
             ,
             and
             insolvent
             ,
             and
             the
             Consignation
             behoved
             to
             be
             upon
             the
             peril
             of
             the
             Consigner
             .
             It
             was
             answered
             ,
             that
             the
             the
             Consignation
             must
             be
             upon
             the
             peril
             of
             that
             Partie
             ,
             who
             was
             the
             cause
             of
             Consignation
             ,
             and
             that
             was
             the
             Charger
             ;
             in
             so
             far
             as
             it
             was
             instructed
             by
             an
             Instrument
             produced
             ,
             that
             the
             Suspender
             offered
             the
             Annualrent
             ,
             and
             so
             much
             of
             the
             Penaltie
             as
             the
             Charger
             would
             have
             Declared
             upon
             her
             Oath
             ,
             that
             she
             had
             truely
             payed
             ,
             which
             she
             refused
             ,
             unless
             the
             whole
             Penaltie
             were
             payed
             ,
             whereupon
             he
             consigned
             ,
             through
             her
             Fault
             .
          
           
             The
             Lords
             sustained
             the
             Reason
             ,
             and
             ordained
             the
             Noltar
             ,
             and
             Witnesses
             to
             depon
             upon
             the
             Truth
             of
             the
             Instrument
             ,
             for
             Instructing
             thereof
             .
          
        
         
           
           
             Dowglas
             contra
             Cowan
             and
             Russel
             .
             Iuly
             29.
             1665.
             
          
           
             
               PEter
               Russel
            
             ,
             by
             his
             Ticket
             ,
             acknowledged
             him
             to
             have
             received
             a
             certain
             Quantity
             of
             Wine
             ,
             and
             oblidged
             him
             to
             make
             payment
             thereof
             ,
             according
             to
             the
             Condition
             agreed
             upon
             ,
             Dowglas
             being
             Assigned
             to
             the
             Ticket
             ,
             insists
             for
             the
             ordinary
             Price
             of
             Wine
             .
             It
             was
             alleadged
             no
             Process
             ,
             for
             the
             ordinar
             price
             of
             Wine
             ,
             but
             only
             for
             the
             price
             agreed
             on
             ,
             which
             behoved
             to
             be
             condescended
             on
             ,
             and
             proven
             by
             the
             Debitors
             Oath
             ,
             being
             above
             an
             hundred
             pounds
             .
             It
             was
             answered
             ,
             that
             ,
             seing
             these
             Conditions
             were
             not
             adjected
             ;
             the
             ordinary
             price
             was
             to
             be
             understood
             ,
             unless
             it
             were
             proven
             by
             the
             Debitor
             ,
             what
             they
             were
             ,
             &c.
             that
             they
             differred
             from
             the
             common
             Price
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Debitor
             ,
             by
             his
             Ticket
             ,
             behoved
             to
             condescend
             on
             the
             Conditions
             ,
             
               qui
               potuit
               legem
               apertius
               dicere
            
             ,
             and
             not
             the
             Pursuer
             ;
             but
             they
             found
             Witnesses
             might
             prove
             the
             condition
             .
          
        
         
           
             Heretors
             of
             Don
             contra
             Town
             of
             Aberdeen
             .
             Eodem
             die
             .
          
           
             THis
             day
             Report
             being
             made
             ,
             concerning
             the
             Cruives
             of
             Don.
             The
             Lords
             found
             ,
             that
             there
             was
             no
             necessity
             to
             keep
             alwayes
             open
             a
             mid-stream
             ,
             notwithstanding
             ,
             the
             several
             Acts
             of
             Parliament
             made
             thereanent
             ;
             which
             upon
             enquiry
             through
             the
             Kingdom
             ,
             they
             found
             to
             be
             in
             desuetude
             ,
             and
             especially
             in
             these
             Cruives
             ,
             to
             be
             made
             past
             memory
             ,
             with
             Saturndayes
             stop
             only
             ,
             and
             ordained
             the
             distance
             of
             the
             Hecks
             to
             be
             three
             Inch
             Scots
             measure
             ,
             whereof
             27.
             make
             an
             Elle
             ,
             
               vide
               supra
            
             .
          
        
         
           
             Lady
             Knapeirn
             contra
             Sir
             Robert
             Farquhuar
             November
             9.
             1665.
             
          
           
             
               SIr
               Robert
               Farquhar
            
             ,
             being
             Infeft
             in
             certain
             Lands
             ,
             by
             the
             Laird
             of
             Knapeirn
             ,
             with
             his
             Ladies
             consent
             ,
             pursues
             the
             Tennents
             ,
             and
             obtains
             Decreet
             for
             Mails
             and
             Duties
             .
             The
             Lady
             pursues
             Reduction
             ,
             on
             these
             Reasons
             ,
             that
             she
             stood
             Infeft
             ,
             and
             in
             possession
             eleven
             years
             after
             her
             Husbands
             death
             ,
             
               bona
               fide
            
             ,
             without
             any
             persuit
             ;
             and
             so
             being
             
               in
               judicio
               possessorio
            
             ,
             she
             was
             
               tuta
               re●●ptione
            
             .
             It
             was
             answered
             ,
             that
             the
             benefit
             of
             a
             possessorie
             Judgement
             was
             never
             granted
             to
             any
             partie
             ,
             in
             prejudice
             of
             these
             to
             whom
             that
             Party
             had
             Disponed
             ,
             or
             consented
             to
             a
             Disposition
             ,
             which
             includes
             an
             Obligation
             to
             possesse
             them
             ;
             nor
             can
             they
             be
             
               in
               bona
               fide
            
             contrair
             their
             own
             consent
             ,
             and
             deed
             ,
             to
             possesse
             .
          
           
             
               The
               Lords
               repelled
               the
               Defense
               ,
               in
               respect
               of
               the
               Reply
               .
            
             It
             was
             further
             alleadged
             ,
             that
             Sir
             Robert
             ,
             by
             a
             Declarator
             produced
             ,
             had
             acknowledged
             nothing
             of
             that
             Wodset
             due
             ,
             but
             what
             was
             contained
             in
             a
             fitted
             accompt
             written
             by
             him
             ,
             and
             subscribed
             by
             both
             Parties
             ,
             which
             did
             innovat
             the
             Wodset
             ,
             
             and
             Sir
             Robert
             could
             have
             no
             Right
             thereby
             ,
             but
             by
             this
             Compt
             ,
             which
             only
             could
             touch
             the
             Husband
             .
             Secondly
             ,
             Albeit
             the
             Wodset
             did
             stand
             ,
             in
             so
             far
             as
             the
             Compt
             extends
             ,
             yet
             Sir
             Robert
             ought
             to
             have
             no
             benefit
             by
             the
             Wodset
             ,
             till
             he
             produce
             the
             Accompt
             .
             It
             was
             answered
             ,
             that
             the
             Accompt
             was
             never
             in
             his
             custodie
             ,
             but
             given
             to
             Knaperin
             ,
             in
             whose
             favours
             it
             was
             introduced
             ;
             and
             seing
             it
             was
             clear
             ,
             that
             his
             Wodset
             was
             not
             extinct
             ,
             but
             restricted
             ,
             the
             Pursuer
             behoved
             to
             condescend
             
               in
               quantum
            
             ,
             and
             to
             prove
             it
             ,
             
               alliganti
               incumbit
               probatio
            
             .
          
           
             The
             Lords
             ordained
             ,
             and
             appointed
             Sir
             Roberts
             Oath
             to
             be
             taken
             ,
             before
             answer
             on
             his
             having
             the
             compt
             ,
             and
             yet
             they
             sound
             ,
             that
             he
             ought
             to
             produce
             〈◊〉
             ,
             but
             the
             Interlocutor
             was
             stopt
             the
             next
             day
             .
          
        
         
           
             Teilzifeir
             contra
             Geddes
             .
             November
             11.
             1665.
             
          
           
             
               MArion
               Geddes
            
             ,
             having
             granted
             to
             
               Samuel
               Veatch
            
             ,
             a
             blank
             Bond
             of
             2000.
             merks
             ,
             Tailzifer
             being
             Creditor
             to
             
               Samuel
               Veatch
            
             ;
             Arrests
             all
             Sums
             in
             her
             hand
             ,
             owing
             to
             Samuel
             :
             she
             depones
             ,
             that
             she
             was
             no
             wayes
             Debitor
             to
             Samuel
             ,
             but
             by
             a
             Bond
             given
             Blank
             ,
             in
             the
             Creditors
             name
             ,
             and
             that
             she
             knew
             not
             whose
             name
             is
             filled
             up
             therein
             :
             compearance
             is
             made
             for
             whose
             name
             is
             filled
             up
             in
             the
             Bond
             ,
             and
             he
             alleadges
             ,
             he
             ought
             to
             be
             preferred
             to
             the
             Arrester
             ,
             because
             he
             offers
             him
             to
             prove
             his
             name
             was
             filled
             up
             in
             the
             Bond
             ,
             and
             that
             before
             the
             Arrestment
             ,
             the
             Bond
             was
             Registrate
             in
             his
             name
             ,
             and
             that
             before
             the
             said
             Marion
             deponed
             ,
             he
             had
             used
             Inhibition
             thereupon
             ,
             which
             she
             could
             not
             but
             have
             known
             .
             It
             was
             answered
             ,
             for
             the
             Arrester
             ,
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             ,
             albeit
             the
             Bond
             was
             blank
             
               ab
               initio
            
             ,
             yet
             in
             
               rei
               veritate
               Samuel
               Veatch
            
             was
             Creditor
             ,
             and
             so
             he
             behoved
             to
             be
             Legaily
             denuded
             ,
             which
             could
             not
             be
             done
             by
             filling
             up
             any
             other
             persons
             name
             ,
             without
             intimation
             thereof
             ,
             made
             to
             the
             Debitor
             ;
             for
             seing
             a
             Direct
             Assignation
             was
             not
             valid
             ,
             without
             an
             Intimation
             ,
             much
             less
             should
             this
             indirect
             way
             by
             the
             Creditors
             filling
             up
             another
             name
             than
             his
             own
             in
             the
             Blank
             ;
             which
             is
             in
             effect
             an
             Assignation
             :
             And
             seing
             the
             Lords
             have
             already
             found
             ,
             that
             the
             Debitor
             acknowledging
             ,
             that
             he
             gave
             a
             blank
             Bond
             to
             any
             person
             ,
             and
             knows
             not
             whose
             name
             is
             filled
             up
             in
             it
             ,
             is
             lyable
             to
             any
             Arrester
             ,
             albeit
             he
             be
             under
             hazard
             to
             pay
             again
             to
             that
             person
             who
             has
             his
             Bord
             :
             in
             justice
             it
             followeth
             ,
             that
             such
             Bonds
             must
             be
             intimat
             ,
             otherwayes
             it
             will
             unavoidably
             infer
             double
             payment
             .
             It
             was
             answered
             ,
             that
             the
             Law
             requires
             Intimation
             to
             Assignation
             as
             a
             necessary
             Solemnity
             ,
             but
             has
             not
             required
             the
             same
             to
             the
             filling
             up
             of
             a
             Blank-bond
             ,
             the
             case
             whereof
             is
             not
             alike
             with
             an
             Assignation
             ,
             because
             ,
             where
             the
             Bond
             is
             blank
             ,
             the
             Debitor
             cannot
             pay
             any
             thing
             
               bona
               fide
            
             ,
             safely
             till
             he
             see
             the
             Bond
             filled
             up
             ;
             but
             where
             he
             knows
             the
             name
             filled
             up
             ,
             he
             may
             pay
             
               bona
               fide
            
             to
             the
             Cedent
             ,
             not
             knowing
             of
             the
             Assignation
             .
             It
             was
             answered
             ,
             that
             the
             Law
             did
             require
             to
             all
             Assignations
             ,
             Intimation
             ,
             but
             the
             Case
             of
             Blank-bonds
             was
             but
             a
             late
             invention
             ,
             to
             defraud
             Creditors
             ,
             that
             it
             might
             not
             be
             known
             who
             was
             Creditor
             :
             but
             seing
             it
             is
             truly
             an
             Assignation
             it
             deserves
             no
             favour
             more
             than
             a
             Direct
             Assignation
             ;
             and
             so
             should
             have
             as
             much
             Solemnity
             .
          
           
           
             The
             Lords
             preferred
             the
             Arrester
             ,
             but
             because
             the
             Case
             was
             a
             leading
             Case
             ,
             and
             new
             ,
             after
             a
             second
             Interl●cutor
             adhering
             ,
             they
             allowed
             the
             Advocats
             to
             offer
             by
             B●ll
             any
             new
             Reasons
             ,
             and
             particularly
             ,
             if
             it
             could
             be
             alleadged
             ,
             that
             the
             Debitor
             granter
             of
             the
             Blank-bond
             ,
             had
             before
             the
             Arrestment
             ,
             seen
             the
             Blank-bond
             filled
             up
             ,
             and
             so
             had
             deponed
             ,
             or
             could
             depone
             ,
             that
             the
             time
             of
             the
             Arrestment
             the
             Debitor
             saw
             himself
             to
             be
             Debitor
             to
             another
             person
             ,
             filled
             up
             in
             the
             Blank
             ,
             than
             he
             for
             whose
             Debt
             it
             was
             Arrested
             ,
             for
             in
             that
             Case
             ,
             as
             the
             first
             Creditor
             that
             got
             the
             Blank-bond
             might
             have
             caused
             his
             Debitor
             retire
             that
             Bond
             ,
             and
             give
             a
             new
             one
             ,
             before
             any
             Arrestment
             ,
             so
             the
             showing
             of
             the
             filling
             up
             of
             the
             Blank
             was
             equivalent
             ,
             especially
             ,
             if
             the
             Debt
             could
             be
             proven
             no
             otherwayes
             but
             by
             the
             De●●tors
             Oath
             .
          
           
             This
             Case
             was
             not
             debated
             ,
             nor
             was
             the
             hazard
             considered
             ,
             that
             the
             Debitors
             Oath
             might
             prefer
             one
             Partie
             to
             another
             ;
             nor
             was
             the
             case
             alike
             to
             a
             renewed
             Bond
             :
             because
             a
             renewed
             Bond
             would
             bear
             a
             new
             date
             ,
             and
             different
             Witnesses
             ,
             that
             saw
             the
             new
             Creditors
             name
             filled
             up
             ,
             and
             would
             not
             depend
             upon
             the
             single
             Testimony
             of
             the
             Debitor
             .
          
        
         
           
             Barbara
             Skeen
             ,
             and
             Mr.
             David
             Thors
             contra
             Sir
             Andrew
             Ramsay
             .
             November
             14.
             1665.
             
          
           
             
               BArbara
               Skeen
            
             being
             provided
             by
             her
             Contract
             of
             Marriage
             with
             Umquhile
             
               David
               Ramsay
            
             ,
             to
             18
             Chalders
             of
             Victual
             ,
             or
             1800
             merks
             ,
             her
             Husband
             having
             acquired
             the
             Lands
             of
             
               Grange
               Muire
            
             ,
             worth
             10
             Chalders
             of
             Victnal
             ;
             she
             pursues
             Sir
             
               Andrew
               Ramsay
            
             ,
             as
             Heir
             to
             his
             Brother
             ,
             to
             make
             her
             up
             the
             superplus
             .
             The
             Defender
             alleadged
             absolvitor
             ;
             because
             he
             offered
             him
             to
             prove
             ,
             that
             the
             said
             Barbara
             stood
             Infeft
             in
             the
             Lands
             of
             
               Grange
               Muire
            
             ,
             upon
             a
             Bond
             granted
             by
             her
             Husband
             ,
             which
             Bond
             bears
             :
             In
             full
             satisfaction
             of
             the
             Contract
             of
             Marriage
             ,
             by
             Vertue
             of
             which
             Infeftment
             ,
             she
             having
             no
             other
             Right
             ,
             she
             had
             possest
             five
             or
             six
             years
             after
             her
             Husbands
             death
             ,
             and
             thereby
             had
             accepted
             that
             Right
             ,
             and
             had
             Homologat
             the
             same
             .
             It
             was
             replyed
             ,
             that
             the
             Bond
             being
             a
             Deed
             of
             the
             Husbands
             a
             Clause
             foisted
             thereinto
             ,
             so
             far
             to
             the
             detrement
             of
             his
             Wife
             ,
             and
             the
             Infeftment
             not
             being
             taken
             by
             her
             ,
             but
             by
             an
             Acturney
             ,
             her
             possession
             cannot
             import
             Homologation
             thereof
             ,
             because
             Homologation
             being
             a
             Ta●ite
             ,
             consent
             is
             not
             inferred
             ,
             but
             where
             the
             Homologator
             cannot
             but
             know
             the
             Right
             Homologat
             ,
             and
             can
             do
             the
             Deeds
             of
             Homologation
             no
             otherwayes
             ,
             but
             by
             vertue
             of
             that
             Right
             ,
             neither
             of
             which
             holds
             here
             ,
             because
             the
             personal
             oblidgement
             in
             the
             Contract
             ,
             was
             a
             ground
             for
             the
             Wife
             to
             have
             continued
             her
             Husbands
             possession
             ,
             and
             would
             have
             excluded
             his
             Heirs
             ,
             if
             they
             had
             quarrelled
             ;
             and
             not
             only
             the
             Clause
             must
             be
             presumed
             to
             be
             without
             the
             Womans
             knowledge
             ,
             but
             the
             Bond
             it self
             ,
             and
             the
             Infeftment
             especially
             ,
             considering
             the
             simplicity
             of
             Wives
             ,
             and
             their
             confidence
             in
             their
             Husbands
             ,
             who
             ,
             if
             this
             were
             sustained
             ,
             would
             easily
             deceive
             them
             .
             It
             was
             duplyed
             for
             the
             Defender
             ,
             that
             he
             offers
             him
             to
             prove
             ,
             that
             the
             Pursuer
             did
             not
             continue
             her
             husbands
             possession
             ,
             but
             did
             begin
             Possession
             ,
             her
             Husband
             being
             never
             in
             possession
             before
             his
             death
             ,
             and
             that
             she
             set
             two
             several
             Tacks
             ,
             expresly
             as
             Liferenter
             ,
             and
             the
             third
             ,
             with
             consent
             of
             Mr.
             
               David
               Thors
            
             her
             Husband
             being
             an
             Advocat
             ;
             and
             so
             she
             cannot
             be
             presumed
             to
             have
             been
             ignorant
             ,
             but
             on
             the
             
             contraire
             she
             must
             bepresumed
             to
             have
             known
             the
             Right
             ,
             and
             could
             never
             denominat
             her self
             Liferentrix
             ,
             by
             a
             personal
             oblidgement
             ,
             to
             Infeft
             her
             in
             so
             much
             Victual
             and
             Money
             ,
             without
             mentioning
             any
             Land
             in
             particular
             ,
             and
             her
             acceptance
             ,
             though
             to
             her
             detriment
             ,
             may
             be
             the
             more
             easily
             presumed
             ,
             because
             she
             had
             two
             Children
             surviving
             her
             Husband
             ,
             in
             whose
             favour
             the
             Restriction
             did
             accresce
             ,
             and
             her
             Husband
             did
             secure
             her
             in
             all
             that
             he
             had
             ,
             but
             now
             
               ex
               post
               facto
            
             ,
             the
             Children
             being
             dead
             ,
             she
             could
             not
             return
             upon
             Sir
             Andrew
             ,
             her
             Husbands
             Brother
             ,
             contrare
             to
             her
             Homologation
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             and
             Duply
             ;
             for
             they
             thought
             ,
             albeit
             ignorance
             might
             be
             presumed
             in
             a
             Wife
             ,
             
               de
               recente
               &
               intra
               annum
               luctus
               ,
            
             yet
             she
             having
             continued
             for
             so
             many
             years
             ,
             and
             doing
             so
             many
             deeds
             ,
             expresly
             as
             Liferenter
             ,
             and
             that
             the
             Bond
             was
             not
             clandistinely
             ,
             lying
             by
             her
             Husband
             ,
             but
             in
             a
             third
             Parties
             hand
             ,
             who
             had
             taken
             the
             Infeftment
             ,
             they
             thought
             ,
             in
             that
             case
             ,
             ignorance
             was
             not
             to
             be
             presumed
             ,
             but
             knowledge
             .
          
        
         
           
             Wat
             contra
             Russel
             .
             November
             16.
             1665.
             
          
           
             
               JEan
               Wat
            
             being
             provided
             by
             her
             Contract
             of
             Marriage
             to
             certain
             Lands
             ,
             and
             Infeft
             therein
             ;
             the
             Contract
             contains
             this
             Clause
             ,
             that
             she
             shall
             Aliment
             ,
             the
             Bairns
             of
             the
             Marriage
             ,
             after
             the
             Fathers
             death
             ,
             and
             in
             case
             she
             marrie
             again
             ,
             she
             shall
             restrict
             her self
             to
             six
             hundred
             merks
             ,
             and
             the
             superplus
             shal
             remain
             to
             the
             Bairns
             ,
             for
             their
             Aliment
             :
             hereupon
             she
             pursues
             
               Robert
               Russel
            
             ,
             and
             the
             other
             Tennents
             ,
             for
             the
             Mails
             and
             Duties
             of
             the
             hail
             Liferent
             Lands
             ,
             who
             alleadged
             .
             1.
             
             That
             she
             was
             restricted
             to
             six
             hundred
             merks
             ,
             and
             could
             crave
             no
             more
             ,
             especially
             now
             being
             married
             to
             a
             second
             Husband
             :
             compearance
             was
             also
             made
             ,
             for
             the
             only
             Child
             of
             the
             Marriage
             ,
             who
             claimed
             the
             benefit
             of
             the
             superplus
             ,
             by
             vertue
             of
             the
             Clause
             in
             the
             Contract
             .
             It
             was
             alleadged
             further
             for
             the
             Defenders
             ,
             that
             they
             were
             Creditors
             to
             the
             Husband
             ,
             before
             the
             Contract
             of
             Marriage
             :
             and
             in
             their
             Tacks
             ,
             had
             a
             Clause
             ,
             bearing
             ;
             
               That
               they
               should
               retain
               their
               Tack
               duties
               ,
               while
               they
               were
               payed
               :
            
             and
             upon
             their
             Bonds
             ,
             they
             had
             also
             Apprized
             from
             the
             Child
             ,
             as
             lawfully
             charged
             to
             enter
             Heir
             ,
             all
             Right
             he
             had
             to
             the
             Lands
             So
             that
             if
             the
             superplus
             belong
             to
             the
             Child
             
               proprio
               jure
            
             ,
             it
             now
             belonged
             to
             the
             Defenders
             ,
             as
             appryzers
             .
             They
             had
             also
             raised
             Reduction
             of
             the
             Clause
             of
             the
             Contract
             ,
             in
             favours
             of
             the
             Children
             ,
             as
             being
             granted
             by
             a
             Father
             in
             favours
             of
             his
             own
             Children
             ,
             after
             Contracting
             of
             their
             Debt
             ,
             and
             so
             was
             fraudulent
             ,
             and
             Reduceable
             ,
             by
             the
             Act
             of
             
               Parliament
               ,
               1621.
               
               Against
               Bankerupts
               .
            
             It
             was
             answered
             ,
             for
             the
             Child
             ,
             that
             as
             for
             the
             Appryzing
             ,
             and
             Decreet
             against
             him
             ,
             as
             charged
             to
             enter
             Heir
             ,
             he
             had
             Suspended
             ,
             and
             raised
             Reduction
             ,
             and
             craved
             to
             be
             reponed
             ;
             and
             produced
             a
             Renounciation
             ,
             offering
             to
             renounce
             all
             Right
             he
             could
             succeed
             to
             ,
             as
             Heir
             to
             his
             Father
             ,
             but
             prejudice
             of
             this
             Aliment
             ,
             which
             belonged
             to
             him
             
               proprio
               jure
            
             ,
             as
             a
             Restriction
             granted
             to
             him
             ,
             by
             his
             Mother
             ;
             and
             as
             to
             the
             Reason
             of
             Reduction
             ,
             upon
             the
             Act
             of
             Parliament
             .
             There
             was
             here
             neither
             Fault
             nor
             Fraud
             ,
             their
             being
             no
             Law
             to
             hinder
             a
             Husband
             to
             give
             his
             Wife
             what
             Joynture
             he
             pleased
             ;
             which
             was
             never
             compted
             in
             defraud
             of
             prior
             Creditors
             ,
             nor
             is
             their
             any
             Restriction
             ,
             or
             proportion
             thereof
             ,
             but
             as
             the
             Parties
             agree
             ,
             which
             is
             always
             sustained
             
               in
               favorem
               dotium
               &
               matrimonij
            
             ,
             and
             
             the
             Wife
             might
             take
             what
             Liferent
             the
             Husband
             was
             pleased
             to
             give
             her
             ,
             there
             was
             nothing
             to
             make
             her
             to
             restrict
             her self
             in
             favours
             of
             her
             Children
             ,
             for
             an
             aliment
             with
             restriction
             ,
             is
             no
             Deed
             of
             the
             Father
             ,
             but
             of
             the
             Mother
             .
             It
             was
             answered
             for
             the
             Defenders
             ,
             that
             the
             reason
             of
             Reduction
             stood
             relevant
             ,
             seing
             in
             this
             case
             there
             was
             manifest
             Fraud
             ,
             in
             so
             far
             as
             this
             Liferent
             was
             exorbitant
             ,
             and
             unproportionable
             to
             the
             Fathers
             Estate
             ,
             whose
             hail
             Lands
             being
             only
             worth
             1000.
             merks
             ,
             and
             having
             nothing
             but
             the
             Tocher
             ,
             which
             was
             6000.
             merks
             ,
             he
             Infefts
             his
             Wife
             in
             the
             hail
             ,
             and
             yet
             restricted
             her
             to
             600.
             merks
             ,
             and
             provided
             the
             rest
             to
             his
             Children
             ;
             and
             albeit
             it
             appears
             to
             flow
             from
             the
             Mother
             ,
             yet
             that
             is
             but
             dolose
             ,
             and
             in
             effect
             it
             flows
             from
             the
             Father
             .
             2.
             
             Seing
             the
             superplus
             was
             appointed
             to
             be
             an
             Aliment
             to
             the
             hail
             Children
             ,
             seing
             there
             is
             but
             one
             ,
             it
             ought
             to
             be
             modified
             ,
             and
             what
             remained
             above
             the
             600.
             merks
             ,
             and
             a
             competent
             Aliment
             ,
             to
             belong
             to
             the
             Creditors
             .
          
           
             The
             Lords
             found
             that
             the
             Childs
             Renunciation
             should
             repone
             him●
             and
             found
             that
             if
             the
             Provision
             had
             been
             Exorbitant
             ,
             it
             might
             have
             been
             counted
             as
             fraudulent
             ,
             but
             they
             found
             it
             not
             exorbitant
             ,
             seing
             the
             Land
             was
             offered
             to
             the
             Defenders
             for
             900.
             merks
             ,
             and
             there
             was
             200.
             merks
             thereof
             Liferented
             by
             another
             Woman
             ,
             so
             that
             there
             r●mained
             but
             100.
             merks
             for
             the
             Child
             ,
             and
             therefore
             Repelled
             the
             Defenses
             ,
             and
             Decerned
             .
          
        
         
           
             VVilliam
             Dickson
             contra
             Iohn
             Hoom.
             Eodem
             die
             .
          
           
             
               WIlliam
               Dickson
            
             having
             charged
             
               Iohn
               Hoom
            
             ,
             upon
             a
             Bond
             of
             37.
             
             Pounds
             Scots
             :
             He
             suspends
             ,
             and
             offers
             to
             improve
             the
             Bond
             as
             not
             subscribed
             by
             him
             ,
             but
             another
             
               Iohn
               Hoom.
            
             It
             was
             answered
             ,
             Improbation
             was
             not
             receivable
             ,
             but
             in
             a
             Reduction
             ,
             or
             where
             the
             original
             Writ
             was
             produced
             :
             But
             this
             Bond
             was
             Registrate
             in
             an
             Inferiour
             Court
             ,
             and
             the
             Charger
             was
             not
             oblieged
             to
             produce
             ,
             nor
             was
             the
             Clerk
             called
             .
          
           
             The
             Lords
             in
             respect
             the
             matter
             was
             of
             small
             importance
             ,
             admitted
             the
             Reason
             of
             Improbation
             ,
             the
             Suspender
             Consigning
             principal
             Sum
             and
             Annualrent
             ,
             and
             declared
             they
             would
             modifie
             a
             great
             Penalty
             ,
             in
             case
             he
             succumbed
             ,
             and
             ordained
             Letters
             to
             be
             direct
             against
             the
             Clerk
             of
             the
             inferiour
             Court
             ,
             to
             produce
             the
             principal
             .
          
        
         
           
             Howison
             contra
             Cockburn
             .
             November
             17.
             1665.
             
          
           
             THe
             Executors
             of
             
               David
               Howison
            
             pursue
             
               Iames
               Cockburn
            
             ,
             for
             the
             price
             of
             several
             ells
             of
             Cloath
             ,
             which
             the
             said
             Iames
             ,
             by
             his
             Ticket
             produced
             ,
             granted
             him
             to
             have
             received
             ,
             in
             name
             ,
             and
             for
             the
             use
             of
             the
             Laird
             of
             Langtoun
             ,
             his
             Master
             .
             It
             was
             alleadged
             absolvitor
             ,
             because
             by
             the
             Ticket
             ,
             the
             Defender
             is
             not
             oblieged
             to
             pay
             the
             Cloath
             ,
             and
             doth
             only
             act
             in
             name
             of
             his
             Master
             ,
             and
             therefore
             the
             Merchant
             ought
             to
             have
             called
             for
             the
             Accompt
             from
             his
             Master
             ,
             within
             three
             years
             ,
             which
             he
             has
             not
             done
             till
             many
             years
             ,
             long
             after
             his
             Masters
             death
             .
             It
             was
             replyed
             ,
             
             that
             the
             Ticket
             must
             obliege
             him
             ,
             at
             least
             ,
             
               docere
               demandato
            
             ,
             for
             his
             doing
             in
             name
             of
             his
             Master
             ,
             could
             not
             obliege
             his
             Master
             ,
             so
             that
             if
             he
             be
             not
             so
             oblieged
             ,
             the
             Merchant
             loses
             his
             Debt
             ,
             and
             no
             body
             is
             oblieged
             .
             It
             was
             answered
             ,
             that
             he
             who
             Acts
             with
             any
             Mandatar
             ,
             should
             know
             his
             Commission
             ,
             and
             if
             he
             does
             not
             know
             it
             ,
             it
             is
             upon
             his
             own
             hazard
             ;
             but
             if
             the
             Mandatar
             Act
             not
             in
             his
             own
             name
             but
             his
             Masters
             ,
             he
             does
             not
             obliege
             himself
             ;
             and
             if
             Servants
             who
             receive
             in
             their
             Masters
             name
             ,
             should
             be
             thus
             oblieged
             to
             shew
             their
             warrand
             ,
             it
             would
             be
             of
             very
             evil
             consequence
             ,
             seing
             their
             Receipt
             can
             be
             proven
             by
             Witnesses
             ,
             within
             three
             years
             ,
             and
             their
             Warrand
             would
             not
             be
             so
             probable
             .
          
           
             The
             Lords
             found
             that
             
               post
               tantum
               tempus
            
             ,
             the
             Defender
             was
             not
             oblieged
             to
             instruct
             his
             warrand
             ,
             but
             the
             same
             was
             presumed
             to
             have
             been
             known
             to
             the
             Merchant
             ,
             unless
             it
             be
             proven
             by
             the
             Defenders
             Oath
             ,
             that
             he
             acted
             without
             a
             warrand
             ,
             or
             that
             he
             did
             not
             apply
             the
             Cloath
             to
             his
             Masters
             use
             .
          
        
         
           
             Baxters
             in
             the
             Canongate
             November
             21.
             1665.
             
          
           
             THere
             being
             a
             Contract
             betwixt
             two
             Baxters
             in
             the
             Canongate
             ,
             to
             make
             use
             of
             an
             Oven
             ,
             still
             keeped
             hot
             for
             both
             their
             uses
             ,
             the
             one
             pursues
             the
             other
             ,
             as
             desisting
             ,
             and
             obtained
             Decreet
             before
             the
             Baillies
             of
             the
             Canongate
             for
             36.
             
             Pounds
             of
             Damnage
             ,
             which
             being
             Suspended
             .
             It
             was
             alleadged
             
               ipso
               jure
            
             null
             ,
             as
             having
             compearance
             ,
             mentioning
             Defenses
             ,
             Replys
             ,
             &c.
             
             And
             yet
             expressing
             none
             ,
             but
             refers
             the
             Defenders
             Action
             to
             the
             Pursuers
             Probation
             by
             Witnesses
             ,
             who
             now
             offered
             to
             prove
             positive
             ,
             that
             he
             continued
             in
             doing
             his
             part
             .
          
           
             The
             Lords
             would
             not
             sustain
             this
             visible
             Nullity
             ,
             without
             Reduction
             ,
             though
             in
             
               re
               minina
               ,
               inter
               pauperes
            
             ,
             for
             preserving
             of
             Form.
             
          
        
         
           
             Laurence
             Scot.
             contra
             David
             Boswel
             of
             Auchinleck
             .
             November
             22.
             1665.
             
          
           
             UMquhil
             
               David
               Boswel
            
             of
             Auchinleck
             ,
             being
             Debitor
             to
             
               Laurence
               Scot
            
             in
             1000.
             pounds
             by
             Bond
             :
             He
             pursues
             his
             Daughters
             ,
             as
             Heirs
             of
             line
             ,
             and
             
               David
               Boswel
            
             now
             of
             Auchinleck
             ,
             his
             Brothers
             Son
             ,
             as
             Heir-mail
             ,
             or
             at
             least
             lucrative
             Successor
             ,
             by
             accepting
             a
             Disposition
             of
             Lands
             from
             the
             Defunct
             ,
             which
             were
             provided
             to
             Heirs-mail
             ,
             and
             so
             being
             
               alioqui
               successurus
            
             .
             It
             was
             alleadged
             for
             the
             said
             David
             ,
             no
             Process
             against
             him
             ,
             till
             the
             Heirs
             of
             Line
             were
             first
             discu●●
             .
             It
             was
             Replyed
             ,
             and
             offered
             to
             be
             proven
             ,
             that
             he
             was
             oblieged
             to
             relieve
             the
             Heirs
             of
             Line
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
           
             It
             was
             further
             alleadged
             for
             the
             Defender
             ,
             that
             he
             could
             not
             be
             conveened
             as
             lucrative
             Successor
             ,
             by
             the
             foresaid
             Disposition
             ,
             because
             the
             time
             of
             the
             Disposition
             he
             was
             not
             
               alioqui
               successurus
            
             ,
             in
             respect
             that
             his
             Father
             was
             living
             .
             It
             was
             answered
             ,
             that
             albeit
             he
             was
             not
             immediat
             Successor
             ,
             yet
             being
             the
             mediat
             Successor
             ,
             the
             Disposition
             was
             
               precep●●o
               haereditatis
            
             ,
             and
             the
             Lords
             had
             already
             found
             ,
             that
             a
             Disposition
             to
             an
             Oye
             ,
             made
             him
             Lucrative
             
             Successor
             ,
             albeit
             his
             Father
             who
             was
             immediat
             appearand
             Heir
             was
             living
             .
          
           
             The
             Lords
             sustained
             not
             the
             Lylel
             upon
             that
             member
             ,
             for
             they
             found
             it
             was
             not
             alike
             ,
             to
             Dispone
             to
             a
             Brother
             ,
             as
             to
             a
             Son
             or
             a
             Brothers-son
             ,
             as
             to
             an
             Oye
             ,
             because
             a
             Brother
             is
             not
             appearand
             Heir
             ,
             nor
             
               alioqui
               successurus
            
             ,
             seing
             the
             Disponer
             ,
             has
             
               haeredes
               propinquiores
               in
               spe
            
             ;
             and
             therefore
             cannot
             be
             presumed
             to
             have
             Disponed
             to
             his
             Brother
             ,
             or
             Brother
             Son
             ,
             in
             fraud
             of
             his
             Creditors
             ,
             seing
             that
             by
             that
             Disposition
             ,
             he
             does
             also
             prejudge
             his
             own
             Son
             ,
             if
             he
             should
             have
             one
             ,
             and
             this
             〈◊〉
             prejudice
             to
             the
             Pursuer
             ,
             to
             Reduce
             the
             Disposition
             upon
             the
             Act
             of
             Parliament
             ,
             as
             accords
             .
          
        
         
           
             Mr.
             Iames
             Campbel
             contra
             Doctor
             Beaton
             .
             November
             23.
             1665.
             
          
           
             DOctor
             Beaton
             being
             Infeft
             in
             certain
             Lands
             ,
             Wodset
             by
             the
             Laird
             of
             Balgillo
             ,
             does
             thereafter
             by
             a
             minute
             ,
             take
             an
             absolute
             Disposition
             thereof
             ,
             for
             a
             price
             exprest
             in
             the
             Minute
             ,
             whereupon
             Mr.
             
               Iames
               Campbel
            
             arrests
             in
             Doctor
             Beatons
             hands
             ,
             all
             Sums
             due
             by
             him
             to
             Balgillo
             ,
             for
             payment
             of
             a
             Debt
             due
             by
             Magillo
             to
             Mr.
             Iames
             ,
             and
             likewise
             Iuhibits
             Bagillo
             ,
             after
             which
             there
             is
             a
             Tripartite
             Contract
             ,
             betwixt
             Bagillo
             on
             the
             first
             part
             ;
             the
             Doctor
             on
             the
             second
             ,
             and
             
               Iohn
               Smith
            
             who
             bought
             the
             Lands
             ;
             on
             the
             third
             ,
             the
             Doctor
             and
             Bagillo
             Dispone
             with
             mutual
             consent
             ,
             and
             the
             Doctor
             particularly
             assigns
             the
             Minute
             to
             
               Smith
               ,
               Bagil●o
            
             Renounces
             the
             Minute
             ,
             as
             to
             the
             price
             ;
             and
             Smith
             is
             oblieged
             to
             pay
             the
             Wodset
             to
             the
             Doctor
             ;
             the
             Debitor
             being
             before
             conveened
             ,
             for
             making
             arrested
             Goods
             forthcoming
             ,
             and
             having
             Deponed
             that
             he
             was
             owing
             no
             Sums
             to
             Bagillo
             ,
             the
             time
             of
             the
             arrestment
             ,
             but
             by
             the
             Minute
             ,
             which
             was
             an
             Inchoat
             Bargain
             ,
             never
             perfected
             ,
             but
             was
             past
             from
             thereafter
             ,
             and
             that
             he
             was
             not
             Disponer
             to
             Smith
             ,
             but
             only
             consenter
             ,
             whereupon
             he
             was
             assoilzied
             ;
             But
             Mr.
             
               Iames
               Campbel
            
             ,
             having
             now
             found
             the
             Tripartite
             Contract
             ,
             pursues
             the
             Doctor
             again
             thereupon
             ,
             
               &
               super
               dolo
            
             ,
             that
             by
             passing
             from
             the
             Bargain
             ,
             and
             yet
             assigning
             the
             Minute
             ,
             and
             not
             destroying
             it
             ,
             he
             had
             dolose
             evacuate
             Mr.
             Iames
             Inhibition
             and
             Arrestment
             ,
             seing
             Smith
             would
             defend
             himself
             against
             the
             Inhibition
             upon
             the
             Minute
             ,
             which
             was
             anterior
             to
             the
             Inhibition
             ,
             Disponing
             the
             Land.
             It
             was
             alleadged
             for
             the
             Doctor
             ,
             that
             he
             was
             
               tutus
               exceptione
               rei
               judicatae
            
             ,
             because
             he
             was
             already
             assoilzed
             ,
             having
             Deponed
             upon
             the
             Arrestment
             ,
             and
             the
             Pursuer
             could
             not
             make
             use
             of
             any
             Writ
             in
             that
             which
             he
             had
             referred
             to
             the
             Defenders
             Oath
             .
             2.
             
             Albeit
             the
             matter
             were
             intire
             ,
             there
             was
             nothing
             to
             enforce
             him
             to
             perfeit
             a
             minute
             of
             the
             sale
             of
             Lands
             ,
             but
             that
             he
             might
             pass
             from
             it
             before
             it
             was
             extended
             ,
             or
             might
             assign
             it
             to
             any
             other
             ,
             which
             could
             import
             no
             Fraud
             ,
             seing
             he
             was
             not
             oblieged
             to
             know
             ,
             or
             cannot
             be
             presumed
             ,
             that
             he
             knew
             the
             Inhibition
             ,
             used
             against
             Bagillo
             .
             The
             Pursuer
             answered
             ,
             that
             for
             the
             Defenders
             Oath
             ,
             he
             did
             not
             now
             insist
             upon
             it
             ,
             nor
             did
             the
             Writ
             produced
             contradict
             it
             ,
             for
             when
             a
             Party
             Depones
             upon
             the
             Tenor
             of
             a
             Writwhich
             is
             not
             his
             own
             Writ
             ,
             it
             can
             but
             be
             understood
             according
             to
             his
             memory
             ;
             but
             if
             thereafter
             by
             the
             Writ
             it self
             ,
             it
             do
             appear
             to
             be
             otherways
             ,
             it
             does
             not
             infer
             Perjury
             ,
             nor
             can
             it
             justly
             exclude
             the
             Pursuer
             ,
             to
             make
             use
             of
             that
             Writ
             .
          
           
           
             2ly
             .
             There
             is
             not
             only
             a
             different
             matter
             of
             Probation
             here
             ,
             but
             a
             different
             medium
             from
             the
             former
             Process
             ,
             
               viz.
               damnum
               &
               dolus
            
             ,
             at
             least
             
               lata
               culpa
               dolo
               aequiparata
            
             ,
             in
             so
             far
             as
             the
             Doctor
             did
             assign
             the
             Minute
             ,
             and
             exclude
             the
             Pursuers
             Inhibition
             ,
             which
             is
             the
             more
             clear
             ,
             that
             in
             the
             said
             Contract
             the
             Doctor
             secures
             himself
             by
             Bagilloes
             obliegement
             ,
             to
             warrand
             the
             Doctor
             from
             any
             hazard
             ,
             by
             assigning
             the
             Minute
             ,
             
               ubi
               nimia
               cautio
               arguit
               dolum
            
             ;
             neither
             can
             the
             Defender
             pretend
             ignorance
             ,
             not
             only
             by
             the
             Publication
             ,
             and
             Registration
             of
             the
             Inhibition
             ,
             but
             upon
             that
             very
             Inhibition
             ,
             the
             arrestment
             being
             execute
             against
             the
             Doctor
             .
          
           
             The
             Lords
             having
             Read
             and
             Considered
             the
             Triparti●e
             ●ontract
             ,
             they
             found
             that
             after
             the
             Arrestment
             was
             laid
             on
             ,
             the
             pri●e
             of
             the
             Land
             was
             affected
             ,
             and
             no
             Discharge
             nor
             Renunciation
             by
             the
             Debitor
             ,
             could
             take
             the
             price
             Arrested
             away
             from
             the
             Arrester
             ;
             and
             therefore
             found
             the
             Lybel
             Relevant
             ,
             and
             proven
             by
             the
             Tripartile
             Contract
             ,
             produced
             and
             decerned
             ,
             notwithstanding
             of
             the
             former
             Alsolvitor
             upon
             the
             Doctors
             Oath
             .
          
        
         
           
             Bishop
             of
             the
             Isles
             contra
             The
             Fishers
             of
             Greenock
             ,
             Novemb.
             24.
             1665.
             
          
           
             THe
             Bishop
             of
             the
             Isles
             ,
             as
             being
             presented
             by
             His
             Majesty
             to
             the
             Bishoprick
             of
             the
             Isles
             ,
             and
             whole
             Teinds
             ,
             Rents
             ,
             and
             Emoluments
             thereof
             ,
             and
             as
             thereby
             having
             Right
             to
             the
             great
             Teind
             of
             all
             Fish
             ,
             taken
             in
             ,
             and
             about
             the
             Isles
             of
             Scotland
             ;
             Pursues
             the
             Fishers
             of
             Greenock
             ,
             for
             the
             Teind
             of
             Cod
             and
             Ling
             ,
             taken
             by
             them
             ,
             about
             the
             Isles
             of
             
               Arran
               ,
               Bute
            
             and
             Ilsey
             ;
             but
             insists
             only
             for
             these
             taken
             between
             Arran
             and
             Ilsey
             ,
             or
             Boot
             ;
             and
             not
             between
             these
             and
             the
             Shore
             ,
             and
             insists
             against
             the
             Fishers
             of
             Greenock
             ,
             as
             Fishing
             in
             that
             Bounds
             :
             The
             Defenders
             alleadged
             ,
             1.
             
             Absolvitor
             ,
             because
             the
             Bishops
             Right
             buire
             expresly
             ,
             according
             as
             his
             Predecessors
             had
             been
             in
             Possession
             ,
             and
             it
             was
             not
             libelled
             ,
             nor
             could
             it
             be
             proven
             ,
             that
             ever
             the
             Bishop
             of
             the
             Isles
             was
             in
             Possession
             of
             the
             Teind
             of
             any
             Fish●
             taken
             by
             the
             Inhabitants
             of
             the
             main
             Land
             ,
             albeit
             taken
             in
             the
             place
             libelled
             .
             2ly
             .
             Albeit
             that
             Clause
             were
             not
             insert
             ;
             yet
             all
             Teinds
             of
             their
             own
             Nature
             ,
             and
             by
             the
             Custom
             of
             this
             Kingdom
             ,
             are
             Local
             and
             Consuetudinar
             ,
             and
             so
             can
             be
             craved
             out
             of
             no
             place
             ,
             or
             for
             no
             particular
             ,
             unless
             they
             had
             been
             accustomed
             to
             be
             payed
             of
             these
             particulars
             by
             that
             place
             ,
             as
             in
             some
             places
             Teinds
             are
             payed
             ,
             not
             only
             of
             Stirk
             and
             Lamb
             ,
             Wool
             and
             Milk
             ,
             but
             of
             Staigs
             ,
             Swine
             ,
             Hemp
             ,
             Lint
             ,
             Eggs
             ;
             and
             some
             places
             of
             Fruit
             ,
             and
             in
             other
             places●
             of
             none
             of
             these
             ,
             and
             that
             within
             the
             same
             Parochs
             :
             And
             therefore
             ,
             unless
             it
             were
             Libelled
             ,
             that
             Teinds
             had
             been
             accustomed
             to
             be
             payed
             in
             this
             place
             ,
             they
             are
             not
             due
             .
             3ly
             .
             Albeit
             a
             Teind
             here
             were
             due
             of
             Fish
             ,
             it
             could
             not
             be
             due
             to
             the
             Bishop
             of
             the
             Isles
             ,
             because
             such
             Teinds
             being
             personal
             ,
             and
             not
             predial
             ,
             follow
             the
             Residence
             of
             the
             Takers
             ,
             and
             not
             the
             place
             where
             they
             are
             taken
             ;
             especially
             being
             taken
             ,
             not
             in
             any
             Bay
             or
             Creik
             of
             the
             Isles
             ,
             but
             
               in
               mari
               libero
            
             ,
             several
             myles
             from
             any
             Isle
             ,
             except
             Ilsey
             ,
             which
             is
             no
             Island
             ,
             but
             a
             Rock
             inhabited
             by
             no
             body
             .
             4ly
             .
             The
             Defenders
             offer
             them
             to
             prove
             ,
             that
             they
             and
             others
             upon
             that
             Shore
             of
             the
             main-land
             ,
             has
             been
             in
             Possession
             40.
             years
             ,
             of
             a
             constant
             fishing
             of
             Cod
             and
             Ling
             ,
             in
             that
             place
             ,
             free
             from
             all
             payment
             of
             Teinds
             to
             the
             Bishop
             of
             the
             Isles
             ,
             paying
             only
             two
             merks
             yearly
             ,
             to
             the
             Tacks-men
             of
             the
             Viccarage
             of
             Greenock
             ,
             
             granted
             in
             Tacks
             by
             the
             Ministers
             of
             Greenock
             .
             The
             Pur●uer
             answered
             ,
             that
             the
             Clause
             in
             his
             Charter
             was
             in
             his
             favour
             ,
             and
             is
             to
             extend
             the
             same
             to
             all
             his
             Predecessors
             Possest
             ,
             bearing
             as
             amply
             ,
             &c.
             and
             that
             for
             the
             Possession
             ,
             it
             was
             sufficient
             that
             which
             he
             had
             condescended
             ,
             viz.
             that
             he
             offered
             him
             to
             prove
             ,
             that
             through
             all
             his
             Diocie
             ,
             the
             small
             Teind
             of
             Fish
             belonged
             to
             the
             Ministers
             as
             Viccars
             ,
             but
             the
             great
             Teind
             of
             Killing
             ,
             Ling
             and
             Herring
             ,
             belonged
             to
             the
             Bishop●
             and
             was
             possest
             by
             him
             and
             his
             Predecessors
             ,
             past
             memory
             ,
             but
             he
             needs
             not
             alleadge
             ,
             that
             he
             possest
             in
             every
             several
             place
             ,
             where
             Fish
             happen
             to
             swim
             ;
             but
             possessing
             generally
             about
             the
             Isles
             ,
             not
             only
             as
             to
             the
             Inhabitants
             of
             the
             Isles
             ,
             being
             in
             his
             Diocie
             ;
             but
             also
             being
             taken
             by
             the
             Inhabitants
             of
             the
             Main-land
             throughout
             the
             Kingdom
             .
             And
             as
             in
             a
             Barony
             ,
             Possession
             of
             a
             part
             ,
             will
             be
             sufficient
             for
             the
             whole
             ;
             so
             it
             must
             be
             in
             this
             Benefice
             ,
             especially
             seing
             it
             is
             but
             of
             late
             that
             there
             was
             any
             considerable
             Fishing
             in
             the
             place
             in
             question
             ,
             and
             there
             was
             no
             reason
             ,
             if
             Herring
             and
             other
             Fish
             ,
             change
             the
             Lochs
             where
             they
             are
             ordinarly
             found
             ,
             that
             because
             there
             was
             never
             Herring
             Teinded
             in
             that
             Loch
             ,
             therefore
             there
             was
             none
             due
             there
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             viz.
             that
             the
             Defenders
             ,
             and
             others
             upon
             the
             Main-land
             thereabout●
             had
             been
             in
             immemorial
             Possession
             ,
             in
             the
             place
             in
             question
             ,
             of
             Cod
             and
             Ling
             ,
             free
             from
             paying
             any
             Teind
             to
             the
             Bishops
             of
             the
             Isles
             ;
             But
             the
             Lords
             would
             not
             sustain
             less
             then
             immemorial
             Possession
             of
             the
             freedom
             ,
             in
             respect
             of
             the
             time
             the
             Bishops
             had
             been
             out
             ,
             nor
             did
             they
             determine
             the
             Right
             of
             the
             Ministers
             of
             Greenock
             ,
             whether
             they
             had
             Right
             to
             the
             hail
             Viccarage
             ,
             or
             that
             ,
             as
             a
             small
             duty
             ,
             but
             reserved
             that
             to
             them
             as
             accords
             ,
             and
             they
             found
             that
             the
             Defense
             of
             a
             constant
             Fishing
             ,
             elided
             the
             condescendence
             that
             this
             Fishing
             was
             but
             new
             .
          
        
         
           
             Mr.
             Iames
             Chalmers
             contra
             Lady
             Tinnel
             .
             Eodem
             die
             .
          
           
             
               MR.
               Iames
               Chalmers
            
             Parson
             of
             Dumfreis
             ,
             having
             obtained
             a
             Decreet
             before
             the
             Sheriff
             ,
             for
             a
             part
             of
             his
             Stipend
             ,
             against
             this
             Lady
             Tinnel
             ,
             for
             whom
             a
             Procurator
             compeared
             ,
             and
             took
             a
             Term
             to
             produce
             her
             ,
             and
             she
             succumbed
             ,
             whereupon
             she
             was
             holden
             as
             confest
             .
             She
             Suspends
             ,
             and
             alleadges
             that
             the
             Decreet
             bears
             not
             the
             Procurator
             to
             have
             produced
             any
             Mandat
             ,
             and
             therefore
             craves
             to
             be
             Reponed
             to
             her
             Oath
             .
          
           
             The
             Lords
             finding
             that
             there
             was
             nothing
             else
             alleadged
             by
             the
             Procurator
             ,
             that
             might
             infer
             his
             being
             informed
             ,
             or
             having
             Warrand
             ,
             but
             only
             his
             taking
             a
             day
             to
             produce
             ,
             they
             would
             not
             sustain
             the
             Decreet
             ,
             unless
             the
             Charger
             instructed
             the
             same
             ,
             by
             proving
             the
             quantities
             .
          
        
         
           
           
             White
             contra
             Horn.
             Novemb.
             25.
             1665.
             
          
           
             IN
             a
             Competition
             between
             White
             and
             Horn
             ,
             the
             one
             having
             Right
             by
             progresse
             to
             the
             Property
             of
             a
             piece
             Land
             ,
             and
             the
             other
             to
             an
             Annualrent
             forth
             thereof
             .
             It
             was
             alleadged
             for
             the
             Proprietar
             ,
             First
             ,
             That
             the
             Annualrent
             was
             prescribed
             ,
             no
             Possession
             being
             had
             thereupon
             ,
             above
             fourty
             years
             .
             2ly
             .
             The
             Original
             Right
             produced
             to
             constitute
             the
             Annualrent
             ,
             is
             but
             a
             Seasine
             without
             a
             Warrant
             :
             and
             albeit
             the
             Common
             Author
             have
             given
             Charter
             of
             Ratification
             thereof
             ;
             yet
             it
             is
             after
             the
             Proprietars
             Seasine
             ,
             given
             by
             the
             Common
             Author
             to
             his
             Daughter
             ,
             
               propriis
               manibus
            
             .
             It
             was
             answered
             for
             the
             Annualrenter
             ,
             to
             the
             first
             ,
             That
             the
             Prescription
             was
             interrupted
             by
             Citations
             produced
             ,
             used
             upon
             a
             Summons
             of
             Poinding
             of
             the
             Ground
             ,
             before
             the
             Baillies
             of
             the
             Regality
             of
             Dumfermling
             ,
             where
             the
             Lands
             ly
             .
             As
             to
             the
             second
             ,
             that
             the
             Confirmation
             granted
             to
             the
             Annualrenter
             ,
             is
             prior
             to
             any
             Charter
             ,
             Precept
             ,
             or
             other
             Warrant
             ,
             granted
             to
             the
             Proprietar
             :
             for
             as
             for
             the
             Seasine
             ,
             
               propriis
               manibus
            
             ;
             that
             has
             no
             Warrant
             produced
             .
             The
             Proprietar
             answered
             ,
             that
             the
             Interruption
             was
             not
             Relevant
             ,
             because
             the
             Executions
             were
             null
             ,
             in
             so
             far
             as
             the
             Warrant
             of
             the
             Summons
             bears
             ,
             to
             Cite
             the
             Defender
             Personally
             ;
             Or
             otherwise
             upon
             the
             Ground
             of
             the
             Land
             ,
             or
             at
             the
             Mercat
             Cross
             ,
             or
             Shore
             of
             Dumferm●ing
             ,
             whereupon
             such
             as
             were
             out
             of
             the
             Countrey
             ,
             were
             Cited●
             and
             not
             upon
             60.
             dayes
             ,
             but
             25.
             which
             Reasons
             would
             have
             excluded
             that
             Decreet
             ,
             and
             therefore
             cannot
             be
             a
             legal
             Interruption
             .
             As
             to
             the
             other
             ,
             albeit
             the
             Pursuers
             first
             Seasine
             want
             a
             Warrant
             ,
             yet
             it
             hath
             been
             cled
             with
             natural
             Possession
             ,
             and
             the
             Annualrentars
             hath
             not
             .
          
           
             The
             Lords
             Repelled
             both
             these
             alleadgences
             ,
             for
             the
             Proprietar
             ;
             and
             found
             the
             Executions
             sufficient
             to
             interrupt
             ,
             albeit
             there
             were
             defects
             in
             them
             ,
             that
             might
             have
             hindred
             Sentence
             thereupon
             ,
             especially
             
               in
               re
               antiquâ
            
             ,
             the
             Lands
             being
             in
             Regality
             ,
             where
             the
             custome
             might
             have
             been
             ,
             even
             to
             Cite
             Parties
             absent
             out
             of
             the
             Countrey
             ,
             at
             the
             head
             Burgh
             of
             the
             Regality
             ,
             and
             the
             Shore
             next
             thereto
             ,
             and
             as
             the
             Proprietars
             Right
             was
             not
             Established
             by
             Prescription
             ,
             so
             they
             found
             that
             Possession
             could
             not
             give
             a
             possessory
             Iudgement
             to
             the
             Proprietar
             ,
             against
             an
             Annual●entar
             ,
             which
             is
             
               debitum
               fundi
            
             .
          
        
         
           
             Mr.
             Iames
             Peter
             contra
             Iohn
             Mitchelson
             .
             Eodem
             die
             .
          
           
             MR.
             
               Iames
               Peter
            
             Minister
             of
             Terregh
             pursues
             Mitchelson
             for
             a
             part
             of
             his
             Stipend
             ,
             due
             out
             of
             the
             Defenders
             Lands
             ,
             who
             alleadged
             no
             Process
             ,
             till
             the
             Pursuer
             produced
             a
             Title
             to
             the
             Defenders
             Teinds
             ,
             seing
             he
             brooked
             them
             by
             a
             Tack
             .
             It
             was
             Replyed
             ,
             he
             offered
             him
             to
             prove
             seven
             years
             Possession
             ,
             as
             a
             part
             of
             the
             Stipend
             of
             Terreghs
             .
          
           
             Which
             the
             Lords
             sustained
             without
             any
             Title
             of
             Possession
             .
          
        
         
           
           
             Bruce
             contra
             Earl
             of
             Mortoun
             .
             Novemb.
             28.
             1665.
             
          
           
             IN
             an
             Action
             for
             making
             arrested
             Sums
             forthcoming
             ,
             between
             Bruc●
             and
             the
             Earl
             of
             Mortoun
             .
          
           
             The
             Lords
             found
             that
             the
             Summons
             behoved
             to
             be
             continued
             ,
             seing
             they
             were
             not
             past
             by
             a
             special
             priviledge
             of
             the
             Lords
             ,
             to
             be
             without
             continuation
             ,
             albeit
             they
             were
             accessory
             to
             the
             Lords
             Anterior
             Decreet
             ,
             against
             the
             principal
             D●bitor
             ,
             which
             they
             found
             to
             be
             a
             ground
             to
             have
             granted
             the
             priviledge
             of
             not
             Continuation
             ,
             if
             it
             had
             been
             desired
             by
             a
             Bill
             ,
             at
             the
             raising
             of
             the
             Summons
             ,
             but
             not
             being
             demanded
             ,
             They
             found
             
               quod
               non
               in
               erat
               de
               jure
               .
            
          
        
         
           
             Younger
             contra
             Iohnstouns
             .
             Eodem
             die
             .
          
           
             
               PAtrick
               Porteous
            
             having
             a
             Tenement
             of
             Land
             in
             Edinburgh
             ,
             provided
             his
             Wife
             thereto
             in
             Liferent
             ,
             and
             dyed
             before
             the
             year
             1608.
             his
             Wife
             lives
             and
             Possesses
             as
             Liferenter
             .
             Yet
             in
             Anno
             1608.
             one
             Porteous
             his
             Brother
             Son
             ,
             was
             Served
             and
             Retoured
             Heir
             to
             him
             ,
             and
             Infeft
             as
             Heir
             ,
             and
             Disponed
             the
             Land
             ,
             which
             is
             come
             through
             three
             several
             singular
             Successors
             to
             Iohnstouns
             ,
             who
             are
             Infeft
             therein
             ,
             as
             Heirs
             to
             their
             Father
             ,
             in
             
               Anno
               1655.
               
               Young●r
            
             having
             acquired
             a●
             Disposition
             from
             
               Stephanlaw
               ,
               Porteus
            
             Residenter
             in
             Polland
             ,
             causes
             Serve
             the
             said
             Stephenlaw
             ,
             as
             nearest
             Heir
             to
             the
             said
             Patrick
             ,
             whereupon
             Stephenlaw
             is
             Infeft
             ,
             and
             Younger
             is
             Infeft
             .
             There
             are
             now
             mutual
             Reductions
             raised
             by
             either
             Parties
             ,
             of
             others
             Retours
             and
             Rights
             ;
             wherein
             Younger
             alleadging
             ,
             that
             his
             Author
             
               Stephenlaw
               ,
               Porteous
            
             was
             the
             nearest
             of
             Kin
             ,
             in
             so
             far
             as
             Patrick
             the
             Defunct
             had
             four
             Brethren
             ,
             and
             
               Stephen
               Law
               Porteous
            
             was
             Oye
             to
             the
             eldest
             Brother
             ,
             whereas
             the
             other
             pretended
             Heir
             was
             Son
             to
             the
             youngest
             Brother
             ,
             which
             he
             offered
             him
             to
             prove
             .
             It
             was
             answered
             for
             Iohnstouns
             ,
             Absolvitor
             from
             that
             Reason
             of
             Reduction
             ,
             because
             they
             had
             Established
             their
             Right
             by
             Prescription
             ,
             in
             so
             far
             as
             they
             had
             a
             progress
             of
             Infeftments
             ,
             far
             beyond
             the
             space
             of
             fourty
             years
             cled
             with
             Possession
             ,
             by
             the
             Liferenter
             ,
             whose
             Possession
             behoved
             to
             be
             accounted
             their
             Possession
             ,
             because
             the
             Act
             of
             Pa●liament
             anent
             Prescription
             ,
             bears
             ,
             that
             the
             Person
             Infeft
             being
             in
             Possession
             by
             himself
             ,
             or
             by
             his
             Tennents
             ,
             or
             others
             deriving
             Right
             from
             him
             ,
             and
             therefore
             the
             Liferenters
             Possession
             is
             alwise
             the
             Fiars
             .
             2ly
             .
             By
             the
             first
             Act
             of
             Parliament
             anent
             Prescriptions
             of
             Retours
             ,
             they
             prescrive
             ,
             if
             they
             be
             not
             quarrelled
             ,
             within
             three
             years
             .
             And
             by
             the
             last
             Act
             of
             Parliament
             1617.
             anent
             the
             Prescription
             of
             Retours
             ,
             they
             are
             declared
             to
             be
             prescrived
             ,
             if
             they
             be
             not
             pursued
             within
             twenty
             years
             .
             And
             by
             the
             general
             Act
             of
             Prescription
             1617.
             
             There
             is
             a
             general
             Clause
             ,
             that
             all
             Reversions
             ,
             Heretable
             Bonds
             ,
             and
             all
             Actions
             whatsomever
             ,
             shall
             prescrive
             ,
             if
             they
             be
             not
             followed
             within
             fourty
             years
             .
             By
             all
             which
             ,
             
               Stephenlaw
               Porteous
            
             ,
             not
             being
             Retoured
             till
             the
             year
             1655.
             nor
             having
             moved
             any
             Action
             against
             the
             first
             
             Retour
             .
             This
             Action
             of
             Reduction
             ,
             and
             all
             other
             Actions
             competent
             ,
             are
             prescribed
             .
             It
             was
             answered
             for
             Younger
             ,
             that
             he
             being
             Heir
             to
             maintain
             the
             right
             of
             Blood
             ,
             which
             is
             the
             most
             important
             Right
             ,
             competent
             by
             the
             Law
             of
             Nations
             ,
             no
             Statute
             ,
             nor
             positive
             Law
             can
             take
             it
             away
             ,
             unless
             it
             be
             express
             and
             evident
             ,
             for
             the
             right
             of
             Blood
             can
             never
             prescrive
             ,
             seing
             it
             is
             certain
             ,
             that
             a
             man
             may
             serve
             himself
             Heir
             to
             his
             Predecessor
             ,
             though
             he
             died
             a
             1000.
             years
             since
             ,
             if
             he
             can
             instruct
             his
             Service
             .
             And
             as
             for
             the
             Acts
             of
             Parliament
             alleadged
             upon
             ,
             they
             cannot
             take
             away
             any
             Right
             of
             Blood
             ,
             for
             the
             first
             Act
             of
             Prescription
             ,
             on
             three
             years
             expresly
             ,
             bears
             ,
             to
             extend
             to
             these
             within
             the
             Countrey
             ,
             as
             Stephenlaw
             was
             not
             :
             and
             the
             last
             Act
             is
             expresly
             ,
             only
             in
             relation
             to
             Retoures
             ,
             to
             be
             deduced
             thereafter
             ,
             but
             this
             first
             Retour
             quarrelled
             ,
             was
             deduced
             long
             before
             ,
             viz.
             in
             Anno.
             1608.
             
             As
             for
             the
             general
             Act
             of
             Prescription
             ,
             seing
             it
             mentions
             not
             Retoures
             ,
             but
             only
             Infeftments●
             Reversions
             and
             Heretable
             Bonds
             ;
             The
             general
             Clause
             of
             all
             Actions
             whatsomever
             ,
             ought
             not
             to
             be
             extended
             to
             Retoures
             ,
             especially
             ,
             seing
             the
             meaning
             of
             the
             Parliament
             appears
             not
             to
             have
             been
             extended
             by
             them
             to
             Retoures
             ,
             because
             the
             very
             next
             Act
             doth
             specially
             Order
             the
             prescription
             of
             Retoures
             .
             As
             to
             the
             Iohnstouns
             Infeftments
             ,
             they
             have
             not
             the
             benefit
             of
             Prescriptions
             ,
             never
             being
             cled
             with
             Possession
             :
             For
             the
             Liferenters
             Possession
             ,
             as
             it
             was
             the
             Defuncts
             Possession
             :
             So
             it
             did
             continue
             to
             be
             the
             true
             appearand
             Heirs
             Possession
             ,
             although
             none
             had
             been
             Served
             to
             this
             Day
             ;
             and
             therefore
             the
             Service
             or
             Infeftment
             following
             thereupon
             ,
             cannot
             take
             away
             from
             the
             true
             Heir
             the
             presumptive
             Possession
             of
             Law
             ,
             which
             the
             true
             Heir
             hath
             .
             2ly
             .
             No
             Prescription
             can
             be
             valid
             against
             others
             :
             But
             these
             that
             know
             ,
             or
             are
             at
             least
             oblieged
             to
             know
             the
             Right
             ,
             whereupon
             it
             proceeds
             ;
             but
             the
             true
             Heir
             was
             not
             oblieged
             to
             know
             their
             Service
             ,
             nor
             was
             he
             oblieged
             to
             Serve
             himself
             ,
             but
             when
             he
             pleased
             ,
             especially
             seing
             he
             could
             get
             no
             benefit
             as
             long
             as
             the
             Liferenter
             lived
             ,
             and
             that
             he
             was
             not
             oblieged
             to
             know
             the
             first
             Service
             ,
             appears
             ,
             because
             he
             was
             not
             called
             thereto
             ,
             otherways
             then
             by
             a
             general
             Citation
             at
             the
             Mercat
             Cross
             ,
             to
             all
             Parties
             having
             Interest
             ,
             which
             is
             but
             a
             point
             of
             meer
             form
             and
             prejudges
             no
             body
             ,
             and
             at
             least
             could
             not
             prejudge
             a
             Stranger
             ,
             living
             out
             of
             the
             Countrey
             ,
             
               animo
               remanendi
            
             ,
             there
             being
             neither
             special
             nor
             general
             Citation
             ,
             as
             to
             Persons
             out
             of
             the
             Countrey
             on
             60.
             dayes
             .
          
           
             The
             Lords
             found
             no
             weight
             in
             this
             last
             Point
             ,
             seing
             the
             Law
             requires
             no
             Citation
             on
             60.
             dayes
             ,
             in
             cases
             of
             Retoures
             ,
             but
             only
             15.
             dayes
             generally
             ,
             at
             the
             Mercat
             Cross
             ,
             which
             they
             find
             every
             man
             ,
             
               origine
               Scotus
            
             ,
             oblieged
             to
             take
             notice
             of
             ,
             or
             to
             have
             a
             Procurator
             at
             Edinburgh
             ,
             as
             
               in
               communi
               patriâ
            
             ,
             who
             may
             search
             the
             Register
             of
             Retoures
             ,
             whether
             in
             the
             publick
             Register
             ,
             or
             Town
             Books
             ,
             before
             they
             prescribe
             .
             They
             also
             found
             that
             there
             was
             no
             ground
             for
             Prescription
             upon
             the
             first
             Act
             of
             Parliament
             ,
             as
             bearing
             only
             relation
             to
             these
             in
             the
             Countrey
             ,
             nor
             upon
             the
             last
             Act
             of
             Parliament
             ,
             as
             bearing
             only
             relation
             Retoures
             ,
             to
             be
             deduced
             thereafter
             ,
             neither
             did
             they
             sustain
             the
             Prescription
             upon
             the
             first
             part
             of
             the
             general
             Act
             of
             Prescription
             ;
             for
             they
             found
             the
             Liferenters
             Possession
             in
             the
             Competition
             of
             two
             Heirs
             ,
             not
             to
             be
             profitable
             to
             either
             of
             them
             ,
             in
             prejudice
             of
             the
             other
             ,
             nor
             yet
             to
             be
             the
             Possession
             of
             singular
             Successors
             ,
             seing
             it
             flowed
             not
             
             from
             these
             singular
             Successors
             ,
             but
             from
             the
             Defunct
             ,
             to
             whom
             both
             Parties
             pretended
             to
             be
             Heir
             ;
             but
             the
             Lords
             found
             the
             posterior
             clause
             in
             the
             Act
             of
             Parliament
             ,
             of
             all
             Actions
             whatsomever
             to
             extend
             to
             the
             Reduction
             of
             Retoures
             ,
             and
             to
             be
             general
             ,
             as
             to
             all
             Actions
             that
             may
             concern
             Heirs
             ,
             in
             prejudice
             of
             others
             :
             And
             found
             it
             so
             much
             the
             rather
             to
             extend
             to
             Retoures
             ,
             that
             the
             next
             ensuing
             Act
             finds
             Retoures
             to
             be
             Deduced
             thereafter
             ,
             only
             to
             be
             Reduceable
             within
             twenty
             years
             ,
             and
             so
             finds
             the
             Reduction
             thereof
             to
             prescrive
             sooner
             than
             other
             Rights
             ;
             and
             therefore
             cannot
             be
             thought
             ,
             not
             to
             have
             meaned
             to
             reach
             bygone
             Retoures
             ,
             by
             the
             general
             Act.
             
          
        
         
           
             Creditors
             of
             James
             Masson
             Merchant
             Supplicants
             .
             Nov.
             30.
             1665.
             
          
           
             
               JAmes
               Masson
            
             Merchant
             in
             Edinburgh
             having
             unexpectedly
             broke
             and
             fled
             ,
             his
             Creditors
             gave
             in
             Supplication
             to
             the
             Lords
             ,
             bearing
             ,
             that
             he
             had
             most
             deceitfully
             broken
             ,
             having
             the
             price
             of
             the
             Goods
             that
             he
             had
             sold
             ,
             
               meditatione
               fugae
            
             ,
             in
             his
             hand
             ,
             and
             that
             he
             either
             lurked
             in
             the
             Abbay
             ,
             or
             was
             to
             go
             out
             of
             the
             Countrey
             ;
             and
             therefore
             craved
             a
             Warrand
             to
             Messengers
             of
             Arms
             ,
             to
             secure
             his
             Goods
             ,
             and
             apprehend
             his
             Person
             wherever
             the
             same
             could
             be
             found
             ,
             until
             the
             matter
             were
             heard
             .
          
           
             The
             Lords
             having
             considered
             the
             case
             ,
             that
             the
             occasion
             was
             very
             extraordinar
             ,
             and
             also
             the
             desire
             ,
             most
             were
             of
             the
             opinion
             ,
             that
             the
             Lords
             might
             grant
             the
             Desire
             ,
             which
             was
             done
             accordingly
             ,
             with
             a
             Recommendation
             to
             the
             Duke
             of
             Hamiltoun
             ,
             Keeper
             of
             the
             Kings
             House
             ,
             not
             to
             suffer
             him
             to
             lurk
             there
             ,
             but
             to
             expel
             him
             ,
             that
             he
             might
             be
             apprehended
             :
             For
             albeit
             ordinarly
             the
             Lords
             grant
             not
             Caption
             or
             Warrant
             of
             Wairding
             the
             Person
             of
             the
             Kings
             free
             Leidge
             ,
             till
             he
             be
             Denunced
             Rebel
             .
             Yet
             seing
             the
             Magistrates
             of
             Burghs
             ,
             and
             the
             Admiral
             grant
             Acts
             of
             Wairding
             against
             Parties
             ,
             until
             they
             find
             Caution
             to
             answer
             as
             Law-will
             .
             The
             Lords
             who
             had
             eminently
             in
             themselves
             these
             Jurisdictions
             ,
             they
             might
             do
             the
             like
             in
             the
             like
             case
             :
             but
             some
             thought
             that
             was
             a
             special
             priviledge
             ,
             not
             to
             be
             extended
             ,
             and
             this
             was
             of
             dangerous
             Example
             to
             secure
             persons
             unheard
             ,
             more
             proper
             for
             the
             Council
             ,
             as
             a
             case
             extraordinar
             ,
             then
             for
             the
             Session
             .
          
        
         
           
             David
             Boyd
             contra
             Isobel
             Lauder
             and
             Iohn
             Tailzifer
             Eodem
             die
             .
          
           
             
               DAvid
               Boyd
            
             pursues
             
               Iohn
               Tailzifer
            
             ,
             as
             Representing
             his
             Father
             ,
             on
             all
             the
             passive
             Titles
             ,
             and
             
               Isobel
               Lauder
            
             his
             Mother
             and
             Tutrix
             ,
             for
             her
             Interest
             ,
             and
             condescends
             upon
             his
             behaving
             as
             Heir
             ,
             by
             uplifting
             of
             the
             Mails
             and
             Duties
             of
             his
             Fathers
             Lands
             ,
             by
             his
             said
             Tutrix
             .
             It
             was
             answered
             ,
             that
             he
             being
             a
             Pupil
             ,
             his
             Tutrix
             Intromission
             could
             not
             infer
             that
             passive
             Title
             against
             him
             ,
             as
             hath
             been
             frequently
             sustained
             these
             many
             years
             .
             It
             was
             answered
             ,
             that
             was
             but
             since
             the
             Usurpation
             ,
             but
             before
             the
             Tutors
             Intromission
             ,
             did
             alwayes
             infer
             this
             Title
             ,
             and
             the
             Pupil
             could
             only
             pursue
             his
             Tutor
             for
             his
             damnage
             .
          
           
           
             The
             Lords
             found
             the
             Pupil
             not
             lyable
             on
             this
             passive
             Title
             ,
             by
             his
             Tutors
             Intromission
             .
          
           
             The
             Pursuer
             then
             insisted
             against
             the
             Tutrix
             ,
             for
             paying
             so
             far
             as
             she
             had
             intrometted
             .
             It
             was
             answered
             ,
             that
             she
             was
             but
             called
             for
             her
             Interest
             ,
             to
             authorize
             her
             Pupil
             ,
             but
             not
             to
             pay
             ,
             neither
             could
             she
             be
             lyable
             to
             pay
             ,
             unless
             a
             Decreet
             had
             been
             first
             Established
             against
             the
             Pupil●
             and
             then
             it
             had
             been
             Arrested
             in
             her
             hands
             ,
             and
             pursued
             to
             be
             made
             forthcoming
             .
          
           
             And
             yet
             the
             Lords
             found
             the
             Tutrix
             ,
             
               hoc
               ordine
               ,
               lyable
            
             .
          
        
         
           
             White
             contra
             Brown.
             Eodem
             die
             .
          
           
             
               JOhn
               White
            
             as
             having
             Right
             from
             
               Iames
               White
            
             his
             Fathe●
             ,
             Charges
             Brown
             for
             2000.
             merks
             ,
             who
             suspends
             on
             this
             Reason
             ,
             that
             this
             Translation
             being
             by
             a
             Father
             to
             a
             Son
             ,
             in
             his
             Family
             ,
             at
             least
             having
             no
             visible
             Estate
             to
             acquire
             it
             :
             The
             Suspender
             cannot
             be
             prejudged
             ,
             as
             to
             the
             manner
             of
             Probation
             ,
             by
             the
             Fathers
             Oath
             ,
             by
             which
             he
             offered
             him
             to
             prove
             ,
             that
             the
             Father
             was
             Debitor
             in
             a
             greater
             Sum.
             It
             was
             answered
             ,
             that
             the
             Cedents
             Oath
             could
             not
             be
             taken
             in
             prejudice
             of
             the
             Assigney
             .
          
           
             The
             Lords
             found
             that
             in
             this
             case
             ,
             the
             Reason
             was
             probable
             by
             the
             Cedent
             Oath
             .
          
        
         
           
             Telzifer
             contra
             Geddes
             .
             Decemb.
             1.
             1665.
             
          
           
             THe
             competition
             between
             Telzifer
             and
             Geddes
             ,
             mentioned
             the
             eleventh
             of
             November
             last
             ,
             being
             this
             day
             again
             called
             ,
             Debated
             and
             Reconsidered
             by
             the
             Lords
             at
             length
             .
             The
             question
             being
             ,
             that
             
               Marjory
               Sandilands
            
             having
             granted
             a
             Bond
             to
             
               Samuel
               Veatch
            
             ,
             blank
             in
             the
             Creditors
             name
             ,
             Samuel
             filled
             up
             
               Marion
               Geddes
            
             Name
             therein
             ,
             whereupon
             she
             Registrat
             the
             Bond
             ,
             and
             Charged
             him
             ,
             in
             the
             mean
             time
             Telzifer
             ,
             as
             Veatches
             Creditor
             ,
             having
             Arrested
             all
             Sums
             in
             
               Marjory
               Sandilands
            
             hands
             ,
             adebted
             by
             her
             to
             
               Samuel
               Veatch
            
             ,
             and
             pursuing
             to
             make
             the
             same
             forthcoming
             ,
             she
             depones
             that
             the
             time
             of
             the
             Arrestment
             ,
             she
             was
             no
             wayes
             Debitor
             to
             Veatch
             ,
             but
             by
             a
             Bond
             blank
             in
             the
             Creditors
             Name
             ,
             and
             that
             she
             did
             not
             know
             whose
             Name
             was
             filled
             up
             in
             it
             :
             But
             now
             Telzifer
             the
             Arrester
             compearing
             ,
             craves
             to
             be
             preferred
             ,
             because
             he
             had
             arrested
             the
             Sum
             ,
             as
             belonging
             to
             
               Samuel
               Veatch
            
             his
             Debitor
             ,
             before
             
               Samuel
               Veatch
            
             was
             Denuded
             ,
             by
             filling
             up
             
               Marion
               Geddes
            
             Name
             ,
             and
             intimating
             ,
             or
             showing
             the
             same
             to
             Sandilands
             the
             Debitor
             ,
             and
             that
             the
             filling
             up
             of
             Geddes
             Name
             ,
             being
             but
             an
             Assignation
             ,
             did
             necessarly
             require
             to
             accomplish
             it
             ,
             to
             Denude
             the
             Cedent
             ,
             an
             Intimation
             ,
             for
             seing
             express
             Assignations
             do
             necessarly
             require
             Intimation
             ,
             to
             prefer
             them
             to
             arrestments
             ;
             much
             more
             ought
             indirect
             Assignations
             ,
             which
             are
             suspect
             of
             Fraud
             ,
             and
             by
             which
             a
             Debitor
             may
             keep
             all
             his
             Estate
             in
             the
             Cloud
             ,
             that
             none
             of
             the
             Creditors
             can
             reach
             the
             same
             ,
             by
             arrestment
             or
             otherwise
             .
             And
             it
             being
             
             answered
             ,
             that
             the
             Bond
             being
             delivered
             blank
             ,
             there
             was
             no
             present
             Creditor
             ,
             but
             a
             power
             granted
             to
             the
             Receiver
             of
             the
             Bond
             ,
             to
             make
             Creditor
             whom
             he
             pleased
             ;
             at
             least
             there
             was
             no
             certain
             Creditor
             ,
             so
             that
             
               Samuel
               Veatch
            
             was
             never
             Creditor
             ,
             but
             had
             only
             the
             power
             to
             make
             the
             Creditor
             ,
             and
             so
             needed
             not
             to
             be
             Denuded
             ,
             nor
             was
             there
             any
             Law
             or
             custom
             ,
             requiring
             intimation
             of
             the
             Names
             filled
             up
             in
             blank
             Bonds
             ,
             and
             if
             any
             such
             thing
             were
             done
             upon
             the
             accompt
             of
             Expediency
             ,
             it
             ought
             only
             to
             be
             in
             time
             coming
             .
          
           
             The
             Lords
             adhered
             to
             their
             former
             Interlocutor
             ,
             and
             found
             Veatch
             to
             have
             been
             the
             true
             Creditor
             ,
             and
             the
             filling
             up
             of
             the
             other
             Name
             ,
             to
             be
             a
             Transmission
             equivalent
             to
             an
             Assignation
             ,
             and
             required
             Intimation
             ,
             as
             well
             for
             Cases
             past
             as
             to
             come
             ;
             for
             they
             thought
             that
             if
             Veatch
             ,
             before
             the
             filling
             of
             the
             Bond
             had
             been
             Rebel
             ,
             it
             would
             have
             fallen
             within
             his
             Escheat
             .
          
        
         
           
             Edward
             Edgar
             contra
             Colvills
             .
             Decemb.
             2.
             1665.
             
          
           
             
               EDward
               Edgar
            
             pursues
             Colvil
             Success
             or
             Lucrative
             to
             his
             Father
             .
             Mr.
             
               Alexander
               Colvil
            
             ,
             in
             so
             far
             as
             he
             accepted
             an
             Assignation
             of
             an
             Heretable
             Bond
             ,
             unto
             which
             Bond
             he
             would
             have
             succeeded
             as
             Heir
             .
             It
             was
             answered
             ,
             that
             this
             passive
             Title
             was
             never
             extended
             to
             Bonds
             of
             Provision
             ,
             granted
             by
             a
             Father
             to
             his
             eldest
             Son
             ,
             and
             if
             in
             security
             and
             satisfaction
             of
             such
             a
             Bond
             of
             Provision
             ,
             an
             Assignation
             of
             a
             Debt
             ,
             due
             to
             the
             Father
             and
             his
             Heirs
             ,
             were
             granted
             ,
             could
             not
             infer
             an
             universal
             Title
             ,
             to
             make
             the
             Accepter
             lyable
             to
             his
             Predecessors
             whole
             Debt
             ,
             so
             neither
             can
             an
             Assignation
             to
             a
             Bond
             ,
             which
             is
             no
             more
             in
             effect
             ,
             and
             such
             odious
             passive
             Titles
             are
             not
             to
             be
             extended
             ,
             but
             the
             Pursuer
             may
             Reduce
             upon
             the
             Act
             of
             Parliament
             1621.
             or
             at
             the
             farthest
             ,
             may
             crave
             by
             this
             Process
             ,
             the
             simple
             avail
             of
             what
             the
             Defender
             hath
             intrometted
             with
             ,
             by
             vertue
             of
             the
             Assignation
             .
          
           
             The
             Lords
             found
             the
             condescendence
             Relevant
             ,
             as
             being
             
               preceptio
               haereditatis
            
             ,
             and
             as
             an
             Assignation
             to
             a
             Tack
             ,
             or
             a
             small
             Annualrent
             ,
             hath
             been
             found
             sufficient
             ,
             so
             there
             is
             like
             or
             more
             Reason
             for
             Assignations
             to
             heretable
             Bonds
             ,
             which
             may
             be
             more
             easily
             conveyed
             away
             from
             Creditors
             ,
             but
             they
             found
             it
             not
             alike
             as
             to
             Bonds
             of
             Provision
             ,
             whereby
             the
             Father
             became
             Debitor
             ,
             and
             in
             satisfaction
             and
             security
             ,
             whereof
             he
             might
             Assign
             ,
             and
             would
             only
             import
             single
             payment
             ,
             but
             not
             an
             universal
             passive
             Title
             .
          
        
         
           
             Hugh
             Mcculloh
             contra
             Mr.
             Iohn
             Craig
             .
             Eodem
             die
             .
          
           
             
               HVgh
               Mcculloh
            
             having
             Right
             to
             an
             Apprizing
             of
             an
             Heretable
             Bond
             of
             2000.
             merks
             ,
             due
             by
             Umquhil
             Mr
             
               Robert
               Craig
            
             to
             
               Patrick
               Wood
            
             ,
             pursues
             Mr.
             
               Iohn
               Craig
            
             as
             Heir
             by
             progress
             ,
             for
             payment
             thereof
             ,
             and
             produces
             a
             new
             Extract
             of
             the
             Appryzing
             ,
             by
             the
             Clerk
             of
             the
             Appryzing
             ,
             together
             with
             the
             said
             Appryzing
             ,
             but
             so
             spoiled
             ,
             that
             neither
             the
             Subscription
             
             of
             the
             Messenger
             nor
             Clerk
             could
             be
             known
             .
             The
             Defender
             alleadged
             no
             Process
             ,
             till
             the
             Principal
             Appryzing
             by
             the
             Messenger
             were
             produced
             ;
             because
             it
             being
             in
             effect
             the
             Executions
             of
             the
             Messenger
             ,
             to
             whom
             more
             was
             trusted
             then
             to
             the
             Clerk
             :
             The
             Extract
             by
             the
             Clerk
             without
             the
             Messenger
             was
             not
             sufficient
             .
             It
             was
             answered
             ,
             that
             Appryzings
             of
             old
             were
             all
             direct
             to
             the
             Sheriffs
             of
             the
             Shire
             ,
             and
             were
             in
             effect
             Judicial
             Process
             ,
             wherein
             Parties
             were
             Cited
             ,
             Called
             and
             Decerned
             ;
             and
             now
             the
             Messenger
             being
             Constitute
             Sheriff
             in
             that
             part
             by
             the
             Letters
             of
             Appryzing
             ,
             he
             may
             choise
             his
             own
             Clerk
             ,
             and
             the
             Extract
             of
             that
             Clerk
             is
             sufficient
             ,
             as
             of
             all
             other
             Clerks
             ;
             and
             albeit
             for
             more
             security
             ,
             both
             Clerk
             and
             Messenger
             Subscribe
             :
             yet
             it
             hath
             not
             been
             determined
             how
             far
             the
             Messengers
             Subscription
             is
             necessar
             :
             And
             the
             Decreet
             of
             Appryzing
             is
             not
             the
             Executions
             of
             the
             Appryzing
             ,
             which
             are
             distinct
             therefrom
             ,
             and
             Instructions
             thereof
             .
          
           
             The
             Lords
             thought
             that
             the
             new
             Extract
             behoved
             ,
             either
             to
             be
             astructed
             with
             the
             Letters
             and
             Executions
             ,
             and
             other
             Adminicles
             ,
             or
             that
             they
             would
             not
             sustain
             it
             alone
             :
             But
             the
             question
             was
             ,
             whether
             it
             should
             be
             astructed
             ,
             
               hoc
               ordine
            
             ,
             or
             by
             a
             proving
             of
             the
             Tenor
             ,
             in
             a
             several
             Process
             ,
             which
             was
             carried
             by
             the
             plurality
             .
          
        
         
           
             Thomson
             contra
             Henderson
             .
             Decem.
             4.
             1665.
             
          
           
             THomson
             having
             granted
             a
             Bond
             to
             his
             Brother
             of
             a
             sum
             of
             Money
             ,
             the
             same
             was
             assigned
             to
             Henderson
             ,
             who
             thereupon
             Charged
             .
             The
             Debitor
             suspends
             ,
             and
             produces
             a
             Discharge
             by
             the
             Cedent
             of
             the
             same
             Date
             ,
             and
             Witnesses
             with
             the
             Bond
             ,
             and
             alleadged
             that
             the
             Debt
             being
             Discharged
             before
             the
             Assignation
             ,
             excluded
             the
             Assigney
             .
             It
             was
             answered
             ,
             That
             the
             Discharge
             was
             granted
             most
             fraudulently
             ,
             so
             that
             the
             fraud
             betwixt
             the
             two
             Brethren
             ,
             is
             manifest
             to
             have
             been
             contrived
             to
             deceive
             ,
             any
             Person
             should
             Contract
             with
             the
             Creditor
             ,
             whom
             they
             saw
             to
             have
             a
             Bond
             of
             a
             solvendo
             Person
             in
             his
             hand●
             and
             so
             might
             be
             induced
             to
             lend
             him
             Money
             ,
             or
             Contract
             with
             him
             in
             Marriage
             ,
             or
             otherwise
             ;
             and
             the
             Charger
             having
             upon
             that
             accompt
             ,
             lent
             him
             Money
             ,
             and
             taken
             Assignation
             ,
             cannot
             be
             excluded
             by
             this
             Contrivance
             ,
             which
             was
             done
             
               pessimo
               dolo
            
             .
             It
             was
             answered
             ;
             First
             ,
             That
             dolus
             was
             not
             competent
             by
             way
             of
             Reply
             .
             2ly
             .
             That
             the
             Assigney
             took
             the
             Assignation
             on
             his
             own
             Peril
             ,
             and
             he
             should
             have
             asked
             at
             the
             Debitor
             before
             he
             took
             it
             .
          
           
             The
             Lords
             ,
             though
             the
             matter
             was
             of
             small
             Importance
             ,
             were
             willing
             to
             take
             the
             matter
             of
             fraud
             to
             consideration
             by
             way
             of
             Reply
             ;
             and
             therefore
             ordained
             the
             Suspender
             to
             condescend
             upon
             some
             reasonable
             Cause
             of
             the
             granting
             of
             the
             Bond
             ,
             and
             taking
             back
             a
             Discharge
             thereof
             at
             the
             same
             time
             .
          
        
         
           
           
             Beg
             contra
             Beg.
             Decem.
             5.
             1665.
             
          
           
             BEg
             having
             Disponed
             some
             Land
             to
             his
             Son
             ,
             Redeemable
             on
             a
             Rose-Noble
             ,
             and
             having
             married
             a
             second
             Wife
             ,
             he
             Disponed
             the
             same
             to
             her
             in
             Liferent
             ,
             and
             assigned
             her
             to
             the
             Reversion
             .
             The
             Father
             having
             used
             an
             Order
             ,
             pursues
             Declarator
             .
             The
             Son
             alleadges
             absolvitor
             ,
             because
             he
             was
             assigned
             to
             an
             Appryzing
             :
             Which
             Appryzing
             carried
             the
             Right
             of
             the
             Reversion
             of
             that
             Wodset
             ,
             and
             thereby
             his
             Father
             was
             Denuded
             of
             the
             Reversion
             ,
             and
             could
             not
             redeem
             the
             Wodset
             ,
             till
             he
             Redeemed
             the
             Appryzing
             .
             It
             was
             answered
             ,
             that
             the
             Father
             was
             not
             simply
             Denuded
             during
             the
             Legal
             :
             During
             which
             time
             ,
             the
             Appryzing
             was
             but
             like
             a
             Right
             granted
             in
             Security
             ,
             which
             Denuded
             not
             the
             Fiar
             ;
             as
             if
             the
             Son
             for
             Security
             of
             a
             Sum
             ,
             had
             been
             assigned
             to
             the
             Reversion
             ,
             the
             Father
             was
             not
             Denuded
             ,
             but
             might
             use
             the
             Order
             ,
             by
             which
             the
             Security
             was
             not
             worse
             but
             better
             ;
             the
             same
             holds
             in
             this
             Case
             ;
             and
             therefore
             it
             is
             ,
             that
             he
             against
             whom
             an
             Appryzing
             is
             led
             ,
             may
             Redeem
             the
             first
             Appryzing
             ,
             albeit
             the
             second
             Appryzer
             has
             appryzed
             the
             Reversion
             ,
             otherwise
             no
             man
             could
             redeem
             an
             Appryzing
             ,
             unless
             he
             redeemed
             all
             his
             appryzings
             at
             once
             ,
             which
             have
             different
             legals
             ;
             and
             this
             Case
             is
             as
             favourable
             ,
             because
             the
             Reversion
             was
             only
             to
             the
             Father
             in
             his
             own
             life
             ;
             and
             therefore
             the
             Son
             endeavoured
             to
             hinder
             him
             to
             Redeem
             ,
             by
             taking
             Right
             to
             this
             Appryzing
             .
             It
             was
             answered
             ,
             that
             the
             Case
             was
             not
             alike
             in
             a
             Conventional
             Reversion
             ,
             as
             in
             a
             legal
             :
             And
             that
             the
             Appryzing
             led
             against
             the
             Father
             in
             his
             life
             ,
             would
             perpetuat
             the
             Reversion
             ;
             and
             that
             this
             Case
             was
             unfavourable
             ,
             where
             the
             Father
             intended
             to
             frustrate
             his
             Heir
             ,
             in
             favours
             of
             the
             Wife
             of
             the
             second
             Marriage
             ,
             to
             whom
             he
             had
             assigned
             the
             Reversion
             .
          
           
             The
             Lords
             having
             upon
             the
             first
             report
             considered
             the
             favourableness
             of
             the
             Sons
             Case
             ,
             sustained
             the
             Defense
             ,
             but
             afterward
             upon
             Bill
             ,
             ordained
             them
             to
             be
             heard
             again
             
               in
               presentia
            
             ,
             and
             having
             heard
             them
             ,
             The
             Lords
             were
             of
             different
             opinions
             ,
             so
             that
             that
             came
             not
             to
             a
             Vot
             ;
             But
             the
             Lords
             before
             answer
             ,
             ordained
             the
             Wife
             to
             insist
             upon
             her
             Right
             ,
             who
             alleadged
             that
             she
             might
             Redeem
             ,
             
               ad
               hunc
               effectum
            
             ,
             to
             enjoy
             the
             benefit
             of
             her
             Liferent
             Right
             ,
             after
             her
             Husbands
             Death
             .
             It
             was
             answered
             ;
             First
             ,
             That
             she
             wanted
             the
             concourse
             of
             her
             Husband
             .
             2ly
             .
             That
             her
             Assignation
             was
             not
             intimat
             .
             It
             was
             answered
             ;
             First
             ,
             Her
             Assignation
             was
             Registrat
             in
             the
             Register
             of
             Reversions
             ,
             conform
             to
             the
             Act
             of
             Parliament
             :
             Which
             Registration
             being
             
               publicandi
               causa
            
             ,
             needed
             no
             intimation
             .
             2ly
             .
             That
             she
             had
             a
             Disposition
             in
             Liferent
             ,
             by
             her
             Contract
             of
             the
             Lands
             ,
             which
             carried
             omnejus
             ,
             in
             the
             Disponer
             ,
             as
             to
             the
             Liferent
             Right
             ,
             during
             her
             Life
             ,
             and
             so
             carried
             the
             Reversion
             ,
             though
             not
             exprest
             ,
             and
             her
             Seasine
             being
             registrat
             ,
             it
             was
             equivalent
             to
             the
             Registration
             of
             the
             Assignation
             .
          
           
             The
             Lords
             sustained
             the
             Wifes
             Interest
             ,
             and
             declared
             in
             her
             favours
             ,
             for
             her
             Liferent
             use
             ,
             and
             found
             the
             Disposition
             with
             the
             Seasine
             Registrat
             ,
             and
             the
             Assignation
             also
             Registrat
             sufficient
             .
          
        
         
           
           
             Cheisly
             contra
             Cuthbert
             .
             Eodem
             die
             .
          
           
             CHeisly
             Charges
             Cuthbert
             for
             his
             Prentis-fee
             :
             Who
             suspends
             ,
             and
             alleadges
             that
             he
             was
             set
             Prentise
             to
             him
             as
             Apothecary
             ,
             and
             that
             he
             deserted
             that
             Employment
             ,
             and
             became
             a
             Drogeist
             ,
             and
             thereupon
             the
             Suspender
             left
             him
             .
             It
             was
             answered
             ,
             that
             ,
             the
             breeding
             of
             him
             as
             a
             Drogeist
             was
             sufficient
             ,
             and
             that
             he
             now
             practised
             as
             Apothecary
             and
             Cherurgeon
             .
          
           
             The
             Lords
             found
             this
             answer
             not
             Relevant
             ,
             the
             Suspender
             being
             set
             to
             him
             as
             Apothecary
             ,
             to
             make
             Drogs
             ,
             and
             not
             as
             a
             Drogeisi
             that
             buyes
             Drogs
             ,
             as
             to
             the
             time
             after
             he
             changed
             :
             But
             the
             Charger
             having
             further
             offered
             to
             prove
             ,
             that
             he
             constantly
             in
             his
             Chamber
             ,
             makes
             ,
             as
             well
             as
             sell
             Drogs
             ,
             the
             Lords
             found
             it
             Relevant
             .
          
        
         
           
             Richard
             Cunninghame
             contra
             Duke
             of
             Hamiltoun
             .
             Eodem
             die
             .
          
           
             
               RIchard
               Cuninghame
            
             pursues
             the
             Duke
             and
             Dutches
             of
             Hamiltoun
             ,
             for
             payment
             of
             a
             Bond
             ,
             granted
             by
             the
             late
             Duke
             ,
             which
             being
             produced
             ,
             appeared
             to
             have
             been
             blank
             in
             the
             Sum
             ,
             Date
             and
             Creditors
             Name
             .
             The
             Defenders
             alleadged
             ,
             the
             Bond
             was
             null
             ,
             as
             wanting
             the
             Designation
             of
             the
             Writer
             .
             It
             was
             answered
             ,
             that
             they
             did
             now
             Design
             him
             ,
             which
             has
             been
             alwayes
             allowed
             by
             the
             Lords
             .
             It
             was
             answered
             ,
             that
             though
             the
             Lords
             have
             done
             so
             ,
             
               ex
               officio
            
             :
             Yet
             in
             a
             case
             of
             this
             nature
             ,
             where
             the
             Debt
             is
             so
             old
             ,
             never
             mentioned
             before
             ,
             and
             the
             Bond
             in
             the
             substantials
             blank
             ,
             in
             which
             case
             the
             Lords
             ought
             to
             keep
             by
             the
             express
             words
             in
             the
             Act
             of
             Parliament
             ,
             that
             such
             Writs
             are
             null
             ,
             and
             not
             to
             be
             supplyed
             by
             an
             equivalent
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             admitted
             the
             Designation
             .
          
        
         
           
             Hellen
             Hill
             contra
             Maxwels
             .
             Eodem
             die
             .
          
           
             IN
             an
             accompt
             and
             reckoning
             between
             
               Hellen
               Hill
            
             ,
             Relict
             of
             
               Iohn
               Maxwel
            
             in
             Glasgow
             ,
             who
             was
             one
             of
             the
             Tutors
             named
             by
             Iohn
             to
             his
             Bairns
             and
             Mr.
             Robert
             and
             
               George
               Maxwels
            
             his
             brethren
             ,
             who
             succeeded
             the
             Daughters
             ,
             being
             dead
             :
             Iohn
             by
             his
             Testament
             leaves
             his
             two
             Daughters
             ,
             and
             failing
             of
             either
             of
             them
             ,
             by
             Decease
             to
             the
             other
             ,
             his
             universal
             Legatars
             ;
             one
             of
             the
             Daughters
             dyed
             Pupil
             ,
             and
             the
             other
             shortly
             after
             her
             age
             of
             12.
             years
             ,
             nominat
             the
             said
             Hellen
             her
             Mother
             ,
             universal
             Legatrix
             ,
             whereby
             Hellen
             craved
             the
             universal
             Legacy
             of
             both
             the
             Daughters
             .
             It
             was
             alleadged
             that
             the
             last
             Daughter
             ,
             not
             having
             Confirmed
             her self
             Executrix
             to
             the
             first
             ;
             the
             first
             share
             was
             never
             established
             in
             her
             Person
             ,
             and
             so
             could
             not
             be
             Transmitted
             by
             her
             Testament
             ,
             but
             belonged
             to
             the
             nearest
             of
             Kin
             ,
             
             of
             the
             first
             Daughter
             ,
             viz.
             The
             saids
             Maxwells
             .
             It
             was
             answered
             ,
             That
             this
             being
             a
             Substitution
             of
             each
             of
             the
             two
             Daughters
             ,
             to
             other
             ,
             nominatim
             by
             the
             death
             of
             the
             one
             ,
             it
             accrest
             into
             the
             other
             ,
             
               ipso
               facto
            
             ,
             without
             Confirmation
             ,
             as
             in
             the
             case
             of
             Bonds
             of
             Provision
             ,
             payable
             to
             the
             Father
             ,
             and
             by
             Decease
             of
             him
             ,
             to
             such
             a
             Bairn
             named
             ,
             albeit
             the
             Father
             be
             Fiar
             ,
             and
             the
             Bairn
             but
             Heir
             substitute
             ,
             it
             needs
             not
             Confirmation
             ;
             but
             the
             Bairn
             may
             summarly
             charge
             or
             pursue
             .
             The
             Lords
             found
             no
             need
             of
             Confirmation
             ,
             but
             that
             it
             did
             accresce
             to
             the
             second
             Daughter
             ,
             upon
             the
             death
             of
             the
             first
             ,
             and
             so
             was
             carried
             by
             the
             seconds
             Testament
             :
             In
             this
             account
             ,
             Mr.
             Robert
             as
             Heir
             ,
             pursuing
             for
             the
             Heretable
             Bonds
             .
             The
             Tutrix
             answered
             ,
             that
             she
             ought
             to
             have
             allowance
             of
             what
             was
             wared
             out
             upon
             repairing
             of
             the
             Tenement
             in
             Glasgow
             .
             It
             was
             answered
             ,
             that
             she
             as
             Tutrix
             ,
             
               ex
               officio
            
             ,
             was
             oblieged
             to
             exhaust
             the
             Moveables
             first
             ,
             one
             Person
             being
             both
             Heir
             and
             Executor
             ,
             and
             not
             to
             exhaust
             the
             Heretable
             Bonds
             ,
             that
             bore
             Annualrent
             ,
             and
             to
             let
             the
             other
             lie
             unprofitable
             ,
             and
             now
             to
             apply
             it
             to
             her
             own
             use
             ,
             by
             her
             Legacy
             .
             It
             was
             answered
             ,
             That
             it
             was
             employed
             upon
             the
             Heritage
             ,
             and
             so
             was
             profitable
             to
             the
             Heir
             only
             ,
             being
             employed
             upon
             the
             House
             ,
             and
             that
             by
             a
             Warrand
             ,
             the
             Heir
             being
             then
             under
             Tutors
             ,
             to
             repair
             it
             out
             of
             the
             first
             and
             readiest
             of
             the
             Defuncts
             Estate
             .
          
           
             The
             Lords
             found
             that
             Article
             Relevant
             ,
             to
             be
             deduced
             out
             of
             the
             Heretable
             Estate
             .
          
        
         
           
             Elizabeth
             Anderson
             contra
             Andrew
             Cunninghame
             .
             December
             7.
             1665.
             
          
           
             
               ANdrew
               Cunninghames
            
             Wife
             having
             left
             a
             Legacy
             to
             
               Elizabeth
               Anderson
            
             :
             It
             was
             alleadged
             by
             the
             Husband
             ,
             that
             his
             Wifes
             share
             of
             the
             moveables
             was
             exhausted
             .
             It
             was
             answered
             ,
             That
             he
             having
             confirmed
             his
             Wifes
             Testament
             ,
             and
             given
             up
             the
             Debts
             due
             by
             him
             therein
             ,
             and
             made
             Faith
             thereon
             ,
             he
             cannot
             now
             be
             admitted
             to
             adduce
             any
             other
             Debts
             ,
             especially
             being
             so
             recent
             before
             the
             Testament
             ,
             within
             three
             or
             four
             years
             .
             It
             was
             answered
             ,
             that
             he
             had
             only
             made
             Faith
             upon
             the
             Inventar
             of
             the
             Goods
             belonging
             to
             him
             ,
             but
             not
             of
             the
             Debts
             due
             by
             him
             ,
             which
             were
             only
             given
             up
             to
             abaite
             the
             Quot
             :
             and
             albeit
             it
             may
             be
             presumed
             that
             he
             knew
             and
             remembred
             his
             own
             Debt
             ,
             yet
             
               presumptio
               cedi●
               veritati
            
             ,
             seing
             the
             Creditors
             now
             produce
             their
             Bond
             instructing
             the
             Debt
             ,
             and
             crave
             preference
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             vid.
             Iune
             9.
             1666.
             
          
        
         
           
             Katharin
             Smith
             and
             William
             Duncan
             contra
             Isobel
             Robertson
             .
             Eodem
             die
             .
          
           
             
               KAtharin
               Smith
            
             and
             
               William
               Duncan
            
             having
             apprized
             from
             
               Isobel
               Robertson
            
             ,
             and
             
               Iohn
               Wilson
            
             ,
             all
             Right
             they
             had
             to
             a
             Tenement
             ,
             under
             which
             fell
             the
             Liferent-right
             of
             
               Isobel
               Robertson
            
             his
             Wife
             ,
             
               jure
               mariti
            
             ,
             Pursues
             the
             said
             Isobel
             ,
             for
             payment
             of
             the
             Mails
             and
             Duties
             that
             she
             had
             uplifted
             ,
             and
             of
             a
             part
             of
             the
             Tenement
             that
             she
             dwelt
             in
             her self
             :
             She
             alleadged
             ,
             first
             ,
             that
             
             her
             Husbands
             
               jus
               mariti
            
             ,
             could
             not
             carry
             her
             Liferent
             ,
             seing
             immediatly
             after
             the
             marriage
             he
             went
             out
             of
             the
             Countrey
             ,
             and
             was
             never
             heard
             of
             since
             ,
             and
             she
             had
             obtained
             Decreet
             of
             Adherence
             against
             him
             ,
             and
             was
             going
             on
             in
             a
             Divorce
             for
             malitious
             deserting
             .
          
           
             The
             Lords
             Repelled
             the
             Alleadgance
             ,
             seing
             the
             Divorce
             was
             not
             compleat
             ,
             and
             this
             was
             four
             years
             anterior
             .
          
           
             The
             said
             Isobel
             further
             alleadged
             absolvitor
             ,
             for
             the
             Rents
             of
             her
             Dwelling-house
             for
             bygones
             ,
             and
             for
             what
             she
             had
             uplifted
             ,
             because
             she
             had
             done
             it
             ,
             
               bona
               fide
               cum
               titulo
               ,
               viz.
            
             her
             Husbands
             obliegement
             to
             aliment
             her
             as
             his
             Wife
             ,
             
               &
               bona
               fide
               possessor
               facit
               fructus
               consumptos
               suos
               .
            
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             that
             albeit
             her
             Husband
             would
             be
             lyable
             for
             these
             Rents
             ,
             which
             alimented
             his
             Wife
             ,
             yet
             not
             she
             .
          
        
         
           
             David
             Veatch
             contra
             Iohn
             Duncan
             .
             Eodem
             die
             .
          
           
             
               DAvid
               Veatch
            
             as
             heritor
             of
             the
             Miln
             of
             Dersie
             ,
             pursues
             
               Iohn
               Duncan
            
             ,
             for
             abstracted
             Multures
             ,
             and
             obtains
             Decreet
             .
             He
             Charges
             and
             Iohn
             Suspends
             ,
             both
             parties
             being
             ordained
             to
             produce
             their
             Rights
             :
             the
             Heritor
             of
             the
             Miln
             ,
             instructs
             that
             his
             Author
             was
             first
             Infeft
             in
             the
             Miln
             ,
             before
             the
             Defenders
             Author
             was
             Infeft
             in
             the
             Land
             ,
             and
             produces
             a
             Decreet
             of
             the
             Lords
             in
             Anno
             1575.
             declaring
             the
             Thirlage
             ,
             wherein
             it
             was
             alleadged
             that
             the
             Heretor
             of
             the
             Miln
             being
             first
             Infeft
             of
             the
             Common-author
             ,
             and
             producing
             a
             Precept
             from
             Cardinal
             Beaton
             ,
             then
             Bishop
             of
             St.
             Andrews
             Common-author
             ,
             ordaining
             the
             Tennents
             of
             the
             Defenders
             Land
             ,
             to
             pay
             the
             Multure
             to
             the
             Miln
             of
             Dersie
             .
             It
             was
             alleadged
             ,
             this
             was
             not
             sufficient
             ,
             seing
             the
             Charter
             did
             not
             Thirle
             the
             Defenders
             Lands
             ,
             but
             was
             only
             of
             the
             Miln
             and
             Multure
             thereof
             generally
             ,
             as
             for
             the
             Cardinals
             Precept
             ,
             it
             was
             not
             with
             consent
             of
             the
             Chapter
             ,
             and
             so
             could
             not
             extend
             beyond
             the
             Bishops
             Life
             :
             yet
             the
             Lords
             declared
             the
             Astriction
             ,
             notwithstanding
             it
             was
             now
             alleadged
             ,
             that
             the
             Defender
             was
             Infeft
             ,
             
               cum
               molendinis
               &
               muliuris
            
             ;
             by
             vertue
             whereof
             ,
             he
             had
             prescribed
             his
             freedom
             by
             40.
             years
             time
             .
             It
             being
             answered
             that
             once
             being
             Thirled
             by
             the
             Common-author
             ,
             no
             Charter
             granted
             by
             him
             thereafter
             ,
             could
             prejudge
             the
             Feuar
             of
             the
             Miln
             .
             And
             as
             for
             Prescription
             ,
             offered
             to
             prove
             Interruption
             ,
             by
             paying
             of
             Insucken-multures
             within
             the
             space
             of
             40.
             years
             .
          
        
         
           
             William
             Cranstoun
             contra
             Walter
             Pringle
             .
             Decemb.
             12.
             1665.
             
          
           
             
               WIlliam
               Cranstoun
            
             being
             Vassal
             to
             Greenknow
             ,
             he
             was
             amerciat
             in
             his
             Court
             ,
             for
             a
             Blood
             committed
             upon
             
               Walter
               Pringle
            
             :
             and
             being
             charged
             ,
             Suspends
             upon
             this
             Reason
             ,
             that
             Greenknow
             not
             being
             a
             Baron
             ,
             or
             the
             Kings
             immediat
             Tennent
             ,
             had
             no
             power
             of
             Blood-waits
             ,
             unless
             he
             had
             had
             an
             express
             Deputation
             from
             his
             Superiour
             ,
             the
             Marquess
             of
             Huntly
             ,
             who
             is
             Baron
             only
             having
             the
             Jurisdiction
             .
             It
             was
             answered
             ,
             that
             Greenknow
             was
             Infeft
             ,
             
               cum
               curiis
               &
               bloodwitis
            
             .
          
           
             Which
             the
             Lords
             found
             sufficient
             .
          
        
         
           
           
             Mr.
             John
             Pearson
             contra
             Martin
             and
             his
             Son.
             Eodem
             die
             .
          
           
             MR.
             
               Iohn
               Pearson
            
             ,
             by
             his
             Contract
             with
             
               Eupham
               Martin
            
             ,
             did
             conceive
             the
             Clause
             of
             his
             Tochar
             ,
             in
             thir
             Terms
             ,
             that
             it
             should
             be
             payable
             to
             him
             and
             her
             ,
             the
             longest
             liver
             of
             them
             two
             in
             Conjunct-fee
             and
             Liferent
             ,
             and
             to
             the
             Heirs
             of
             the
             Marriage
             ,
             in
             Fee
             ;
             which
             failzing
             to
             return
             to
             the
             Wifes
             Heirs
             .
             By
             a
             second
             Contract
             ,
             betwixt
             the
             Husband
             and
             his
             Wife
             ,
             it
             was
             agreed
             that
             that
             Clause
             should
             be
             altered
             ;
             and
             that
             failzing
             the
             Heirs
             of
             the
             Marriage
             ,
             it
             should
             return
             to
             the
             mans
             Heirs
             ,
             who
             thereupon
             pursue
             Declarator
             of
             Right
             ,
             by
             vertue
             of
             the
             second
             Contract
             .
             The
             Defender
             being
             absent
             .
          
           
             The
             Lords
             advised
             the
             Cause
             wherein
             the
             difficulty
             appeared
             to
             be
             ,
             that
             the
             Tochar
             was
             provided
             to
             the
             Bairns
             in
             Fee
             ,
             So
             that
             the
             Husband
             and
             Wife
             could
             not
             alter
             the
             Succession
             ,
             being
             both
             Liferenters
             ,
             because
             ,
             that
             the
             Clause
             bears
             ,
             to
             them
             in
             Liferent
             ,
             and
             to
             the
             Bairns
             in
             Fee
             ;
             yet
             the
             Lords
             sustained
             the
             Declarat●r
             ;
             seing
             the
             Husband
             and
             Wife
             were
             named
             Conjunctfeers
             ,
             so
             that
             either
             of
             them
             behoved
             to
             be
             Fear
             ,
             and
             the
             adjection
             of
             ,
             and
             Liferent
             could
             only
             be
             understood
             of
             the
             Person
             that
             were
             Liferentar
             ,
             and
             albeit
             it
             was
             exprest
             to
             be
             the
             Bairns
             in
             Fee
             ,
             yet
             that
             could
             be
             but
             of
             a
             substitution
             ,
             seing
             there
             were
             no
             Bairns
             then
             existent
             .
          
        
         
           
             Christian
             Barns
             contra
             Hellen
             Young
             and
             her
             Spouse
             .
             Eodem
             die
             .
          
           
             
               HEllen
               Young
            
             being
             provided
             to
             the
             Annualrent
             of
             800
             merks
             ,
             and
             to
             the
             Conquest
             ,
             obtained
             Decreet
             thereupon
             ,
             against
             
               Christian
               Barns
            
             the
             Executrix
             ,
             who
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Pursuer
             was
             Infeft
             by
             the
             Defunct
             her
             Father
             ,
             in
             a
             Tenement
             ,
             in
             full
             satisfaction
             of
             these
             provisions
             .
             It
             was
             answered
             ,
             nonrelevat
             ,
             unless
             it
             were
             alleadged
             ,
             that
             the
             Charger
             had
             accepted
             .
             Whereupon
             it
             was
             alleadged
             ,
             Accepted
             ,
             in
             so
             far
             as
             she
             had
             uplifted
             the
             Mails
             and
             Duties
             after
             her
             Fathers
             death
             ,
             and
             had
             no
             other
             Title
             ascribe
             it
             to
             .
             It
             was
             answered
             ,
             that
             she
             had
             another
             Title
             ,
             viz.
             her
             Goodsir
             had
             Disponed
             this
             Tenement
             to
             her
             Father
             and
             Mother
             ,
             the
             longest
             liver
             of
             them
             two
             ,
             and
             the
             Bairns
             of
             the
             Marriage
             ,
             be
             vertue
             whereof
             ,
             as
             Heir
             Appearand
             of
             the
             Marriage
             ,
             she
             might
             contiue
             ,
             and
             uplift
             ,
             and
             miskene
             the
             new
             infeftment
             given
             by
             her
             Father
             .
          
           
             Which
             the
             Lords
             founds
             relvant
             ,
             unless
             the
             other
             Partie
             Insist
             on
             that
             alleadgeance
             proponed
             ,
             that
             the
             Pursuer
             had
             pursued
             ,
             and
             obtained
             payment
             upon
             the
             Title
             bearing
             ,
             in
             satisfaction
             .
          
        
         
           
           
             John
             Ramsay
             contra
             James
             Wilson
             and
             others
             .
             Eodem
             die
             .
          
           
             COlonel
             Cunningham
             ,
             having
             impignorat
             a
             number
             of
             Jewels
             of
             great
             Value
             ,
             and
             immediately
             thereafter
             ,
             went
             out
             of
             the
             Countrey
             ,
             and
             never
             returned
             .
             These
             Jewels
             were
             in
             the
             Custody
             of
             
               Iohn
               Ramsay
            
             ,
             who
             ,
             and
             Mr.
             
               Robert
               Byres
            
             had
             given
             Bond
             ,
             to
             make
             them
             furthcoming
             to
             the
             Colonel
             ,
             and
             now
             
               Iohn
               Ramsay
            
             having
             been
             Confirmed
             Executor
             to
             the
             Colonel
             ,
             pursues
             
               Iames
               Wilson
            
             ,
             and
             others
             ,
             for
             Exhibition
             ,
             and
             Delivery
             of
             the
             Jewels
             .
             The
             Defenders
             alleadged
             absolvitor
             ,
             because
             the
             Jewels
             were
             Impignorat
             by
             Mr.
             
               Robert
               Byres
            
             for
             a
             considerable
             Sum
             of
             Money
             ,
             who
             having
             them
             in
             his
             Possession
             ,
             it
             was
             a
             sufficient
             ground
             for
             the
             Defenders
             to
             Contract
             with
             him
             ,
             because
             property
             of
             Moveables
             is
             presumed
             by
             Possession
             ;
             and
             therefore
             it
             is
             not
             relevant
             to
             lybel
             ,
             that
             once
             the
             Jewels
             were
             Colonel
             Cunninghams
             ,
             and
             therefore
             they
             must
             be
             restored
             to
             his
             Executors
             ,
             unless
             it
             were
             also
             lybeled
             
               quomodo
               desijt
               possidere
            
             ,
             so
             that
             the
             Jewels
             behoved
             to
             have
             past
             from
             him
             ,
             without
             his
             own
             Consent
             ,
             or
             Alienation
             ,
             otherwise
             it
             is
             alwayes
             presumed
             ,
             that
             he
             sold
             or
             gifted
             them
             ,
             and
             needs
             not
             be
             proven
             ;
             else
             no
             man
             could
             be
             secure
             of
             any
             Moveable
             :
             if
             he
             who
             could
             instruct
             ,
             that
             he
             bought
             it
             ,
             could
             recover
             it
             from
             all
             possessors
             ,
             unlesse
             they
             could
             instruct
             all
             the
             wayes
             the
             same
             past
             from
             the
             first
             Owner
             .
             The
             Pursuer
             replyed
             ,
             that
             the
             Case
             is
             not
             here
             ,
             as
             to
             Moveables
             ,
             that
             are
             ordinarily
             sold
             in
             Mercat
             ,
             but
             in
             relation
             to
             Jewels
             of
             great
             Value
             ,
             which
             cannot
             be
             presumed
             to
             have
             been
             Mr.
             
               Robert
               Byres
            
             ,
             because
             they
             were
             never
             worn
             by
             him
             ,
             as
             being
             his
             proper
             Good
             ,
             nor
             were
             they
             Competent
             to
             any
             of
             his
             quality
             :
             and
             therefore
             the
             Defenders
             were
             ,
             in
             
               mala
               fide
            
             ,
             to
             acquire
             them
             from
             him
             ,
             without
             knowing
             his
             Right
             .
          
           
             2ly
             .
             It
             is
             instructed
             by
             
               Mr.
               Robert
               Byres
            
             Letter
             produced
             ,
             that
             he
             acknowledged
             them
             to
             be
             Colonels
             ,
             before
             the
             Impignoration
             :
             and
             it
             s
             offered
             to
             be
             proven
             ,
             that
             he
             broke
             up
             
               Iohn
               Ramsays
            
             Celler
             ,
             and
             took
             them
             out
             .
             3dly
             :
             The
             Colonel
             Impignorat
             them
             by
             Writ
             ,
             and
             so
             the
             Presumption
             of
             allienating
             them
             ,
             ceased
             ,
             because
             he
             went
             immediately
             out
             of
             the
             Countrey
             ,
             and
             never
             returned
             .
             It
             was
             answered
             ,
             that
             there
             is
             no
             difference
             of
             Jewels
             ,
             more
             than
             any
             other
             Moveables
             ,
             which
             use
             to
             passe
             without
             Writ
             from
             Jewellers
             that
             sell
             them
             ;
             and
             the
             Pursuer
             having
             possest
             them
             these
             ,
             10.
             or
             12.
             
             Years
             ,
             without
             question
             ,
             has
             right
             thereto
             ,
             by
             usucapion
             .
          
           
             The
             Lords
             found
             the
             alleadgeances
             joyntly
             relevant
             to
             elied
             the
             presumption
             ,
             and
             that
             there
             is
             no
             usucapion
             in
             Moveables
             in
             Scotland
             ,
             by
             Possession
             in
             less
             then
             40
             years
             ,
             but
             only
             a
             presumptive
             Title
             ,
             which
             is
             altogether
             eleided
             by
             the
             Answers
             .
          
        
         
           
             Duke
             of
             Hamiltoun
             contra
             Laird
             of
             Clackmanan
             .
             December
             14.
             1665.
             
          
           
             THe
             Duke
             of
             Hamiltoun
             ,
             as
             Collector
             of
             the
             Taxations
             1633.
             charges
             the
             Laird
             of
             Clackmannan
             ,
             who
             Suspends
             ,
             and
             produces
             Discharges
             of
             the
             first
             three
             Terms
             .
             It
             was
             alleadged
             ,
             these
             discharges
             could
             not
             liberat
             ,
             because
             they
             were
             granted
             by
             
               Iohn
               Scobie
            
             ,
             who
             was
             neither
             Sheriff
             ,
             Baillie
             ,
             
             nor
             Clerk
             ;
             nor
             does
             it
             appear
             ,
             that
             he
             had
             any
             Warrand
             ,
             or
             Commission
             nor
             does
             his
             Discharges
             mention
             any
             Commission
             ,
             or
             Warrand
             .
             It
             was
             answered
             ,
             that
             by
             the
             Discharges
             produced
             ,
             it
             appears
             ,
             that
             Ormistoun
             and
             Humbie
             ,
             deputed
             for
             the
             Duke
             ,
             had
             granted
             Discharges
             to
             this
             
               Iohn
               Scobie
            
             ,
             and
             offer
             to
             prove
             ,
             that
             he
             was
             in
             use
             of
             uplifting
             the
             Taxations
             during
             the
             Terms
             themselves
             ,
             and
             was
             commonly
             repute
             ,
             as
             Collector
             thereof
             ,
             which
             must
             be
             sufficient
             
               post
               tantum
               tempus
            
             .
             It
             was
             answered
             ,
             that
             that
             ground
             would
             not
             oblidge
             the
             Sheriff
             ,
             and
             so
             both
             the
             Heretor
             and
             Sheriff
             ,
             being
             free
             ,
             the
             King
             looseth
             his
             Right
             .
          
           
             Yet
             the
             Lords
             sustained
             the
             Reason
             .
          
        
         
           
             Monteith
             contra
             Mr.
             John
             Anderson
             .
             December
             15.
             1665.
             
          
           
             IN
             a
             Reduction
             ,
             at
             the
             instance
             of
             Monteith
             against
             Anderson
             ,
             a
             Reason
             of
             payment
             being
             found
             relevant
             ,
             
               Mr.
               Iohn
            
             produced
             an
             Incident
             ,
             at
             the
             first
             Terme
             ,
             and
             a
             Diligence
             against
             Witnesses
             ,
             for
             proving
             the
             having
             of
             the
             Writs
             ,
             at
             the
             second
             Term.
             
          
           
             Which
             Incident
             the
             Lords
             sustained
             ,
             and
             would
             not
             restrict
             the
             Terms
             of
             probation
             in
             the
             Incident
             ,
             to
             Horning
             against
             the
             Witnesses
             ,
             and
             Caption
             ,
             but
             allowed
             four
             Terms
             ,
             and
             ordained
             the
             same
             to
             be
             shorter
             .
          
        
         
           
             Mr.
             John
             Elies
             contra
             Keith
             .
             Eodem
             Die.
             
          
           
             THere
             was
             a
             Bond
             of
             6000
             merks
             ,
             granted
             by
             Wiseheart
             Parson
             of
             Leith
             ,
             and
             Keith
             his
             Spouse
             ,
             to
             
               Mr.
               Iohn
               Elies
            
             containing
             an
             oblidgement
             to
             Infeft
             him
             in
             an
             Annualrent
             out
             of
             any
             of
             their
             Lands
             ,
             with
             a
             Procuratorie
             .
             The
             Wife
             had
             then
             the
             Lands
             of
             Benholm
             ,
             belonging
             to
             her
             Heretablie
             ,
             lying
             in
             the
             Mairns
             ,
             Mr.
             Iohn
             having
             Inhibite
             her
             Husband
             and
             her
             ,
             she
             sold
             the
             the
             Lands
             before
             the
             Inhibition
             was
             published
             at
             the
             head
             Burgh
             of
             the
             Mairns
             ,
             and
             having
             thereafter
             right
             to
             a
             Sum
             of
             10000
             merks
             for
             which
             she
             was
             Infeft
             under
             Reversion
             ,
             in
             other
             Lands
             ,
             an
             order
             of
             Redemption
             was
             used
             ,
             and
             the
             Money
             consigned
             ;
             Mr.
             
               Iohn
               Elies
            
             pursues
             a
             Declataror
             ,
             to
             hear
             and
             see
             it
             Found
             and
             Declared
             ,
             that
             the
             said
             Keith
             was
             oblidged
             to
             infeft
             him
             in
             an
             Annualrent
             ,
             out
             of
             her
             Lands
             ,
             which
             she
             had
             fraudulently
             Disponed
             ,
             contraire
             her
             obligation
             ,
             and
             therefore
             was
             now
             oblidged
             to
             Infeft
             him
             in
             other
             her
             Lands
             ,
             or
             to
             pay
             the
             Sum
             ,
             as
             damnage
             ,
             and
             interest
             ;
             and
             that
             therefore
             any
             other
             Lands
             ,
             or
             Rights
             belonging
             to
             her
             ,
             might
             be
             affected
             for
             his
             payment
             ,
             and
             particularly
             the
             Wodset
             now
             in
             question
             .
             Compearance
             was
             made
             for
             the
             Defenders
             Grand-child
             ,
             who
             had
             a
             Right
             from
             her
             Grand-mother
             to
             the
             Wodset
             ,
             who
             alleadged
             ,
             First
             ,
             That
             the
             Bond
             bearing
             ,
             an
             oblidgement
             for
             Debt
             ,
             granted
             by
             the
             Wife
             ,
             
               stante
               matrimonio
            
             was
             null
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Personal
             oblidgment
             were
             null
             ,
             yet
             the
             oblidgment
             ,
             to
             Infeft
             in
             an
             Annualrent
             granted
             by
             a
             Wife
             ,
             is
             valid
             ,
             
             either
             against
             her
             Heretage
             ,
             or
             Liferent
             ,
             and
             alleadged
             several
             Dicisions
             therefore
             .
             It
             was
             answered
             ,
             that
             the
             Wife
             might
             do
             so
             ,
             if
             she
             had
             borrowed
             money
             for
             her
             own
             use
             ,
             or
             were
             principally
             bound
             to
             Infeft
             in
             an
             Annualrent
             ,
             but
             this
             oblidgment
             being
             in
             security
             of
             her
             Personal
             obligatigation
             ,
             with
             her
             Husband
             ,
             the
             principal
             obligation
             being
             null
             ,
             the
             accessory
             is
             also
             null
             .
          
           
             The
             Lords
             repelled
             the
             alleadgeance
             ,
             and
             found
             the
             oblidgement
             to
             Infeft
             valid
             ,
             albeit
             accessory
             ,
             because
             Deeds
             ,
             and
             Obligations
             of
             Wyfes
             not
             to
             affect
             their
             Persons
             ,
             but
             Estates
             are
             valid
             ;
             and
             albeit
             she
             had
             not
             been
             bound
             for
             the
             principal
             Debt
             ,
             she
             might
             either
             have
             effectually
             disponed
             an
             Annualrent
             ,
             or
             which
             is
             all
             one
             ,
             oblidged
             her self
             to
             Infeft
             in
             an
             Annualrent
             out
             of
             her
             Heretage
             ,
             
               &
               utile
               per
               inutile
               non
               vitiatur
               .
            
          
           
             It
             was
             further
             alleadged
             ,
             that
             this
             Wodset
             ,
             or
             Sum
             disponed
             to
             her
             Oy
             ,
             could
             not
             be
             affected
             ,
             because
             her
             Oy
             ,
             was
             the
             youngest
             of
             many
             Oyes
             ,
             and
             did
             no
             wayes
             represent
             her
             .
          
           
             The
             Lords
             sustained
             this
             Member
             of
             the
             Declarator
             also
             ,
             upon
             the
             Act
             of
             Parliament
             ,
             1621.
             against
             Dispositions
             between
             Conjunct
             Persons
             ,
             without
             a
             cause
             onerous
             ,
             which
             they
             found
             ,
             might
             either
             be
             a
             ground
             to
             reduce
             the
             same
             ,
             or
             to
             declare
             the
             same
             to
             be
             affected
             ,
             as
             if
             the
             Right
             were
             in
             the
             Disponers
             Person
             .
             Herein
             it
             was
             also
             lybelled
             ,
             That
             this
             Wodset
             ,
             albeit
             acquired
             after
             the
             Inhibition
             ,
             yet
             seing
             it
             lay
             in
             the
             same
             Shire
             ,
             where
             the
             Inhibition
             was
             published
             ,
             the
             Grand-child's
             Right
             were
             Reduceable
             ,
             upon
             the
             Inhibition
             .
          
           
             The
             Lords
             thought
             so
             ,
             because
             Inhibitions
             being
             Personal
             Prohibitions
             ,
             reach
             both
             acquisita
             and
             acquirenda
             ,
             by
             the
             Person
             Inhibit
             ,
             in
             the
             Shires
             where
             it
             is
             published
             .
          
        
         
           
             Laird
             Kilbocho
             contra
             Lady
             Kilbocho
             .
             December
             20.
             1665.
             
          
           
             THE
             Lady
             Kilbocho
             ,
             by
             her
             Contract
             of
             Marriage
             ,
             being
             provided
             to
             certain
             Lands
             ,
             with
             this
             provision
             further
             ,
             that
             she
             should
             have
             the
             Liferent
             of
             all
             Lands
             Conquest
             ,
             during
             the
             Marriage
             ,
             whereupon
             she
             obtained
             a
             Decreet
             in
             the
             English
             time
             ,
             which
             being
             now
             under
             Reduction
             .
             It
             was
             alleadged
             ,
             the
             Clause
             of
             Conquest
             could
             only
             give
             her
             the
             Lands
             Conquest
             ,
             with
             the
             Burden
             of
             the
             Annualrent
             of
             a
             Sum
             due
             by
             the
             Defunct
             ,
             to
             a
             Person
             from
             whom
             he
             bought
             the
             Land
             ,
             as
             being
             a
             part
             of
             the
             Price
             of
             the
             Land
             ,
             especially
             ,
             seing
             by
             a
             writ
             under
             the
             Defuncts
             hand
             ,
             he
             acknowledged
             ,
             that
             this
             Bond
             was
             granted
             for
             a
             part
             of
             the
             Price
             .
             It
             was
             answered
             ,
             First
             ,
             That
             a
             Personal
             oblidgement
             cannot
             affect
             the
             Land
             ,
             neither
             can
             it
             affect
             the
             Ladies
             Person
             :
             but
             if
             the
             Defunct
             had
             pleased
             ,
             he
             might
             have
             granted
             an
             Annualrent
             out
             of
             the
             Lands
             Conquest
             ,
             which
             then
             would
             have
             affected
             it
             ,
             which
             not
             being
             done
             ,
             his
             declaring
             that
             this
             Sum
             was
             a
             part
             of
             the
             price
             ,
             cannot
             be
             effectual
             ,
             nor
             can
             infer
             a
             Probation
             against
             his
             Wife
             ,
             in
             prejudice
             of
             her
             anterior
             Right
             .
             Secondly
             ,
             This
             alleadgeance
             might
             be
             proponed
             as
             well
             against
             the
             Heir
             of
             Conquest
             ,
             as
             Liferenter
             thereof
             ,
             and
             yet
             it
             was
             never
             found
             ,
             that
             the
             Heir
             of
             Conquest
             behoved
             to
             accept
             the
             Land
             with
             the
             Burden
             of
             the
             Sums
             borrowed
             to
             buy
             it
             ,
             nor
             yet
             to
             relieve
             the
             Heir
             of
             Lyne
             thereof
             ;
             but
             on
             the
             contrair
             ,
             the
             Heir
             of
             Conquest
             has
             relief
             against
             the
             Heir
             of
             Lyne
             ,
             for
             Personal
             Debt
             ,
             though
             borrowed
             for
             acquiring
             the
             Right
             .
          
           
             The
             Lords
             found
             that
             the
             Case
             was
             not
             alike
             with
             the
             Heirs
             of
             Conquest
             ,
             whom
             
             Defuncts
             do
             Infeft
             ,
             without
             any
             burden
             ;
             and
             Liferenters
             ,
             who
             having
             a
             speciall
             Competent
             Provision
             ,
             this
             general
             Clause
             being
             but
             adjected
             ,
             as
             uncertain
             ,
             is
             not
             so
             favourable
             ,
             or
             so
             to
             be
             extended
             ;
             seing
             the
             Husband
             did
             not
             Infeft
             the
             Wife
             in
             his
             own
             time
             ,
             in
             the
             Conquest
             .
             And
             therefore
             found
             her
             to
             be
             lyable
             to
             the
             Annualrent
             of
             this
             Sum
             ,
             which
             they
             found
             instructed
             by
             the
             Hubands
             Declaration
             ,
             where
             the
             Ladies
             Father
             is
             a
             subscribing
             Witness
             .
          
        
         
           
             Sir
             Rorie
             Mcclaud
             contra
             Walter
             Young
             and
             John
             Govane
             Eodem
             die
             .
          
           
             
               WAlter
               Young
               ,
               Iohn
               Govan
            
             and
             
               Hendrie
               Hope
            
             ,
             by
             a
             Letter
             written
             to
             any
             that
             they
             should
             Buy
             Kows
             from
             in
             the
             Highlands
             ,
             desired
             ,
             that
             they
             might
             use
             the
             Bearer
             of
             the
             Letter
             kindly
             ,
             and
             for
             whatever
             quantity
             of
             Kows
             they
             bought
             ,
             they
             should
             answer
             such
             Bills
             ,
             as
             he
             should
             draw
             upon
             them
             therefore
             .
             
               Hendrie
               Hope
            
             being
             broken
             ,
             
               Iames
               Gray
            
             ,
             as
             Assigney
             ,
             pursues
             the
             other
             two
             for
             the
             whole
             ,
             who
             alleadged
             ,
             they
             were
             only
             lyable
             for
             their
             own
             Parts
             .
             It
             was
             answered
             ,
             that
             they
             were
             oblidged
             to
             answer
             such
             Bills
             ,
             as
             the
             Person
             intrusted
             by
             them
             should
             draw
             ;
             and
             they
             produce
             a
             Bill
             drawn
             by
             him
             ,
             upon
             them
             ,
             or
             either
             of
             them
             .
             It
             was
             answered
             ,
             that
             such
             Bills
             can
             only
             relate
             to
             the
             Quantity
             ,
             and
             not
             to
             the
             Quality
             ,
             and
             manner
             of
             oblidging
             ;
             seing
             if
             they
             had
             so
             intended
             ,
             they
             would
             have
             oblidged
             them
             ,
             and
             either
             of
             them
             ,
             or
             it
             would
             have
             born
             ,
             what
             he
             should
             draw
             upon
             them
             ,
             or
             either
             of
             them
             ,
             should
             be
             answered
             .
          
           
             The
             Lords
             found
             every
             one
             of
             them
             lyable
             
               in
               solidum
            
             ,
             for
             they
             thought
             that
             the
             Clause
             being
             dubious
             ,
             was
             to
             be
             interpret
             against
             the
             Writers
             ,
             and
             the
             Sellers
             of
             the
             Kows
             ,
             were
             
               bona
               fide
            
             to
             rest
             upon
             the
             interpretation
             of
             the
             Persons
             intrusted
             .
          
        
         
           
             Sir
             John
             Leslie
             contra
             Sinclar
             and
             Dun.
             Ianuary
             22.
             1665.
             
          
           
             SIr
             
               Iohn
               Leslie
            
             ,
             as
             Assigney
             constitute
             by
             Sir
             
               William
               Dick
            
             to
             a
             Bond
             ,
             oblidging
             
               Francis
               Sinclar
            
             as
             Principal
             ,
             and
             young
             Dun
             as
             Cautioner
             ,
             to
             deliver
             30
             Chalders
             of
             Bear
             ;
             at
             10
             merk
             the
             Boll
             ,
             Dun
             alleadges
             absolvitor
             ,
             because
             he
             was
             Minor
             
               in
               Familia
               Paterna
            
             ,
             and
             so
             his
             Father
             was
             his
             Curator
             of
             Law
             ,
             and
             therefore
             his
             subscribing
             as
             Cautioner
             was
             null
             ,
             being
             without
             his
             Fathers
             consent
             .
             It
             was
             answered
             ,
             the
             alleadgeance
             was
             not
             competent
             by
             exception
             ,
             against
             a
             clear
             liquid
             Bond.
             Secondly
             ,
             That
             the
             Defense
             is
             only
             competent
             in
             the
             Case
             of
             Curators
             chosen
             .
          
           
             The
             Lords
             found
             the
             Defense
             Competent
             by
             way
             of
             Exception
             ;
             but
             before
             answer
             to
             the
             Relevancie
             ordained
             the
             Parties
             to
             condescend
             upon
             Duns
             age
             ,
             the
             time
             of
             his
             Subscription
             ,
             and
             whether
             he
             did
             then
             administrat
             ,
             or
             go
             about
             any
             other
             affairs
             .
          
        
         
           
             Dame
             Rachel
             Burnet
             contra
             Lepers
             .
             December
             23.
             1665.
             
          
           
             BY
             Contract
             of
             Marriage
             betwixt
             Mr.
             
               Iohn
               Leper
            
             ,
             and
             his
             Father
             ,
             and
             and
             Dame
             
               Rachel
               Burnet
            
             on
             the
             other
             part
             ,
             both
             Father
             and
             Son
             were
             
             oblidged
             to
             employ
             20000
             lib.
             upon
             security
             for
             the
             Liferent
             use
             of
             the
             said
             Dame
             Rachel
             ,
             who
             ,
             with
             concurse
             of
             Prestoun
             her
             present
             Husband
             ,
             pursues
             the
             Sisters
             of
             the
             said
             Mr.
             
               Iohn
               Leper
            
             ,
             as
             Heirs
             ,
             and
             otherwayes
             representing
             him
             ,
             and
             their
             Husbands
             ,
             for
             their
             entrests
             ;
             and
             likewise
             Doctor
             Balfours
             Wife
             ,
             only
             Daughter
             of
             an
             of
             the
             Sisters
             ,
             as
             Heir
             to
             her
             Father
             ,
             and
             Mother
             ,
             against
             whom
             there
             was
             Decreet
             of
             Registration
             obtained
             ,
             during
             their
             Lifetimes
             together
             ,
             and
             on
             this
             ground
             ,
             That
             the
             Defuncts
             Husband
             did
             by
             Contract
             of
             Marriage
             ,
             Disposition
             ,
             or
             otherwayes
             ;
             obtain
             Right
             to
             the
             Portion
             of
             his
             Wife
             ,
             one
             of
             the
             Sisters
             ,
             and
             Heirs
             ,
             and
             therefore
             is
             lyable
             in
             payment
             
               in
               quantum
               lucratus
               est
            
             .
             It
             was
             alleadged
             for
             Doctor
             Balfour
             and
             his
             Wife
             ,
             that
             she
             was
             willing
             to
             renounce
             to
             be
             Heir
             ,
             to
             her
             Mother
             ,
             but
             as
             for
             the
             other
             passive
             Title
             ,
             as
             representing
             her
             Father
             ,
             who
             was
             
               locuple●ior
               factus
            
             ;
             it
             is
             no
             wayes
             relevant
             ,
             for
             Marriage
             ,
             is
             a
             cause
             onerous
             ,
             and
             Tochars
             are
             granted
             
               ad
               sustinenda
               onera
               matrimonij
            
             ,
             and
             therefore
             are
             never
             counted
             fraudulent
             deeds
             ,
             or
             without
             an
             onerous
             cause
             ;
             nor
             do
             they
             fall
             within
             the
             Act
             of
             
               Parliament
               1621.
               against
               fraudful
               alienations
            
             ;
             neither
             was
             the
             Defenders
             Father
             lyable
             though
             there
             was
             a
             Decreet
             of
             Registration
             against
             him
             ,
             because
             before
             any
             Execution
             ,
             the
             Marriage
             was
             dissolved
             .
             It
             was
             answered
             ,
             for
             the
             Pursuer
             ,
             that
             that
             member
             of
             the
             Lybel
             stands
             relevant
             ,
             because
             the
             Defenders
             Mother
             being
             Heir
             to
             her
             Brother
             ,
             the
             Contracter
             could
             not
             transmit
             her
             Estate
             to
             her
             Husband
             ,
             without
             the
             burden
             of
             her
             Brothers
             Debt
             ;
             and
             it
             is
             a
             most
             unquestionable
             Ground
             in
             Law
             and
             Equity
             ,
             
               quod
               nemo
               debet
               cum
               alieno
               damno
               locupletari
               ,
            
             and
             therefore
             Creditors
             are
             still
             preferred
             to
             Portions
             of
             Children
             ,
             though
             given
             for
             their
             Tochar
             .
          
           
             The
             Lords
             found
             that
             Member
             not
             Relevant
             ,
             that
             Decreet
             was
             obtained
             against
             the
             Husband
             and
             Wife
             ,
             
               stante
               matrimonio
            
             ,
             seing
             it
             received
             not
             Execution
             ;
             and
             as
             to
             the
             other
             Member
             ,
             they
             thought
             ,
             that
             if
             there
             were
             but
             a
             moderat
             and
             ordinar
             Tochar
             ,
             proportionable
             to
             the
             burdens
             of
             the
             Marriage
             ,
             it
             would
             not
             infer
             Repitition
             ,
             or
             if
             the
             Tochar
             was
             great
             ,
             or
             an
             universal
             Disposition
             of
             all
             the
             Heirs
             Right
             ,
             they
             thought
             the
             Husband
             would
             be
             lyable
             ,
             in
             so
             far
             as
             it
             was
             above
             a
             proportionable
             Tochar
             ,
             and
             therefore
             before
             Answer
             ,
             Ordained
             the
             Contract
             of
             Marriage
             to
             be
             produced
             ,
             and
             the
             Pursuer
             to
             condescend
             ,
             if
             there
             was
             any
             other
             benefit
             accresced
             to
             the
             Husband
             by
             his
             Wife
             ,
             then
             by
             vertue
             of
             the
             Contract
             .
          
           
             It
             was
             further
             alleadged
             ,
             for
             the
             Lady
             Pitmedden
             ,
             one
             of
             the
             Sisters
             on
             Life
             ,
             that
             she
             could
             only
             be
             lyable
             for
             her
             own
             sixth
             part
             ,
             as
             one
             of
             the
             six
             Heirs
             Portioners
             .
             It
             was
             answered
             ,
             by
             our
             Law
             ,
             that
             all
             Heirs
             were
             lyable
             
               in
               solidum
            
             .
             There
             was
             several
             Decisions
             alleadged
             on
             either
             hand
             ,
             on
             the
             7.
             of
             
               February
               1632.
               
               Hoom
            
             contra
             Hoom
             :
             Where
             the
             Lords
             found
             the
             Heirs
             Portioners
             lyable
             but
             for
             their
             own
             share
             .
             Another
             February
             15.
             and
             
               March
               21.
               1634.
               
               Watson
            
             contra
             Or
             ,
             Whereby
             one
             of
             the
             Daughters
             having
             a
             Disposition
             of
             the
             whole
             Estate
             ,
             was
             found
             lyable
             for
             the
             whole
             Debt
             .
             And
             another
             Ianuary
             24.
             1642.
             
             Where
             one
             of
             the
             Heirs
             Portioners
             ,
             having
             Disponed
             her
             share
             to
             the
             other
             ,
             and
             thereby
             being
             insolvent
             ,
             that
             other
             was
             found
             lyable
             
               in
               solidum
            
             .
          
           
             The
             Lords
             having
             considered
             the
             Case
             ,
             found
             the
             Heir
             Portioner
             lyable
             ,
             
               iprmo
               loco
            
             ,
             only
             for
             her
             own
             share
             ,
             untill
             the
             rest
             of
             the
             Heirs
             Portioners
             were
             discust
             ,
             but
             determined
             not
             whether
             these
             who
             were
             solvendo
             ,
             should
             be
             lyable
             
               in
               solidum
            
             ,
             albeit
             the
             Debt
             exceeded
             their
             Portion
             ,
             or
             only
             intirely
             for
             their
             own
             share
             ,
             and
             for
             as
             much
             more
             as
             the
             value
             of
             their
             Succession
             could
             amount
             to
             .
          
        
         
           
           
             Laird
             of
             Cesnock
             contra
             Lord
             Bargany
             .
             Eodem
             die
             .
          
           
             THE
             Laird
             of
             Cesnock
             and
             the
             Lord
             Bargany
             ,
             and
             Balcarras
             ,
             being
             bound
             conjunctly
             and
             severally
             in
             a
             Bond
             ;
             Cesnock
             being
             distressed
             for
             the
             whole
             ,
             takes
             Assignation
             ,
             and
             pursues
             Bargany
             for
             two
             thirds
             ,
             who
             alleadged
             payment
             ;
             and
             because
             it
             was
             a
             publick
             Debt
             ,
             he
             produced
             an
             incident
             
               in
               termino
            
             ,
             which
             the
             Lords
             sustained
             not
             ,
             because
             it
             buire
             no
             warrand
             to
             cite
             Cesnock
             the
             Principall
             Partie
             ,
             and
             the
             Executions
             were
             within
             48
             hours
             by
             one
             Person
             ,
             in
             
               Kyll
               ,
               Renfreu
               ,
               Fyfe
            
             ,
             and
             Edinburgh
             ,
             and
             so
             suspect
             ,
             but
             they
             superceeded
             Extract
             of
             the
             Decreet
             ,
             to
             the
             first
             of
             November
          
        
         
           
             contra
             Wilson
             and
             Lodwick
             Callender
             her
             Spouse
             .
             Ianuary
             2.
             1666.
             
          
           
             〈…〉
             pursues
             a
             Reduction
             
               ex
               capite
               Inhibitionis
            
             ,
             against
             
               Iean
               Wilson
            
             ,
             and
             
               Lodwick
               Callender
            
             her
             Spouse
             ,
             of
             all
             Dispsitions
             ,
             of
             certain
             Tenements
             of
             Leith
             ,
             made
             by
             the
             Common
             Author
             ,
             since
             the
             Inhibition
             .
             It
             was
             alleadged
             ,
             for
             the
             Defenders
             ,
             absolvitor
             from
             this
             Reduction
             ,
             because
             the
             Defenders
             produced
             an
             Appryzing
             led
             against
             the
             common
             Author
             ,
             before
             the
             Inhibition
             ,
             and
             which
             is
             sufficient
             to
             maintain
             the
             Defenders
             Right
             of
             the
             Lands
             in
             question
             ;
             and
             to
             exclude
             all
             Rights
             and
             Interest
             the
             Pursuers
             can
             have
             thereto
             .
             It
             was
             adswered
             ,
             
               non
               relevat
            
             ,
             seing
             the
             Pursuer
             is
             not
             insisting
             in
             a
             Reduction
             of
             all
             Right
             competent
             to
             the
             Defenders
             ,
             upon
             general
             Reasons
             ,
             either
             bearing
             expresly
             ,
             or
             by
             equivalence
             that
             the
             Pursuer
             had
             good
             Right
             ,
             and
             the
             Defender
             had
             no
             Right
             ;
             but
             the
             Pertner
             is
             insisting
             specially
             upon
             particular
             Rights
             called
             for
             ,
             and
             upon
             a
             special
             Reason
             .
             viz.
             That
             they
             were
             after
             the
             Pursuers
             Inhibition
             ,
             so
             that
             albeit
             the
             Defender
             have
             another
             better
             Right
             than
             the
             Pursuer
             ,
             it
             will
             not
             be
             prejudged
             by
             this
             Reduction
             ,
             nor
             can
             it
             hinder
             the
             conclusion
             of
             this
             Summonds
             .
             viz.
             That
             the
             Dispositions
             are
             null
             ,
             as
             being
             
               post
               Inhibitionem
            
             .
             It
             was
             answered
             ,
             for
             the
             Defender
             ,
             that
             his
             Defense
             is
             relevant
             ,
             for
             he
             alleadging
             ,
             and
             producing
             a
             sufficient
             Right
             to
             the
             Lands
             whereof
             the
             Dispositions
             are
             called
             for
             to
             be
             Reduced
             ,
             it
             takes
             away
             all
             Interest
             in
             the
             Pursuer
             to
             these
             Lands
             ;
             and
             therefore
             he
             may
             justly
             thereupon
             exclude
             the
             Pursuer
             from
             troubling
             the
             Defender
             in
             this
             ,
             or
             any
             other
             Reduction
             ,
             which
             can
             have
             no
             effect
             .
             It
             was
             answered
             ,
             that
             if
             this
             ground
             were
             layed
             ,
             no
             Reduction
             could
             be
             sustained
             of
             any
             particular
             Right
             ,
             called
             for
             to
             be
             reduced
             ,
             unless
             the
             Pursuer
             did
             reduce
             all
             Rights
             ,
             that
             the
             Defender
             could
             produce
             ,
             which
             is
             neither
             just
             ,
             nor
             conform
             to
             the
             Custom
             ;
             because
             Pursuers
             may
             have
             necessity
             to
             reduce
             some
             Rights
             ,
             in
             respect
             of
             the
             probation
             ,
             which
             may
             be
             lost
             ,
             as
             either
             Oaths
             of
             Parties
             ,
             or
             Witnesses
             :
             and
             yet
             may
             not
             be
             in
             readiness
             to
             insist
             against
             all
             the
             Defenders
             Rights
             ,
             not
             having
             found
             out
             theirs
             ,
             or
             their
             Authors
             progress
             ,
             but
             the
             Lords
             may
             reserve
             the
             other
             Rights
             ,
             seing
             their
             is
             no
             possession
             ,
             or
             other
             effect
             craved
             ,
             but
             only
             
               Declaratoria
               juris
            
             .
          
           
           
             The
             Lords
             ,
             in
             respect
             the
             Defenders
             were
             very
             poor
             ,
             and
             their
             case
             favourable
             ,
             Ordained
             the
             Pursuer
             to
             insist
             upon
             what
             he
             had
             to
             alleadge
             against
             the
             Defenders
             Appryzing
             produced
             ,
             as
             if
             it
             had
             been
             contained
             in
             the
             Reduction
             ;
             but
             it
             is
             not
             to
             be
             layed
             as
             a
             general
             Ground
             ,
             that
             in
             no
             case
             Reduction
             may
             proceed
             ,
             albeit
             it
             exclude
             not
             all
             the
             Rights
             produced
             in
             the
             Defenders
             person
             ,
             especially
             ,
             if
             any
             singularity
             ,
             as
             to
             the
             probation
             appeare
             .
          
        
         
           
             George
             Graham
             and
             Jack
             contra
             Mr.
             Andrew
             Brian
             .
             Ianuary
             3.
             1666.
             
          
           
             
               GEorge
               Grahame
            
             ,
             as
             Assigney
             by
             Iack
             ,
             having
             charged
             Mr.
             
               Andrew
               Brian
            
             ,
             he
             Suspends
             ,
             and
             raises
             Improbation
             ,
             wherein
             he
             insists
             ,
             and
             craves
             ,
             that
             the
             Assigney
             may
             abide
             by
             the
             Bond
             ;
             the
             Assigney
             declared
             ,
             that
             he
             would
             abide
             by
             it
             ,
             as
             being
             delivered
             to
             him
             ,
             as
             a
             reall
             true
             don
             Deed
             ,
             without
             any
             knowledge
             of
             his
             in
             the
             contrare
             :
             and
             offered
             to
             produce
             the
             Cedent
             ,
             to
             abide
             by
             it
             ,
             who
             compearing
             .
             It
             was
             alleadged
             ,
             that
             he
             was
             a
             Bankrupt
             ,
             and
             had
             a
             Bonorum
             ;
             and
             therefore
             behoved
             to
             find
             Caution
             ,
             to
             appear
             at
             all
             the
             Dyets
             of
             Process
             ,
             or
             to
             enter
             in
             Prison
             ,
             till
             the
             Cause
             were
             Discust
             ;
             or
             at
             least
             ,
             that
             the
             Assigney
             would
             be
             oblidged
             to
             produce
             him
             .
          
           
             The
             Lords
             having
             considered
             the
             Case
             ,
             found
             that
             the●
             Assigney
             was
             oblidged
             no
             further
             ,
             then
             what
             was
             offered
             ,
             and
             they
             found
             the
             Cedent
             not
             oblidged
             to
             find
             Caution
             ,
             or
             enter
             in
             Prison
             ;
             but
             that
             he
             should
             Enact
             himself
             to
             compear
             Iudicially
             ,
             whensoever
             any
             Point
             of
             the
             Improbation
             were
             referred
             to
             his
             Oath
             ,
             which
             might
             infer
             the
             falshood
             of
             the
             Writ
             ,
             if
             confest
             ,
             and
             that
             if
             in
             that
             Case
             he
             compeared
             not
             ,
             the
             Bond
             should
             be
             improven
             ,
             not
             only
             to
             him
             ,
             but
             as
             to
             the
             Assigney
             ,
             inferring
             no
             hazard
             to
             the
             Assigney
             ,
             as
             to
             the
             Criminal
             part
             ,
             if
             he
             were
             not
             found
             accessory
             .
          
        
         
           
             David
             and
             Andrew
             Fairfouls
             contra
             Mr.
             James
             Binni
             .
             Ianuary
             4.
             1666.
             
          
           
             THE
             Bairns
             of
             the
             Umquhil
             Bishop
             of
             Glasgow
             ,
             having
             charged
             Mr.
             
               Iames
               Binni
            
             to
             pay
             a
             1000
             merks
             ,
             he
             Suspends
             ,
             and
             alleadges
             that
             they
             were
             Minors
             ,
             not
             sufficiently
             Authorized
             ,
             in
             so
             far
             as
             they
             did
             choose
             Mr.
             
               Iohn
               Harper
            
             ,
             and
             Achmoutie
             and
             their
             Mother
             to
             be
             their
             Curators
             ;
             or
             any
             two
             of
             them
             ,
             their
             Mother
             alwayes
             being
             one
             ;
             so
             that
             their
             Mother
             being
             Dead
             ,
             who
             was
             
               sine
               qua
               non
            
             ,
             there
             behoved
             to
             be
             a
             new
             Election
             .
             It
             was
             answered
             ;
             that
             the
             Pupils
             were
             willing
             to
             compear
             ,
             and
             acknowledge
             thir
             Curators
             ,
             as
             their
             Curators
             which
             is
             sufficient
             to
             Authorize
             .
          
           
             Which
             the
             Lords
             found
             relevant
             .
          
        
         
           
           
             Laird●
             of
             Milton
             contra
             Lady
             Milton
             .
             Eodem
             die
             .
          
           
             THE
             Laird
             of
             Milton
             pursuing
             a
             Reduction
             of
             a
             Decreet
             of
             Divorce
             pronounced
             by
             the
             Commissaries
             of
             Edinburgh
             ,
             at
             the
             instance
             of
             the
             Lady
             Milton
             his
             Step-mother
             ,
             against
             Calderwood
             her
             last
             Husband
             ,
             upon
             Adulterie
             ,
             desired
             that
             the
             Testimonies
             of
             the
             Witnesses
             might
             be
             made
             privat
             to
             him
             ,
             being
             a
             matter
             of
             so
             great
             Importance
             ,
             as
             tending
             to
             take
             away
             the
             Right
             of
             the
             Ladies
             Jointure
             ,
             disponed
             be
             her
             Husband
             to
             this
             Milton
             .
          
           
             The
             Lords
             refused
             the
             desire
             ,
             but
             Ordained
             the
             Clerks
             to
             give
             a
             Note
             ,
             expressing
             the
             names
             ,
             Designations
             ,
             and
             the
             preambulatory
             questions
             in
             the
             Depositions
             ,
             as
             their
             age
             ,
             married
             ,
             or
             Not
             ,
             purged
             of
             partial
             Council
             ,
             &c.
             
          
        
         
           
             Lady
             Bute
             and
             her
             Husband
             contra
             Sheriff
             of
             Bute
             .
             Ianuary
             5.
             1666.
             
          
           
             THE
             Ladie
             Bute
             and
             her
             Husband
             pursue
             a
             Reduction
             of
             a
             Right
             of
             a
             part
             of
             her
             Conjunct-fee
             ,
             made
             in
             favours
             of
             her
             Son
             ,
             upon
             this
             Ground
             ,
             that
             it
             was
             done
             after
             her
             Contract
             of
             Marriage
             with
             her
             present
             Husband
             ,
             and
             publick
             Proclamation
             in
             the
             Kirk
             thereupon
             .
             It
             was
             answered
             .
             First
             ,
             That
             once
             Proclamation
             was
             not
             sufficient
             .
             2dly
             ,
             That
             it
             was
             offered
             to
             be
             proven
             ,
             that
             the
             Husband
             knew
             ,
             that
             the
             Right
             was
             granted
             ,
             and
             yet
             he
             proceeded
             in
             the
             Proclamation
             ,
             and
             Marriage
             ,
             which
             behoved
             to
             proport
             his
             acquiescence
             and
             consent
             ;
             and
             alleadged
             likewise
             the
             Case
             was
             most
             favourable
             :
             because
             the
             Lady
             had
             married
             ,
             unsuitably
             ,
             her
             Husbands
             Chapland
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             once
             Proclamation
             is
             sufficient
             ,
             as
             has
             been
             several
             times
             found
             ,
             and
             that
             there
             is
             no
             weight
             to
             be
             layed
             upon
             her
             Husbands
             knowledge
             ,
             who
             knew
             he
             had
             a
             remeed
             competent
             in
             Law
             ,
             whereby
             the
             Deed
             done
             by
             his
             Wife
             after
             the
             Contract
             and
             Proclamation
             would
             be
             null
             ;
             and
             so
             his
             going
             on
             in
             the
             Marriage
             did
             not
             infer
             his
             acquiescence
             ,
             or
             Homolagation
             .
             And
             as
             for
             the
             favour
             of
             the
             cause
             ,
             it
             is
             much
             more
             on
             the
             Pursuers
             part
             ,
             who
             being
             provided
             by
             her
             Husband
             ,
             to
             27
             Chalders
             of
             Victuall
             ,
             had
             before
             the
             Contract
             of
             Marriage
             ,
             quite
             20
             to
             her
             Son
             ;
             and
             of
             the
             seven
             remaining
             ,
             he
             had
             urged
             her
             to
             quite
             100
             lib.
             And
             7
             bolls
             of
             Victual
             were
             only
             now
             in
             question
             .
          
           
             The
             Lords
             found
             the
             Reason
             of
             Reduction
             relevant
             ,
             and
             repelled
             the
             Defense
             upon
             the
             Husbands
             knowledge
             ,
             for
             they
             thought
             ,
             that
             as
             Deeds
             of
             a
             Wife
             cled
             with
             a
             Husband
             ,
             without
             his
             consent
             ,
             are
             null
             ,
             after
             the
             Solemnization
             of
             the
             Marriage
             ,
             because
             she
             is
             then
             
               in
               potestate
               viri
               ,
               &
               sub
               ejus
               tutelà
               ,
            
             So
             that
             she
             is
             truely
             Wife
             ,
             after
             the
             Contract
             of
             Marriage
             ,
             becoming
             publick
             by
             Proclamation
             ,
             and
             it
             occurring
             ,
             as
             a
             doubt
             amongst
             the
             Lords
             ,
             whether
             the
             Reduction
             ought
             to
             be
             sustained
             at
             the
             instance
             of
             the
             Husband
             only
             ,
             in
             so
             far
             as
             concerned
             his
             interest
             
               jure
               mariti
            
             ,
             so
             that
             the
             Right
             might
             be
             valid
             against
             the
             Ladie
             ,
             if
             she
             survived
             .
          
           
             The
             Lords
             sustained
             the
             Reason
             simply
             ,
             at
             the
             instance
             of
             both
             ;
             and
             found
             it
             null
             as
             to
             both
             ,
             as
             being
             done
             without
             her
             Husbands
             consent
             .
          
        
         
           
           
             Sir
             Laurence
             Oliphant
             contra
             Sir
             James
             Drummond
             .
             Ianuary
             6.
             1666.
             
          
           
             THE
             Lord
             Roll●
             ,
             his
             Liferent
             Escheat
             being
             Gifted
             in
             Anno
             1658.
             to
             
               Walter
               Stewart
            
             ,
             He
             Assigned
             the
             Gift
             ,
             and
             his
             own
             Debt
             ,
             the
             Ground
             hereof
             ,
             and
             the
             General
             Declarator
             obtained
             thereupon
             ,
             to
             Sir
             
               Iames
               Drum●●mond
            
             in
             Anno
             1665.
             
             A
             second
             Donatar
             now
             insists
             ,
             for
             special
             Declarator
             ;
             wherein
             compearance
             is
             made
             for
             Sir
             
               Iames
               Drummond
            
             ,
             who
             craved
             preference
             upon
             his
             first
             Gift
             ,
             and
             on
             his
             General
             Declarator
             .
             It
             was
             answered
             for
             the
             Second
             Donatar
             ,
             that
             the
             first
             Gift
             was
             simulat
             ,
             and
             null
             by
             the
             Act
             of
             Parliament
             1592.
             
             In
             so
             far
             ,
             as
             the
             Donatar
             suffered
             the
             Rebel
             to
             continue
             in
             Possession
             untill
             this
             day
             ,
             and
             never
             attained
             Possession
             of
             any
             part
             of
             the
             Lands
             ,
             nor
             did
             any
             furder
             diligence
             ,
             but
             only
             the
             General
             Declarator
             in
             Anno
             1658.
             
             So
             ,
             that
             the
             Rebel
             having
             now
             possest
             by
             the
             space
             of
             6
             ,
             or
             7.
             
             Years
             :
             The
             presumption
             contained
             in
             the
             Act
             of
             Parliament
             ,
             that
             upon
             the
             said
             Possession
             ,
             the
             Gift
             is
             simulat
             ,
             and
             null
             ,
             takes
             place
             .
             It
             was
             answered
             ,
             that
             there
             is
             no
             definit
             time
             in
             the
             Act
             of
             Parliament
             ,
             by
             which
             the
             Rebels
             Possession
             shall
             presume
             simulation
             ,
             and
             in
             this
             ca●e
             ,
             there
             was
             but
             few
             
               Anni
               utiles●
            
             in
             so
             far
             ,
             as
             the
             Gift
             being
             in
             Anno
             1658.
             
             Declarator
             was
             obtained
             that
             same
             year
             ,
             and
             in
             Anno
             1659.
             
             Judicatures
             ceased
             ,
             and
             began
             not
             again
             till
             1661.
             
          
           
             The
             Lords
             found
             ,
             that
             the
             Donatar
             suffering
             the
             Rebell
             to
             possesse
             4
             ,
             or
             5.
             
             Years
             was
             sufficient
             to
             infer
             the
             presumption
             of
             simulation
             by
             the
             said
             Act
             of
             Parliament
             ,
             and
             therefore
             preferred
             the
             second
             Donatar
             .
          
        
         
           
             Inter
             Eosdem
             .
             Ianuary
             ●
             .
          
           
             AT
             pronouncing
             of
             the
             former
             Interlocutor
             ,
             the
             first
             Donatar
             furder
             alleadged
             ,
             that
             the
             Presumption
             of
             Simulation
             ,
             by
             suffering
             the
             Rebel
             to
             possesse
             ,
             could
             not
             take
             place
             in
             this
             case
             .
             First
             ,
             because
             the
             Donatar
             himself
             was
             a
             lawful
             Creditor
             of
             the
             Rebells
             ,
             whereupon
             there
             is
             a
             stronger
             Presumption
             ,
             that
             the
             Gift
             was
             to
             his
             behoove
             ,
             for
             his
             own
             satisfaction
             :
             And
             the
             Act
             of
             Parliament
             can
             be
             only
             meant
             of
             Donatars
             ,
             who
             have
             no
             Interest
             ,
             but
             their
             Gift
             ,
             and
             are
             not
             Creditors
             .
             Secondly
             ,
             The
             Lands
             were
             Apprized
             ,
             and
             the
             Donatar
             knew
             he
             would
             be
             excluded
             by
             the
             Appryzers
             .
          
           
             The
             Lords
             repelled
             the
             first
             alleadgeance
             ,
             and
             found
             the
             
               presumptio
               juris
            
             in
             the
             Act
             of
             Parliament
             was
             stronger
             then
             the
             contrair
             presumption
             ,
             that
             the
             Donatar
             was
             Creditor
             ;
             because
             it
             might
             be
             his
             purpose
             to
             apply
             the
             Gift
             to
             the
             Rebells
             behove
             ,
             and
             not
             to
             take
             that
             way
             ,
             having
             other
             wayes
             of
             payment
             ,
             competent
             :
             and
             also
             repelled
             the
             second
             alleadgeance
             ,
             unlesse
             it
             were
             alleadged
             ,
             that
             the
             Apprizer
             had
             been
             in
             possession
             ;
             so
             that
             there
             had
             not
             been
             3
             ,
             or
             4.
             
             Years
             ,
             in
             which
             the
             Rebel
             had
             possest
             ;
             and
             that
             if
             the
             Appryzing
             had
             attained
             Possession
             at
             that
             time
             ,
             it
             would
             have
             excluded
             the
             Donatar
             :
             but
             seing
             it
             was
             offered
             to
             be
             proven
             ,
             that
             the
             Rebel
             possest
             for
             3
             ,
             or
             4.
             
             Years
             ,
             which
             was
             contrair
             to
             the
             alleadgeance
             of
             the
             Apprizers
             possession
             of
             the
             hail
             .
          
           
             They
             adhered
             to
             their
             former
             Interlocutor
             .
          
        
         
           
           
             Elizabeth
             Broun
             contra
             John
             Scot.
             Eodem
             die
             .
          
           
             THere
             being
             an
             Infeftment
             feu
             granted
             ,
             of
             the
             Lands
             of
             Inglistoun
             ,
             as
             Principal
             ,
             and
             of
             the
             Lands
             of
             Fingland
             ,
             in
             warrandice
             thereof
             long
             agoe
             ,
             and
             Infeftment
             taken
             of
             both
             Principal
             ,
             and
             Warrandice
             Lands
             in
             on
             Seasine
             ,
             Registrat
             in
             the
             Registers
             Seasines
             ,
             Since
             the
             Year
             1617.
             
             Thereafter
             the
             Warrandice
             Lands
             were
             disponed
             to
             the
             Earl
             of
             Traquair
             ,
             and
             he
             ,
             being
             publickly
             Infeft
             ,
             gave
             a
             subaltern
             Infeftment
             to
             his
             Vassal
             ,
             who
             assigned
             
               Iohn
               Scot
            
             to
             the
             Mails
             and
             Duties
             ▪
             who
             having
             Arrested
             ,
             insisted
             to
             make
             forthcoming
             :
             And
             likewise
             
               Elizabeth
               Broun
            
             ,
             having
             after
             the
             eviction
             of
             the
             Principal
             Lands
             ,
             arrested
             the
             Rents
             of
             the
             Warrandice
             Lands
             ,
             insists
             to
             make
             the
             same
             furthcoming
             to
             her
             .
             It
             was
             alleadged
             ,
             that
             the
             Original
             Infeftment
             whereupon
             the
             said
             
               Elizabeth
               Brouns
            
             right
             is
             founded
             ,
             is
             a
             base
             Infeftment
             ,
             and
             as
             to
             the
             Warrandice
             Lands
             never
             cled
             with
             Possession
             ,
             and
             the
             Earl
             of
             Traquairs
             Right
             ,
             whereon
             
               Iohn
               Scots
            
             Right
             is
             founded
             ,
             is
             a
             publick
             Infeftment
             holden
             of
             the
             King
             ,
             which
             is
             alwayes
             preferred
             to
             a
             base
             Infeftment
             without
             consideration
             ,
             whether
             the
             publick
             Infeftment
             has
             attained
             Possession
             ,
             or
             no
             ,
             or
             how
             long
             ,
             but
             much
             more
             in
             this
             case
             ,
             where
             the
             publick
             Infeftment
             has
             attained
             Possession
             ,
             not
             only
             by
             year
             and
             day
             ,
             but
             many
             years
             :
             And
             therefore
             is
             directly
             in
             the
             Case
             of
             the
             Act
             of
             
               Parliament
               1540.
               cap.
               105.
               
               Preferring
               publick
               Infeftments
               to
               prior
               base
               Infeftments
               ,
               not
               cled
               with
               Possession
               .
            
             It
             was
             answered
             ,
             that
             base
             Infeftments
             are
             of
             themselves
             valid
             ,
             and
             before
             the
             said
             Act
             of
             Parliament
             ,
             the
             first
             Infeftment
             made
             always
             the
             best
             Right
             ,
             whether
             it
             was
             holden
             of
             the
             Disponer
             ,
             or
             of
             his
             Superiour
             ,
             but
             that
             Act
             of
             Parliament
             is
             correctory
             of
             the
             Common-Law
             ,
             and
             Feudal
             Custom
             ,
             which
             by
             the
             Act
             it self
             ,
             appears
             then
             to
             have
             been
             constant
             ,
             and
             is
             only
             altered
             by
             the
             Statute
             ,
             upon
             the
             presumption
             of
             Fraud
             ,
             which
             is
             clear
             ,
             both
             by
             the
             Title
             against
             double
             Fraudful
             alienations
             ,
             and
             by
             the
             Narrative
             ,
             that
             diverse
             persons
             after
             they
             have
             given
             privat
             State
             and
             Seasine
             to
             their
             Bairns
             ,
             or
             Friends
             ;
             do
             thereafter
             give
             for
             Causes
             onerous
             ,
             Infeftment
             to
             other
             persons
             ,
             and
             therefore
             such
             onerous
             posterior
             Infeftments
             ,
             if
             they
             attain
             Possession
             year
             and
             day
             ,
             are
             preferred
             to
             the
             said
             privat
             Infeftments
             ;
             but
             in
             this
             Case
             ,
             there
             is
             no
             Presumption
             of
             Simulation
             .
             2dly
             .
             By
             several
             Decisions
             alleadged
             and
             produced
             ,
             it
             is
             clear
             ,
             that
             the
             Lords
             did
             prefer
             base
             Infeftment
             of
             Annualrent
             to
             posterior
             publick
             Infeftments
             of
             Propertie
             ,
             which
             interveened
             before
             the
             next
             Term
             ;
             so
             that
             the
             Infeftment
             of
             Annualrent
             could
             not
             attain
             Possession
             ;
             but
             if
             base
             Infeftments
             without
             Possession
             ,
             were
             unvalid
             Rights
             ;
             The
             Lords
             could
             not
             have
             found
             so
             .
             3dly
             .
             The
             Lords
             have
             allowed
             Indirect
             ,
             and
             Interpretative
             Possession
             to
             be
             sufficient
             ,
             not
             only
             in
             the
             Case
             when
             Liferents
             are
             reserved
             ,
             that
             thereby
             the
             Liferenters
             Possession
             is
             the
             Feears
             ,
             though
             he
             never
             possest
             himself
             ,
             but
             even
             when
             Liferents
             are
             not
             reserved
             ;
             but
             that
             the
             base
             Infeftment
             is
             thereby
             excluded
             from
             Possession
             :
             so
             base
             Infeftments
             granted
             to
             wyfes
             are
             preferred
             to
             posterior
             publick
             Infeftments
             ,
             though
             the
             Wyfes
             do
             not
             ,
             nor
             cannot
             possesse
             ,
             during
             the
             Husbands
             Life
             ,
             yet
             the
             Husbands
             possession
             is
             counted
             the
             Wifes
             possession
             ,
             and
             if
             a
             Person
             Infeft
             by
             a
             base
             Infeftment
             should
             pursue
             for
             Mails
             ,
             or
             Duties
             ,
             or
             Removing
             ;
             and
             were
             excluded
             by
             a
             prior
             Liferent
             ,
             constitute
             by
             the
             Pursuers
             Author●
             though
             not
             reserved
             in
             his
             Right
             ;
             that
             very
             Action
             would
             be
             sufficient
             to
             validat
             the
             base
             Infeftment
             without
             Possession
             .
             4thly
             ,
             Whatever
             might
             have
             been
             alleadged
             ,
             
             before
             the
             Act
             of
             Parliament
             1617.
             
             For
             Registration
             of
             Seasines
             ,
             there
             is
             neither
             Law
             ,
             nor
             Favour
             since
             ,
             for
             posterior
             acquirers
             ,
             who
             might
             have
             known
             the
             prior
             Infeftments
             .
             And
             therefore
             in
             Infeftments
             of
             Warrandice
             Lands
             ,
             the
             Possession
             of
             the
             principal
             Lands
             is
             accompted
             Possession
             of
             the
             Warrandice
             Lands
             ;
             neither
             is
             there
             any
             ground
             to
             oblidge
             a
             Person
             who
             takes
             a
             Feu
             of
             Lands
             ,
             to
             demand
             a
             more
             publick
             infeftment
             of
             the
             Warrandice
             Lands
             ,
             then
             of
             the
             principal
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Narrative
             of
             the
             Statute
             mention
             Fraudful
             alienations
             ,
             yet
             the
             dispositive
             words
             are
             General
             ,
             that
             wherever
             an
             Infeftment
             hath
             been
             publick
             ,
             by
             Resignation
             ,
             or
             Confirmation
             ,
             and
             hath
             attained
             Possession
             year
             and
             day
             ,
             the
             same
             shall
             exclude
             any
             prior
             base
             Infeftment
             ,
             attaining
             no
             Possession
             ,
             and
             if
             the
             said
             Act
             were
             only
             to
             be
             measured
             by
             Fraud
             then
             if
             it
             could
             be
             alleadged
             ,
             and
             astructed
             ,
             that
             the
             first
             Infeftment
             ,
             though
             base
             ,
             was
             for
             a
             cause
             onerous
             ,
             and
             without
             Fraud
             ,
             it
             should
             be
             preferred
             ;
             which
             yet
             never
             hath
             been
             done
             .
             And
             for
             the
             Practiques
             ,
             they
             meet
             not
             this
             Case
             ,
             nor
             the
             Act
             of
             Parliament
             ,
             because
             the
             posterior
             publick
             Infeftment
             had
             attained
             no
             Possession
             .
             It
             was
             answered
             ,
             that
             now
             consuetude
             had
             both
             Interpret
             and
             Extended
             the
             foresaid
             Act
             ;
             for
             thereby
             posterior
             publick
             Infeftments
             ,
             though
             they
             be
             not
             for
             cause
             onerous
             ,
             or
             cled
             with
             Possession
             year
             and
             day
             ,
             are
             ordinarily
             preferred
             contrair
             to
             the
             tenor
             of
             the
             Statute
             ,
             and
             base
             Infeftments
             ,
             
               retenta
               possessione
            
             ,
             where
             the
             obtainer
             of
             the
             Infeftment
             is
             negligent
             ,
             are
             accounted
             Simulat
             
               presumptione
               juris
               ,
               &
               de
               jure
            
             but
             where
             there
             is
             no
             delay
             ,
             nor
             ground
             of
             ●imulation
             ,
             the
             base
             Infeftment
             is
             preferred
             ,
             whether
             the
             posterior
             publick
             Infeftment
             attain
             Possession
             for
             year
             and
             day
             ,
             or
             not
             .
          
           
             The
             Lords
             having
             heard
             this
             Case
             at
             length
             ,
             and
             debated
             the
             same
             accuratly
             amongst
             themselves
             ,
             in
             respect
             they
             found
             no
             preceeding
             Decision
             ,
             whether
             base
             Infeftments
             of
             Warrandice
             ,
             where
             there
             was
             possession
             of
             the
             Principal
             Lands
             were
             valid
             ,
             or
             not
             ;
             against
             posterior
             publick
             Infeftments
             .
             They
             found
             this
             base
             Infeftment
             of
             Warrandice
             valid
             against
             the
             posterior
             publick
             Infeftment
             .
             The
             Infeftment
             in
             Warrandice
             being
             Simul
             with
             the
             Principal
             ,
             and
             not
             
               ex
               intervallo
            
             ,
             and
             being
             after
             the
             Act
             of
             Parliament
             1617.
             but
             did
             not
             decide
             the
             Case
             to
             be
             of
             generall
             rule
             for
             Warrandice
             ,
             
               ex
               intervallo
            
             before
             the
             said
             Act.
             
          
        
         
           
             Grissell
             Seatoun
             and
             Laird
             of
             Touch.
             contra
             Dundas
             .
             Ianuary
             11.
             1666.
             
          
           
             
               GRissall
               Seatoun
            
             ,
             and
             the
             Laird
             of
             Touch
             younger
             her
             Assigney
             ,
             pursues
             Dundas
             ,
             as
             charged
             to
             enter
             Heir
             to
             Mr.
             
               Hendrie
               Mauld
            
             ,
             for
             payment
             of
             a
             Bond
             of
             8000
             merks
             granted
             to
             the
             said
             Grissall
             ,
             by
             the
             said
             Mr.
             Hendrie
             her
             Son.
             It
             was
             alleadged
             that
             the
             Bond
             was
             null
             ,
             wanting
             Witnesses
             It
             was
             Replyed
             ,
             That
             the
             Pursuer
             offered
             him
             to
             prove
             it
             Holograph
             .
             It
             was
             duplyed
             ,
             that
             albeit
             it
             were
             proven
             Holograph
             ,
             as
             to
             the
             body
             ,
             yet
             it
             could
             not
             instruct
             its
             own
             date
             to
             have
             been
             any
             day
             before
             the
             day
             that
             Mr.
             Hendrie
             died
             ,
             and
             so
             being
             granted
             
               in
               lecto
               aegritudinis
            
             ,
             cannot
             prejudge
             his
             Heir
             whereupon
             the
             Defender
             has
             a
             Reduction
             .
             It
             is
             answered
             ,
             that
             the
             Reduction
             is
             not
             seen
             ,
             nor
             is
             there
             any
             Title
             in
             the
             Defender
             produced
             as
             Heir
             .
             It
             was
             answered
             ,
             that
             the
             nullitie
             as
             wanting
             Witnesses
             ,
             was
             competent
             by
             exception
             ,
             and
             the
             the
             duply
             ,
             as
             being
             presumed
             to
             be
             in
             lecto
             ,
             was
             but
             incident
             ,
             and
             was
             not
             a
             Defense
             ,
             but
             a
             Duply
             .
          
           
           
             The
             Lords
             Repelled
             the
             Defense
             upon
             the
             nullitie
             of
             the
             want
             of
             Witnesses
             in
             respect
             of
             the
             Reply
             and
             found
             the
             Duply
             not
             competent
             ,
             
               hoc
               ordine
            
             ,
             but
             only
             by
             Reduction
             ,
             and
             found
             there
             was
             no
             Title
             produced
             in
             the
             Reduction
             .
          
        
         
           
             Executors
             of
             William
             Stevinson
             contra
             James
             Crawfoord
             .
             Ianuary
             12.
             1666.
             
          
           
             THE
             Executors
             of
             
               William
               Stevinson
            
             ,
             having
             confirmed
             a
             Sum
             of
             3000.
             and
             odd
             Pounds
             due
             by
             Bond
             ,
             by
             
               Iohn
               Ker
            
             ,
             to
             the
             said
             William
             ,
             and
             also
             by
             
               Iames
               Crawfoord
            
             ,
             who
             by
             his
             missive
             Letter
             ,
             became
             oblidged
             to
             pay
             what
             bargain
             of
             Victual
             should
             be
             made
             between
             the
             said
             
               Iohn
               Ker
            
             ,
             and
             
               Iohn
               Stevinson
            
             for
             himself
             ,
             and
             as
             Factor
             for
             
               William
               Stevinson
            
             .
             And
             subsums
             ,
             that
             this
             Bond
             was
             granted
             for
             a
             Bargain
             of
             Victual
             .
             It
             was
             answered
             ,
             that
             albeit
             this
             Bond
             had
             been
             in
             the
             name
             of
             
               William
               Stevinson
            
             ,
             yet
             it
             was
             to
             the
             behove
             of
             
               Iohn
               Stevinson
            
             his
             Brother
             ,
             who
             having
             pursued
             upon
             the
             same
             ground
             ,
             the
             Defender
             was
             Assoilzied
             ,
             and
             that
             it
             was
             to
             Iohns
             behove
             alleadged
             ,
             First
             ,
             That
             Iohn
             wrot
             a
             Letter
             to
             his
             Brother
             William
             ,
             to
             deliver
             up
             his
             Bond
             ,
             acknowledging
             ,
             that
             it
             was
             satisfied
             ,
             and
             that
             Iohn
             having
             pursued
             himself
             ,
             for
             the
             other
             Bond
             granted
             in
             place
             of
             this
             ,
             The
             said
             Umquhil
             
               William
               Stevinson
            
             compeared
             ,
             or
             a
             Procurator
             for
             him
             ,
             before
             the
             Commissars
             ,
             and
             did
             not
             pretend
             any
             Interest
             of
             his
             own
             ;
             neither
             did
             William
             ,
             during
             his
             Life
             ,
             which
             was
             ten
             years●
             thereafter
             ,
             ever
             move
             question
             of
             this
             Bond
             ,
             nor
             put
             he
             it
             in
             the
             Inventar
             of
             his
             Testament
             ,
             though
             that
             he
             put
             most
             considerable
             Sums
             therein
             .
             It
             was
             answered
             .
             1.
             
             That
             the
             presumptions
             alleadged
             ,
             infer
             not
             that
             this
             Bond
             was
             to
             
               Iohn
               Stevinsons
            
             behove
             ;
             because
             ,
             by
             
               Iames
               Crawfoords
            
             Letter
             ,
             there
             is
             mention
             made
             of
             several
             Bargains
             of
             Victual
             ,
             both
             with
             Iohn
             and
             William
             :
             so
             that
             the
             Bond
             ,
             and
             pursuite
             at
             Johns
             instance
             might
             be
             for
             one
             Bargain
             ,
             and
             at
             Williams
             ,
             for
             another
             ,
             especially
             ,
             seing
             the
             Sums
             differ
             .
             2dly
             ,
             Writ
             cannot
             be
             taken
             away
             ,
             by
             any
             such
             Presumptions
             .
             It
             was
             answered
             ,
             That
             if
             the
             Defender
             
               James
               Crawfoord
            
             had
             subscribed
             this
             Bond
             ,
             it
             could
             more
             hardly
             have
             been
             taken
             away
             by
             Presumptions
             ,
             but
             he
             hath
             not
             subscribed
             the
             Bond
             ,
             but
             only
             his
             missive
             Letter
             ,
             which
             is
             dubious
             ,
             whether
             it
             be
             accessory
             to
             this
             Bond
             ,
             or
             if
             that
             Bond
             was
             for
             this
             Bargain
             ,
             and
             therefore
             such
             a
             writ
             may
             well
             be
             ●lided
             ,
             by
             such
             strong
             Presumptions
             .
          
           
             The
             Lords
             found
             the
             Presumption
             Relevant
             ,
             and
             that
             they
             instructed
             ,
             the
             Bond
             was
             to
             Johns
             behove
             ,
             and
             therefore
             in
             respect
             of
             the
             ahs●lvitor
             at
             Crawfoords
             instance
             ,
             they
             Assoilzied
             .
          
        
         
           
             William
             Dick
             contra
             Sir
             Andrew
             Dick.
             January
             13.
             1666.
             
          
           
             
               WIlliam
               Dick
            
             pursues
             Sir
             
               Andrew
               Dick
            
             his
             Father
             ,
             for
             a
             modification
             of
             his
             Aliment
             ,
             whereupon
             the
             question
             was
             ,
             whether
             Sir
             
               Andrew
               Dick
            
             himself
             being
             indigent
             ,
             and
             having
             a
             great
             Family
             ,
             of
             smal
             Children
             ,
             and
             the
             Pursuer
             having
             been
             Educat
             a
             Prentice
             ,
             whether
             the
             Pursuer
             should
             have
             a
             Modification
             .
          
           
           
             The
             Lords
             considering
             the
             great
             Portion
             the
             Pursuers
             Mother
             brought
             ,
             and
             that
             he
             was
             a
             Person
             of
             no
             ability
             to
             Aliment
             himself
             by
             his
             industrie
             ,
             decerned
             
               Sir
               Andrew
            
             to
             receive
             him
             in
             his
             House
             ,
             and
             to
             entertain
             him
             in
             meat
             and
             Cloath
             ,
             as
             he
             did
             the
             rest
             ,
             or
             else
             two
             hundred
             merks
             ,
             at
             
               Sir
               Andrews
            
             option
             .
          
        
         
           
             James
             Crawfoord
             contra
             Auchinleck
             .
             January
             17.
             1666.
             
          
           
             THE
             Heirs
             of
             Lyne
             ,
             of
             Umquhile
             Sir
             
               George
               Auchinleck
            
             of
             Balmanno
             being
             provided
             to
             a
             Portion
             payable
             by
             the
             Heirs
             Male
             ,
             did
             thereupon
             charge
             the
             Appearand
             Heir
             Male
             ,
             and
             upon
             his
             Renounciation
             to
             be
             Heir
             ,
             obtained
             Decreet
             
               cognitionis
               causa
            
             ,
             after
             which
             that
             Appearand
             Heir
             dyed
             ,
             and
             the
             Decreet
             being
             Assigned
             to
             
               Iames
               Crawfoord
            
             Writer
             ,
             he
             now
             insists
             in
             in
             a
             Summons
             of
             Adjudication
             ,
             containing
             a
             Declarator
             ,
             that
             he
             having
             charged
             the
             next
             Appearand
             Heir
             ,
             to
             enter
             to
             the
             last
             Appearand
             Heir
             against
             whom
             the
             Decreet
             
               cognitionis
               causa
            
             was
             obtained
             ,
             that
             that
             Decreet
             should
             be
             transferred
             against
             him
             ,
             and
             it
             should
             be
             declared
             ,
             that
             the
             Adjudication
             should
             proceed
             against
             the
             next
             Appearand
             Heir
             .
             It
             was
             alleadged
             ,
             for
             the
             Defender
             ,
             that
             the
             former
             Appearand
             Heir
             having
             dyed
             before
             Adjudication
             ,
             and
             so
             the
             Diligence
             being
             incompleat
             ,
             there
             could
             be
             no
             Process
             thereon
             ,
             till
             this
             Defender
             were
             again
             charged
             to
             enter
             Heir
             to
             the
             first
             Defunct
             ,
             especially
             ,
             seing
             he
             had
             
               Annum
               deliberandi
            
             competent
             to
             him
             ,
             of
             the
             Law
             which
             would
             be
             taken
             from
             him
             ,
             if
             this
             order
             were
             sustained
             ,
             and
             as
             an
             Appearand
             Heir
             ,
             charged
             ,
             though
             the
             dayes
             of
             the
             Charge
             were
             run
             before
             his
             death
             ,
             the
             same
             would
             be
             void
             ,
             if
             no
             Decreet
             had
             followed
             thereupon
             :
             And
             the
             obtainer
             behoved
             to
             obtain
             his
             Diligence
             thereupon
             renewed
             ,
             so
             it
             ought
             to
             be
             in
             this
             Case
             .
             It
             was
             answered
             ,
             the
             Case
             was
             not
             alike
             ,
             for
             here
             there
             is
             a
             Decreet
             obtained
             upon
             the
             Heirs
             Renounciation
             ;
             and
             there
             is
             no
             reason
             to
             put
             the
             Creditor
             to
             do
             diligence
             again
             ,
             especially
             now
             ,
             since
             the
             late
             Act
             of
             Parliament
             ,
             whereby
             ,
             if
             he
             get
             not
             Adjudication
             within
             a
             year
             ,
             he
             will
             be
             excluded
             ,
             and
             there
             are
             other
             Appryzings
             already
             deduced
             .
          
           
             The
             Lords
             Sustained
             the
             Process
             ,
             
               hoc
               ordine
            
             ,
             with
             this
             provision
             ,
             that
             if
             this
             appear
             and
             Heir
             entred
             ,
             and
             Infeft
             himself
             within
             year
             and
             day
             ,
             the
             Adjudication
             should
             be
             redeemable
             to
             him
             within
             the
             Legal
             Reversion
             of
             10.
             years
             ,
             by
             which
             ,
             neither
             the
             Creditor
             was
             prejudged
             of
             his
             diligence
             ,
             nor
             the
             Heir
             of
             his
             Priviledge
             .
          
        
         
           
             Lord
             Rentoun
             Justice
             Clerk
             contra
             Fewars
             of
             Coldinghame
             .
             Eodem
             die
             .
          
           
             MY
             Lord
             Rentoun
             ,
             as
             being
             Infeft
             in
             the
             Office
             of
             Forrestrie
             ,
             by
             the
             Abbot
             of
             Coldinghame
             ,
             containing
             many
             special
             servitudes
             upon
             the
             whole
             Inhabitants
             of
             the
             Abbacie
             ,
             as
             such
             a
             dutie
             ,
             out
             of
             Waith
             Goods
             ,
             and
             out
             of
             all
             Timber
             cutted
             in
             the
             Woods
             of
             the
             Abbacie
             ,
             with
             so
             many
             Woods
             ,
             H●ns
             and
             a
             Threave
             of
             Oats
             ,
             out
             of
             every
             husband
             Land
             yearly
             ;
             pursues
             Declarator
             of
             his
             Right
             ,
             and
             payment
             of
             the
             bygones
             ,
             since
             the
             year
             1621.
             
             And
             in
             
             time
             coming
             ;
             both
             Parties
             being
             formerly
             ordained
             before
             answer
             ,
             to
             produce
             such
             Writs
             ,
             and
             Rights
             ,
             as
             they
             would
             make
             use
             of
             ;
             and
             these
             being
             now
             produced
             ,
             The
             Pursuer
             insisted
             .
             
               prim●
               Loco
            
             for
             Declaring
             his
             Right
             as
             to
             the
             Threave
             of
             Oats
             .
             It
             was
             alleadged
             ,
             for
             the
             Defenders
             ,
             absolvitor
             ,
             because
             they
             had
             produced
             their
             Fews
             granted
             by
             the
             Abbots
             of
             Coldinghame
             ,
             prior
             to
             the
             Pursuers
             Infeftment
             ,
             free
             of
             any
             such
             burden
             .
             It
             was
             answered
             ,
             The
             Defense
             ought
             to
             be
             Repelled
             ,
             because
             the
             Pursuer
             has
             not
             only
             produced
             his
             own
             Infeftment
             ,
             but
             his
             Predecessors
             ,
             and
             Authors
             Infeftments
             ,
             and
             his
             progresse
             to
             them
             .
             viz.
             The
             Infeftment
             granted
             to
             
               David
               Evin
            
             ,
             of
             the
             Forrestrie
             ,
             containing
             all
             the
             Duties
             a
             foresaid
             ,
             which
             is
             before
             any
             of
             the
             Defenders
             Infeftments
             produced
             .
             It
             was
             duplyed
             for
             the
             Defender
             ,
             that
             the
             Infeftment
             granted
             to
             the
             said
             
               David
               Evin
            
             is
             no
             original
             Infeftment
             ,
             but
             bears
             ,
             to
             be
             granted
             on
             his
             Mothers
             Resignation
             ,
             and
             has
             no
             special
             reddendo
             ,
             but
             only
             relative
             to
             the
             former
             Infeftments
             :
             And
             therefore
             ,
             unless
             the
             former
             Infeftments
             were
             produced
             ,
             or
             it
             were
             instructed
             ,
             that
             the
             Resigner
             had
             Right
             ,
             the
             Infeftment
             upon
             Resignation
             can
             operat
             nothing
             ,
             especially
             never
             being
             cled
             with
             Possession
             ,
             as
             to
             the
             Threaves
             of
             Oats
             in
             question●
             for
             there
             is
             great
             odds
             betwixt
             Infeftments
             granted
             by
             Kirkmen
             ,
             who
             are
             but
             administrators
             of
             the
             benefices
             ,
             and
             others
             ,
             who
             have
             
               plenum
               dominium
            
             ,
             so
             that
             Infeftments
             upon
             Resignation
             of
             Kirkmen
             are
             to
             be
             understood
             to
             confer
             no
             more
             Right
             than
             the
             Resigner
             had
             ,
             and
             not
             to
             constitute
             any
             original
             Right
             where
             there
             was
             none
             before
             ,
             in
             the
             same
             way
             ,
             as
             Infeftments
             granted
             by
             the
             King
             ,
             upon
             Resignation
             ,
             are
             but
             
               periculo
               petentis
            
             ,
             and
             give
             no
             Right
             further
             then
             the
             Resigner
             had
             ,
             even
             against
             the
             King.
             It
             was
             answered
             ,
             for
             the
             Pursuer
             ,
             that
             his
             Reply
             stands
             relevant
             ,
             and
             he
             produces
             sufficiently
             to
             instruct
             his
             predecessors
             Right
             ;
             for
             there
             is
             no
             Law
             nor
             Reason
             to
             compell
             Parties
             to
             produce
             the
             old
             Original
             Feus
             granted
             by
             Kirkmen
             ,
             but
             Infeftments
             upon
             Resignation
             are
             sufficient
             ,
             neither
             is
             the
             Case
             alike
             ,
             as
             to
             the
             King
             ,
             and
             Kirkmen
             ,
             because
             things
             passe
             not
             by
             the
             King
             
               ex
               certa
               scientia
            
             ,
             which
             no
             other
             can
             pretend
             ;
             but
             in
             this
             Case
             ,
             declaring
             a
             Right
             granted
             by
             an
             Abbot
             ,
             with
             consent
             of
             the
             Convent
             ;
             it
             must
             be
             considered
             what
             made
             a
             Right
             ,
             the
             time
             that
             it
             was
             granted
             ,
             when
             there
             was
             no
             more
             required
             then
             his
             Concession
             ,
             with
             consent
             foresaid
             ,
             which
             is
             sufficient
             against
             him
             ,
             and
             his
             successors
             ,
             neither
             can
             they
             pretend
             ,
             that
             such
             grants
             are
             
               salvo
               jure
               suo
            
             .
             And
             if
             in
             matters
             so
             Ancient
             ,
             Original
             Infeftments
             from
             Kirkmen
             behoved
             to
             be
             produced
             ,
             that
             neither
             Precepts
             of
             
               clare
               constat
            
             ,
             nor
             Infeftments
             upon
             Resignation
             were
             sufficient
             ;
             Few
             rights
             of
             Kirk-lands
             in
             Scotland
             ,
             would
             be
             found
             valid
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             ,
             and
             found
             this
             Infeftment
             upon
             Resignation
             sufficient
             .
          
        
         
           
             Iohn
             and
             Ioseph
             Heriots
             contra
             James
             Fleming
             Messenger
             and
             Cautioners
             .
             January
             19.
             1666.
             
          
           
             JOhn
             and
             
               Joseph
               Heriots
            
             having
             obtained
             Decreet
             before
             the
             Lyon
             ,
             against
             
               James
               Fleming
            
             Messenger
             ,
             and
             his
             Cautioners
             ,
             depryving
             the
             Messenger
             upon
             Malversation
             ;
             in
             so
             far
             ,
             as
             being
             imployed
             to
             execute
             a
             Caption
             ,
             he
             had
             taken
             the
             Debitor
             ,
             and
             had
             Denounced
             ,
             and
             Appryzed
             his
             Lands
             ,
             and
             suffered
             the
             Debitor
             to
             escape
             ,
             and
             would
             not
             subscribe
             the
             Decreet
             of
             Appryzing
             ,
             whereupon
             he
             was
             depryved
             ,
             and
             decerned
             to
             
             pay
             500.
             merks
             ,
             conform
             to
             the
             Act
             of
             
               Parliament
               1587.
               cap.
            
             46.
             
             And
             both
             he
             ,
             and
             his
             Cautioners
             were
             decerned
             to
             pay
             the
             Sum
             ,
             as
             Damnage
             ,
             and
             Interest
             to
             the
             Pursuer
             .
             They
             Suspend
             ,
             and
             alleadge
             ,
             that
             the
             Decreet
             is
             null
             ,
             in
             so
             far
             as
             it
             was
             pronounced
             by
             the
             Lord
             Lyon
             ,
             without
             the
             concourse
             of
             the
             Heraulds
             ,
             which
             is
             required
             by
             the
             said
             
               Act.
               2dly
            
             ,
             Albeit
             the
             Lyon
             be
             impowred
             to
             deprive
             Messengers
             by
             the
             said
             Act
             ,
             yet
             their
             Cautioners
             are
             not
             under
             his
             jurisdiction
             ,
             nor
             the
             damnage
             ,
             and
             interest
             of
             Parties
             by
             Messengers
             malversation
             ,
             which
             is
             only
             competent
             to
             the
             Judge
             ordinary
             .
             It
             was
             answered
             to
             the
             first
             ,
             oppons
             the
             Decreet
             wherein
             the
             Cautioners
             compeared
             ,
             and
             so
             acknowledged
             the
             Lyons
             Jurisdiction
             as
             he
             then
             sat
             ,
             likeas
             the
             Decreet
             it self
             bears
             to
             be
             by
             the
             Lyon
             ,
             with
             the
             Heraulds
             .
             To
             the
             Second
             .
             The
             Cautioners
             having
             enacted
             themselves
             in
             the
             Lyons
             Books
             ,
             they
             have
             made
             themselves
             lyable
             ,
             and
             for
             the
             damnages
             ,
             they
             are
             consequent
             to
             every
             Jurisdiction
             ;
             and
             the
             Lyons
             have
             been
             constantly
             in
             use
             to
             determine
             the
             same
             ,
             as
             to
             this
             Point
             .
          
           
             The
             Lords
             were
             of
             different
             judgements
             ,
             for
             they
             thought
             ,
             that
             by
             the
             Act
             of
             Parliament
             ,
             the
             Lyon
             had
             no
             such
             power
             ,
             but
             as
             to
             long
             Custom
             ,
             some
             thought
             it
             was
             sufficient
             to
             give
             that
             power
             ,
             and
             there
             was
             no
             inconveniencie
             ,
             seing
             his
             Decreets
             might
             be
             Suspended
             .
             Others
             ,
             thought
             that
             Custome
             being
             clandestine
             ,
             and
             without
             the
             contradiction
             of
             Parties
             ,
             who
             might
             voluntarly
             submit
             themselves
             to
             any
             Authority
             ,
             could
             not
             be
             sufficient
             .
          
           
             The
             Lords
             Ordained
             before
             answer
             ,
             the
             Lyons
             Books
             to
             be
             produced
             ,
             to
             see
             if
             there
             were
             such
             a
             Custome
             ,
             before
             it
             were
             decided
             ,
             and
             how
             far
             that
             Custome
             would
             work
             .
          
        
         
           
             Christian
             Braidie
             contra
             Laird
             of
             Fairney
             January
             20.
             1666.
             
          
           
             
               CHristian
               Braidie
            
             ,
             having
             pursued
             a
             Reduction
             of
             a
             Disposition
             ,
             
               ex
               capute
               inhibitionis
            
             ,
             against
             the
             Laird
             of
             Fairney
             ,
             of
             all
             Dispositions
             made
             by
             
               John
               Glasfoord
            
             to
             him
             ,
             after
             her
             Inhibition
             ,
             he
             produced
             a
             Disposition
             ,
             Holograph
             ,
             wanting
             Witnesses
             ,
             of
             a
             Date
             anterior
             .
             It
             was
             alleadged
             ,
             that
             the
             Holograph
             writ
             could
             not
             prove
             its
             own
             Date
             ,
             
               contra
               tertium
            
             .
          
           
             
               The
               Lords
               ,
               before
               answer
               ,
               ordained
            
             Fairney
             
               to
               adduce
               Witness
               ,
               and
               adminacles
               ,
               for
               astructing
               the
               Date
               ,
            
             he
             adduced
             fo●●
             ,
             the
             Town
             Clerk
             ,
             who
             deponed
             he
             dyted
             the
             Disposition
             ,
             and
             a
             Town
             Officer
             ,
             who
             saw
             it
             subscribed
             of
             the
             Date
             it
             bears
             ,
             and
             a
             third
             ,
             who
             deponed
             he
             saw
             it
             subscribed
             on
             a
             Mercat
             day
             ,
             at
             Coupar
             ,
             which
             ,
             as
             he
             remembred
             ,
             was
             in
             March
             or
             Apryl
             ,
             1652.
             
             Whereas
             the
             Date
             bears
             the
             first
             of
             August
             ,
             1652.
             
             But
             that
             Glasfoord
             ,
             when
             he
             wrot
             it
             ,
             layed
             it
             down
             upon
             the
             Table
             beside
             himself
             ,
             and
             saw
             it
             not
             delivered
             ,
             and
             it
             being
             alleadged
             ,
             that
             the
             first
             of
             August
             1652.
             fell
             upon
             a
             Sunday
             .
          
           
             The
             Lords
             considering
             ,
             that
             Infeftment
             was
             not
             taken
             upon
             the
             Disposition
             for
             three
             years
             ,
             and
             that
             there
             was
             no
             Witnesses
             deponed
             upon
             the
             delivery
             ,
             found
             the
             Witnesses
             adduced
             ,
             not
             to
             astruct
             the
             Date
             of
             the
             Disposition
             ,
             and
             therefore
             reduced
             the
             same
             .
          
        
         
           
           
             Clappertoun
             contra
             Laird
             Tarsonce
             .
             Eodem
             die
             .
          
           
             CLappertoun
             raises
             a
             Declarator
             against
             Tarsonce
             ,
             for
             declaring
             an
             Appryzing
             at
             his
             Instance
             ,
             against
             the
             Pursuer
             ,
             to
             have
             been
             satisfied
             within
             the
             legal
             ,
             by
             payment
             of
             the
             sums
             by
             the
             Debitor
             ,
             or
             by
             Intromission
             with
             the
             Mails
             and
             Duties
             ,
             either
             within
             the
             seven
             years
             of
             the
             first
             legal
             ,
             or
             within
             the
             three
             years
             thereafter
             ,
             during
             which
             ,
             by
             the
             late
             Act
             of
             Parliament
             ,
             Appryzings
             not
             expired
             in
             Anno
             1652.
             were
             declared
             Redeemable
             ,
             or
             by
             Sums
             received
             from
             such
             as
             bought
             from
             the
             Appryzer
             ,
             a
             part
             of
             the
             appryzed
             Lands
             .
             It
             was
             alleadged
             absolvitor
             from
             that
             member
             ,
             of
             satisfaction
             by
             the
             intromission
             during
             these
             three
             last
             years
             ;
             because
             the
             Act
             of
             Parliament
             does
             not
             expresly
             prorogat
             the
             Reversion
             ,
             but
             declares
             the
             Lands
             Redeemable
             within
             three
             years
             ;
             but
             does
             express
             nothing
             to
             whom
             the
             Mails
             and
             Duties
             shall
             belong
             ,
             which
             cannot
             be
             imputed
             against
             the
             Appryzer
             ,
             to
             satisfie
             the
             Appryzing
             ,
             because
             he
             enjoyed
             them
             as
             his
             own
             ,
             the
             Apprizing
             by
             the
             Law
             then
             standing
             ,
             being
             expyred
             ;
             
               &
               bona
               fide
               possessor
               facit
               fructus
               consumptos
               suos
               ,
            
             and
             therefore
             a
             subsequent
             Law
             cannot
             be
             drawn
             back
             ,
             to
             make
             him
             compt
             for
             that
             which
             he
             might
             have
             consumed
             the
             more
             lavishly
             ,
             thinking
             it
             his
             own
             .
             It
             was
             answered
             ,
             that
             Appryzings
             were
             odious
             ,
             being
             the
             taking
             away
             the
             whole
             Right
             of
             Lands
             ,
             for
             a
             sum
             without
             proportion
             to
             the
             true
             value
             ;
             and
             therefore
             all
             Acts
             retrenching
             them
             ,
             ought
             to
             be
             favourably
             interpret
             ,
             especially
             where
             the
             Appryzer
             gets
             all
             his
             own
             ;
             and
             therefore
             the
             Act
             declaring
             them
             Redeemable
             ,
             must
             be
             understood
             in
             the
             same
             case
             as
             they
             were
             before
             ,
             and
             that
             was
             either
             by
             payment
             ,
             or
             intromission
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             sustained
             the
             Declarator
             ,
             both
             as
             to
             payment
             and
             intromission
             ;
             and
             as
             to
             the
             sum
             ,
             the
             Appryzer
             got
             for
             a
             part
             of
             the
             Land
             sold
             by
             him
             Irredeemably
             after
             the
             seven
             years
             legal
             was
             expyred
             .
             And
             seing
             the
             Acquirer
             of
             that
             Right
             was
             called
             ;
             they
             found
             it
             also
             Redeemable
             from
             him
             upon
             payment
             of
             the
             pryce
             payed
             for
             it
             ,
             
               cum
               omni
               causa
            
             ,
             and
             he
             to
             be
             comptable
             for
             the
             Rents
             ,
             unless
             the
             Pursuer
             would
             ratifie
             his
             Right
             ,
             as
             an
             irredeemable
             Right
             ;
             in
             which
             case
             the
             price
             should
             be
             accounted
             as
             a
             part
             of
             the
             sums
             appryzed
             for
          
        
         
           
             Lord
             Rentoun
             contra
             Feuars
             of
             Coldinghame
             .
             Eodem
             die
             .
          
           
             THe
             Lord
             Rentoun
             insisting
             in
             the
             Declarator
             of
             his
             Right
             of
             the
             Office
             of
             Forrestry
             ,
             and
             of
             a
             Threave
             of
             Corn
             with
             the
             Fodder
             ,
             whereof
             mention
             is
             made
             ,
             Ianuary
             17.
             
             The
             Defenders
             proponed
             a
             second
             Defense
             ,
             viz.
             That
             the
             Pursuer
             shewed
             no
             sufficient
             progress
             from
             
               David
               Ellen
            
             :
             but
             only
             an
             Infeftment
             granted
             by
             
               Ianet
               Ellen
               ,
               Davids
            
             Daughter
             ,
             and
             so
             the
             Pursuers
             Goodsir
             upon
             Ianets
             own
             Resignation
             ;
             and
             albeit
             there
             was
             a
             Precept
             of
             
               clare
               constat
            
             ,
             produced
             by
             the
             Abbot
             in
             favours
             of
             Ianet
             ,
             yet
             no
             Seasine
             followed
             thereupon
             ;
             so
             that
             Davids
             Infeftment
             was
             not
             established
             in
             the
             Person
             of
             Ianet
             ;
             and
             consequently
             could
             not
             belong
             to
             this
             Pursuer
             ,
             and
             the
             Defenders
             having
             gotten
             their
             Fews
             immediatly
             after
             Davids
             Right
             
             free
             of
             this
             Burden
             ;
             the
             Right
             could
             not
             be
             declared
             ,
             till
             it
             were
             established
             in
             the
             Pursuers
             Person
             :
             and
             if
             he
             should
             now
             infeft
             himself
             ,
             the
             Interruption
             on
             the
             Act
             of
             Prescription
             upon
             the
             Summons
             ,
             lybelling
             upon
             Davids
             Right
             ,
             and
             the
             progress
             produced
             from
             David
             ,
             would
             fall
             .
             It
             was
             answered
             ,
             that
             the
             Abbot
             having
             granted
             the
             Infeftment
             to
             Ianet
             ,
             upon
             her
             own
             Resignation
             ;
             yet
             bearing
             to
             be
             expresly
             to
             her
             ,
             as
             heir
             to
             David
             :
             It
             was
             equivalent
             to
             a
             Precept
             of
             
               clare
               constat
            
             ,
             which
             does
             not
             necessarly
             require
             the
             ordinar
             form
             ,
             but
             a
             Charter
             infe●ting
             such
             a
             Person
             ,
             as
             heir
             to
             such
             another
             ,
             who
             was
             before
             infeft
             ,
             would
             be
             as
             valide
             ;
             so
             that
             in
             this
             infeftment
             of
             Ianets
             ,
             all
             being
             materially
             included
             to
             establish
             Davids
             Right
             in
             her
             Person
             ,
             she
             being
             acknowledged
             heir
             to
             David
             ,
             albeit
             it
             be
             upon
             her
             own
             Resignation
             ,
             
               utile
               per
               inutile
               non
               vitiatur
            
             .
          
           
             The
             Defenders
             further
             alleadged
             absolvitor
             ,
             because
             by
             several
             Acts
             of
             Parliament
             ,
             infeftments
             of
             Kirk-lands
             before
             the
             Reformation
             ,
             are
             required
             to
             be
             Confirmed
             by
             the
             Pope
             ,
             or
             the
             King
             thereafter
             .
             
               Ita
               est
            
             ,
             this
             is
             Confirmed
             by
             neither
             before
             the
             Feuers
             Right
             :
             And
             by
             another
             Act
             of
             Parliament
             ,
             it
             is
             declared
             ,
             that
             the
             first
             Confirmation
             ,
             with
             the
             last
             Feu
             ,
             shall
             be
             preferred
             .
             
               Ita
               est
            
             ,
             the
             Defenders
             has
             the
             first
             Confirmation
             .
             It
             was
             answered
             ,
             that
             no
             Law
             ,
             nor
             Act
             of
             Parliament
             ,
             required
             Confirmation
             of
             an
             Office
             ;
             neither
             was
             any
             Confirmation
             absolutely
             necessar
             before
             that
             Act
             of
             Parliament
             ;
             but
             the
             Kirk-men
             might
             always
             have
             Feued
             without
             diminution
             of
             the
             Rental
             of
             the
             Lands
             ,
             as
             they
             were
             the
             time
             of
             the
             feu
             ;
             but
             that
             Act
             was
             made
             ,
             in
             regard
             that
             at
             the
             time
             of
             Reformation
             ,
             the
             Kirk-men
             being
             out
             of
             hopes
             of
             preserving
             of
             Monasteries
             ,
             and
             Kirk-lands
             ,
             did
             Feu
             them
             to
             their
             nearest
             Friends
             ;
             and
             therefore
             the
             foresaid
             Act
             ,
             as
             being
             correctory
             of
             the
             common
             Law
             ,
             ought
             not
             to
             be
             extended
             to
             any
             thing
             ,
             but
             what
             is
             exprest
             in
             the
             Act
             ,
             which
             is
             only
             Feues
             of
             Kirk-lands
             ;
             and
             so
             would
             neither
             extend
             to
             an
             Office
             ,
             as
             a
             Baillirie
             ,
             Forrestrie
             ,
             &c.
             nor
             yet
             to
             a
             Pension
             ,
             or
             Annualrent
             :
             neither
             would
             it
             extend
             to
             Infeftments
             ,
             by
             Kirk-men
             ,
             Ward
             ,
             such
             as
             most
             of
             the
             Infeftments
             of
             this
             Abbacy
             ,
             and
             many
             others
             are
             .
             And
             seing
             Confirmation
             was
             not
             requisit
             ,
             but
             the
             Feu
             it self
             was
             sufficient
             alone
             ,
             the
             last
             Act
             preferring
             the
             first
             Confirmation
             ,
             takes
             no
             place
             ,
             which
             can
             only
             be
             understood
             where
             Confirmations
             are
             necessar
             .
             It
             was
             answered
             for
             the
             Defenders
             ,
             that
             albeit
             an
             Office
             requires
             no
             Confirmation
             ,
             where
             there
             is
             nothing
             given
             but
             the
             Office
             ,
             and
             Casualities
             thereof
             ;
             Yet
             where
             there
             is
             a
             burden
             upon
             Lands
             given
             therewith
             ,
             such
             as
             this
             Threave
             of
             Oats
             out
             of
             every
             Husband-land
             ,
             being
             far
             above
             the
             proportion
             of
             a
             suitable
             Fee
             for
             the
             Office
             ,
             there
             being
             above
             111.
             
             Husband-lands
             in
             the
             Abbacie
             ,
             and
             some
             Forrester-lands
             following
             the
             Office
             ,
             besides
             other
             Casualities
             ,
             Confirmation
             is
             necessar
             ,
             or
             else
             the
             Abbots
             might
             have
             eluded
             the
             Law
             ,
             and
             exhausted
             the
             Benefice
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             he
             oppones
             the
             Acts
             of
             Parliament
             ,
             requiring
             only
             Confirmations
             of
             Kirklands
             ;
             and
             albeit
             the
             Duties
             ,
             of
             this
             Office
             affects
             the
             Lands
             
               nihil
               est
            
             ,
             for
             if
             the
             Abbay
             had
             Thirled
             the
             Lands
             of
             the
             Abbacy
             to
             a
             Miln
             without
             the
             Abbacy
             :
             for
             a
             Thirled
             Duty
             of
             a
             far
             greater
             value
             then
             the
             Duties
             of
             this
             Office
             ,
             the
             constitution
             of
             that
             Thirlage
             required
             no
             Confirmation
             .
          
           
           
             The
             Lords
             Sustained
             the
             Pursuers
             progress
             ,
             and
             Repelled
             the
             first
             Alleadgence
             ,
             and
             also
             Repelled
             the
             last
             Alleadgence
             ,
             and
             found
             no
             necessity
             of
             Confirmation
             of
             the
             Office
             ,
             and
             Duties
             thereof
             aforesaid
             ,
             whether
             the
             samine
             were
             holden
             Feu
             ,
             or
             Ward
             :
             but
             did
             not
             cognosce
             ,
             whether
             the
             same
             was
             Feu
             ,
             or
             Ward
             ,
             &c.
             albeit
             that
             was
             contraverted
             :
             neither
             whether
             Infeftments
             of
             Kirk-lands
             ,
             holden
             Ward
             ,
             needed
             Confirmation
             or
             no.
             
          
        
         
           
             ●contra
             Earl
             of
             Kinghorn
             .
             Ianuary
             23.
             1666.
             
          
           
             〈…〉
             having
             pursued
             the
             Earl
             of
             Kinghorn
             ,
             upon
             a
             Bond
             granted
             by
             his
             Father
             .
             He
             proponed
             Improbation
             ,
             by
             way
             of
             Exception
             ,
             which
             was
             sustained
             ,
             and
             a
             Term
             assigned
             to
             prove
             ,
             and
             that
             same
             Term
             to
             the
             Pursuer
             to
             bide
             by
             his
             Bond.
             The
             Defender
             supplicat
             ,
             that
             seing
             the
             Act
             was
             not
             extracted
             ,
             albeit
             the
             Term
             was
             come
             ,
             that
             he
             might
             have
             yet
             liberty
             to
             propone
             payment
             .
             It
             was
             answered
             ,
             he
             could
             not
             ,
             because
             
               exceptio
               falsi
               est
               omnium
               ultima
            
             ,
             after
             which
             no
             other
             could
             be
             proponed
             ,
             much
             less
             after
             the
             Term
             was
             come
             ,
             and
             the
             Pursuer
             come
             to
             bide
             by
             the
             Write
             .
          
           
             Yet
             the
             Lords
             sustained
             the
             Defense
             of
             Payment
             .
          
        
         
           
             Colonel
             James
             Montgomery
             and
             his
             Spouse
             contra
             Steuart
             .
             Ianuary
             24.
             1666.
             
          
           
             
               MArgaret
               Mcdonald
            
             and
             Colonel
             
               Iames
               Montgomery
            
             her
             Spouse
             ,
             pursue
             a
             Declarator
             against
             Steuart
             ,
             Oye
             and
             appearand
             Heir
             to
             umquhil
             Sir
             
               William
               Steuart
            
             ,
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             that
             umquhil
             Dam
             
               Elizabeth
               Hamiltoun
            
             ,
             Spouse
             to
             umquhil
             Sir
             William
             ,
             had
             Right
             to
             certain
             Bonds
             and
             House-hold
             Plenishing
             from
             Sir
             William
             ,
             and
             that
             the
             said
             Margaret
             had
             Right
             thereto
             ,
             from
             the
             said
             Dame
             Elizabeth
             ,
             by
             her
             Assignation
             ,
             and
             that
             the
             sums
             ,
             and
             Goods
             were
             Moveable
             ,
             and
             thereby
             the
             Assignation
             granted
             thereto
             ,
             albeit
             on
             death-bed
             ,
             was
             valid
             .
             It
             was
             condescended
             on
             ,
             that
             the
             Bonds
             were
             Moveable
             by
             a
             Charge
             of
             Horning
             .
             It
             was
             answered
             ,
             that
             the
             Charge
             was
             but
             against
             one
             of
             the
             Cautioners
             ,
             which
             was
             not
             sufficient
             to
             make
             it
             moveable
             .
          
           
             The
             Lords
             Repelled
             the
             Alleadgence
             .
          
        
         
           
             Eleis
             of
             Southside
             contra
             Mark
             Cass
             of
             Cockpen
             :
             Eodem
             die
             .
          
           
             ELeis
             of
             Southside
             pursues
             Cass
             ,
             as
             Heir
             to
             Mr.
             
               Richard
               Cass
            
             ,
             or
             as
             being
             charged
             to
             enter
             heir
             to
             him
             .
             Compearance
             is
             made
             for
             Cockpen
             ,
             who
             was
             a
             Creditor
             to
             the
             Defender
             ,
             and
             had
             appryzed
             his
             Lands
             ;
             and
             alleadged
             no
             Process
             ,
             because
             the
             Pursuer
             pursues
             as
             Assigney
             ;
             The
             Assignation
             being
             his
             Title
             ,
             is
             posterior
             to
             the
             Charge
             to
             enter
             Heir
             ,
             or
             Summons
             which
             are
             raised
             ,
             not
             in
             the
             Cedents
             Name
             ,
             but
             in
             the
             Assigneys
             .
             It
             was
             answered
             
             for
             the
             Pursuer
             ,
             that
             Cockpen
             could
             not
             object
             this
             ,
             because
             he
             was
             Curator
             to
             the
             Pursuer
             ,
             and
             had
             appryzed
             the
             Lands
             ,
             and
             proponed
             this
             alleadgence
             of
             purpose
             ,
             to
             exclude
             this
             Pursuer
             ,
             from
             coming
             in
             within
             year
             and
             day
             ,
             because
             ,
             it
             this
             Summons
             were
             cast
             (
             the
             Defender
             being
             now
             out
             of
             the
             Countrey
             )
             before
             a
             new
             Charge
             to
             enter
             Heir
             ,
             could
             proceed
             upon
             60.
             dayes
             ,
             and
             Citation
             upon
             60.
             dayes
             ,
             and
             the
             special
             Charge
             upon
             60.
             dayes
             ,
             the
             year
             would
             elapse
             .
             It
             was
             answered
             ,
             that
             Cockpen
             had
             never
             acted
             as
             Curator
             ,
             and
             that
             this
             Summons
             was
             raised
             by
             the
             Pursuer
             himself
             ,
             after
             his
             Majority
             ,
             who
             was
             Major
             more
             then
             a
             year
             ago
             .
             It
             was
             answered
             ,
             that
             the
             Pursuer
             had
             but
             very
             lately
             recovered
             his
             Writs
             from
             his
             Curators
             ,
             though
             he
             used
             all
             Diligence
             ,
             and
             was
             forced
             to
             transume
             against
             some
             of
             them
             .
          
           
             The
             Lords
             sustained
             the
             Summons
             ,
             in
             respect
             Cockpen
             had
             been
             Curator
             ,
             and
             so
             near
             the
             time
             of
             Minority
             .
          
        
         
           
             Earl
             of
             Eglingtoun
             contra
             Laird
             of
             Cuninghame
             head
             .
             Ianuary
             27.
             1666.
             
          
           
             THe
             Earl
             of
             Eglingtoun
             pursues
             the
             Laird
             of
             Cuninghame-head
             for
             the
             Teinds
             of
             his
             Lands
             ,
             conform
             to
             a
             Decreet
             of
             Valuation
             .
             The
             Defender
             Alleadged
             absolvitor
             ,
             because
             he
             bruiked
             by
             vertue
             of
             a
             Tack
             ,
             at
             least
             by
             tacit
             Relocation
             ,
             which
             must
             defend
             ,
             ay
             and
             while
             the
             famine
             be
             interrupted
             by
             Inhibition
             ,
             or
             Process
             .
             It
             was
             replyed
             ,
             the
             Pursuer
             produces
             Inhibition
             ,
             and
             craves
             only
             the
             valued
             Duties
             for
             the
             years
             thereafter
             .
             It
             was
             answered
             ,
             the
             Inhibition
             is
             direct
             to
             Messengers
             at
             Arms
             ,
             and
             is
             only
             execute
             by
             a
             Sheriff
             in
             that
             part
             .
             It
             was
             answered
             ,
             that
             it
             was
             sufficient
             ,
             seing
             the
             Letters
             bore
             Messengers
             ,
             Sheriffs
             in
             that
             part
             .
          
           
             The
             Lords
             found
             the
             Inhibition
             sufficient
             ,
             to
             interrupt
             the
             tacite
             Relocation
             .
          
        
         
           
             Iean
             Crichtoun
             and
             Mr.
             Iohn
             Eleis
             her
             Husband
             contra
             Maxwel
             of
             Kirk-house
             .
             Eodem
             die
             .
          
           
             
               JEan
               Crichtoun
            
             being
             Served
             to
             a
             Terce
             of
             certain
             Lands
             belonging
             to
             her
             first
             Husband
             Maxwel
             of
             Kirk-house
             ,
             pursues
             for
             Mails
             and
             Duties
             .
             It
             is
             alleadged
             absolvitor
             ,
             because
             the
             Pursuer
             hath
             a
             competent
             Joynture
             ,
             more
             then
             the
             third
             of
             her
             Husbands
             Estate
             ,
             as
             then
             it
             was
             ;
             and
             a
             Provision
             of
             Conquest
             :
             and
             albeit
             it
             be
             not
             expresly
             in
             satisfaction
             of
             the
             Terce
             ;
             yet
             it
             is
             but
             a
             minute
             ,
             bearing
             to
             be
             extended
             ,
             and
             there
             is
             a
             Process
             of
             Extension
             thereof
             depending
             :
             and
             therefore
             it
             ought
             to
             be
             extended
             with
             such
             Clauses
             as
             are
             ordinar
             in
             such
             cases
             ,
             and
             this
             is
             most
             ordinar
             ,
             that
             competent
             Provisions
             use
             to
             be
             in
             satisfaction
             of
             the
             Terce
             .
             It
             was
             answered
             ,
             that
             the
             Extension
             could
             not
             be
             with
             alteration
             of
             any
             substantial
             Point
             ,
             such
             as
             this
             ,
             but
             only
             as
             to
             Procurators
             of
             Resignation
             ,
             Precepts
             of
             Seasine
             ,
             &c.
             
             And
             to
             show
             that
             it
             was
             not
             
               Kirk
               house
            
             ,
             his
             meaning
             ,
             that
             the
             Infeftment
             should
             be
             in
             satisfaction
             of
             the
             Terce
             ;
             the
             Infeftment
             it self
             produced
             ,
             being
             extended
             in
             ample
             Form
             ,
             does
             not
             bear
             to
             be
             in
             satisfaction
             .
          
           
           
             The
             Lords
             Repelled
             the
             Defenses
             ,
             and
             found
             the
             Terce
             competent
             in
             this
             Case
             .
          
        
         
           
             Colonel
             James
             Montgomery
             contra
             Steuart
             .
             Eodem
             die
             .
          
           
             IN
             the
             Declarator
             betwixt
             these
             Parties
             mentioned
             the
             24.
             day
             Instant
             .
             It
             was
             alleadged
             that
             the
             Plenishing
             ,
             and
             Moveables
             could
             not
             be
             declared
             to
             belong
             to
             the
             Pursuer
             ,
             by
             vertue
             of
             Dam
             
               Elizabeth
               Hamiltouns
            
             Disposition
             ,
             in
             so
             far
             as
             concerns
             the
             Moveable
             Heirship
             ,
             in
             respect
             it
             was
             done
             on
             Death
             bed
             ,
             and
             could
             not
             prejudge
             the
             Defender
             ,
             who
             is
             Heir
             ,
             even
             as
             to
             the
             Heirship-moveable
             .
             It
             was
             answered
             ,
             that
             the
             said
             Dam
             Elizabeth
             being
             Infeft
             neither
             in
             Land
             ,
             nor
             Annualrent
             in
             Fee
             ,
             could
             have
             no
             Heirship
             .
             It
             was
             answered
             ,
             that
             her
             Husband
             and
             she
             were
             infeft
             in
             certain
             Lands
             by
             Hoom
             of
             Foord
             ,
             which
             were
             Disponed
             to
             her
             Husband
             ▪
             and
             her
             in
             Conjunct-fee●
             and
             to
             the
             heirs
             of
             the
             Marriage
             ,
             which
             failzing
             ,
             to
             whatsoever
             Person
             the
             said
             Sir
             William
             should
             assign
             ,
             or
             design
             .
             And
             true
             it
             is
             he
             had
             assigned
             that
             Sum
             to
             his
             Lady
             ,
             whereby
             she
             had
             Right
             of
             the
             Fee
             ,
             and
             so
             might
             have
             heirship
             .
          
           
             The
             Lords
             found
             that
             this
             Designation
             made
             the
             Lady
             but
             Heir
             appearand
             ,
             or
             of
             Tailzie
             ,
             whereupon
             she
             was
             never
             Infeft
             :
             and
             by
             the
             Conjunct-fee
             ,
             she
             was
             only
             Liferenter
             ;
             and
             that
             the
             Assignation
             to
             the
             Sums
             and
             Right
             ,
             gave
             not
             her
             heirs
             any
             heirship
             moveable
             .
          
        
         
           
             Heugh
             Dollas
             contra
             Frazer
             of
             Inveralochie
             .
             Ianuary
             31.
             1666.
             
          
           
             
               SIr
               Mungo
               Murray
            
             having
             by
             the
             Earl
             of
             Crawfords
             means
             ,
             obtained
             from
             the
             King
             a
             Gift
             of
             the
             Ward
             ,
             and
             Marriage
             of
             Frazer
             of
             Streichen
             his
             Nephew
             ,
             he
             did
             assign
             the
             Gift
             to
             Mr.
             
               Iames
               Kennedy
            
             ,
             and
             he
             to
             
               Heugh
               Dollas
            
             ,
             before
             it
             past
             the
             Scals
             ;
             and
             at
             the
             time
             that
             the
             Gift
             was
             past
             in
             Exchequer
             ,
             the
             same
             was
             stopt
             until
             Sir
             Mungo
             gave
             a
             Back-bond
             ,
             bearing
             ,
             that
             he
             had
             promised
             at
             the
             obtaining
             of
             the
             Gift
             ,
             to
             be
             ruled
             therein
             at
             the
             Earl
             of
             Crawfords
             discretion
             ,
             who
             by
             a
             Declaration
             under
             his
             hand
             ,
             declared
             that
             the
             Gift
             was
             purchast
             from
             the
             King
             ,
             for
             the
             Minors
             behove
             ,
             and
             that
             only
             a
             gratuity
             for
             Sir
             
             Mungo's
             pains
             ,
             was
             to
             be
             payed
             to
             him
             ;
             and
             that
             the
             Earl
             Declared
             ,
             he
             allowed
             Sir
             Mungo
             5000.
             merks
             .
             There
             was
             a
             second
             Gift
             taken
             in
             the
             name
             of
             Sir
             
               William
               Purves
            
             of
             the
             same
             Ward
             ,
             and
             Marriage
             .
             
               Heugh
               Dollas
            
             pursuing
             Declarator
             of
             the
             double
             avail
             of
             the
             Marriage
             ,
             because
             there
             was
             a
             suitable
             Match
             offered
             ,
             and
             refused
             .
             Compearance
             was
             made
             for
             Sir
             
               William
               Purves
               ▪
            
             and
             the
             Lord
             Frazer
             his
             Assigney
             ,
             who
             declared
             that
             their
             Gift
             was
             to
             Streichans
             behove
             ,
             and
             alleadged
             that
             the
             first
             Gift
             could
             only
             be
             declared
             as
             to
             5000.
             merks
             .
             contained
             in
             the
             Earl
             of
             Crawfords
             Declaration
             ,
             because
             of
             Sir
             Mungoes
             Back-bond
             ,
             the
             time
             of
             passing
             of
             the
             Gift
             .
             It
             was
             answered
             ,
             First
             ;
             That
             Sir
             Mungoes
             Back-bond
             ,
             and
             the
             Earl
             of
             Crawfords
             Declaration
             ,
             could
             not
             prejudge
             the
             Pursuer
             ,
             who
             was
             a
             singular
             Successor
             to
             Sir
             Mungo
             ;
             especially
             ,
             seing
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Gift
             was
             assigned
             ,
             and
             intimate
             before
             the
             
             Back-bond
             :
             after
             which
             ,
             no
             Writ
             subscribed
             by
             the
             Cedent
             could
             prejudge
             the
             Assigney
             .
             It
             was
             answered
             ,
             that
             the
             said
             Assignation
             being
             of
             the
             Gift
             ,
             when
             it
             was
             an
             incompleat
             Right
             ,
             and
             only
             a
             Mandat
             granted
             by
             the
             King
             ,
             could
             not
             prejudge
             the
             Back-bond
             ,
             granted
             at
             the
             time
             the
             Gift
             past
             the
             Exchequer
             ,
             and
             Seals
             ;
             for
             then
             only
             it
             became
             a
             compleat
             Right
             ,
             and
             notwithstanding
             of
             the
             Assignation
             ,
             behoved
             to
             pass
             in
             the
             Donatars
             Cedent
             ;
             his
             Name
             ;
             so
             that
             his
             Back-bond
             then
             granted
             ,
             and
             Registrat
             in
             Exchequer
             ,
             behoved
             to
             affect
             ,
             and
             restrict
             the
             Gift
             ,
             otherways
             all
             Back-bonds
             granted
             to
             the
             Thesaurer
             ,
             and
             Exchequer
             ,
             might
             be
             Evacuat
             by
             anterior
             Assignations
             .
             It
             was
             answered
             ;
             that
             this
             Back-bond
             was
             granted
             to
             the
             Earl
             of
             Crawford
             ,
             then
             ,
             but
             a
             private
             Person
             ,
             and
             hath
             not
             the
             same
             effect
             ,
             a●
             a
             Bond
             granted
             to
             the
             Thesaurer
             .
          
           
             The
             Lords
             found
             this
             Back-bond
             granted
             at
             the
             passing
             of
             the
             Gift
             ,
             and
             Registrat
             in
             the
             Books
             of
             Exchequer
             ,
             to
             affect
             the
             said
             Gift
             ,
             and
             therefore
             restricted
             the
             Declarator
             thereto
             .
          
           
             In
             this
             Process
             it
             was
             also
             alleadged
             that
             the
             first
             Gift
             was
             null
             ,
             bearing
             the
             Gift
             of
             the
             Ward
             ,
             and
             Marriage
             to
             be
             given
             upon
             the
             Minority
             of
             Streichen
             ,
             and
             the
             Decease
             of
             his
             Father
             ;
             and
             the
             second
             Gift
             buire
             ,
             to
             be
             upon
             the
             Minority
             of
             Streichen
             ,
             and
             the
             Decease
             of
             his
             Goodsire
             ,
             who
             dyed
             last
             Infeft
             ,
             his
             Father
             never
             being
             Infeft
             .
             It
             was
             answered
             ,
             that
             the
             Designation
             was
             not
             to
             be
             respected
             ,
             seing
             the
             thing
             it self
             was
             constant
             ,
             and
             that
             the
             Fathers
             Decease
             ,
             albeit
             not
             Infeft
             ,
             was
             the
             immediate
             cause
             of
             the
             Vaccation
             ;
             seing
             the
             Oye
             could
             have
             no
             interest
             ,
             until
             the
             Father
             ,
             though
             not
             Infeft
             ,
             were
             dead
             .
          
           
             The
             Lords
             forbore
             to
             decide
             in
             this
             ,
             seing
             both
             Parties
             agreed
             that
             the
             5000.
             merks
             should
             be
             effectual
             ,
             so
             that
             it
             was
             needless
             to
             decide
             in
             this
             ;
             which
             ,
             if
             found
             Relevant
             ,
             would
             have
             taken
             away
             the
             first
             Gift
             wholly
             .
          
        
         
           
             Colonel
             Cuningham●
             contra
             Lyll
             .
             Feb.
             1.
             1666.
             
          
           
             IN
             a
             Competition
             between
             
               Colonel
               Cuninghame
            
             and
             Lyll
             ,
             both
             being
             Arresters
             ,
             and
             having
             obtained
             Decreets
             ,
             to
             make
             forthcoming
             in
             one
             day
             ;
             and
             
               Colonel
               Cuninghams
            
             Arrestment
             being
             a
             day
             prior
             ,
             he
             alleadged
             he
             ought
             to
             be
             preferred
             ,
             because
             his
             Diligence
             was
             anterior
             ,
             and
             his
             Decreet
             behoved
             to
             be
             drawn
             back
             to
             his
             Arrestment
             .
             It
             was
             answered
             for
             Lyll
             ,
             that
             it
             was
             only
             the
             Decreet
             to
             make
             forthcoming
             ,
             that
             constitute
             the
             Right
             ;
             and
             the
             Arrestment
             was
             but
             a
             Judicial
             Prohibition
             ,
             hindering
             the
             Debitor
             to
             Dispone
             ,
             like
             an
             Inhibition
             ;
             or
             a
             Denunciation
             of
             Lands
             to
             be
             appryzed
             ,
             and
             that
             the
             last
             Denunciation
             ,
             and
             first
             Appryzing
             would
             be
             preferred
             :
             So
             the
             Decreet
             to
             make
             forthcoming
             is
             the
             judicial
             Assignation
             of
             the
             Debt
             ,
             and
             both
             being
             in
             one
             day
             ,
             ought
             to
             come
             in
             together
             .
             It
             was
             answered
             ,
             that
             in
             legal
             Diligences
             prior
             ,
             
               tempore
               est
               p●tior
               jure
            
             ,
             and
             the
             Decreet
             to
             make
             forthcoming
             is
             Declaratory
             ,
             finding
             the
             sum
             arrested
             to
             belong
             to
             the
             Arrester
             ,
             by
             vertue
             of
             the
             Arrestment
             :
             and
             as
             for
             the
             Instance
             of
             Appryzings
             ,
             the
             first
             Denunciation
             can
             never
             be
             postponed
             ,
             
             unless
             the
             Diligence
             be
             defective
             ;
             for
             if
             the
             first
             Denuncer
             take
             as
             few
             days
             to
             the
             time
             of
             the
             Appryzing
             as
             the
             other
             ,
             he
             will
             still
             be
             preferred
             .
          
           
             The
             Lords
             preferred
             the
             first
             Arrester
             ,
             being
             equal
             in
             Diligence
             with
             the
             second
             .
          
        
         
           
             contra
             Mr.
             John
             and
             Henry
             Rollocks
             .
             Eodem
             die
             .
          
           
             IN
             an
             Exhibition
             of
             Writs
             ,
             it
             was
             alleadged
             that
             Mr.
             Iohn
             and
             
               Henry
               Rollocks
            
             ,
             being
             Advocat
             ;
             and
             Agent
             in
             the
             Cause
             ,
             was
             not
             oblieged
             to
             Depone
             in
             prejudice
             of
             their
             Clients
             ,
             or
             to
             reveal
             their
             secrets
             ;
             but
             they
             ought
             to
             pursue
             their
             Clients
             ;
             for
             a
             Servant
             ,
             Factor
             ,
             or
             Person
             intrusted
             with
             the
             custody
             of
             Writs
             ,
             ought
             not
             to
             be
             Examined
             in
             prejudice
             of
             their
             Constituent
             ,
             unless
             it
             were
             as
             a
             Witness
             .
             It
             was
             answered
             ,
             that
             their
             Client
             was
             called
             .
          
           
             In
             respect
             whereof
             ,
             the
             Lords
             ordained
             the
             Defenders
             to
             Depone
             concerning
             the
             having
             of
             the
             Writs
             .
          
        
         
           
             Fodem
             die
             .
          
           
             AN
             Executor
             Dative
             ,
             
               ad
               omissa
               &
               mala
               appretiata
            
             ,
             pursuing
             the
             principal
             Executrix
             ,
             and
             referring
             the
             Goods
             omitted
             ,
             and
             Prices
             to
             her
             Oath
             :
             She
             alleadged
             that
             she
             had
             already
             Deponed
             at
             the
             giving
             up
             of
             the
             Inventar
             ,
             and
             could
             not
             be
             oblieged
             to
             Depone
             again
             .
          
           
             The
             Lords
             ordained
             her
             to
             Depone
             ,
             seing
             she
             might
             have
             intrometted
             after
             ,
             and
             more
             might
             have
             come
             to
             her
             knowledge
             of
             the
             worth
             of
             the
             Goods
             ,
             or
             a
             greater
             price
             gotten
             therefore
             .
          
        
         
           
             Arch-bishop
             of
             Glasgow
             contra
             Mr.
             James
             Logan
             .
             Eeb.
             6.
             1666.
             
          
           
             THe
             Arch-bishop
             of
             Glasgow
             pursues
             a
             Declarator
             against
             Mr.
             
               Iames
               Logan
            
             ,
             for
             declaring
             he
             had
             lost
             his
             place
             ,
             as
             Commissar
             Clerk
             of
             Drumfreis
             ,
             because
             he
             had
             deserted
             his
             place
             ,
             and
             gone
             out
             of
             the
             Countrey
             ,
             and
             because
             he
             was
             a
             Person
             insolvent
             ,
             and
             denunced
             Rebel
             ,
             and
             had
             lifted
             a
             considerable
             Sum
             for
             the
             Quots
             of
             Testaments
             ,
             which
             he
             had
             taken
             with
             him
             ,
             and
             not
             payed
             .
             It
             was
             answered
             that
             the
             Defender
             had
             his
             Gift
             from
             the
             former
             Arch-bishop
             ,
             with
             a
             power
             of
             Deputation
             ,
             and
             that
             his
             place
             is
             ,
             and
             hath
             always
             been
             served
             by
             a
             Depute
             ;
             and
             therefore
             ,
             neither
             his
             absence
             ,
             nor
             his
             being
             Denunced
             for
             Debt
             ,
             can
             annul
             his
             Gift
             ,
             or
             hinder
             him
             to
             Serve
             by
             his
             Deput
             .
             It
             was
             answered
             ,
             that
             the
             principal
             Clerk
             ,
             not
             having
             ,
             
               personam
               standi
               in
               judicio
            
             ,
             his
             Depute
             cannot
             sit
             for
             him
             ,
             who
             could
             not
             sit
             himself
             ,
             and
             that
             he
             being
             absent
             out
             of
             the
             Countrey
             ,
             for
             a
             considerable
             space
             ,
             must
             be
             esteemed
             to
             have
             Relinquished
             his
             Place
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             upon
             the
             p●wer
             of
             Deputation
             ,
             which
             they
             found
             not
             to
             be
             annul●e●
             by
             his
             absence
             ,
             or
             denunciation
             ,
             
               sine
               crimine
            
             .
          
        
         
           
           
             Livingstoun
             contra
             Begg
             .
             Eodem
             die
          
           
             
               THomas
               Begg
            
             having
             granted
             a
             Bond
             to
             Livingstouns
             his
             Wife
             ,
             bearing
             ,
             that
             in
             respect
             he
             thought
             it
             convenient
             that
             they
             should
             live
             a
             part
             ,
             he
             oblieged
             him
             to
             pay
             her
             a
             certain
             Sum
             of
             Money
             yearly
             for
             her
             aliment
             ,
             and
             oblieged
             him
             never
             to
             quarrel
             ,
             or
             recal
             that
             Obligation
             ,
             being
             charged
             thereupon
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             it
             was
             
               donatio
               inter
               virum
               &
               uxorem
            
             ,
             and
             so
             he
             might
             recal
             the
             same
             ,
             and
             now
             offered
             to
             Cohabite
             with
             his
             Wife
             ,
             and
             aliment
             her
             according
             to
             his
             Means
             .
             It
             was
             answered
             ,
             that
             he
             had
             Renunced
             that
             priviledge
             ,
             in
             so
             far
             as
             he
             had
             oblieged
             himself
             ,
             never
             to
             Recal
             ,
             or
             come
             against
             this
             obliegment
             .
             It
             was
             answered
             ,
             that
             though
             he
             had
             expresly
             Renunced
             that
             priviledge
             ,
             yet
             the
             Renunciation
             was
             
               donatio
               inter
               virum
               &
               uxorem
            
             ,
             and
             he
             might
             therefore
             Recal
             ,
             and
             come
             against
             both
             .
          
           
             The
             Lords
             found
             the
             Reason
             of
             Suspension
             ,
             and
             Reply
             relevant
             in
             time
             coming
             :
             but
             not
             for
             the
             bygone
             time
             ;
             during
             which
             ,
             the
             Wife
             had
             actually
             lived
             a
             part
             ,
             and
             alimented
             her self
             .
          
        
         
           
             Laird
             of
             Dury
             contra
             The
             Relict
             and
             Daughter
             of
             umquhil
             Dury
             his
             Brother
             .
             Eodem
             die
             .
          
           
             DVry
             being
             Served
             Tutor
             of
             Law
             to
             his
             Brothers
             only
             Daughter
             ,
             pursues
             her
             Mother
             for
             delivery
             of
             her
             to
             be
             Educat
             by
             her
             Tutors
             .
             It
             was
             alleadged
             ,
             that
             he
             was
             to
             succeed
             her
             ,
             and
             so
             could
             not
             have
             the
             Custody
             of
             her
             Person
             .
             2.
             
             That
             she
             was
             but
             nine
             years
             old
             ,
             and
             her
             Mother
             unmarried
             ,
             and
             so
             she
             was
             the
             fittest
             person
             to
             Educate
             her
             ;
             especially
             seing
             she
             was
             the
             only
             living
             Child
             of
             many
             ,
             and
             so
             not
             likely
             to
             be
             lively
             .
             It
             was
             answered
             ,
             that
             the
             Tutor
             insisted
             not
             for
             the
             custody
             of
             his
             Pupil
             himself
             ,
             but
             condescended
             on
             several
             Persons
             ,
             with
             whom
             she
             might
             be
             Educate
             ;
             and
             alleadged
             ,
             that
             she
             having
             40000.
             pounds
             of
             Provision
             out
             of
             the
             Family
             ;
             there
             was
             no
             Reason
             she
             should
             be
             keeped
             by
             her
             Mother
             ,
             and
             Disposed
             of
             at
             the
             pleasure
             of
             her
             Mothers
             Friends
             .
          
           
             The
             Lords
             Decerned
             the
             Child
             to
             be
             delivered
             to
             Mr.
             
               Alexander
               Gibson
            
             ,
             one
             of
             the
             Clerks
             ,
             to
             be
             Educate
             with
             him
             :
             but
             superceeded
             Execution
             of
             the
             Sentence
             ,
             till
             Whitsonday
             come
             a
             year
             ,
             that
             she
             might
             be
             delivered
             to
             her
             Fathers
             Friends
             ,
             before
             she
             was
             eleven
             years
             old
             ,
             and
             could
             have
             any
             thoughts
             of
             Marriage
             .
          
        
         
           
             Watson
             contra
             Fleming
             .
             Eodem
             die
             .
          
           
             THere
             being
             an
             Infeftment
             of
             Annualrent
             granted
             out
             of
             Lands
             ,
             and
             Teinds
             ,
             and
             an
             Assignation
             to
             the
             Teind
             Duties
             ,
             in
             so
             far
             as
             extended
             to
             the
             Annualrent
             .
             The
             Teinds
             ,
             and
             Lands
             were
             thereafter
             appryzed
             from
             the
             common
             Author
             ,
             before
             the
             Annualrenter
             had
             obtained
             Possession
             
             by
             his
             Real
             Right
             ,
             of
             the
             Annualrent
             ,
             but
             only
             by
             his
             Assignation
             to
             the
             Teind
             Duties
             .
             It
             was
             alleadged
             by
             the
             Appryzer
             ,
             that
             the
             Assignation
             to
             the
             Teind
             Duties
             could
             give
             no
             longer
             Right
             then
             the
             property
             thereof
             remained
             in
             the
             Cedents
             Person
             ;
             which
             Ceasing
             by
             the
             Appryzing
             ,
             the
             Assignation
             ceased
             therewith
             ,
             as
             is
             ordinarly
             ,
             and
             unquestionably
             sustained
             in
             Assignations
             to
             Mails
             and
             Duties
             of
             Land.
             It
             was
             answered
             ,
             that
             there
             was
             great
             difference
             betwixt
             Lands
             ,
             which
             require
             Infeftment
             to
             transmit
             the
             same
             ,
             and
             Teinds
             which
             require
             none
             ,
             but
             are
             conveyable
             by
             an
             Assignation
             ;
             for
             if
             this
             had
             been
             by
             an
             Assignation
             to
             the
             Tack
             of
             Teinds
             ,
             protanto
             ,
             it
             would
             have
             been
             unquestionably
             valid
             ;
             and
             therefore
             being
             an
             Assignation
             to
             the
             Teind
             Duties
             ,
             it
             is
             equivalent
             as
             a
             Disposition
             to
             Lands
             ,
             which
             would
             carry
             the
             Right
             of
             a
             Reversion
             ,
             though
             not
             exprest
             ,
             and
             though
             there
             were
             no
             more
             to
             Dispone
             but
             the
             Reversion
             only
             .
             It
             was
             answered
             ,
             that
             if
             the
             Assignation
             had
             been
             to
             the
             Teinds
             :
             That
             is
             to
             the
             Right
             ,
             or
             if
             it
             had
             been
             to
             the
             full
             Teind
             Duty
             in
             the
             Tack
             ,
             or
             of
             certain
             Lands
             ;
             then
             the
             case
             might
             have
             been
             dubious
             ;
             but
             being
             ,
             not
             of
             the
             Teind
             Duties
             of
             any
             particular
             Lands
             ,
             but
             out
             of
             the
             first
             and
             readiest
             of
             the
             Teinds
             of
             several
             Lands
             ,
             it
             was
             not
             
               habilis
               modus
            
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Town
             of
             Glasgow
             contra
             Town
             of
             Dumbarton
             .
             Eodem
             die
             .
          
           
             THere
             being
             mutual
             Declarators
             ,
             one
             at
             the
             Instance
             of
             the
             Town
             of
             Dumbarton
             ,
             for
             Declaring
             that
             they
             had
             Right
             by
             their
             Infeftments
             ,
             that
             all
             ships
             coming
             within
             Clyde
             ,
             should
             make
             their
             Entries
             at
             Dumbarton
             ,
             and
             that
             they
             should
             pay
             Anchorage
             ,
             for
             all
             Ships
             Anchoring
             in
             the
             River
             of
             Clyde
             ,
             being
             within
             their
             Infeftment
             ,
             even
             from
             the
             Water
             of
             Leven
             ,
             to
             the
             head
             of
             Lochluny
             ,
             within
             which
             bounds
             is
             the
             ordinar
             station
             of
             
               New-wark
               ,
               Potterig
            
             and
             Inchgrein
             ,
             and
             above
             which
             ,
             no
             Vessel
             above
             24.
             
             Tuns
             goes
             up
             Clyde
             ;
             and
             likewise
             for
             the
             Measurage
             ,
             whereby
             all
             Ships
             casting
             Anchor
             there
             ,
             took
             the
             Firlots
             of
             Dumbarton
             and
             measured
             with
             ,
             payed
             8.
             pennies
             of
             the
             boll
             therefore
             ;
             and
             Weightage
             ,
             which
             is
             a
             Duty
             for
             their
             Weights
             :
             and
             also
             Tunage
             ,
             being
             so
             much
             out
             of
             every
             Tun
             of
             the
             Burden
             of
             each
             Ship.
             And
             on
             the
             other
             part
             ,
             Glasgow
             pursues
             Declarator
             of
             their
             Liberty
             to
             Traffick
             freely
             in
             the
             River
             of
             Clyde
             ;
             and
             to
             make
             Entry
             at
             their
             Burgh
             ,
             and
             to
             be
             free
             of
             any
             such
             burden
             at
             Dumbarton
             .
          
           
             The
             Lords
             before
             answer
             having
             ordained
             either
             Party
             to
             adduce
             such
             Writs
             ,
             and
             Witnesses
             as
             they
             will
             make
             use
             of
             in
             the
             Cause
             ,
             for
             instructing
             these
             Burdens
             ,
             the
             Possession
             thereof
             ,
             Interruptions
             of
             the
             same
             ,
             and
             Liberty
             therefrom
             ;
             which
             all
             being
             adduced
             ,
             Dumbarton
             produced
             their
             original
             Charter
             ,
             Erecting
             them
             in
             a
             free
             Burgh
             ,
             by
             King
             Alexander
             ,
             in
             Anno
             1221.
             and
             another
             Charter
             also
             by
             King
             Alexander
             ,
             repeating
             their
             Priviledges
             of
             Burgh
             ,
             as
             free
             as
             Edinburgh
             ,
             or
             any
             other
             Burgh
             within
             the
             Kingdom
             ,
             
               cum
               custumiis
               &
               teloniis
            
             ;
             and
             also
             a
             Charter
             in
             Anno
             1609.
             
             Ratifying
             the
             former
             Charter
             ,
             and
             particularly
             expressing
             all
             these
             Burdens
             in
             question
             ,
             in
             the
             novodamus
             thereof
             ;
             and
             also
             produced
             their
             Entry
             Books
             ,
             bearing
             ,
             the
             
             Merchants
             of
             Glasgow
             to
             have
             Entred
             their
             Ships
             at
             Dumbarton
             ,
             and
             to
             have
             taken
             the
             measures
             of
             Dumbarton
             ,
             for
             measuring
             their
             Salt
             ,
             and
             to
             have
             payed
             the
             Duties
             thereof
             ,
             and
             obliging
             themselves
             to
             make
             use
             of
             no
             others
             these
             Voyages
             ,
             begining
             at
             the
             year
             1616.
             and
             continuing
             till
             the
             year
             1657.
             in
             the
             beginning
             whereof
             ,
             there
             was
             ordinarly
             one
             Ship
             every
             year
             ,
             and
             thereafter
             several
             Ships
             every
             year
             .
             Glasgow
             did
             also
             produce
             their
             ancient
             Infeftments
             by
             King
             Alexander
             ,
             mentioning
             a
             prior
             Infeftment
             by
             King
             William
             ,
             Erecting
             them
             into
             a
             free
             Burgh
             ,
             with
             their
             Books
             of
             Entries
             ,
             of
             several
             Ships
             ,
             for
             divers
             years
             ,
             with
             an
             Interlocutor
             of
             the
             Lords
             ,
             in
             Anno
             1609.
             wherein
             Dumbarton
             having
             charged
             for
             all
             the
             Duties
             now
             in
             question
             .
             Glasgow
             Suspended
             ,
             and
             Dumton
             insisted
             for
             none
             of
             these
             in
             question
             ,
             but
             only
             for
             Entries
             ;
             and
             the
             Lords
             found
             ,
             that
             the
             Merchants
             of
             Glasgow
             might
             either
             Enter
             at
             
               Glasgow
               ,
               Dumbarton
            
             ,
             or
             any
             other
             free
             Burgh
             where
             the
             Kings
             Customers
             were
             ,
             and
             might
             break
             bulk
             there
             ,
             with
             a
             Contract
             between
             Dumbarton
             and
             Glasgow
             ,
             in
             Anno
             1590.
             oblieging
             them
             to
             concur
             against
             unfree-men
             ,
             and
             not
             to
             break
             bulk
             upon
             the
             River
             ,
             but
             in
             their
             Towns
             ;
             and
             in
             case
             of
             any
             difference
             ,
             six
             of
             each
             Town
             to
             meet
             at
             Ranfrew
             ,
             and
             decide
             the
             same
             ,
             and
             thereupon
             alleadged
             ,
             that
             they
             being
             a
             free
             Burgh
             ,
             and
             having
             the
             precedence
             of
             Dumbarton
             ,
             both
             in
             Parliament
             ,
             and
             so
             acknowledged
             by
             the
             said
             Contract
             ,
             and
             enjoying
             equal
             ,
             and
             free
             Trade
             in
             the
             River
             of
             Clyde
             ,
             without
             any
             such
             Burden
             ,
             whereof
             no
             mention
             is
             made
             in
             the
             foresaid
             Contract
             ,
             and
             being
             charged
             for
             ,
             in
             Anno
             1611.
             there
             was
             not
             so
             much
             as
             an
             alleadgence
             of
             any
             Possession
             of
             Dumbartons
             of
             these
             Dues
             at
             that
             time
             ,
             and
             the
             Entry
             decerned
             to
             be
             free
             at
             either
             Town
             ;
             and
             therefore
             they
             alleadged
             ,
             that
             their
             Priviledge
             of
             Trading
             as
             a
             free
             Burgh
             ,
             ought
             to
             be
             declared
             ,
             and
             they
             assoilzied
             .
             It
             was
             answered
             for
             the
             Town
             of
             Dumbarton
             ,
             that
             they
             had
             good
             Right
             to
             these
             Duties
             ,
             by
             His
             Majesties
             several
             Infeftments
             ,
             granted
             to
             them
             ;
             for
             the
             King
             having
             power
             to
             impose
             petty
             Customs
             ,
             not
             only
             in
             Ports
             built
             ,
             and
             preserved
             by
             Industry
             ,
             but
             in
             Stations
             ,
             and
             Rivers
             ,
             Creiks
             and
             Bays
             ,
             as
             is
             the
             Custom
             of
             all
             Kings
             and
             Princes
             ,
             such
             are
             the
             Customes
             upon
             the
             Rivers
             of
             
               Rhyne
               ,
               Garonnie
               ,
               Thaimes
            
             ,
             and
             others
             ,
             to
             all
             Ships
             that
             anchor
             there
             ,
             or
             pass
             that
             way
             :
             and
             whereof
             ,
             there
             are
             severals
             in
             Scotland
             ,
             as
             the
             Tunnage
             ,
             due
             to
             Edinburgh
             of
             all
             the
             Ships
             breaking
             bulk
             at
             Leith
             :
             and
             the
             petty
             Customs
             of
             
               Alloway
               ,
               Cockenie
            
             ,
             and
             other
             places
             .
             2ly
             .
             Albeit
             the
             Kings
             grant
             were
             not
             sufficient
             alone
             ,
             yet
             being
             cled
             with
             immemorial
             ,
             or
             40.
             years
             Possession
             ,
             instructed
             by
             Witnesses
             ,
             and
             the
             Books
             of
             Entry
             ,
             it
             is
             more
             then
             sufficient
             .
             It
             was
             answered
             for
             Glasgow
             ,
             to
             the
             first
             ,
             That
             petty
             Duties
             imposed
             for
             Ports
             ,
             having
             a
             mutual
             Cause
             ,
             may
             be
             appointed
             at
             any
             time
             by
             Kings
             and
             Princes
             ;
             it
             being
             free
             to
             these
             who
             are
             burdened
             therewith
             ,
             to
             come
             in
             to
             that
             Port
             ,
             or
             not
             :
             they
             also
             appoint
             petty
             Customs
             to
             be
             payed
             to
             any
             City
             ,
             for
             Goods
             Imported
             ,
             and
             sold
             there
             ,
             in
             consideration
             of
             the
             upholding
             of
             their
             Harbours
             ,
             and
             Mercats
             ,
             as
             the
             Tunage
             of
             the
             Harbour
             of
             Leith
             ,
             or
             anchorage
             at
             any
             Shore
             ,
             where
             anchorage
             is
             casten
             upon
             the
             Land
             ,
             or
             any
             Goods
             laid
             out
             upon
             the
             Land
             ,
             or
             where
             Imposition
             for
             anchorage
             ,
             or
             other
             Dues
             in
             a
             River
             ,
             or
             Station
             ,
             hath
             been
             approven
             by
             long
             Custom
             ,
             and
             acquiescence
             ;
             but
             where
             Burghs
             Royal
             ,
             have
             not
             only
             by
             their
             priviledge
             of
             Trading
             ,
             but
             by
             immemorial
             Possession
             ,
             prescribed
             a
             liberty
             of
             making
             use
             of
             Stations
             ,
             without
             burding
             ;
             no
             Right
             granted
             ,
             or
             Impetrat
             by
             any
             Party
             in
             prejudice
             thereof
             ,
             if
             it
             be
             quarrelled
             before
             Prescription
             can
             take
             away
             the
             liberty
             of
             Trading
             :
             Nor
             is
             the
             Kings
             Gift
             any
             way
             to
             be
             understood
             ,
             but
             
               periculo
               petentis
            
             :
             and
             Dumbartons
             second
             Charter
             did
             expresly
             bear
             ,
             that
             these
             petty
             Customs
             were
             due
             ,
             and
             accustomed
             
             before
             ;
             so
             that
             the
             Kings
             express
             meaning
             is
             ,
             not
             to
             Gift
             them
             
               de
               nova
            
             ,
             or
             to
             impose
             a
             servitude
             in
             their
             favours
             ,
             upon
             a
             far
             more
             eminent
             City
             then
             themselves
             .
             And
             as
             to
             the
             Point
             of
             Possession
             ,
             nothing
             is
             proven
             thereanent
             ,
             till
             the
             year
             1616.
             and
             then
             it
             is
             neither
             universal
             ,
             seing
             more
             Entered
             at
             Glasgow
             ,
             then
             at
             Dumbarton
             ;
             nor
             is
             it
             peaceable
             ,
             nor
             voluntar
             ,
             nor
             is
             it
             continual
             ,
             but
             interrupted
             ;
             and
             albeit
             it
             were
             uninterrupted
             ,
             yet
             it
             is
             but
             by
             single
             Persons
             ,
             which
             cannot
             infer
             a
             Servitude
             upon
             the
             Burgh
             ,
             and
             if
             the
             Kings
             Gift
             be
             
               periculo
               petentis
            
             ,
             and
             be
             surrepticiously
             impetrat
             upon
             a
             false
             Narrative
             ,
             no
             Possession
             can
             validat
             it
             ,
             as
             no
             Possession
             of
             it self
             ,
             without
             a
             Title
             ,
             could
             infer
             such
             a
             Servitude
             .
          
           
             The
             Lords
             having
             considered
             the
             Depositions
             of
             the
             Witnesses
             ,
             Books
             of
             Entry
             ,
             and
             the
             hail
             Writs
             produced
             ;
             they
             found
             that
             the
             alleadgence
             against
             Dumbartons
             Declarator
             ,
             as
             founded
             upon
             their
             Charters
             ,
             without
             Relation
             to
             Possession
             ,
             was
             not
             Relevant
             ,
             and
             that
             the
             first
             Charter
             could
             not
             extend
             to
             these
             particulars
             ,
             not
             being
             exprest
             ,
             unless
             it
             had
             appeared
             that
             they
             had
             been
             in
             immemorial
             Possession
             ,
             before
             the
             second
             Charter
             ,
             and
             the
             interruption
             by
             the
             Suspension
             ,
             raised
             by
             Glasgow
             ,
             and
             the
             Lords
             Interlocutor
             thereupon●
             in
             Anno
             1611.
             for
             albeit
             Immemorial
             ,
             or
             40.
             years
             Possession
             immediatly
             preceeding
             ,
             might
             have
             presumed
             Possession
             continually
             before
             ,
             since
             the
             first
             Charter
             ;
             yet
             they
             found
             that
             Interruption
             ,
             or
             Suspending
             that
             particular
             in
             question
             ,
             and
             no
             alleadging
             of
             Possession
             by
             Dumbarton
             then
             ;
             but
             on
             the
             contrair
             ,
             an
             Interlocutor
             ,
             as
             to
             the
             liberty
             of
             Entry
             at
             Glasgow
             ,
             takes
             off
             that
             Prescription
             :
             And
             likewise
             they
             found
             ,
             that
             there
             was
             nothing
             proven
             as
             to
             40.
             years
             Possession
             ,
             save
             only
             13.
             sh.
             4.
             d.
             for
             the
             Anchorage
             of
             each
             Ship
             ,
             and
             8.
             d.
             for
             the
             use
             of
             Dumbartons
             Measures
             of
             Salt
             ,
             for
             each
             Boll
             :
             and
             seing
             that
             Possession
             was
             also
             proven
             to
             be
             Interrupted
             ,
             in
             that
             several
             Ships
             of
             Glasgow
             Resisted
             ,
             and
             came
             away
             free
             ,
             and
             that
             they
             had
             several
             Salt
             Measures
             of
             their
             own
             there
             .
             Therefore
             they
             found
             the
             Charter
             not
             validat
             by
             40.
             years
             Possession
             uninterrupted
             ,
             and
             Assoilzie
             from
             Dumbartons
             Declarator
             ,
             and
             Declared
             upon
             Glasgows
             Declarator
             of
             Liberty
             .
          
        
         
           
             Earl
             of
             Panmuire
             contra
             Parochiners
             .
             Feb.
             7.
             1666.
             
          
           
             THe
             Earl
             of
             Panmuire
             having
             Right
             to
             the
             Abbacy
             of
             Aberbrothick
             ,
             pursues
             for
             a
             part
             of
             the
             Teinds
             thereof
             .
             It
             was
             alleadged
             absolvitor
             ,
             because
             they
             had
             possest
             their
             Land
             40.
             years
             free
             of
             Teind
             to
             any
             body
             :
             and
             by
             the
             general
             Act
             of
             Prescription
             ,
             all
             Right
             prescribes
             ,
             not
             pursued
             within
             40.
             years
             ,
             and
             so
             doth
             the
             Right
             of
             this
             Teind
             .
             It
             is
             answered
             ,
             that
             the
             Right
             of
             Teind
             is
             founded
             on
             Law
             ,
             and
             not
             upon
             any
             particular
             ,
             or
             privat
             Right
             ;
             and
             therefore
             ,
             albeit
             in
             the
             case
             of
             Competition
             of
             private
             Parties
             ,
             pretending
             Right
             to
             Teinds
             .
             One
             Right
             may
             be
             excluded
             by
             another
             ;
             yet
             the
             Teinds
             themselves
             must
             always
             be
             due
             ,
             except
             where
             the
             Lands
             are
             
               decimis
               inclusis
            
             ,
             and
             did
             belong
             to
             priviledged
             Church-men
             of
             old
             ,
             such
             as
             the
             Cistertian
             Order
             ,
             or
             Templars
             ,
             Manse
             ,
             or
             Gleibs
             .
          
           
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Answer
             ,
             for
             they
             thought
             ,
             albeit
             the
             bygones
             of
             the
             Teind
             preceeding
             the
             40.
             years
             ,
             might
             prescribe
             ;
             yet
             the
             Right
             of
             Teind
             could
             not
             ,
             more
             then
             Customs
             could
             prescribe
             ,
             if
             they
             were
             neglected
             to
             be
             Exacted
             for
             fourty
             years
             ,
             or
             a
             Feu-duty
             .
          
        
         
           
             Ker
             contra
             Hunter
             and
             Tennents
             of
             Cambo
             .
             Feb.
             8.
             1666.
             
          
           
             THe
             Tennents
             of
             Cambo
             raise
             a
             Double-poinding
             against
             Ker
             ,
             and
             Hunter
             ,
             both
             being
             Infeft
             in
             Annualrents
             ,
             base
             ,
             where
             the
             last
             base
             Infeftment
             within
             a
             month
             of
             the
             former
             ,
             being
             cled
             with
             Possession
             ,
             by
             a
             Decreet
             of
             poynding
             the
             Ground
             ,
             a
             year
             after
             both
             ,
             and
             no
             Diligence
             on
             the
             first
             .
          
           
             The
             Lords
             preferred
             the
             last
             Infeftment
             ,
             as
             first
             cled
             with
             Possession
             .
          
           
             It
             was
             further
             alleadged
             ,
             that
             this
             Annualrenter
             had
             accepted
             a
             part
             of
             the
             Land
             in
             satisfaction
             of
             his
             Annualrent
             .
             It
             was
             answered
             ,
             that
             there
             was
             Write
             there
             required
             ,
             viz.
             a
             Renunciation
             of
             the
             rest
             ,
             and
             till
             that
             was
             done
             
               est
               locus
               penitentiae
            
             .
          
           
             The
             Lords
             considering
             the
             Case
             ,
             found
             that
             if
             the
             Promise
             were
             only
             to
             restrict
             the
             Annualrent
             to
             a
             part
             of
             the
             Land
             burdened
             therewith
             ,
             it
             was
             
               pactum
               liberatorium
            
             ,
             and
             there
             was
             not
             
               locus
               penitentiae
            
             ;
             but
             if
             it
             was
             a
             Promise
             to
             accept
             other
             Lands
             ,
             or
             the
             Property
             of
             a
             part
             of
             the
             Lands
             burdened
             ,
             there
             was
             
               locus
               penitentiae
            
             ,
             till
             the
             mutual
             Rights
             were
             subscribed
             ,
             whereby
             the
             one
             Party
             disponed
             the
             Property
             ,
             and
             the
             other
             the
             Annualrent
             .
          
        
         
           
             The
             Heretors
             of
             Johns
             Miln
             contra
             The
             Feuars
             .
             Feb.
             9.
             1666.
             
          
           
             THere
             being
             an
             old
             Thirlage
             of
             a
             Paroch
             ,
             which
             was
             a
             part
             of
             the
             Barony
             of
             Dumfermling
             ,
             to
             Iohns
             Miln
             ,
             the
             Feu
             of
             the
             Miln
             being
             first
             granted
             by
             the
             Abbot
             of
             Dumfermling
             ,
             and
             the
             Feu
             of
             the
             Land
             thereafter
             :
             there
             is
             a
             Decreet
             in
             Anno
             1610.
             pronounced
             by
             the
             Chancellor
             ,
             as
             Lord
             of
             the
             Regality
             ,
             decerning
             all
             the
             Feuars
             to
             pay
             the
             five
             and
             twenty
             Curn
             of
             all
             Grains
             that
             they
             brought
             to
             the
             Miln
             ,
             and
             a
             greater
             of
             that
             they
             Abstracted
             .
             The
             Feuar
             of
             the
             Miln
             pursuing
             for
             Abstracted
             Multures
             ,
             and
             for
             instructing
             the
             Quota
             ,
             producing
             this
             Decreet
             .
             It
             was
             alleadged
             for
             the
             Defenders
             ,
             that
             they
             offered
             them
             to
             prove
             that
             ,
             past
             memory
             of
             man
             ,
             at
             least
             40.
             years
             bygone
             ,
             they
             have
             been
             constantly
             in
             use
             to
             pay
             five
             Bolls
             of
             Bear
             in
             satisfaction
             of
             all
             Multure
             ;
             and
             so
             can
             be
             lyable
             for
             no
             further
             ,
             they
             having
             prescribed
             their
             liberty
             from
             any
             further
             .
             2ly
             .
             That
             no
             respect
             ought
             to
             be
             had
             to
             the
             Decreet
             ,
             in
             so
             far
             as
             it
             Decerns
             a
             greater
             quantity
             for
             the
             Corns
             Abstracted
             ,
             then
             for
             these
             grinded
             ,
             which
             is
             without
             all
             Reason
             ;
             especially
             seing
             this
             is
             but
             a
             Burn
             Miln
             ,
             and
             not
             sufficient
             for
             the
             Thirle
             .
             3ly
             .
             They
             offer
             them
             to
             prove
             ,
             that
             the
             Miln
             was
             insufficient
             ,
             the
             years
             pursued
             for
             ,
             and
             no
             ways
             able
             to
             serve
             them
             ,
             and
             the
             rest
             of
             the
             Thirle
             ,
             as
             being
             but
             a
             Burn-miln
             ,
             dry
             in
             Summer
             ,
             and
             not
             having
             Water
             enough
             
             in
             Winter
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             to
             the
             first
             ,
             that
             they
             offered
             them
             to
             prove
             ,
             they
             were
             in
             Possession
             of
             the
             Multure
             Lybelled
             within
             these
             40.
             years
             ,
             at
             least
             that
             any
             lesser
             Duty
             was
             accepted
             by
             a
             particular
             Paction
             for
             a
             time
             only
             .
             To
             the
             second
             ,
             opponed
             the
             Decreet
             standing
             ,
             against
             which
             there
             has
             neither
             been
             Suspension
             ,
             nor
             Reduction
             ,
             nor
             any
             ground
             for
             the
             same
             .
             for
             its
             like
             the
             coming
             to
             the
             Miln
             frees
             them
             from
             a
             greater
             quantity
             ,
             for
             abstraction
             .
             And
             seing
             the
             Quota
             is
             but
             the
             five
             and
             twenty
             Curn
             ,
             far
             below
             the
             ordinar
             Thirle
             Multures
             ;
             it
             was
             very
             reasonable
             ,
             that
             the
             samine
             being
             abaited
             to
             a
             less
             quantity
             ,
             they
             should
             pay
             a
             greater
             if
             they
             came
             not
             .
             As
             to
             the
             insufficiency
             of
             the
             Miln
             ,
             it
             was
             answered
             
               non
               Relevat
            
             ,
             unless
             it
             were
             through
             the
             default
             of
             the
             Pursuer
             ,
             or
             his
             Millers
             ,
             for
             they
             being
             astricted
             to
             a
             Burn
             Miln
             ,
             what
             defect
             is
             therein
             ,
             without
             the
             Pursuers
             fault
             ,
             cannot
             louse
             the
             Restriction
             .
          
           
             The
             Lords
             found
             the
             Replys
             Relevant
             ,
             unless
             the
             Defenders
             condescended
             upon
             an
             insufficiency
             ,
             through
             the
             Pursuers
             fault
             .
          
           
             Here
             occurred
             to
             the
             Lords
             ,
             whether
             the
             Feuars
             could
             by
             Possession
             ,
             prescrive
             their
             liberty
             as
             to
             a
             lesser
             Multure
             ,
             seing
             the
             Possession
             of
             a
             part
             of
             the
             Multure
             was
             sufficient
             to
             exclude
             Prescription
             ,
             as
             to
             the
             whole
             :
             some
             thought
             ,
             if
             the
             Multure
             had
             been
             a
             certain
             Quota
             in
             the
             Infeftment
             of
             the
             Miln
             :
             Possession
             also
             not
             of
             the
             hail
             ,
             would
             hindred
             Prescription
             of
             any
             part
             ;
             but
             if
             the
             Infeftment
             of
             the
             Miln
             ,
             was
             only
             with
             the
             Multures
             used
             ,
             and
             wont
             ,
             and
             that
             the
             speciality
             was
             but
             by
             a
             Decreet
             ,
             as
             the
             use
             and
             wont
             :
             that
             in
             that
             case
             ,
             use
             and
             wont
             might
             change
             .
             Others
             thought
             not
             ,
             but
             in
             respect
             the
             Pursuer
             insisted
             not
             on
             that
             Point
             ,
             but
             offered
             to
             prove
             Possession
             ,
             conform
             to
             the
             Dec●eet
             within
             these
             40.
             years
             .
             The
             Lords
             decided
             not
             that
             Point
             .
          
           
             Here
             also
             it
             was
             alleadged
             ,
             that
             by
             an
             Act
             of
             the
             Court
             of
             Dumfermling
             ,
             the
             Defender
             consenting
             ,
             at
             least
             present
             ,
             it
             was
             Enacted
             ,
             that
             such
             of
             the
             Defenders
             as
             could
             not
             be
             served
             ,
             might
             go
             to
             other
             Milns
             .
          
           
             The
             Lords
             found
             this
             alleadgence
             only
             Relevant
             ,
             that
             it
             was
             by
             consent
             of
             the
             Pursuer
             ,
             or
             his
             Authors
             ,
             but
             left
             it
             to
             be
             the
             Defenders●
             after
             production
             ,
             to
             qualifie
             what
             way
             the
             consent
             was
             given
             ;
             but
             that
             his
             presence
             and
             silence
             was
             not
             enough
             .
          
        
         
           
             The
             Collector
             of
             the
             Vaccand
             Stipends
             contra
             Parochioners
             of
             Mayboll
             ,
             and
             Girvane
             .
             Feb.
             10.
             1666.
             
          
           
             THe
             Collector
             of
             the
             Vaccand
             Stipend
             ,
             having
             charged
             the
             Heretors
             of
             Mayboll
             ,
             and
             Girvane
             ,
             for
             the
             Stipend
             due
             by
             them
             ,
             the
             year
             1663.
             
             They
             Suspend
             ,
             and
             produce
             the
             Ministers
             Discharges
             ,
             who
             served
             these
             years
             ,
             and
             alleadged
             they
             made
             payment
             
               bona
               fide
            
             ,
             before
             this
             Charge
             .
             It
             was
             answered
             ,
             they
             were
             in
             
               mala
               fide
            
             by
             the
             Act
             of
             Parliament
             ,
             of
             the
             last
             Session
             of
             Parliament
             ,
             declaring
             the
             places
             of
             Ministers
             ,
             Entred
             since
             1649.
             to
             be
             Vacant
             ,
             if
             they
             had
             not
             obtained
             Presentation
             ,
             and
             Collation
             conform
             to
             the
             Act.
             It
             was
             answered
             ,
             that
             the
             foresaid
             Act
             was
             not
             simple
             ,
             but
             conditional
             ,
             if
             they
             had
             not
             obtained
             Presentation
             and
             Collation
             ;
             and
             there
             was
             nothing
             oblieging
             the
             Parochioners
             to
             enquire
             whether
             they
             had
             done
             that
             ,
             which
             by
             the
             Law
             they
             were
             oblieged
             to
             do
             ;
             but
             seing
             there
             was
             no
             Charge
             against
             them
             by
             the
             Collector
             of
             the
             Vaccand
             Stipends
             ,
             and
             
             that
             the
             Patron
             ,
             or
             Ordinar
             did
             not
             present
             another
             ;
             but
             suffered
             the
             then
             Incumbents
             to
             preach
             all
             that
             year
             ,
             they
             were
             in
             
               bona
               fide
            
             ,
             to
             think
             that
             they
             might
             pay
             them
             for
             the
             time
             they
             Served
             .
             It
             was
             answered
             ,
             there
             was
             a
             Decreet
             produced
             against
             the
             same
             Ministers
             ,
             for
             the
             year
             1662.
             and
             therefore
             they
             could
             have
             no
             Right
             to
             the
             year
             1663.
             
          
           
             The
             Lords
             found
             the
             Reason
             of
             Suspension
             Relevant
             and
             proven
             notwithstanding
             of
             the
             Answer
             ;
             because
             the
             Decreet
             was
             not
             against
             the
             Heretors
             ,
             and
             was
             but
             obtained
             in
             1664.
             after
             they
             had
             made
             payment
             of
             the
             year
             ,
             1663.
             
          
        
         
           
             The
             Minister
             of
             North-Leith
             contra
             Merchants
             of
             Edinburgh
             .
             Eodem
             die
             .
          
           
             THe
             Minister
             of
             North-leith
             having
             pursued
             some
             Merchants
             of
             Edinburgh
             Importers
             of
             Herring
             ,
             of
             dry
             Fish
             ,
             Killing
             ,
             and
             Ling
             ,
             at
             Leith
             and
             New-haven
             ,
             to
             pay
             twenty
             shilling
             of
             the
             Last
             of
             Herring
             ,
             and
             the
             twentieth
             part
             of
             the
             Killing
             and
             Ling.
             It
             being
             alleadged
             ,
             that
             such
             a
             burthen
             could
             not
             be
             allowable
             ,
             because
             the
             Teinds
             was
             taken
             where
             the
             Fish
             was
             taken
             .
             2ly
             .
             That
             it
             could
             only
             reach
             the
             Parochioners
             of
             North-leith
             ,
             not
             the
             Merchants
             of
             Edinburgh
             .
             And
             ,
             3ly
             .
             That
             they
             had
             frequently
             Traded
             free
             of
             such
             a
             Burden
             .
          
           
             The
             Lords
             having
             ordained
             the
             Pursuer
             to
             adduce
             Evidences
             by
             Writ
             ,
             or
             Witnesses
             ,
             what
             Possession
             they
             had
             ,
             and
             the
             Defenders
             what
             liberty
             they
             had
             ;
             and
             having
             heard
             the
             Testimonies
             of
             the
             Witnesses
             ,
             with
             an
             old
             Decreet
             for
             the
             same
             particulars
             ,
             but
             not
             against
             the
             Merchants
             of
             Edinb●rgh
             ,
             nor
             for
             dry
             Fish
             ,
             they
             found
             40.
             years
             Possession
             ,
             proven
             of
             the
             said
             Burthen
             ,
             and
             therefore
             Decerned
             .
          
        
         
           
             The
             Laird
             of
             Wedderburn
             contra
             Wardlaw
             .
             Feb.
             13.
             1666.
             
          
           
             WEdderburn
             pursues
             a
             Reduction
             of
             a
             Feu
             granted
             to
             
               Wardlaw
               ,
               ob
               non
               solutum
               canonem
               ,
            
             by
             vertue
             of
             a
             Clause
             irritant
             in
             the
             Infeftment
             .
             The
             Defender
             offered
             to
             purge
             ,
             by
             payment
             at
             the
             Bar
             ,
             and
             alleadged
             several
             Decisions
             that
             it
             hath
             been
             so
             allowed
             .
             It
             was
             answered
             ,
             that
             was
             only
             the
             case
             of
             a
             Reduction
             upon
             the
             Act
             of
             Parliament
             ,
             declaring
             Feus
             null
             for
             not
             payment
             of
             the
             Feu
             Dutie
             ,
             but
             where
             there
             is
             an
             express
             Clause
             irritant
             in
             an
             Infeftment
             ,
             that
             cannot
             be
             purgeable
             at
             the
             Bar
             ;
             else
             such
             Clauses
             should
             be
             useless
             ,
             seing
             without
             these
             ,
             
               de
               jure
            
             ,
             the
             Feu
             Duties
             behoved
             to
             be
             payed
             at
             the
             Bar
             ;
             or
             otherwise
             the
             Feu
             annulled
             .
          
           
             The
             Lords
             found
             ,
             that
             there
             was
             a
             difference
             betwixt
             a
             Clause
             irritant
             ,
             and
             upon
             the
             Act
             of
             Parliament
             ,
             and
             so
             would
             not
             admit
             of
             purging
             at
             the
             Bar
             simply
             ,
             unless
             the
             Defender
             condescended
             upon
             a
             Reasonable
             Cause
             ,
             
               ad
               purgàndam
               moram
            
             ,
             and
             therefore
             ordained
             them
             to
             Condescend
             .
          
        
         
           
           
             Archbishop
             of
             Glasgow
             contra
             Commissar
             of
             Glasgow
             .
             Feb.
             14.
             1666.
             
          
           
             THe
             Archbishop
             of
             Glasgow
             pursues
             a
             Declarator
             ,
             or
             to
             hear
             and
             see
             it
             found
             and
             Declared
             ,
             that
             Commissars
             ought
             to
             be
             persons
             qualified
             ,
             and
             able
             to
             judge
             according
             to
             Law
             ,
             and
             that
             if
             they
             be
             not
             ,
             they
             might
             be
             deprived
             by
             the
             Act
             1609.
             empowering
             the
             Bishops
             ,
             then
             restored
             ,
             to
             appoint
             able
             ,
             and
             sufficient
             men
             ,
             Commissars
             in
             all
             time
             coming
             ;
             and
             by
             the
             Act
             of
             Restitution
             1661.
             whereby
             the
             like
             power
             is
             granted
             ,
             excepting
             Commissars
             nominat
             by
             the
             King
             ,
             unless
             he
             be
             insufficient
             ,
             or
             malversant
             :
             and
             subsumes
             that
             
               Mr.
               William
               Fleming
            
             is
             not
             sufficient
             ,
             nor
             qualified
             for
             that
             Place
             ;
             and
             also
             ,
             that
             by
             the
             injunctions
             given
             to
             Commissars
             ;
             mentioned
             in
             the
             Act
             1609.
             there
             is
             no
             place
             for
             Deputs
             ,
             unless
             it
             were
             by
             special
             consent
             of
             the
             Bishops
             ,
             and
             craves
             that
             it
             may
             be
             declared
             ,
             that
             the
             said
             Mr.
             William
             may
             not
             Serve
             by
             a
             Depute
             .
             The
             Pursuer
             insisted
             on
             the
             first
             member
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             he
             had
             his
             Place
             both
             from
             the
             King
             ,
             and
             Bishop
             Fairfoul
             confirming
             the
             same
             with
             a
             
               Novo
               damus
            
             :
             and
             therefore
             ,
             though
             he
             might
             have
             been
             questioned
             before
             the
             said
             Ratification
             ,
             and
             new
             Gift
             ;
             yet
             now
             he
             cannot
             be
             questioned
             upon
             insufficiency
             ,
             but
             only
             on
             Malversation
             ,
             whereof
             there
             is
             no
             point
             alleadged
             ,
             nor
             condescended
             on
             ,
             nor
             is
             his
             insufficiency
             qualified
             by
             any
             Act
             of
             inorderly
             Process
             ,
             or
             injustice
             committed
             by
             him
             now
             these
             five
             years
             ,
             and
             as
             Bishop
             Fairfoul
             ,
             who
             acknowledged
             him
             to
             be
             a
             fit
             ,
             and
             qualified
             Person
             ,
             by
             his
             Ratification
             could
             never
             quarrel
             him
             upon
             insufficiency
             ,
             neither
             can
             this
             Bishop
             .
             2ly
             .
             The
             Defender
             has
             his
             Place
             with
             power
             of
             Deputation
             ;
             and
             therefore
             having
             given
             eight
             thousand
             merks
             to
             the
             former
             Bishop
             for
             his
             Ratification
             ,
             with
             power
             of
             Deputation
             ,
             he
             cannot
             be
             questioned
             on
             his
             sufficiency
             ,
             being
             able
             ,
             
               per
               se
               aut
               per
               deputatum
            
             ,
             and
             no
             Act
             alleadged
             of
             injustice
             .
             It
             was
             answered
             by
             the
             Pursuer
             to
             the
             first
             Defense
             ,
             that
             albeit
             this
             same
             Bishop
             had
             admitted
             this
             Commissar
             ,
             upon
             hopes
             of
             his
             Qualifications
             ,
             yet
             if
             contrair
             to
             his
             expectation
             ,
             it
             appears
             he
             is
             not
             qualified
             for
             so
             eminent
             a
             Judicature
             .
             He
             may
             justly
             quarrel
             him
             of
             insufficiency
             ,
             as
             well
             as
             a
             Minister
             whom
             he
             ordained
             .
             2ly
             .
             Though
             the
             same
             Person
             might
             not
             ,
             yet
             his
             Successor
             in
             Office
             might
             ,
             and
             is
             not
             bound
             to
             acknowledge
             what
             his
             Predecessor
             did
             by
             mistake
             ,
             or
             otherwayes
             to
             the
             detriment
             of
             the
             Sea
             ,
             which
             were
             in
             his
             option
             ,
             without
             a
             Rule
             ,
             or
             requiring
             Qualifications
             ,
             as
             the
             naming
             of
             Commissars
             .
             To
             the
             Second
             ,
             albeit
             Deputs
             were
             allowable
             ,
             as
             they
             are
             not
             by
             the
             Injunctions
             ,
             yet
             the
             principal
             Commissar
             ,
             who
             must
             Regulat
             ,
             and
             answer
             for
             them
             ,
             must
             also
             be
             qualified
             ,
             both
             by
             the
             Act
             1609.
             and
             the
             exception
             1661.
             which
             enervats
             both
             the
             Defenders
             Gifts
             .
          
           
             The
             Lords
             found
             that
             Member
             of
             the
             Lybel
             on
             the
             Qualifications
             ,
             and
             sufficiency
             Relevant
             .
          
        
         
           
           
             My
             Lord
             Ley
             contra
             Porteous
             .
             Feb.
             15.
             1666.
             
          
           
             MY
             Lord
             Ley
             ,
             having
             Right
             by
             progress
             to
             the
             Reversion
             of
             an
             old
             Wodset
             ,
             uses
             an
             Order
             ,
             and
             pursues
             Declarator
             thereupon
             .
             The
             Defender
             alleadged
             no
             Declarator
             ,
             because
             by
             the
             Reversion
             ,
             there
             is
             a
             Tack
             to
             be
             granted
             ,
             to
             begin
             after
             Redemption
             ,
             and
             to
             continue
             for
             so
             many
             years
             .
             It
             was
             answered
             ,
             that
             Tack
             was
             null
             ,
             and
             invalide
             ,
             not
             only
             by
             Common
             law
             ,
             as
             an
             usurary
             Paction
             ,
             giving
             the
             Wodsetter
             more
             then
             his
             ordinary
             Annualrent
             ,
             but
             by
             a
             special
             Act
             of
             
               Parliament
               ,
               Ia.
               2.
               
               Par.
               1449.
               cap.
            
             19.
             whereby
             such
             Tacks
             taken
             in
             Wodsets
             ,
             to
             endure
             long
             time
             after
             the
             Redemption
             ,
             for
             the
             half
             mail
             ,
             or
             near
             thereby
             ,
             shall
             not
             be
             keeped
             :
             and
             as
             by
             the
             late
             Act
             of
             Parliament
             ,
             between
             Debitor
             and
             Creditor
             ,
             it
             is
             provided
             ,
             that
             where
             old
             Wodsets
             were
             granted
             before
             1650.
             when
             annual
             was
             at
             ten
             for
             ilk
             hundreth
             ,
             the
             Wodsetter
             may
             ,
             upon
             offer
             of
             Caution
             for
             the
             annualrent
             ,
             take
             Possession
             ,
             unless
             the
             Wodsetter
             offered
             himself
             to
             be
             comptable
             for
             what
             exceeds
             his
             annualrent
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             his
             Defense
             stands
             yet
             Relevant
             ,
             notwithstanding
             the
             answer
             ,
             for
             as
             to
             the
             old
             Act
             of
             Parliament
             ,
             it
             is
             in
             desuetude
             ,
             and
             it
             hath
             been
             the
             common
             custom
             to
             grant
             such
             Tacks
             in
             Reversions
             ,
             which
             have
             still
             been
             observed
             ,
             and
             were
             never
             quarrelled
             ,
             neither
             are
             they
             usurary
             ,
             seing
             the
             Tacksman
             has
             the
             hazard
             of
             the
             Fruits
             ,
             and
             all
             burdens
             ,
             so
             his
             Tack-Duty
             ,
             how
             small
             soever
             ,
             unless
             it
             were
             elusory
             ,
             can
             be
             no
             usurary
             paction
             ,
             more
             then
             taking
             Lands
             in
             a
             proper
             Wodset
             ,
             which
             pay
             more
             then
             the
             true
             annualrent
             ,
             which
             was
             never
             found
             usurary
             .
             2ly
             .
             This
             Wodset
             is
             granted
             since
             that
             old
             Act
             ,
             whereby
             the
             benefit
             thereof
             is
             totally
             past
             from
             .
             As
             to
             the
             new
             Act
             ,
             the
             Clause
             bears
             expresly
             ,
             that
             during
             the
             none
             Redemption
             ,
             or
             none
             Requisition
             ,
             the
             conditions
             therein
             shall
             take
             place
             ,
             which
             cannot
             be
             extended
             to
             a
             Tack
             ,
             to
             be
             granted
             after
             Redemption
             .
             It
             was
             answered
             ,
             that
             the
             first
             Act
             bears
             ,
             not
             only
             a
             Regulation
             of
             Wodsets
             already
             then
             granted
             ,
             but
             to
             be
             granted
             ,
             bearing
             expresly
             ,
             who
             takes
             or
             has
             taken
             Lands
             in
             Wodsets
             ,
             &c.
             and
             there
             is
             nothing
             in
             the
             Wodset
             to
             renunce
             the
             benefit
             thereof
             .
             As
             for
             the
             custom
             ,
             Acts
             of
             Parliament
             are
             not
             derogat
             by
             custom
             of
             privat
             parties
             ,
             a●quiescing
             in
             their
             agreements
             ;
             But
             the
             custom
             of
             the
             Lords
             by
             current
             Decisions
             .
             As
             to
             the
             last
             Act
             ,
             it
             ought
             to
             be
             drawn
             ,
             
               ad
               pares
               casus
            
             ,
             and
             the
             Lands
             are
             not
             effectually
             Redeemed
             ,
             till
             the
             Tack
             be
             ended
             .
          
           
             The
             Lords
             found
             the
             last
             Act
             no
             ground
             for
             annulling
             such
             Tacks
             ,
             but
             found
             the
             first
             Act
             a
             good
             ground
             ,
             if
             it
             were
             subsumed
             according
             to
             it
             ,
             that
             the
             ●ands
             were
             set
             for
             half
             Mail
             or
             thereby
             .
          
        
         
           
             Lyon
             of
             Muiresk
             contra
             Gordon
             and
             others
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Lyon
            
             of
             Muiresk
             ,
             having
             obtained
             Decreet
             of
             Spuilzie
             of
             certain
             Goods
             ,
             against
             Gordon
             and
             others
             ,
             they
             suspend
             and
             alleadge
             the
             Act
             of
             Indemnity
             ,
             that
             they
             took
             these
             Goods
             ,
             being
             under
             the
             Command
             of
             the
             Marquess
             
             of
             Hunlly
             .
             It
             was
             answered
             ,
             that
             the
             Charger
             was
             in
             friendship
             with
             the
             Marquels
             ,
             and
             on
             his
             side
             ,
             and
             so
             they
             cannot
             Cloath
             themselves
             with
             the
             Act
             of
             Indemnity
             ,
             as
             done
             upon
             hostility
             .
             2ly
             .
             The
             Act
             Indemnifies
             only
             Deeds
             done
             by
             Command
             ,
             and
             Warrant
             of
             any
             pretended
             Authority
             ;
             but
             here
             no
             such
             Order
             is
             alleadged
             ,
             It
             was
             answered
             ,
             that
             Orders
             were
             not
             given
             in
             Writ
             ,
             and
             if
             none
             get
             the
             benefit
             of
             the
             Indemnity
             ,
             ,
             but
             these
             can
             shew●
             or
             prove
             Orders
             ,
             few
             ,
             or
             none
             will
             enjoy
             it
             ;
             nor
             need
             the
             Suspenders
             to
             Dispute
             whose
             side
             the
             Charger
             was
             on
             ;
             seing
             they
             acted
             by
             Order
             .
          
           
             The
             Lords
             found
             ,
             that
             it
             was
             sufficient
             to
             alleadge
             that
             the
             Charger
             was
             ,
             the
             time
             of
             the
             Intromission
             ,
             actually
             in
             Arms
             ,
             and
             acted
             it
             with
             a
             Party
             ,
             being
             then
             in
             Arms
             ,
             but
             needed
             not
             prove
             their
             Order
             ,
             or
             the
             application
             of
             the
             Goods
             to
             publick
             use
             ;
             but
             found
             it
             Relevant
             ,
             if
             it
             were
             offered
             to
             be
             proven
             by
             the
             Suspenders
             Oath
             ,
             that
             they
             had
             no
             Warrant
             ,
             or
             Order
             ,
             or
             pro
             ut
             
               de
               jure
            
             ,
             that
             they
             applyed
             them
             to
             their
             own
             privat
             use
             ,
             not
             for
             any
             publick
             use
             .
          
        
         
           
             Iames
             Borthwick
             contra
             Ianet
             Skeen
             .
             Feb.
             16.
             1666.
             
          
           
             
               JAmes
               Borthwick
            
             ,
             having
             obtained
             Reduction
             of
             
               Ianet
               Skeens
            
             Liferent-right
             ,
             as
             a
             
               non
               habente
               potestatem
            
             ,
             obtained
             payment
             of
             a
             Terms
             Rent
             before
             the
             Decreet
             of
             Reduction
             .
             Ianet
             pursues
             for
             that
             Term
             ,
             and
             alleadges
             that
             the
             Decreet
             of
             Reduction
             could
             not
             be
             effectual
             till
             it
             were
             pronunced
             ,
             albeit
             it
             bear
             her
             Right
             to
             be
             null
             ,
             
               ab
               initio
            
             ,
             yet
             that
             is
             but
             
               stylus
               curiae
            
             .
             It
             was
             answered
             ,
             that
             the
             Tennent
             payed
             
               bona
               fide
            
             ,
             after
             Reduction
             obtained
             ,
             and
             intimat
             to
             him
             ,
             and
             that
             the
             Lords
             may
             
               ex
               arbitrio
            
             ,
             find
             the
             effect
             of
             the
             Reduction
             ,
             either
             to
             be
             
               asententia
               ,
               Litiscontestation
            
             ,
             or
             a
             Citation
             .
          
           
             In
             this
             Reduction
             the
             Lords
             Assoilzied
             the
             Tennent
             for
             this
             Term
             ,
             though
             before
             Sentence
             .
          
        
         
           
             Earl
             of
             Winton
             contra
             Countess
             of
             Winton
             .
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Winton
             pursues
             a
             Reduction
             of
             an
             agreement
             made
             by
             his
             Tutors
             and
             Curators
             with
             my
             Lady
             ,
             giving
             her
             a
             certain
             Duty
             for
             her
             Interest
             in
             his
             Coal
             ,
             as
             being
             minor
             ,
             and
             laesed
             ,
             in
             so
             far
             as
             by
             her
             Contract
             ,
             she
             had
             only
             Right
             to
             the
             fourth
             part
             of
             the
             Coal
             in
             his
             Property
             ;
             now
             his
             Coal
             for
             several
             years
             ,
             has
             been
             in
             his
             Feuars
             Lands
             ,
             by
             Reservation
             in
             their
             Rights
             .
             And
             also
             craved
             the
             bygons
             .
             It
             was
             answered
             ,
             that
             
               bona
               fide
               possessor
               facit
               fructus
               consumptos
               suos
               ,
            
             the
             Lady
             by
             the
             Agreement
             ,
             could
             not
             compt
             for
             the
             years
             Duty
             she
             had
             gotten
             .
             It
             was
             answered
             ,
             that
             this
             holds
             not
             in
             the
             case
             of
             Minority
             ,
             and
             Laesion
             .
             It
             was
             answered
             ,
             that
             albeit
             Minority
             Repones
             ,
             as
             to
             any
             principal
             Right
             ,
             yet
             not
             as
             to
             the
             Fruits
             ,
             and
             accrescences
             
               medio
               tempore
            
             .
          
           
             The
             Lords
             Reduced
             ,
             but
             Assoilzied
             the
             Lady
             from
             Repetition
             .
          
        
         
           
           
             Sharp
             of
             Houstoun
             contra
             Glen
             .
             Eodem
             die
             .
          
           
             GLen
             Pursues
             for
             Mails
             and
             Duties
             of
             some
             Lands
             .
             Houstoun
             compears
             ,
             and
             alleadgesthat
             he
             has
             Right
             to
             these
             Lands
             ,
             by
             an
             Apprizing
             expired
             .
             It
             was
             answered
             ,
             his
             apprizing
             was
             null
             ,
             because
             it
             proceeded
             on
             four
             Bonds
             ,
             the
             Term
             of
             payment
             of
             one
             whereof
             was
             not
             come
             the
             time
             of
             the
             Appryzing
             ,
             and
             so
             not
             being
             due
             ,
             the
             Apprizing
             was
             void
             ,
             
               quoad
               totum
            
             .
             It
             was
             answered
             ,
             the
             sum
             was
             due
             ,
             albeit
             the
             day
             was
             not
             come
             ,
             and
             so
             being
             but
             ,
             
               plus
               petitum
               tempore
            
             ,
             he
             was
             willing
             to
             admit
             the
             apprizing
             to
             be
             longer
             time
             by
             the
             double
             ,
             redeemable
             after
             the
             legal
             were
             expired
             ,
             then
             all
             the
             time
             he
             apprized
             before
             the
             hand
             .
          
           
             The
             Lords
             found
             the
             Appryzing
             void
             as
             to
             that
             sum
             .
             Whereupon
             occurred
             to
             them
             ,
             to
             consider
             whether
             the
             appryzing
             should
             fall
             
               in
               totum
            
             ,
             or
             stand
             for
             the
             other
             3
             Bonds
             .
             And
             if
             it
             stood
             for
             these
             ,
             whether
             a
             proportionable
             part
             of
             the
             Lands
             appryzed
             effirand
             to
             the
             Bond
             ,
             whereof
             the
             Term
             was
             not
             come
             ,
             should
             be
             found
             free
             ,
             or
             if
             the
             rest
             should
             affect
             the
             whole
             Lands
             ,
             as
             if
             for
             these
             only
             the
             appryzing
             had
             been
             led
             ,
             wherein
             the
             Lords
             were
             of
             different
             opinions
             ,
             and
             recommended
             to
             the
             Reporter
             to
             agree
             the
             Parties
             .
          
        
         
           
             Lady
             Otter
             contra
             Laird
             of
             Otter
             .
             Eodem
             die
             .
          
           
             LAird
             of
             Otter
             having
             Infeft
             his
             Wife
             in
             Conjunct-fee
             ,
             or
             Liferent
             ,
             in
             certain
             Lands
             ,
             
               cum
               molendinis
            
             ,
             did
             thereafter
             build
             a
             Miln
             thereupon
             ,
             and
             the
             question
             arising
             betwixt
             the
             Liferenter
             and
             the
             Heir
             ,
             who
             should
             have
             Right
             to
             the
             Miln
             ?
             The
             Liferenter
             alleadged
             
               aedificium
               solo
               cedit
            
             .
             The
             Heir
             alleadged
             ,
             that
             a
             Miln
             is
             
               distinctum
               tenementum
            
             ,
             that
             cannot
             pass
             without
             Infeftment
             ,
             aud
             the
             Clause
             in
             the
             
               tenendo
               cum
               molendinis
            
             ,
             is
             not
             sufficient
             ,
             not
             being
             in
             the
             Dispositive
             Clause
             ,
             nor
             any
             Miln
             built
             then
             :
             and
             he
             offered
             to
             make
             up
             all
             the
             Liferenters
             damnage
             ,
             by
             Building
             on
             her
             Ground
             .
          
           
             The
             Lords
             found
             that
             the
             benefit
             of
             the
             Miln
             belonged
             to
             the
             Liferenter
             ,
             as
             to
             the
             Multures
             of
             all
             that
             was
             ground
             without
             the
             Thirlage
             ,
             but
             found
             it
             not
             to
             extend
             to
             Lands
             of
             the
             Defuncts
             ,
             which
             he
             had
             Thirled
             to
             the
             Miln
             .
          
        
         
           
             John
             Hay
             of
             Knokondie
             contra
             Litlejohn
             .
             Eodem
             die
             .
          
           
             
               JOHN
               Hay
            
             pursues
             Litlejohn
             for
             the
             damnage
             sustained
             by
             a
             House
             belonging
             to
             Litlejohn
             ,
             falling
             on
             the
             Pursuers
             House
             .
             It
             was
             alleadged
             the
             Defender
             was
             only
             Apprizer
             of
             a
             Liferenters
             Right
             ,
             and
             this
             behoved
             to
             lye
             upon
             the
             Fiar
             ,
             who
             was
             oblieged
             to
             uphold
             the
             Liferenters
             House
             .
          
           
           
             The
             Lords
             found
             the
             Defender
             lyable
             ,
             seing
             he
             possest
             as
             Apprizer
             sixteen
             years
             ,
             and
             also
             intrometters
             with
             the
             profits
             of
             the
             House
             ,
             are
             liable
             for
             the
             damnage
             sustained
             thereby
             ,
             seing
             both
             Fiar
             and
             Liferenter
             ,
             were
             oblieged
             to
             uphold
             it
             ,
             and
             are
             liable
             
               de
               damno
            
             .
          
        
         
           
             Lord
             Salton
             contra
             Laird
             of
             Park
             and
             Rothemay
             .
             Feb.
             20.
             1666.
             
          
           
             THe
             Lord
             Ochiltry
             having
             a
             Disposition
             of
             the
             Estate
             of
             Salton
             ,
             from
             the
             umquhil
             Lord
             Salton
             in
             anno
             1612.
             
             Disponed
             the
             same
             to
             
               Park
               Gordon
               ,
               Rothemay
            
             and
             others
             .
             This
             Lord
             Salton
             having
             granted
             a
             Bond
             to
             Sir
             
               Archibald
               Stewart
            
             of
             Blackhall
             ,
             he
             thereupon
             apprized
             all
             Right
             that
             could
             be
             competent
             to
             the
             Lord
             Salton
             of
             that
             Estate
             :
             which
             Right
             being
             now
             retrocessed
             to
             the
             Lord
             Salton
             :
             he
             pursues
             Reduction
             of
             the
             Lord
             Ochiltries
             Disposition
             ,
             and
             of
             all
             these
             Rights
             founded
             thereupon
             in
             consequence
             .
             The
             reason
             of
             Reduction
             is
             founded
             upon
             an
             Interdiction
             ,
             against
             the
             Lord
             Salton
             ,
             Disponer
             ,
             before
             his
             Disposition
             ;
             and
             there
             having
             been
             a
             Process
             formerly
             depending
             at
             the
             instance
             of
             umquhil
             Sir
             
               Archibald
               Stewart
            
             ,
             and
             being
             Transferred
             after
             his
             Death
             ,
             the
             Lords
             allowed
             the
             Process
             to
             proceed
             upon
             the
             Minute
             of
             Transferrence
             ,
             without
             Extracting
             the
             Decreet
             of
             Transferrence
             ,
             which
             behoved
             to
             include
             the
             Process
             ,
             and
             hail
             minuts
             ,
             which
             could
             not
             be
             done
             for
             a
             long
             time
             ,
             whereupon
             the
             Lord
             Salton
             ,
             now
             insisting
             in
             the
             principal
             Cause
             .
             It
             was
             alleadged
             ,
             first
             ,
             No
             Process
             ,
             till
             the
             Principal
             Cause
             were
             wakened
             :
             For
             albeit
             the
             principal
             Cause
             be
             Transferred
             ;
             yet
             it
             is
             but
             
               instatu
               quo
            
             ;
             and
             therefore
             being
             sleeping
             ,
             there
             can
             be
             no
             Process
             ,
             till
             after
             the
             Transferrence
             ,
             there
             be
             a
             wakening
             .
          
           
             The
             Lords
             Repelled
             this
             Alleadgence
             ,
             and
             found
             the
             Transferrence
             sufficient
             without
             any
             wakening
             .
             It
             was
             further
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuers
             Title
             being
             an
             Apprizing
             ,
             the
             Defender
             has
             an
             anterior
             Apprizing
             ,
             which
             does
             exclude
             the
             Pursuer●
             ay
             and
             while
             it
             be
             Reduced
             ,
             or
             Redeemed
             .
             It
             was
             answered
             ,
             that
             the
             ground
             of
             this
             Pursute
             being
             a
             Reduction
             ,
             upon
             Interdiction
             ;
             the
             Interdiction
             cannot
             be
             directly
             apprized
             ,
             but
             only
             the
             Lands
             belonging
             to
             the
             Person
             Interdicted
             ,
             being
             Apprized
             ,
             all
             Apprizers
             or
             other
             singular
             Successors
             ,
             coming
             in
             the
             place
             of
             the
             Heirs
             of
             the
             Person
             Interdicted
             ,
             may
             pursue
             on
             their
             Rights
             ,
             and
             thereupon
             Reduce
             voluntar
             Dispositions
             ,
             made
             contrair
             the
             Interdiction
             :
             which
             Interdiction
             is
             not
             a
             Right
             it self
             ,
             but
             
               medium
               impedimentum
               exclusivè
            
             of
             another
             Right
             ,
             as
             an
             Inhibition
             ,
             and
             as
             a
             first
             Appryzer
             cannot
             hinder
             a
             second
             Appryzer
             to
             make
             use
             of
             his
             Right
             ,
             except
             in
             prejudice
             of
             the
             first
             Appryzer
             ;
             so
             he
             cannot
             hinder
             him
             to
             make
             use
             of
             the
             Interdiction
             ,
             to
             take
             away
             a
             voluntar
             Disposition●
             but
             prejudice
             of
             the
             first
             Appryzers
             appryzing
             ,
             as
             accords
             :
             And
             in
             the
             same
             way
             a
             second
             Appryzer
             ,
             or
             any
             Creditor
             might
             pursue
             upon
             an
             Interdiction
             or
             Inhibition
             against
             a
             Creditor
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             declared
             the
             Pursuer
             might
             Reduce
             this
             voluntar
             Disposition
             upon
             the
             Interdiction
             ,
             but
             prejudice
             of
             the
             Defenders
             appryzing
             .
          
        
         
           
           
             contra
             Hugh
             Mcculloch
             .
             Eodem
             die
             .
          
           
             THe
             Laird
             of
             Balnigoun
             being
             arrested
             in
             Edinburgh
             ,
             for
             a
             Debt
             due
             to
             a
             Burges
             ,
             
               Heugh
               Mcculloch
            
             became
             Caution
             for
             him
             in
             these
             Termes
             that
             he
             should
             present
             him
             to
             the
             Diets
             of
             Process
             ,
             and
             should
             make
             payment
             of
             what
             should
             be
             Decerned
             against
             him
             ,
             if
             he
             did
             not
             produce
             him
             ,
             within
             Termes
             of
             Law
             ,
             
               pendente
               lite
               ,
               Balnigoun
            
             raises
             Advocation
             ,
             and
             at
             the
             same
             Diet
             that
             the
             Advocation
             was
             produced
             Judicially
             before
             the
             Bailzies
             ,
             
               Heugh
               Mcculloch
            
             also
             produced
             Balnigoun
             ,
             and
             Protested
             to
             be
             free
             of
             his
             Bond
             as
             Cautioner
             :
             the
             Bailzies
             did
             not
             Incarcerat
             Balnigoun
             ,
             but
             refused
             to
             Liberat
             
               Heugh
               Mcculloch●
            
             till
             they
             saw
             the
             Event
             of
             the
             Advocation
             .
             The
             Cause
             b●ing
             Advocat
             ,
             and
             Decerned
             against
             Balnigoun
             ,
             who
             succumbed
             in
             an
             alleadgence
             of
             payment
             .
             The
             Pursuer
             craved
             Sentence
             against
             him
             ,
             and
             
               Heugh
               Mcculloch
            
             his
             Cautioner
             .
             It
             was
             answered
             for
             
               Heugh
               Mcculloch
            
             ,
             that
             he
             was
             free
             ,
             because
             he
             had
             fulfilled
             his
             Bond
             ,
             in
             presenting
             Ballangoun
             ,
             and
             Protest●ng
             to
             be
             free
             ,
             albeit
             the
             Bailzies
             did
             not
             free
             him
             ,
             that
             was
             their
             fault
             .
             It
             was
             answered
             ,
             that
             the
             Advocation
             being
             raised
             ,
             hindred
             the
             Bailzies
             to
             Incarcerat
             ,
             because
             they
             might
             not
             proceed
             after
             the
             Advocation
             ;
             and
             therefore
             the
             Cautionrie
             behoved
             to
             stand
             ,
             otherwise
             all
             Acts
             of
             Caution
             ,
             to
             answer
             as
             Law
             will
             ,
             might
             be
             so
             elided
             .
          
           
             The
             Lords
             found
             the
             Cautioner
             free
             ,
             and
             found
             that
             the
             Bailzies
             ,
             notwithstanding
             of
             the
             Advocation
             ,
             might
             Incarcerat
             the
             principal
             Party
             ,
             unless
             he
             had
             found
             new
             Caution
             ,
             for
             seing
             if
             he
             had
             found
             no
             Caution
             ,
             
               a
               principio
            
             ,
             but
             had
             been
             Incarcerat
             ,
             till
             the
             Cause
             had
             been
             Discust
             the
             Advocation
             would
             not
             have
             liberat
             him
             :
             and
             whensoever
             the
             Cautioner
             produced
             him
             Iudicially
             ,
             and
             protested
             to
             be
             free
             ,
             he
             was
             in
             the
             same
             case
             as
             if
             he
             had
             been
             Incarcerat
             ,
             and
             therefore
             the
             Bailzies
             might
             have
             detained
             him
             in
             Prison
             ,
             notwithstanding
             of
             the
             Advocation
             ,
             which
             did
             sist
             the
             Cause
             .
          
        
         
           
             Mcbrair
             contra
             Sir
             Robert
             Crichtoun
             ,
             alias
             Murray
             .
             Eodem
             die
             .
          
           
             
               DAvid
               Mcbrair
            
             pursues
             a
             Removing
             against
             Sir
             
               Robert
               Crichtoun
            
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             warning
             was
             null
             ,
             in
             so
             far
             as
             he
             being
             notourly
             out
             of
             the
             Countrey
             .
             The
             Warning
             proceeded
             on
             40
             days
             ,
             not
             only
             at
             the
             Ground
             and
             Paroch-kirk
             ,
             but
             also
             at
             his
             Dwelling-house
             ,
             whereas
             it
             ought
             to
             have
             been
             on
             Letters
             of
             Supplement
             on
             60
             days
             ,
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ,
             Peer
             and
             Shore
             of
             Leith
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Parliament
             anent
             Warning
             ,
             was
             only
             on
             40
             days
             without
             distinction
             ,
             being
             out
             of
             the
             Countrey
             ,
             or
             in
             the
             Countrey●
             and
             it
             was
             sufficient
             that
             the
             Summons
             of
             Removing
             upon
             the
             Warning
             ,
             was
             upon
             60
             days
             ;
             because
             the
             Warning
             at
             the
             House
             ,
             was
             rather
             an
             Intimation
             then
             a
             Citation
             ,
             which
             was
             sufficient
             ,
             seing
             the
             Defender
             had
             been
             butshort
             while
             out
             of
             the
             Conntrey
             ,
             not
             
               animo
               remanendi
            
             ,
             and
             so
             had
             still
             a
             Domicile
             where
             he
             was
             Cited
             .
          
           
           
             The
             Lords
             sustained
             the
             Warning
             ,
             but
             in
             Respect
             the
             Defender
             had
             
               probabilem
               causam
               dubitandi
            
             .
             They
             superceeded
             the
             Execution
             to
             the
             next
             Whitsonday
             ,
             without
             any
             violent
             profits
             .
          
        
         
           
             Lord
             Borthwick
             contra
             his
             Wodsetters
             .
             Feb.
             21.
             1666.
             
          
           
             THe
             Lord
             Borthwick
             pursues
             an
             Accompt
             and
             Reckoning
             against
             several
             Wodsetters
             ,
             who
             had
             Wodsets
             from
             him
             in
             the
             year
             1660.
             to
             Count
             and
             Reckon
             for
             the
             Superplus
             of
             the
             Wodset
             ,
             more
             then
             their
             annualrent
             since
             the
             Act
             of
             Parliament
             between
             Debitor
             and
             Creditor
             ,
             upon
             that
             Clause
             thereof
             ,
             appointing
             Wodseters
             ,
             who
             have
             proper
             Wodsets
             before
             the
             year
             1650.
             or
             since
             before
             the
             Act
             to
             Compt
             ,
             and
             be
             lyable
             for
             the
             superplus
             more
             than
             their
             due
             annualrent
             .
             It
             was
             alleadged
             for
             the
             Defenders
             ,
             That
             the
             Pursuers
             had
             in
             the
             Wodsets
             expresly
             Renunced
             the
             Usurpers
             Act
             in
             favours
             of
             Debitors
             ,
             and
             all
             such
             Acts
             made
             or
             to
             be
             made
             :
             and
             by
             the
             said
             Act
             between
             Debitor
             and
             Creditor
             ,
             there
             is
             an
             Exception●
             where
             Persons
             have
             renunced
             such
             Acts.
             It
             was
             answered
             that
             that
             Exception
             is
             insert
             in
             the
             Act
             before
             this
             Clause
             ,
             in
             Relation
             to
             Wodsets
             ,
             and
             does
             not
             relate
             to
             it
             ,
             but
             unto
             the
             former
             Provisions
             ,
             of
             Suspending
             the
             Sums
             ,
             which
             was
             also
             the
             Tenor
             of
             the
             Usurpers
             Act
             ,
             and
             therefore
             the
             Exception
             of
             the
             Renuncing
             such
             Acts
             ,
             cannot
             extend
             to
             the
             Case
             of
             accounting
             for
             Wodsets
             ,
             which
             could
             not
             be
             thought
             upon
             ,
             the
             time
             of
             the
             Wodset
             ,
             and
             of
             the
             Renunciation
             ;
             this
             Clause
             being
             according
             to
             common
             Law
             ,
             to
             hinder
             Usury
             ,
             which
             might
             have
             been
             indirectly
             taken
             by
             proper
             Wodsets
             ,
             though
             these
             by
             the
             Custom
             ,
             use
             not
             to
             be
             quar●elled
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Reply
             ,
             and
             found
             the
             Exception
             not
             to
             extend
             to
             the
             Case
             of
             Wodsets
             .
          
           
             It
             was
             further
             alleadged
             for
             the
             Defenders
             ,
             that
             they
             were
             not
             lyable
             to
             to
             compt
             for
             the
             Superplus
             ,
             for
             all
             years
             bygone
             since
             the
             Act
             of
             Parliament
             ,
             nor
             at
             all
             ,
             except
             in
             the
             Case
             that
             they
             had
             been
             required
             to
             quite
             the
             Possession
             of
             the
             Wodset
             ,
             and
             Security
             had
             been
             offered
             them
             for
             their
             Money
             ,
             and
             they
             had
             chosen
             rather
             to
             retain
             the
             Wodset
             ,
             and
             to
             compt
             for
             the
             Superplus
             ;
             for
             as
             to
             all
             years
             preceeding
             ,
             they
             were
             
               bona
               fide
            
             Possessors
             ,
             and
             had
             ground
             to
             presume
             that
             the
             Pursuer
             did
             acquiesce
             in
             the
             Wodset
             ,
             as
             only
             proportionable
             to
             the
             annualrent
             ,
             and
             it
             were
             unjust
             and
             of
             evil
             consequence
             ,
             that
             if
             the
             granter
             of
             the
             Wodset
             should
             forbear
             to
             offer
             Security
             for
             20
             years
             upon
             his
             offer
             then
             ,
             the
             Wodsetter
             should
             be
             oblieged
             to
             Compt
             from
             the
             Act
             of
             Parliament
             .
             It
             was
             answered
             ,
             that
             there
             was
             no
             inconveniency
             ,
             seing
             the
             Wodsetter
             might
             ,
             if
             he
             pleased
             ,
             quite
             the
             Possession
             ,
             and
             then
             was
             not
             comptable
             at
             all
             :
             But
             if
             he
             would
             retain
             the
             Possession
             ,
             he
             could
             not
             refuse
             to
             compt
             for
             all
             bygones
             ,
             since
             the
             Act
             of
             Parliament
             .
          
           
             The
             Lords
             having
             considered
             the
             Clause
             of
             the
             Act
             of
             Parliament
             ,
             found
             the
             Defenders
             only
             lyable
             from
             the
             time
             of
             the
             offer
             of
             Caution
             ,
             and
             Requiring
             the
             Possession
             ,
             and
             not
             from
             the
             date
             of
             the
             Act
             of
             Parliament
             ,
             seing
             the
             Clause
             bears
             ,
             they
             shall
             have
             by
             the
             Wodset
             ,
             which
             looks
             to
             be
             future
             only
             ;
             and
             seing
             the
             Wodsetters
             might
             have
             Builded
             or
             Planted
             for
             their
             own
             accommodation
             ,
             and
             therefore
             might
             rather
             reain
             the
             Possession
             then
             other
             Security
             .
          
        
         
           
           
             Ogilby
             contra
             Eodem
             die
             .
          
           
             THe
             like
             case
             was
             decided
             betwixt
             Ogilby
             and
             where
             this
             was
             further
             Represented
             ,
             that
             the
             Summonds
             could
             not
             be
             Sustained
             ,
             unless
             the
             offer
             had
             been
             made
             by
             way
             of
             Instrument
             before
             the
             Summons
             ,
             yet
             the
             Lords
             Sustained
             the
             offer
             instantly
             ,
             made
             to
             have
             effect
             
               ab
               hoc
               tempore
            
             ,
             but
             not
             from
             the
             Citation
             .
             It
             was
             also
             further
             alleadged
             for
             the
             Defender
             ,
             that
             there
             was
             now
             no
             Caution
             offered
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             there
             needed
             no
             Caution
             ,
             if
             the
             Wodsetter
             choised
             to
             retain
             the
             Possession
             ;
             because
             the
             Wodset
             it self
             was
             sufficient
             Security
             .
             It
             was
             answered
             ,
             that
             they
             were
             not
             obliged
             to
             declare
             their
             option
             ,
             till
             Caution
             were
             first
             offered
             by
             the
             granter
             of
             the
             VVodset
             ,
             and
             the
             Statute
             behoved
             to
             be
             strictly
             Observed
             .
             It
             was
             answered
             ,
             that
             there
             was
             here
             no
             detriment
             to
             the
             VVodsetter
             ,
             and
             the
             granter
             of
             the
             VVodset
             might
             be
             so
             poor
             as
             not
             to
             be
             able
             to
             find
             Caution
             .
          
           
             The
             Lords
             found
             ,
             in
             respect
             of
             the
             Act
             of
             Parliament
             ,
             that
             Caution
             behoved
             to
             be
             offered
             ,
             and
             would
             not
             exceed
             the
             Terms
             thereof
             .
          
        
         
           
             contra
             The
             Sheriff
             of
             Inverness
             .
             Eodem
             die
             .
          
           
             〈…〉
             being
             pursued
             for
             Theft-boot
             before
             the
             Sheriff
             of
             Inverness
             ,
             upon
             the
             old
             Act
             of
             
               Parliament
               Iames
            
             2.
             bearing
             ,
             that
             whosoever
             should
             compone
             with
             a
             Thief
             ,
             for
             stollen
             Goods
             should
             be
             lyable
             in
             Theft-boot
             ,
             and
             punishable
             as
             the
             Thief
             or
             Robber
             .
             He
             raises
             Advocation
             on
             this
             Reason
             ,
             that
             the
             Act
             was
             in
             desuetude
             ,
             and
             the
             matter
             was
             of
             great
             moment
             and
             intricacy
             ,
             what
             Deeds
             should
             be
             compted
             Theft-boot
             ,
             whereinto
             no
             inferiour
             Judge
             ought
             to
             decide
             ,
             because
             of
             the
             intricacy
             .
             It
             was
             answered
             ,
             that
             the
             Lords
             were
             not
             Competent
             Judges
             in
             Crimes
             ;
             and
             therefore
             could
             not
             Advocat
             Criminal
             Causes
             from
             inferiour
             Courts
             ,
             and
             the
             Earl
             of
             Murray
             being
             Sheriff
             ,
             and
             having
             sufficient
             Deputs
             ,
             both
             should
             concur
             in
             the
             careful
             Decyding
             of
             the
             Cause
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Lords
             did
             not
             Judge
             Crimes
             ,
             yet
             it
             was
             competent
             to
             them
             to
             Advocat
             Criminal
             Causes
             ,
             
               ad
               hunc
               effectum
            
             ,
             to
             remit
             them
             to
             other
             more
             competent
             unsuspect
             Judges
             .
          
           
             The
             Lords
             Advocat
             the
             Cause
             from
             the
             Sheriff
             ,
             and
             Remitted
             the
             same
             to
             the
             Iustice●
             because
             of
             the
             antiquity
             of
             the
             Statute
             ,
             and
             intricacy
             of
             the
             Case
             .
          
        
         
           
           
             Lockhart
             contra
             Lord
             Bargany
             .
             Feb.
             22.
             1666.
             
          
           
             THe
             umquhil
             Lord
             Bargany
             being
             adebted
             in
             a
             sum
             of
             Money
             to
             Sir
             
               William
               Dick
            
             ,
             he
             appryzed
             ,
             but
             no
             Infeftment
             nor
             Charge
             followed
             .
             Thereafter
             a
             Creditor
             of
             umquhil
             Sir
             
               William
               Dicks
            
             ,
             appryzes
             ,
             but
             before
             the
             appryzing
             ,
             Lockhart
             upon
             a
             Debt
             due
             by
             Sir
             
               William
               Dick
            
             ,
             arrests
             all
             sums
             in
             my
             Lord
             
             Bargany's
             hand
             ,
             and
             pursues
             to
             make
             forth-coming
             .
             This
             Lord
             Bargany
             takes
             a
             Right
             from
             the
             appryzer
             ,
             for
             whom
             it
             was
             alleadged
             ,
             that
             he
             ought
             to
             be
             preferred
             to
             the
             Arrester
             ,
             because
             the
             arrestment
             was
             not
             
               habilis
               modu●
            
             ,
             in
             so
             far
             as
             Sir
             
               William
               Dick
            
             having
             apprized
             for
             the
             sum
             in
             question
             ,
             the
             apprizing
             is
             a
             judicial
             Disposition
             ,
             in
             satisfaction
             of
             the
             sum
             ;
             and
             so
             it
             could
             not
             be
             arrested
             ,
             unless
             it
             had
             been
             moveable
             by
             a
             Requisition
             or
             Charge
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Parliament
             ,
             Declaring
             Arrestment
             to
             be
             valid
             upon
             sums
             ,
             whereon
             Infeftment
             did
             not
             actually
             follow
             ,
             made
             the
             Arrestment
             habile
             ,
             and
             the
             Apprizing
             can
             be
             in
             no
             better
             case
             ,
             then
             an
             heretable
             Bond
             Disponing
             an
             annualrent
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Parliament
             was
             only
             in
             the
             case
             of
             Bonds
             ,
             whereupon
             no
             Infeftment
             followed
             ,
             but
             cannot
             be
             extended
             beyond
             that
             case
             ,
             either
             to
             a
             Wodset
             granted
             for
             the
             sum
             ,
             where
             the
             Property
             is
             Disponed
             ,
             where
             no
             Infeftment
             had
             followed
             ;
             or
             to
             an
             Apprizing
             ,
             which
             is
             a
             judicial
             Wodset
             ,
             
               pignus
               pretorium
            
             .
             It
             was
             answered
             ,
             that
             the
             Reason
             of
             the
             Law
             was
             alike
             in
             both
             cases
             ,
             to
             abbrige
             the
             Lieges
             unnecessar
             Expences
             by
             apprizing
             .
          
           
             The
             Lords
             preferred
             the
             Apprizer
             .
          
        
         
           
             Bishop
             of
             Glasgow
             contra
             Commissar
             of
             Glasgow
             .
             Eodem
             die
             .
          
           
             THe
             Bishop
             of
             Glasgow
             insisted
             in
             his
             Declarator
             against
             the
             Commissar
             of
             Glasgow
             ;
             and
             alleadged
             first
             ,
             that
             by
             injunctions
             related
             to
             in
             the
             Act
             of
             Restitution
             1609.
             
             It
             was
             provided
             ,
             that
             all
             Commissars
             should
             Reside
             at
             the
             place
             where
             the
             Commissariot
             Sat
             ,
             and
             should
             not
             be
             absent
             ,
             but
             upon
             necessity
             ,
             and
             with
             leave
             of
             the
             Bishop
             ,
             under
             the
             pain
             of
             Deposition
             ,
             and
             that
             in
             case
             of
             the
             absence
             of
             the
             Commissar
             ,
             through
             sickness
             ,
             or
             other
             necessity
             ,
             or
             through
             being
             declined
             in
             these
             Causes
             ,
             the
             Bishop
             should
             name
             a
             Deput
             :
             From
             whence
             it
             was
             alleadged
             ,
             first
             ,
             That
             the
             Commissar
             had
             already
             Transgressed
             the
             Injunctions
             ,
             and
             deserved
             Deposition
             for
             none
             Residence
             ,
             and
             for
             appointing
             Deputs
             himself
             ,
             not
             appointed
             by
             the
             Bishop
             ;
             yea
             ,
             for
             continuing
             to
             make
             use
             of
             these
             Deputs
             ,
             albeit
             the
             Bishop
             did
             intimat
             the
             Injunctions
             to
             him
             ,
             and
             did
             Judicially
             require
             the
             Deput
             not
             to
             sit
             ,
             and
             took
             Instruments
             thereupon
             .
             2ly
             .
             That
             in
             time
             coming
             it
             ought
             to
             be
             De●lared
             ,
             that
             the
             Commissar
             ought
             to
             Reside
             ,
             under
             the
             pain
             of
             Deprivation
             ,
             and
             to
             Act
             by
             no
             Deput
             ,
             but
             such
             as
             were
             authorized
             by
             the
             Bishop
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             Absolvitor
             from
             this
             Member
             of
             the
             Declarator
             ,
             because
             the
             Defender
             had
             his
             Office
             from
             the
             King
             ,
             and
             the
             late
             Bishop
             of
             Glasgow
             ,
             with
             power
             of
             Deputation
             .
             And
             as
             to
             the
             Injunctions
             ,
             first
             ,
             They
             had
             no
             
             authority
             of
             Law
             ;
             for
             albeit
             the
             Act
             of
             Parliament
             1609.
             related
             to
             Injunctions
             to
             be
             made
             ,
             yet
             it
             did
             not
             authorise
             any
             Persons
             to
             make
             the
             same
             ,
             nor
             is
             it
             constant
             ,
             that
             these
             are
             the
             Injunctions
             that
             is
             alleadged
             to
             be
             made
             by
             the
             Bishops
             in
             
               anno
               1610.
               2ly
            
             .
             Albeit
             they
             had
             been
             then
             so
             made
             ,
             they
             are
             in
             de●uetude
             ,
             because
             ever
             since
             ,
             all
             Commissars
             have
             enjoyed
             their
             place
             with
             power
             of
             Deputation
             ,
             and
             exercised
             the
             same
             accordingly
             .
             3ly
             .
             There
             is
             no
             Injunction
             against
             the
             Bishops
             ,
             giving
             power
             to
             the
             Commissars
             to
             Deput
             ;
             for
             albeit
             the
             Injunctions
             bear
             ,
             that
             in
             such
             cases
             he
             could
             not
             give
             Deputation
             ;
             and
             therefore
             the
             Commissar
             did
             not
             wrong
             ,
             to
             continue
             his
             Deput
             .
             And
             it
             is
             most
             necssar
             ,
             that
             the
             Commissar
             should
             have
             a
             Power
             of
             Deputation
             ,
             or
             otherwise
             ,
             their
             Office
             is
             elusory
             ,
             seing
             the
             Bishop
             may
             be
             absent
             ,
             or
             refuse
             to
             Depute
             any
             Person
             ,
             in
             case
             of
             the
             Commissars
             necessary
             absence
             ,
             and
             so
             both
             delay
             Justice
             to
             the
             Leidges
             ,
             and
             Evacuat
             the
             Gift
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             first
             ,
             the
             Injunctions
             were
             commonly
             received
             and
             known
             through
             all
             the
             Kingdom
             ,
             and
             are
             Registrat
             in
             the
             Commissars
             Books
             of
             Edinburgh
             ,
             being
             the
             Supream
             Commissariot
             ,
             and
             according
             thereto
             ,
             the
             Lords
             have
             decided
             in
             Advocations
             and
             Reductions
             ;
             and
             albeit
             they
             have
             not
             been
             observed
             ,
             seing
             there
             is
             no
             contrair
             Decision
             ,
             they
             cannot
             go
             in
             desuetude
             by
             meer
             none
             observance
             .
             2ly
             ,
             That
             the
             Injunctions
             do
             import
             ,
             that
             no
             Deputation
             can
             be
             granted
             by
             Commissars
             ,
             but
             only
             by
             the
             Bishops
             
               in
               casibus
               expressis
            
             .
             It
             is
             clear
             from
             the
             foresaid
             two
             Injunctions
             ;
             for
             to
             what
             effect
             should
             the
             Commissars
             Residence
             be
             required
             ,
             if
             he
             might
             at
             his
             pleasure
             act
             by
             Deputs
             ;
             and
             why
             were
             these
             cases
             exprest
             ,
             if
             Deputation
             were
             competent
             in
             all
             Cases
             .
             3ly
             .
             Albeit
             the
             power
             of
             Deputation
             granted
             by
             Bishop
             Fairfowl
             be
             sufficient
             ,
             during
             his
             life
             ,
             and
             seclude
             him
             from
             quarrelling
             the
             same
             ,
             
               personali
               objectione
            
             ;
             yet
             that
             Exception
             is
             not
             competent
             against
             this
             Arch-bishop
             .
             4ly
             ,
             The
             Injunctions
             being
             sent
             up
             to
             the
             King
             ,
             His
             Majesty
             has
             Signed
             and
             Approven
             the
             same
             ,
             which
             therefore
             Revived
             them
             ,
             and
             for
             the
             inconveniency
             upon
             the
             Bishops
             absence
             or
             refusal
             ,
             is
             not
             to
             be
             supposed
             ,
             but
             that
             the
             Bishops
             concerned
             in
             the
             Commissariots
             ,
             would
             provide
             remeid
             in
             such
             Cases
             .
             The
             Defender
             answered
             ,
             that
             
               Acts
               of
               Parliament
            
             were
             not
             drawn
             
               ad
               pares
               casus
               &
               consequentias
            
             ,
             much
             less
             their
             Injunctions
             ,
             and
             though
             they
             were
             now
             Revived
             ,
             yet
             that
             cannot
             be
             drawn
             back
             to
             the
             power
             of
             Deputation
             granted
             before
             :
             Neither
             can
             this
             Bishop
             be
             in
             better
             condition
             then
             his
             Prececessor
             ,
             or
             quarrel
             his
             Predecessors
             Deed
             ,
             which
             he
             had
             power
             to
             do
             .
             The
             Defender
             did
             also
             resume
             the
             Defense
             ,
             as
             to
             sufficiency
             and
             tryal
             ,
             that
             seing
             he
             had
             power
             of
             Deputation
             ,
             he
             was
             not
             lyable
             to
             Tryal
             ,
             nor
             to
             Reside
             ,
             if
             his
             Deput
             were
             sufficient
             .
          
           
             The
             Lords
             found
             ,
             that
             albeit
             the
             power
             of
             Deputation
             should
             absolutely
             stand
             ;
             yet
             the
             principal
             Commissar
             behoved
             to
             be
             be
             sufficient
             ,
             and
             ordinarly
             Resident
             ,
             seing
             his
             sufficiency
             was
             both
             requisit
             by
             the
             
               Act
               of
               Restitution
            
             1609.
             and
             by
             Exception
             in
             the
             
               Act
               of
               Restitution
            
             1661.
             and
             that
             he
             ought
             to
             direct
             and
             over-rule
             his
             Deputs
             ,
             for
             whom
             he
             was
             answerable
             ;
             and
             therefore
             was
             oblieged
             to
             Reside
             ,
             that
             albeit
             he
             did
             not
             constantly
             sit
             ,
             yet
             he
             might
             advise
             with
             his
             Deputs
             in
             important
             Cases
             ,
             and
             the
             Lieges
             might
             have
             access
             to
             him
             to
             complain
             in
             case
             of
             the
             Deputs
             Malversation
             ,
             and
             as
             to
             the
             power
             of
             Deputation
             it self
             ,
             and
             the
             Injunctions
             .
          
           
           
             The
             Lords
             found
             ,
             that
             the
             Defender
             was
             
               in
               bona
               fide
            
             ,
             to
             enjoy
             these
             Priviledges
             till
             it
             was
             declared
             ,
             notwithstanding
             he
             was
             required
             to
             the
             contrair
             :
             but
             as
             to
             the
             future
             ,
             they
             found
             that
             he
             ought
             to
             reside
             ,
             and
             make
             use
             of
             no
             Deputs
             ,
             without
             the
             consent
             of
             the
             Archbishop
             ,
             but
             whether
             that
             should
             be
             only
             
               pro
               re
               nata
            
             ,
             or
             by
             a
             warrand
             for
             such
             Persons
             ,
             not
             only
             upon
             necessar
             occasions
             ,
             mentioned
             in
             the
             injunctions
             ,
             but
             also
             in
             others
             ,
             that
             the
             Deputs
             might
             ordinarily
             sit
             ,
             and
             advise
             with
             the
             Commissars
             ,
             in
             Cases
             of
             importance
             .
             The
             Lords
             were
             of
             different
             judgements
             ,
             and
             recommended
             to
             the
             Bishop
             in
             common
             ,
             to
             consider
             what
             was
             fit
             in
             that
             Case
             ,
             but
             declared
             only
             according
             to
             the
             Injunctions
             without
             interpretating
             how
             far
             the
             Deputation
             should
             reach
             .
          
        
         
           
             Children
             of
             the
             Earl
             of
             Buchan
             contra
             Lady
             of
             Buchan
             .
             February
             23.
             1666.
             
          
           
             THe
             six
             Children
             of
             the
             Earl
             of
             Buchan
             pursue
             their
             Mother
             for
             Aliment
             .
             It
             was
             alleadged
             absolvitor
             ,
             because
             their
             was
             neither
             Law
             ,
             Statute
             nor
             Custome
             of
             this
             Kingdom
             ,
             oblidging
             a
             Mother
             to
             Aliment
             her
             Children
             .
             2ly
             ,
             Albeit
             there
             were
             ,
             she
             offers
             her
             to
             admit
             them
             in
             her
             Family
             ,
             and
             to
             entertain
             them
             according
             to
             her
             means
             ,
             but
             can
             never
             be
             oblidged
             to
             pay
             a
             modification
             ,
             in
             Money
             out
             of
             the
             Family
             ;
             for
             in
             all
             Cases
             of
             Aliment
             of
             Wives
             ,
             or
             Children
             against
             Parents
             ,
             the
             offer
             to
             accept
             ,
             and
             Aliment
             them
             in
             the
             Family
             ,
             according
             to
             the
             Parents
             Means
             ,
             doth
             alwayes
             exclude
             Modification
             ?
             as
             was
             lately
             found
             in
             the
             Case
             of
             Sir
             
               Andrew
               Dick
            
             and
             his
             Son.
             It
             was
             answered
             ,
             that
             the
             Law
             of
             Nature
             is
             a
             part
             of
             the
             Law
             of
             this
             ,
             and
             all
             other
             Civil
             Kingdoms
             ,
             and
             according
             thereto
             the
             Lords
             do
             alwayes
             decide
             ,
             in
             Cases
             now
             occurring
             ,
             where
             there
             was
             neither
             Statute
             nor
             Custome
             and
             if
             Aliment
             be
             due
             ,
             the
             manner
             and
             measure
             is
             
               in
               arbitrio
               judicis
            
             ,
             who
             may
             justly
             ordain
             their
             Children
             to
             be
             bred
             from
             their
             Mothers
             ,
             seing
             she
             hath
             miscarried
             ,
             and
             Married
             a
             deposed
             Minister
             .
             It
             was
             answered
             ,
             that
             the
             Law
             of
             Nature
             ,
             without
             our
             Custome
             is
             no
             sufficient
             Law
             to
             us
             ,
             and
             does
             not
             induce
             
               obligationem
               civilem
            
             ,
             but
             only
             
               pietatem
               &
               affectum
            
             ,
             upon
             which
             ground
             it
             is
             ,
             that
             there
             was
             necessity
             of
             this
             Statute
             to
             appoint
             an
             Aliment
             for
             Heirs
             against
             the
             Wairdatars
             and
             Liferenters
             ,
             which
             insinuats
             that
             there
             was
             no
             such
             Law
             before
             ,
             and
             if
             the
             Law
             of
             Nature
             ,
             be
             the
             adequat
             Rule
             ,
             we
             are
             oblidged
             to
             entertain
             the
             Poor
             ,
             and
             all
             in
             distress
             ;
             and
             therefore
             they
             might
             pursue
             us
             thereupon
             .
             2dly
             ,
             There
             is
             no
             Reason
             to
             put
             it
             
               in
               arbitrio
               judicis
            
             ,
             whether
             a
             Child
             should
             be
             Educat
             with
             the
             Parent
             ,
             who
             must
             Aliment
             him
             ,
             even
             upon
             pretence
             of
             the
             Parents
             miscarriage
             ,
             for
             that
             being
             the
             indispensable
             Right
             of
             Parents
             to
             educat
             their
             Children
             ,
             as
             they
             see
             cause
             ,
             especially
             who
             demand
             Aliment
             of
             them
             ,
             it
             ought
             not
             to
             be
             in
             the
             arbitrament
             of
             any
             Judge
             ,
             unless
             it
             were
             a
             Parliament
             ,
             and
             this
             arbitriment
             would
             lay
             the
             Foundations
             to
             encourage
             Children
             to
             desert
             their
             Parents
             ,
             and
             to
             claime
             Aliment
             out
             of
             their
             Family
             ,
             and
             to
             pretend
             the
             Parents
             miscarriages
             ,
             as
             unfit
             Persons
             to
             be
             bred
             with
             ,
             and
             not
             breeding
             them
             in
             a
             fit
             way
             ;
             which
             accusations
             were
             prohibit
             by
             the
             Civil
             Law
             ,
             and
             never
             admitted
             by
             our
             Custome
             ;
             for
             albeit
             the
             Lords
             may
             appoint
             the
             way
             of
             Education
             of
             Pupils
             ,
             their
             Parents
             being
             dead
             :
             yet
             Tutors
             have
             no
             such
             interest
             ,
             as
             Parents
             .
          
           
           
             The
             Lords
             found
             the
             Mother
             oblidged
             to
             Aliment
             the
             Children
             
               jure
               naturae
            
             ,
             which
             was
             sufficient
             to
             infer
             this
             Civil
             Obligation
             ,
             and
             Action
             ,
             but
             found
             that
             the
             offer
             of
             Alimenting
             them
             in
             her
             Family
             ,
             was
             sufficient
             according
             to
             her
             means
             and
             they
             could
             demand
             no
             Aliment
             ,
             nor
             Modification
             
               extra
               familiam
            
             :
             For
             they
             found
             that
             the
             Lords
             had
             thus
             sustained
             Aliment
             to
             Children
             against
             theîr
             Fathers
             ,
             not
             upon
             the
             Act
             of
             Parliament
             ,
             which
             is
             competent
             against
             all
             Liferenters
             and
             Donatars
             ,
             without
             consideration
             of
             their
             being
             Parents
             ,
             but
             
               super
               jure
               naturae
            
             ,
             which
             they
             found
             ,
             would
             not
             extend
             to
             the
             obligation
             of
             Charity
             ,
             and
             which
             had
             no
             definite
             rule
             ,
             but
             at
             the
             discretion
             of
             the
             giver
             ,
             and
             was
             not
             allowed
             as
             a
             civil
             obligation
             by
             any
             Nation
          
        
         
           
             Grant
             contra
             Grant.
             February
             24.
             1666.
             
          
           
             
               GEorge
               Crant
            
             ,
             having
             Appryzed
             a
             Wodset
             Right
             from
             Grant
             of
             Mornithe
             ;
             and
             thereupon
             obtained
             a
             Decreet
             of
             Removing
             ,
             and
             Mails
             ,
             and
             Duties
             ,
             against
             Grant
             of
             Kirkdails
             ;
             Reduction
             was
             raised
             thereof
             ,
             and
             of
             the
             ground
             of
             the
             same
             .
             viz
             ,
             of
             the
             Wodset
             Right
             on
             this
             Reason
             ,
             that
             the
             one
             half
             of
             the
             Sum
             was
             payed
             ,
             and
             the
             Wodset
             renunced
             
               pro
               tanto
            
             ,
             long
             before
             the
             Appryzing
             .
             It
             was
             Replyed
             ,
             that
             there
             was
             an
             Inhibition
             ,
             for
             the
             Sum
             ,
             whereupon
             the
             Appryzing
             proceeded
             ,
             after
             which
             Inhibition
             ,
             if
             any
             payment
             was
             made
             ,
             or
             Renunciation
             granted
             ,
             the
             samine
             was
             reduceable
             ,
             
               ex
               capite
               Inhibitionis
            
             .
             It
             was
             answered
             ,
             that
             all
             that
             the
             Inhibition
             ,
             and
             Reduction
             thereupon
             could
             work
             ,
             was
             in
             so
             far
             ,
             as
             might
             extend
             to
             the
             satisfaction
             of
             the
             Sum
             ;
             and
             now
             they
             were
             willing
             to
             satisfie
             the
             whole
             Sum
             ,
             
               cum
               omni
               causa
            
             .
             It
             was
             answered
             ,
             that
             no
             satisfaction
             could
             now
             be
             accepted
             ,
             because
             Appryzing
             having
             followed
             upon
             the
             samine
             ,
             and
             being
             expired
             ,
             and
             no
             satisfaction
             being
             offered
             within
             the
             Legal
             ,
             or
             the
             time
             of
             the
             Reduction
             ,
             it
             cannot
             now
             be
             admitted
             .
             It
             was
             answered
             ,
             that
             the
             Inhibition
             could
             not
             only
             work
             ,
             that
             nothing
             done
             after
             the
             same
             should
             be
             prejudicial
             to
             the
             Sum
             ,
             but
             altered
             not
             the
             Case
             ,
             as
             to
             the
             Appryzing
             ,
             led
             long
             thereafter
             ;
             unless
             the
             Inhibition
             had
             been
             raised
             upon
             the
             Appryzing
             .
          
           
             The
             Lords
             found
             that
             Inhibition
             could
             not
             be
             taken
             away
             ,
             or
             satisfied
             by
             payment
             of
             the
             Sums
             after
             the
             expiring
             of
             the
             Apprizing
             ,
             wherein
             the
             President
             remembred
             of
             a
             former
             Case
             ,
             that
             even
             in
             the
             obtaining
             of
             the
             Reduction
             ,
             
               ex
               capite
               Inhibitionis
            
             ,
             the
             offer
             to
             satisfie
             the
             Sum
             ,
             whereon
             it
             proceeded
             was
             repelled
             :
             In
             respect
             an
             Appryzing
             thereupon
             was
             expired
             .
          
        
         
           
             Sir
             Robert
             Sinclar
             contra
             Laird
             of
             Waderburn
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Stewart
            
             Son
             to
             the
             Earl
             of
             Bothwell
             ,
             being
             Abbot
             and
             Commendator
             of
             Coldinghame
             ,
             the
             Earl
             being
             Forefaulted
             in
             Parliament
             ,
             his
             Son
             was
             dishabilitat
             to
             brook
             any
             Lands
             ,
             or
             Goods
             in
             Scotland
             ;
             whereby
             Iohn
             fell
             from
             the
             Right
             of
             Provision
             of
             the
             Abbacie
             :
             Thereafter
             the
             King
             annexed
             
             the
             Abbacie
             of
             Coldinghame
             ,
             which
             was
             excepted
             from
             the
             general
             Annexation
             1587.
             to
             the
             Crown
             ,
             excepting
             the
             Teinds
             ;
             and
             gave
             Right
             of
             Reversion
             ,
             both
             of
             Lands
             and
             Teinds
             ,
             to
             the
             Earl
             of
             Hoom
             ,
             who
             gave
             a
             Tack
             of
             the
             Teinds
             of
             Kello
             and
             Cumerjame
             to
             the
             Laird
             of
             Wedderburn
             .
             Thereafter
             
               Iohn
               Stewart
            
             was
             ,
             by
             Act
             of
             Parliament
             restored
             ,
             and
             the
             former
             Act
             of
             Dishabilitation
             rescinded
             ,
             whereupon
             
               Iohn
               Stewart
            
             demitted
             his
             temporal
             Provision
             in
             the
             King's
             hands
             ,
             and
             got
             it
             Erected
             in
             an
             Heretable
             Right
             :
             he
             thereupon
             Infeft
             Dowglas
             of
             Ivleck
             for
             relief
             of
             Sums
             .
             Sir
             
               Robert
               Sinclars
            
             Lady
             ,
             as
             Heir
             to
             him
             ,
             pursues
             for
             the
             Teinds
             of
             Kello
             ,
             and
             Cumerjame
             ,
             upon
             the
             Infeftment
             of
             Relief
             .
             He
             had
             before
             obtained
             Sentence
             for
             the
             Years
             preceeding
             
               John
               Stewarts
            
             death
             ,
             during
             which
             ,
             his
             temporal
             Provision
             stood
             ,
             and
             as
             to
             which
             there
             was
             litle
             controversie
             by
             the
             Act
             of
             Rehabilitation
             ;
             but
             now
             the
             Pursuer
             insisted
             for
             the
             years
             after
             
               Iohn
               Stewarts
            
             death
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             First
             ,
             That
             he
             has
             Right
             by
             his
             Tack
             unexpired
             ,
             from
             the
             Earl
             of
             Hoom
             ,
             who
             had
             the
             only
             Right
             of
             Fee
             ,
             to
             the
             whole
             Abbacie
             ,
             by
             his
             Infeftment
             granted
             to
             him
             by
             the
             King
             ,
             long
             before
             the
             Infeftment
             granted
             to
             
               Iohn
               Stewart
            
             .
             It
             was
             answered
             ,
             that
             the
             Earls
             Infeftment
             ,
             proceeding
             upon
             
               Iohn
               Stewarts
            
             dishabilitation
             ,
             that
             being
             rescinded
             ,
             and
             he
             rehabilitat
             ,
             the
             Earls
             Infeftment
             fell
             
               in
               consequentiam
            
             ,
             and
             
               John
               Stewarts
            
             Right
             ,
             on
             his
             own
             dimission
             is
             the
             only
             Right
             .
             It
             was
             answered
             ,
             for
             the
             Defender
             ,
             that
             the
             Earl
             of
             Hooms
             Right
             did
             not
             proceed
             solie
             upon
             
               John
               Stewarts
            
             dishabilitation
             ,
             but
             on
             the
             Act
             of
             Annexation
             following
             thereon
             ,
             Anno
             1612.
             
             And
             Johns
             Rehabilitation
             could
             put
             him
             in
             no
             better
             condition
             ,
             than
             before
             the
             Dishabilitation
             ,
             and
             so
             could
             extend
             no
             further
             ,
             but
             to
             the
             Personal
             Provision
             he
             then
             had
             ,
             It
             was
             answered
             ,
             That
             in
             that
             special
             Act
             of
             Annexation
             1612.
             
             The
             Spirituality
             ,
             or
             Teind
             was
             excepted
             ,
             as
             it
             was
             in
             the
             General
             Act
             of
             Annexation
             ,
             and
             so
             no
             Right
             granted
             by
             the
             King
             ,
             till
             the
             Teinds
             were
             dimitted
             in
             his
             hand
             by
             the
             Titular
             could
             be
             respected
             ,
             as
             being
             
               a
               non
               habente
               potestatem
            
             ,
             at
             least
             not
             proceeding
             
               legitimo
               modo
            
             .
             It
             was
             answered
             ,
             that
             the
             Teinds
             ,
             though
             not
             Annexed
             ,
             yet
             by
             the
             suppression
             of
             the
             Popish
             Clergie
             ,
             they
             returned
             to
             the
             Crown
             ,
             for
             the
             General
             Act
             of
             Annexation
             ,
             doth
             not
             give
             the
             King
             a
             Right
             ,
             but
             acknowledged
             his
             Right
             by
             the
             Ceasing
             ,
             of
             the
             ends
             for
             which
             these
             Benefices
             were
             granted
             ,
             but
             the
             Annexation
             makes
             them
             indissolvable
             ,
             from
             the
             Crown
             ,
             and
             indisposable
             by
             the
             King
             ,
             and
             so
             the
             Teinds
             being
             Annexed
             ,
             they
             cease
             not
             to
             belong
             to
             the
             King
             ,
             but
             they
             are
             at
             his
             Disposall
             ,
             and
             he
             having
             disposed
             of
             them
             to
             the
             Earl
             of
             Hoom
             ,
             before
             he
             disposed
             of
             them
             to
             
               John
               Stewart
            
             ,
             the
             Earls
             Right
             is
             preferable
             ,
             and
             so
             the
             Defenders
             ,
             as
             his
             Tacksman
             .
             It
             was
             answered
             ,
             That
             all
             the
             Erections
             of
             Benefices
             ,
             in
             Temporalities
             were
             only
             upon
             Demissions
             of
             the
             Titulars
             ;
             for
             though
             the
             Popish
             Clergie
             was
             supprest
             ,
             yet
             the
             King
             presented
             Persons
             to
             the
             Benefices
             ,
             who
             had
             the
             Titles
             of
             Abbots
             ,
             and
             Commendators
             ,
             and
             sat
             in
             Parliament
             ,
             but
             had
             not
             the
             Office
             ,
             and
             in
             so
             far
             they
             were
             not
             supprest
             ,
             and
             so
             the
             King
             could
             not
             dispose
             of
             the
             Benefice
             ,
             till
             it
             were
             demitted
             by
             the
             Titular
             ,
             in
             his
             hands
             .
             It
             was
             answered
             ,
             that
             the
             King
             could
             not
             dispose
             in
             prejudice
             of
             the
             Titular
             incumbent
             ,
             but
             that
             the
             Titular
             ,
             who
             was
             a
             naked
             Liferenter
             ,
             his
             Demission
             should
             reach
             the
             Fee
             ,
             it
             was
             against
             reason
             ,
             and
             
               John
               Stewart
            
             being
             dishabilitat
             ,
             when
             the
             King
             granted
             the
             Earl
             of
             Hooms
             Right
             ,
             so
             that
             there
             could
             be
             no
             Demission
             ,
             the
             King
             being
             in
             the
             Commendators
             place
             ,
             and
             could
             not
             demit
             to
             himself
             the
             dishabilitation
             ,
             at
             least
             was
             equivalent
             to
             a
             Demission
             ,
             though
             it
             had
             been
             necessar
             ,
             as
             it
             was
             not
             ;
             for
             albeit
             
               de
               facto
            
             ,
             the
             King
             Erected
             upon
             demissions
             ,
             yet
             that
             he
             could
             not
             after
             the
             Abbots
             death
             ,
             have
             Erected
             it
             ,
             or
             provided
             
             another
             ,
             or
             even
             during
             his
             Life
             ,
             reserving
             his
             temporal
             provision
             there
             could
             be
             no
             doubt
             ,
             else
             the
             Demission
             of
             a
             Liferenter
             ,
             or
             Administrator
             could
             never
             give
             the
             King
             Right
             of
             Fee
             ,
             which
             the
             Resigner
             had
             ,
             and
             here
             ,
             the
             King
             had
             the
             Right
             of
             Fee
             ,
             but
             not
             the
             Resigner
             .
          
           
             Yet
             the
             Lords
             found●
             that
             seing
             all
             Erections
             by
             Custome
             ,
             proceeded
             on
             Demissions
             ,
             that
             the
             Earl
             of
             Hoom's
             not
             proceeding
             so
             ,
             and
             
               John
               Stewart's
            
             proceeding
             upon
             his
             Demission
             ,
             was
             preferable
             ,
             and
             therefore
             repelled
             the
             Defense
             .
          
           
             It
             was
             further
             alleadged
             ,
             that
             
               Iohn
               Stewart
            
             had
             Ratified
             the
             Defenders
             Tack
             .
             It
             was
             answered
             ,
             that
             was
             but
             personal
             ,
             and
             could
             not
             be
             Relevant
             against
             the
             Defender
             ,
             being
             a
             singular
             Successor
             .
             It
             was
             answered
             ,
             that
             the
             Pursuers
             Interest
             being
             but
             for
             relief
             ,
             the
             Defender
             could
             satisfie
             ,
             and
             pay
             erest
             ,
             upon
             Assignation
             ,
             and
             so
             his
             singular
             Title
             not
             being
             absolute
             ,
             might
             be
             so
             purged
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Lord
             Colvil
             contra
             Town
             of
             Colross
             .
             February
             27.
             1666.
             
          
           
             THE
             Lord
             Colvil
             ,
             being
             Infeft
             in
             the
             Heretable
             Office
             ,
             of
             the
             Baillerie
             of
             Culross
             ,
             by
             progress
             from
             the
             Earl
             of
             Argyl
             ,
             first
             Baillie
             ;
             who
             was
             Infeft
             by
             the
             Abbots
             ,
             before
             the
             Reformation
             ;
             having
             full
             power
             of
             all
             Jurisdictions
             ,
             Civil
             or
             Criminal
             ;
             and
             of
             all
             the
             Amerciaments
             ,
             Bloods
             ,
             and
             Casualities
             to
             his
             own
             behove
             ,
             he
             does
             thereupon
             pursue
             a
             Declarator
             of
             the
             Right
             ,
             against
             the
             Town
             of
             Culross
             ,
             which
             is
             within
             the
             Lordship
             of
             Culross
             ,
             that
             he
             had
             Right
             to
             the
             Bloods
             ,
             and
             to
             all
             Jurisdictions
             ,
             Civil
             and
             Criminal
             amongst
             the
             Burgesses
             thereof
             .
             It
             was
             alleadged
             ,
             for
             the
             Defenders
             ,
             absolvitor
             ;
             because
             their
             Town
             was
             Erected
             in
             a
             Burgh
             Royal
             ,
             by
             the
             King
             ,
             with
             power
             of
             Heading
             and
             Hanging
             ,
             and
             other
             priviledges
             of
             Burghs
             Royal
             ;
             by
             vertue
             whereof
             ,
             they
             have
             been
             in
             immemorial
             Possession
             ,
             in
             Exercing
             all
             Jurisdiction
             ,
             Civil
             ,
             and
             Criminal
             amongst
             their
             own
             Burg●sses
             .
          
           
             The
             Lords
             before
             answer
             ,
             having
             ordained
             either
             Partie
             to
             adduce
             W●●nesses
             ,
             as
             to
             the
             Possession
             of
             their
             Iurisdiction
             ,
             which
             being
             closed
             ,
             the
             Debate
             was
             reassumed
             upon
             the
             Towns
             Right
             ,
             and
             Possession
             .
          
           
             It
             was
             answered
             ,
             for
             the
             Pursuer
             ,
             that
             he
             ,
             and
             his
             Authors
             being
             Infeft
             in
             the
             said
             Heretable
             Office
             ,
             long
             before
             the
             Erection
             ,
             and
             before
             the
             Anuexation
             of
             the
             Abbacie
             of
             Culross
             ,
             to
             the
             Crown
             ,
             no
             Right
             granted
             thereafter
             to
             the
             Town
             ,
             could
             prejudge
             his
             established
             Right
             ;
             especially
             ,
             seing
             in
             the
             very
             Act
             of
             Annexation
             ,
             such
             Bailleries
             are
             expresly
             reserved
             ,
             and
             declared
             to
             be
             unprejudged
             :
             And
             as
             to
             the
             Towns
             Possession
             .
             It
             was
             but
             clandestine
             ,
             and
             not
             total
             ,
             for
             the
             Baillies
             did
             still
             exercise
             Jurisdiction
             ,
             even
             upon
             Burgesses
             of
             the
             Town
             ,
             committing
             Bloods
             in
             the
             Town
             ,
             and
             likewise
             Strangers
             committing
             Bloods
             ,
             as
             is
             instructed
             by
             his
             Court-books
             ,
             and
             Witnesses
             ,
             which
             is
             sufficient
             to
             hinder
             Prescription
             .
             It
             was
             answered
             ,
             that
             the
             Defense
             stood
             yet
             relevant
             ,
             for
             the
             granting
             of
             the
             Bailliery
             could
             not
             be
             exclusive
             of
             the
             granters
             own
             Jurisdiction
             ;
             but
             cumulative
             :
             and
             as
             the
             Abbots
             ,
             so
             the
             King
             retained
             Jurisdiction
             ,
             and
             might
             dissolve
             a
             part
             of
             the
             Barony
             ,
             which
             thereby
             ceased
             to
             be
             within
             the
             Jurisdiction
             of
             the
             Bailly
             
             of
             the
             Barony●
             and
             might
             Erect
             the
             same
             in
             a
             Burgh
             Royall
             ,
             as
             he
             has
             done
             in
             the
             same
             way
             ,
             as
             the
             King
             ,
             after
             granting
             an
             Heretable
             Sheriff-ship
             ,
             may
             yet
             Erect
             a
             Barony
             within
             the
             same
             ,
             which
             may
             exclude
             the
             the
             Sheriffs
             ,
             if
             the
             Baron
             use
             diligence
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Erection
             of
             the
             Burgh
             Royall
             being
             after
             the
             Constitution
             of
             the
             Baillerie
             ,
             could
             not
             exclude
             the
             same
             of
             its
             Jurisdiction
             ,
             and
             Casuality
             ,
             unless
             it
             had
             been
             by
             Possession
             ,
             sufficient
             to
             make
             prescription
             ,
             and
             that
             the
             Case
             was
             not
             alike
             ,
             as
             if
             the
             Barony
             of
             a
             Baron
             were
             constitute
             within
             an
             Heretable
             Sheriff-ship
             ;
             because
             the
             Casualities
             of
             the
             Heretable
             Sheriff-ship
             belonged
             to
             the
             King
             himself
             ,
             and
             could
             be
             only
             understood
             ,
             without
             prejudice
             of
             subordinat
             Jurisdiction
             of
             Baronies
             ,
             which
             were
             ordinar
             ,
             and
             known
             ,
             but
             here
             the
             Casualities
             belonging
             to
             the
             Bailli●
             
               proprio
               jure
            
             ,
             the
             Constitution
             of
             the
             Burgh
             could
             not
             prejudge
             them
             ,
             even
             albeit
             the
             Lord
             of
             the
             Regalities
             consent
             was
             thereto
             produced
             ,
             seing
             the
             Ballie
             consented
             not
             ;
             but
             as
             to
             the
             Possession
             ,
             and
             Prescription
             ,
             whether
             the
             Town
             could
             Prescribe
             the
             Right
             of
             the
             Civil
             Jurisdiction
             ;
             albeit
             the
             Baillie
             exercised
             the
             Criminal
             Jurisdiction
             of
             Bloods
             ,
             or
             whether
             the
             Town
             could
             Prescribe
             their
             Right
             of
             a
             part
             of
             the
             Civil
             Jurisdiction
             ,
             in
             so
             far
             as
             concerned
             Trade
             :
             The
             Lords
             superceeded
             to
             give
             answer
             while
             the
             first
             of
             Iune
             ,
             and
             that
             they
             had
             time
             to
             consider
             the
             Depositions
             of
             the
             Witnesses
             fullie
             .
          
        
         
           
             Creditors
             of
             Lord
             Gray
             contra
             Lord
             Gray
             .
             Eodem
             die
             .
          
           
             CErtain
             Creditors
             of
             the
             Master
             of
             Grayes
             ,
             being
             Infeft
             in
             Annualrent
             out
             of
             certain
             of
             his
             Lands
             ,
             pursues
             Poynding
             of
             the
             Ground
             .
             It
             was
             alleadged
             ,
             for
             the
             Lord
             Gray
             his
             Son
             ,
             absolvitor
             ,
             because
             he
             has
             Right
             to
             an
             Appryzing
             ,
             and
             Infeftment
             of
             
               Alexander
               Milne
            
             ;
             which
             is
             expired
             ,
             and
             prior
             to
             the
             Pursuers
             Infeftments
             .
             It
             was
             answered
             ,
             that
             the
             Appryzing
             was
             satisfied
             by
             the
             Umquhile
             Master
             of
             Gray
             ,
             and
             a
             blank
             Assignation
             thereto
             ,
             was
             taken
             ,
             which
             was
             amongst
             the
             Masters
             Writs
             ,
             and
             this
             Lord
             filled
             up
             his
             Name
             ,
             after
             the
             Masters
             death
             ;
             this
             being
             unquestionably
             relevant
             ,
             the
             difficultie
             was
             ,
             concerning
             the
             manner
             of
             the
             Probation
             .
          
           
             The
             Lords
             before
             answer
             ,
             ordained
             Witnesses
             
               ex
               officio
            
             to
             be
             examined
             ,
             whereupon
             the
             Lord
             Gray's
             Brother
             was
             examined
             ,
             who
             acknowledged
             ,
             he
             saw
             the
             blank
             Assignation
             ,
             by
             his
             Brother
             ,
             and
             
               Mr.
               Robert
               Prestoun
            
             being
             examined
             ,
             and
             several
             other
             Witnesses
             ,
             above
             all
             exception
             ;
             and
             also
             the
             Lord
             Gray
             himself
             ,
             who
             acknowledged
             he
             got
             the
             Assignation
             blank
             after
             his
             Fathers
             death
             ,
             but
             not
             amongst
             his
             Writs
             ,
             and
             that
             he
             gave
             a
             Bond
             therefore
             ;
             Many
             of
             the
             Lords
             thought
             ,
             that
             seing
             by
             the
             late
             Act
             of
             Parliament
             ,
             the
             Appryzing
             ,
             though
             expyred
             was
             Redeemable
             from
             him
             ,
             for
             the
             Sum
             he
             truely
             payed
             for
             it
             ,
             that
             it
             were
             more
             just
             ,
             and
             safe
             ,
             that
             he
             should
             be
             preferred
             ,
             unless
             the
             Creditors
             would
             purge
             ,
             and
             satisfie
             the
             Sum
             ,
             and
             that
             it
             were
             a
             dangerous
             example
             to
             find
             so
             important
             a
             Writ
             ,
             as
             this
             Assignation
             ,
             to
             be
             taken
             away
             by
             Witnesses
             ;
             yet
             the
             plurality
             found
             the
             Testimonies
             so
             pregnant
             ,
             and
             unquestionable
             :
             They
             found
             the
             Reply
             proven
             thereby
             ,
             and
             found
             the
             Appryzing
             retired
             ,
             and
             satisfied
             by
             the
             Debitor
             ,
             and
             so
             extinct
             .
          
        
         
           
           
             Earl
             of
             Landerdail
             contra
             Viscount
             of
             Oxenfoord
             .
             last
             of
             February
             1666.
             
          
           
             THE
             Earl
             of
             Lauderdale
             ,
             being
             Infeft
             in
             the
             Barony
             of
             Muslburgh
             ,
             which
             is
             a
             part
             of
             the
             Abbacie
             of
             Dumfermling
             ,
             and
             was
             Erected
             into
             a
             Temporal
             Lordship
             ,
             in
             favour
             of
             the
             Lord
             Thirlstoun
             ,
             thereafter
             Chancellour●
             the
             Lord
             Lauderdales
             Grand-father●
             in
             Anno
             1587.
             
             Before
             the
             Act
             of
             Annexation
             ,
             wherein
             the
             Erection
             of
             Musleburgh
             ,
             to
             the
             Lord
             Thirlstoun
             is
             expresly
             excepted
             .
             Thereafter
             in
             Anno
             1592.
             the
             Queen
             was
             Infeft
             by
             the
             King
             ,
             in
             Liferent
             ,
             in
             the
             Abbacie
             of
             Dumfermling
             ,
             with
             the
             consent
             of
             the
             Lord
             Thirlstoun
             ,
             as
             to
             Musleburgh
             ,
             and
             his
             Resign●tion
             ,
             as
             that
             effect
             :
             shortly
             after
             ,
             that
             same
             year
             ,
             the
             King
             gave
             the
             Queen
             an
             Heretable
             ,
             and
             Irredeemable
             Right
             of
             the
             whole
             Abbacie
             of
             Dumfermling
             ,
             which
             was
             Confirmed
             by
             a
             Printed
             Act
             of
             Parliament
             ;
             the
             Queen
             lived
             till
             the
             Year
             1618.
             
             After
             which
             the
             King
             was
             served
             Heir
             to
             his
             Mother
             ,
             in
             the
             Abbacie
             of
             Dumfermling
             ,
             and
             Infeft
             therein
             ,
             being
             then
             Prince
             .
             The
             King
             gave
             an
             Heretable
             ,
             and
             Irredeemable
             Right
             to
             the
             Lord
             Oxenfoords
             Authors
             ,
             of
             the
             Teynds
             of
             Coutsland
             ,
             as
             a
             Part
             of
             the
             Lordship
             of
             Musleburgh
             ,
             in
             Anno
             1641.
             
             And
             shortly
             thereafter
             ,
             His
             Majesty
             did
             renew
             the
             Earl
             of
             Lauderdales
             Infeftment
             ,
             of
             the
             Lordship
             of
             Musleburgh
             ,
             with
             
               a
               novodamus
               ;
               Lauderdale
            
             being
             Forefaulted
             by
             the
             Usurpers
             ,
             Swintoun
             got
             a
             Donative
             of
             the
             Lordship
             of
             Musleburgh
             ,
             and
             amongst
             the
             rest
             ,
             of
             the
             Teyn
             is
             of
             Coutsland
             ;
             and
             did
             raise
             Inhibition
             and
             Reduction
             of
             their
             Rights
             .
             After
             the
             Kings
             Restauration
             ,
             the
             Earl
             of
             Lauderdale
             obtains
             his
             Infeftment
             Confirmed
             in
             Parliament
             ,
             with
             an
             express
             Exception
             therein
             ,
             that
             it
             should
             not
             be
             derogat
             ,
             by
             the
             Act
             
               salvo
               jure
            
             ,
             raises
             Inhibition
             of
             the
             Teynds
             ,
             and
             pursues
             Action
             of
             Spuilzie
             ,
             and
             also
             of
             Reduction
             .
             It
             was
             alleadged
             ,
             for
             the
             Defender
             ,
             absolvitor
             ,
             because
             he
             stands
             Infeft
             in
             the
             Teynds
             lybelled
             by
             Infeftment
             ,
             granted
             by
             the
             King
             ,
             before
             the
             Earl
             of
             Lauderdales
             Infeftment
             pursued
             on
             ,
             and
             by
             vertue
             of
             his
             Infeftment
             ,
             King
             Charles
             the
             first
             ,
             and
             Queen
             Anne
             his
             Authors
             have
             been
             in
             peaceable
             Possession
             ,
             uninterrupted
             ,
             since
             the
             Year
             of
             God
             1593
             And
             therefore
             their
             Right
             is
             accomplished
             ,
             and
             established
             by
             Prescription
             .
             It
             was
             answered
             ,
             for
             the
             Pursuer
             ,
             that
             the
             Defense
             ought
             to
             be
             Repelled
             ,
             because
             ,
             since
             the
             death
             of
             Queen
             Anne
             ,
             who
             died
             in
             Anno
             1618.
             
             Till
             the
             Interruption
             made
             by
             Swintoun
             ,
             by
             Inhibition
             ,
             and
             Reduction
             ,
             in
             Anno
             1656.
             there
             are
             not
             40●
             years
             run
             ;
             and
             till
             the
             Queens
             death
             ,
             the
             Earl
             of
             Lauderdales
             Grand-father
             could
             not
             pursue
             ,
             because
             he
             had
             granted
             Resignation
             in
             her
             favours
             ,
             for
             her
             Liferent
             ,
             
               &
               contra
               non
               valentem
               agere
               non
               currit
               Prescriptio
            
             ;
             So
             Wyves
             Provisions
             in
             their
             Contract
             of
             Marriage
             ,
             Prescribe
             not
             from
             their
             Date
             ,
             but
             from
             the
             time
             of
             their
             Husbands
             death
             ,
             all
             Obligations
             Prescribe
             only
             from
             the
             Term
             of
             payment
             ,
             and
             Infeftments
             ,
             and
             Oblidgements
             of
             Relief
             from
             the
             Distresse
             .
             It
             was
             answered
             ,
             for
             the
             Defender
             ,
             that
             this
             Defense
             stands
             still
             Relevant
             .
             First
             ,
             because
             ,
             as
             to
             any
             interruption
             made
             by
             Swintoun
             ,
             it
             cannot
             be
             profitable
             to
             the
             Pursuer
             ,
             because
             he
             derives
             no
             Right
             from
             Swintoun
             :
             And
             as
             to
             the
             Queens
             Liferent
             Infeftment
             ,
             consented
             to
             by
             Thirlstoun
             ,
             the
             Queen
             never
             accepted
             the
             same
             ,
             but
             an
             Heretable
             Right
             from
             the
             King
             that
             same
             Year
             ,
             by
             which
             Heretable
             Right
             only
             she
             possest
             ,
             and
             did
             all
             Deeds
             of
             Property
             ,
             by
             entring
             of
             Vassalls
             ,
             and
             granting
             of
             Fews
             ,
             which
             a
             Liferenter
             could
             not
             do
             ;
             which
             Heretable
             
             Right
             ,
             Thirlstonn
             could
             not
             misken
             ,
             because
             ,
             by
             a
             special
             Printed
             Act
             of
             Parliament
             ,
             it
             is
             Confirmed
             in
             Parliament
             ,
             and
             past
             the
             great
             Seal
             ,
             himself
             being
             Chancellor
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             the
             Defense
             ,
             and
             Duply
             ought
             to
             be
             Repelled
             ,
             in
             respect
             of
             the
             Reply
             ,
             because
             the
             Confirmation
             of
             the
             Queens
             Heretable
             Right
             in
             Parliament
             was
             
               salvo
               jure
            
             ,
             and
             he
             was
             secured
             by
             the
             Act
             
               salvo
               jure
            
             ,
             in
             the
             same
             Parliament
             ,
             and
             that
             he
             knew
             thereof
             ,
             at
             the
             passing
             of
             the
             great
             Seal
             ,
             is
             but
             a
             weak
             presumption
             ,
             and
             such
             knowledge
             could
             not
             prejudge
             him
             ,
             nor
             was
             he
             in
             any
             capacity
             to
             pursue
             upon
             his
             own
             Right
             ,
             for
             attaining
             possession
             ;
             seing
             the
             Queens
             Liferent
             Right
             ,
             and
             Heretable
             ,
             were
             both
             compatible
             ;
             and
             it
             was
             evident
             ,
             the
             Queen
             would
             exclude
             him
             ,
             by
             his
             Consent
             ,
             in
             the
             Liferent
             Right
             ,
             neither
             can
             the
             Queens
             acceptance
             be
             questioned
             ,
             after
             so
             long
             time
             ;
             seing
             the
             acceptance
             of
             the
             Liferent
             was
             to
             her
             advantage
             and
             profit
             ,
             before
             she
             got
             the
             Fee
             ,
             and
             did
             exclude
             Thirlstouns
             prior
             Right
             ,
             which
             would
             have
             undoubtedly
             reduced
             the
             Queens
             Right
             ;
             and
             was
             excepted
             in
             the
             General
             Act
             of
             Annexation
             ;
             and
             would
             not
             fall
             under
             the
             Act
             
               salvo
               jure
            
             .
             It
             was
             also
             severally
             alleadged
             ,
             that
             this
             Earl
             of
             Lauderdales
             late
             Right
             was
             Confirmed
             in
             Parliament
             1661.
             
             And
             all
             other
             Rights
             declared
             void
             ,
             and
             that
             the
             Ratification
             should
             have
             the
             force
             of
             a
             publick
             Law
             ,
             and
             not
             be
             derogat
             by
             the
             Act
             
               salvo
               jure
            
             .
             It
             was
             answered
             ,
             for
             the
             Defender
             ,
             that
             
               in
               Prescriptione
               longissimi
               temporis
               non
               requiritur
               tempus
               utile
               ,
               sed
               continuum
               ,
            
             In
             consideration
             whereof
             the
             time
             of
             the
             said
             Presciption
             is
             made
             so
             long
             ,
             and
             therefore
             captivity
             absence
             
               reipublicae
               causa
            
             ,
             want
             of
             Jurisdiction
             ,
             or
             the
             like
             are
             not
             respected
             .
             2dly
             ,
             Thirlstone
             
               valebat
               agere
            
             ,
             because
             he
             might
             have
             Reduced
             the
             Queens
             Infeftment
             of
             Fee
             ,
             or
             declared
             his
             own
             Right
             of
             Fee
             to
             be
             effectual
             after
             her
             death
             .
             And
             as
             to
             the
             late
             Act
             of
             Parliament
             ,
             albeit
             it
             does
             exclude
             the
             Act
             
               salvo
               jure
            
             ,
             yet
             that
             is
             
               parte
               inaudita
            
             ;
             and
             upon
             the
             impetration
             of
             a
             Party
             
               suo
               periculo
            
             ,
             but
             the
             Parliament
             have
             never
             assumed
             power
             to
             take
             away
             the
             privat
             Rights
             of
             Subjects
             ,
             except
             upon
             another
             ,
             or
             better
             Right
             ,
             otherwayes
             ,
             no
             man
             in
             Scotland
             can
             call
             any
             thing
             his
             own
             ,
             but
             a
             Confirmation
             in
             Parliament
             ,
             with
             such
             a
             clause
             surreptitiously
             obtained
             ,
             shall
             take
             away
             the
             Unquestionable
             Right
             of
             any
             other
             .
             It
             was
             answered
             ,
             for
             the
             Pursuer
             ,
             that
             the
             Parliament
             had
             not
             incroached
             upon
             the
             just
             Right
             ,
             of
             any
             other
             ,
             but
             had
             only
             restored
             the
             Pursuer
             to
             his
             Grand
             Fathers
             Right
             ;
             and
             seing
             there
             is
             no
             question
             ,
             but
             that
             Right
             was
             prior
             ,
             and
             better
             than
             the
             Queens
             ,
             and
             the
             Defenders
             ,
             and
             was
             in
             no
             hazard
             ,
             but
             as
             to
             the
             point
             of
             Prescription
             ,
             that
             being
             a
             rigorous
             Statute
             ,
             the
             Parliament
             might
             well
             excuse
             the
             Pursuer
             ,
             for
             not
             pursuing
             the
             King
             and
             Queen
             ,
             but
             rather
             patiently
             to
             abide
             their
             pleasure
             ,
             till
             they
             were
             denuded
             ,
             in
             favours
             of
             privat
             Parties
             .
             It
             was
             answered
             ,
             for
             the
             Defender
             ,
             that
             all
             our
             privat
             Rights
             ,
             especially
             of
             Property
             ,
             are
             founded
             upon
             positive
             Law
             ,
             and
             there
             is
             none
             stronger
             then
             the
             Right
             of
             Prescription
             ;
             and
             therefore
             ,
             if
             the
             Parliament
             can
             take
             that
             away
             ,
             as
             to
             one
             Person
             ,
             and
             not
             generally
             ,
             they
             may
             annul
             the
             Right
             of
             any
             privat
             Person
             whatsomever
             .
          
           
             The
             Lords
             were
             unwilling
             to
             decide
             in
             the
             whole
             points
             of
             the
             Debate
             ,
             but
             did
             in
             the
             first
             place
             ,
             consider
             the
             Right
             of
             the
             Parties
             ,
             without
             the
             Act
             of
             Parliament
             ,
             in
             favours
             of
             the
             Queen
             ,
             or
             the
             late
             Act
             ,
             in
             favours
             of
             the
             Earl
             and
             in
             the
             point
             of
             Right
             ,
             they
             repelled
             the
             Defense
             of
             Prescription
             ,
             in
             respect
             of
             the
             Duply
             of
             Swintouns
             interruption
             ,
             which
             they
             found
             to
             accresce
             to
             the
             Pursuer
             
               cujus
               jure
               utebatur
            
             ,
             and
             found
             ,
             that
             before
             the
             Queens
             death
             ,
             the
             Prescription
             
             could
             not
             run
             ,
             in
             respect
             of
             the
             Queens
             Infeftment
             of
             Li●erent
             consented
             to
             by
             Thirlstoun
             ,
             which
             would
             exclude
             him
             from
             any
             Action
             ,
             for
             attaining
             Possession
             ,
             and
             they
             found
             ,
             that
             he
             was
             not
             oblidged
             to
             use
             Declarator
             ,
             or
             Reduction
             ,
             which
             might
             be
             competent
             in
             the
             Cases
             of
             Distress
             ,
             or
             the
             Rights
             of
             Wifes
             ,
             or
             any
             other
             Right
             ,
             which
             yet
             do
             alwayes
             exclude
             Prescription
             ,
             till
             Action
             may
             be
             founded
             thereupon
             ,
             that
             may
             attain
             Possession
             .
          
        
         
           
             Thomas
             Millar
             contra
             Howison
             .
             Iune
             5.
             1666.
             
          
           
             
               THomas
               Millar
            
             ,
             having
             pursued
             the
             Tennents
             of
             one
             Bailie
             his
             Debitor
             ,
             for
             making
             forthcoming
             ,
             their
             Duties
             arrested
             in
             their
             hands
             .
             Compears
             Howison
             ,
             and
             produces
             a
             Disposition
             ,
             and
             Infeftments
             from
             Baillie
             of
             the
             Tenements
             ,
             prior
             to
             the
             Arrestment
             ,
             and
             craves
             to
             be
             preferred
             .
             It
             was
             answered
             for
             Millar
             ,
             that
             Howisons
             Disposition
             was
             null
             ,
             as
             being
             
               in
               fraudem
               Creditorum
            
             against
             the
             Act
             of
             Parliament
             ,
             being
             granted
             after
             the
             contracting
             of
             Millars
             Debt
             ;
             and
             albeit
             ,
             the
             narrative
             of
             the
             Disposition
             bears
             ,
             causes
             onerous
             ,
             yet
             he
             offered
             to
             prove
             ,
             by
             Howisons
             Oath
             ,
             that
             it
             was
             not
             for
             causes
             onerous
             ,
             at
             least
             equivalent
             to
             the
             worth
             of
             the
             Land
             ;
             which
             was
             found
             relevant
             ,
             and
             Howison
             having
             deponed
             ,
             that
             his
             Disposition
             was
             granted
             for
             a
             Sum
             of
             300.
             merks
             addebted
             to
             himself
             ,
             and
             the
             Sum
             of
             1600.
             merks
             adebted
             to
             
               Iohn
               Burd
            
             ,
             for
             which
             he
             was
             Cautioner
             for
             Baillie
             ,
             the
             Disponer
             .
             At
             the
             advysing
             of
             the
             Cause
             .
             It
             was
             alleadged
             ,
             that
             the
             Disposition
             ,
             nor
             the
             Disponers
             Oath
             could
             not
             sufficiently
             instruct
             the
             cause
             onerous
             ;
             seing
             the
             Oath
             did
             not
             bear
             ,
             that
             there
             was
             a
             price
             made
             ,
             but
             only
             that
             there
             was
             no
             Reversion
             ,
             nor
             promise
             of
             Redemption
             granted
             ●
             yet
             the
             Disposition
             was
             truely
             in
             Trust
             ,
             which
             ofttimes
             is
             tacit
             ,
             as
             being
             the
             meaning
             of
             the
             Parties
             ,
             and
             is
             not
             expresse
             by
             Reversion
             ,
             or
             Back-bond
             ;
             so
             that
             if
             Baillie
             ,
             or
             this
             Arrester
             would
             pay
             these
             Sums
             ,
             Howison
             could
             have
             no
             further
             Interest
             .
             It
             was
             answered
             ,
             that
             the
             points
             referred
             to
             Howisons
             Oath
             were
             denyed
             ,
             and
             that
             he
             was
             not
             oblidged
             to
             keep
             the
             Bonds
             ,
             but
             might
             destroy
             them
             ,
             as
             being
             satisfied
             .
          
           
             The
             Lords
             found
             ,
             that
             as
             to
             Howisons
             own
             Bond
             ,
             he
             needed
             not
             instruct
             the
             same
             ,
             but
             as
             to
             Burds
             Bond
             ,
             they
             found
             ,
             that
             he
             ought
             to
             instruct
             it
             ,
             by
             some
             adminicles
             ,
             further
             then
             his
             own
             Oath
             ,
             that
             the
             Debt
             was
             ,
             and
             was
             payed
             by
             him
             ,
             in
             respect
             his
             Oath
             bore
             not
             a
             price
             made
             ,
             and
             that
             he
             was
             Vncle
             to
             Baillie
             the
             Disponer
             .
          
        
         
           
             Mr.
             Alexander
             Nisbit
             contra
             Eodem
             die
             .
          
           
             
               MR.
               Alexander
               Nisbit
            
             ,
             as
             Assigney
             to
             a
             Sum
             ,
             pursues
             the
             Debitor
             for
             payment
             ,
             compears
             the
             Arrester
             ,
             who
             had
             arrested
             it
             in
             the
             Debitors
             hand
             ,
             for
             a
             Debt
             due
             to
             him
             by
             the
             Cedent
             ,
             and
             whereupon
             he
             had
             obtained
             Decreet
             before
             the
             Sheriff
             of
             Berwick
             .
             It
             was
             alleadged
             ,
             for
             the
             Assigney
             ,
             that
             the
             Decreet
             was
             null
             ,
             because
             the
             principal
             Debitor
             was
             
             not
             called
             in
             the
             Decreet
             ,
             for
             making
             forthcoming
             ,
             or
             at
             least
             ,
             at
             that
             time
             ,
             he
             lived
             not
             within
             that
             Jurisdiction
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Arrester
             had
             no
             more
             ,
             but
             his
             naked
             Arrestment
             ,
             he
             might
             compear
             for
             his
             Interest
             ,
             and
             crave
             preference
             to
             the
             Assigney
             ,
             whose
             Intimation
             was
             posterior
             .
             It
             was
             answered
             ,
             he
             could
             not
             be
             pursued
             ,
             
               hoc
               ordine●
            
             because
             he
             ,
             whose
             Money
             was
             arrested
             ,
             was
             not
             yet
             called
             ,
             viz.
             The
             Assigneys
             Cedent
             ,
             who
             is
             the
             Arresters
             principal
             Debitor
             ;
             who
             ,
             if
             he
             were
             called
             ,
             might
             alleadge
             ,
             that
             the
             Debt
             whereupon
             the
             Arrestment
             proceeded
             ,
             was
             satisfied
             ,
             which
             was
             not
             competent
             to
             the
             Assigney
             ,
             being
             
               jus
               tertij
            
             ,
             to
             him
             .
          
           
             The
             Lords
             found
             the
             Arrester
             might
             compear
             in
             this
             Process
             ,
             without
             calling
             his
             Debitor
             ,
             but
             they
             found
             ,
             that
             the
             Assigney
             might
             either
             alleadge
             payment
             in
             name
             of
             his
             Cedent
             ,
             or
             if
             he
             craved
             a
             time
             to
             intimate
             to
             his
             Cedent
             ,
             they
             would
             superceed
             to
             extract
             ,
             till
             that
             time
             ,
             that
             the
             Cedent
             might
             defend
             himself
             .
          
        
         
           
             Earl
             of
             Cassils
             contra
             Sir
             Andrew
             Agnew
             .
             Iune
             6.
             1666.
             
          
           
             THe
             Earl
             of
             Cassils
             ,
             as
             Superior
             of
             some
             Lands
             holden
             of
             him
             ,
             by
             
               Iohn
               Gardener
            
             ,
             obtained
             Declarator
             of
             his
             Liferent
             Escheat
             ,
             and
             that
             a
             Gift
             of
             the
             said
             Liferent
             ,
             granted
             by
             the
             said
             Earl
             ,
             to
             the
             said
             Iohn
             ,
             was
             null
             ,
             in
             so
             far
             as
             it
             contained
             a
             Clause
             irritant
             ;
             that
             if
             
               Iohn
               Gardener
            
             should
             give
             any
             Right
             of
             the
             Lands
             to
             any
             of
             the
             name
             of
             Agnew
             ,
             the
             Gift
             should
             be
             null
             ,
             
               ipso
               facto
            
             ,
             whereupon
             in
             anno
             1650.
             
             The
             Earl
             obtained
             Declarator
             of
             the
             Clause
             irritant
             ,
             by
             
               Iohn
               Gardeners
            
             giving
             Right
             to
             Sir
             
               Andrew
               Agnew
            
             ,
             and
             now
             insists
             for
             the
             Mails
             and
             Duties
             since
             that
             Declarator
             .
             It
             was
             alleadged
             ,
             that
             the
             said
             Earl
             had
             accepted
             the
             Feu
             Dutie
             of
             several
             Years
             ,
             since
             the
             said
             Declarator
             ,
             and
             thereby
             had
             tacitly
             past
             from
             the
             Declarator
             ,
             and
             could
             not
             seek
             both
             the
             Feu-dutie
             ,
             and
             also
             the
             whole
             Mails
             and
             Duties
             by
             the
             Escheat
             .
             It
             was
             answered
             ,
             for
             the
             Earl
             ,
             that
             having
             both
             Rights
             in
             his
             Person
             ,
             he
             might
             poynd
             the
             Ground
             for
             the
             Feu-dutie
             ,
             and
             his
             Donatar
             might
             pursue
             for
             the
             Maills
             and
             Duties
             .
             2dly
             ,
             His
             acceptance
             of
             the
             Feu-dutie
             ,
             albeit
             it
             could
             not
             consist
             with
             the
             Maills
             and
             Duties
             ,
             yet
             it
             would
             only
             extend
             to
             these
             Years
             ,
             that
             the
             Feu-dutie
             was
             accepted
             ,
             and
             to
             no
             others
             .
          
           
             The
             Lords
             found
             the
             acceptance
             of
             the
             Feu
             dutie
             Relevant
             ,
             only
             for
             these
             Years
             ,
             for
             which
             it
             was
             received
             ,
             but
             it
             occurred
             to
             some
             of
             the
             Lords
             ,
             that
             if
             it
             were
             alleadged
             ,
             there
             were
             three
             consecutive
             Discharges
             of
             the
             Feu-dutie
             ,
             that
             these
             ,
             as
             they
             would
             presum
             ,
             all
             bygone
             Feu-dutie
             payed
             ,
             so
             they
             would
             extend
             to
             the
             Maills
             and
             Duties
             ,
             for
             all
             years
             preceeding
             the
             Discharges
             ;
             Therefore
             the
             Defender
             was
             ordained
             to
             condescend
             ,
             if
             so
             many
             Discharges
             were
             ,
             and
             that
             this
             point
             might
             be
             debated
             .
          
        
         
           
             William
             Crawfoord
             contra
             Andrew
             Duncan
             .
             June
             7.
             1666.
             
          
           
             
               WIlliam
               Crawfoord
            
             ,
             as
             Assigney
             to
             a
             Bond
             of
             200.
             merks
             ,
             granted
             by
             
               Andrew
               Duncan
            
             ,
             pursues
             for
             payment
             .
             It
             was
             alleadged
             ,
             absolvitor
             ;
             because
             the
             Bond
             was
             null
             ,
             having
             no
             Date
             at
             all
             ,
             
               &
               data
               est
               de
               substantialibus
            
             .
             
             It
             was
             answered
             ,
             that
             the
             Pursuer
             offered
             him
             to
             prove
             by
             the
             Defenders
             Oath
             ,
             that
             it
             was
             his
             true
             Subscription
             ,
             which
             was
             sufficient
             ,
             and
             the
             Date
             is
             only
             substantial
             ,
             when
             Improbation
             is
             alleadged
             ,
             or
             any
             Right
             that
             might
             take
             away
             the
             Writ
             ,
             if
             it
             were
             of
             such
             a
             Date
             ;
             as
             a
             prior
             Assignation
             ,
             or
             general
             Discharge
             .
          
           
             The
             Lords
             found
             the
             Reply
             Relevant
             ,
             with
             this
             provision
             ,
             that
             the
             Defender
             might
             adject
             ,
             what
             quality
             he
             thought
             fit
             ,
             as
             these
             mentioned
             ,
             or
             that
             it
             was
             done
             in
             Minority
             ,
             or
             not
             delivered
             ,
             &c.
             but
             they
             found
             him
             not
             oblidged
             to
             depone
             simpliciter
             ,
             upon
             the
             verity
             of
             the
             subscription
             ,
             and
             to
             prove
             such
             qualities
             ,
             as
             they
             had
             done
             before
             ,
             in
             a
             Holograph
             Writ
             ,
             wanting
             Date
             the
             last
             Session
             ,
             in
             the
             Process
             betwixt
             the
             Earl
             of
             Kinghorn
             and
             
               Sir
               James
               Murray
            
             .
          
        
         
           
             Elizabeth
             Anderson
             contra
             George
             Cunninghame
             .
             Iune
             9.
             1666.
             
          
           
             THis
             Cause
             betwixt
             
               Elizabeth
               Anderson
            
             ,
             and
             
               George
               Cunninghame
            
             ,
             anent
             a
             Legacie
             lest
             by
             the
             said
             George
             his
             Wife
             ,
             to
             the
             said
             
               Elizabeth
               Anderson
            
             ,
             being
             debated
             the
             7.
             of
             February
             last
             .
             The
             Lords
             then
             found
             ,
             that
             George
             ,
             by
             confirming
             his
             Wifes
             Testament
             ,
             in
             giving
             up
             his
             Debts
             ,
             to
             exhaust
             the
             free
             Gear
             ,
             and
             abate
             the
             Legacie
             ,
             did
             not
             hinder
             himself
             to
             adduce
             further
             Debt
             ,
             for
             a
             further
             abatement
             :
             but
             now
             it
             being
             further
             alleadged
             ,
             that
             immediately
             ,
             before
             the
             Confirmation
             ,
             the
             Bond
             he
             would
             now
             add
             ,
             was
             registrat
             ,
             and
             he
             charged
             therewith
             ,
             he
             could
             not
             be
             ignorant
             thereof
             ,
             at
             the
             time
             of
             the
             Confirmation
             .
          
           
             The
             Lords
             altered
             their
             Interlocutor
             ,
             and
             found
             that
             having
             scienter
             omitted
             that
             Deb●
             ,
             he
             could
             not
             bring
             it
             in
             to
             the
             Legatars
             prejudice
             .
          
           
             This
             was
             stopt
             by
             Bill
             the
             next
             day
             .
          
        
         
           
             Colin
             Hay
             contra
             Magistrates
             of
             Elgin
             .
             Iune
             12.
             1666.
             
          
           
             
               COlin
               Hay
            
             pursues
             the
             Magistrats
             of
             Elgin
             ,
             for
             the
             Debt
             of
             a
             Rebel
             escaping
             out
             of
             the
             Prison
             of
             Elgin
             ,
             whom
             he
             had
             arrested
             there
             .
             It
             was
             alleadged
             ,
             for
             the
             Defenders
             absolvitor
             ,
             because
             the
             Rebel
             was
             not
             incarcerat
             by
             the
             Pursuer
             ,
             upon
             his
             Caption
             ,
             but
             being
             incarcerat
             by
             another
             ,
             was
             only
             arrested
             in
             the
             Tolbooth
             by
             the
             Pursuer
             ,
             and
             all
             that
             is
             produced
             to
             instruct
             the
             same
             ,
             is
             only
             the
             Execution
             of
             a
             Messenger
             ,
             who
             arrested
             the
             Rebel
             .
             It
             was
             answered
             ,
             there
             was
             no
             difference
             ,
             whether
             the
             Rebel
             had
             been
             incarcerat
             upon
             the
             Pursuers
             Caption
             ,
             or
             had
             been
             arrested
             ;
             for
             in
             both
             Cases
             the
             Magistrats
             are
             lyable
             :
             and
             the
             keeper
             of
             the
             Tolbooth
             ought
             to
             have
             a
             Book
             ,
             for
             certifying
             the
             Magistrats
             of
             all
             incarcerations
             ,
             and
             Arrests
             in
             Prison
             ;
             and
             if
             they
             be
             neglective
             therein
             ,
             it
             is
             on
             their
             perills
             ;
             and
             yet
             here
             the
             Messenger
             not
             only
             Arrested
             ,
             but
             the
             
             Executions
             bore
             ,
             that
             he
             intimat
             the
             same
             to
             the
             Provost
             ,
             and
             Baillies
             .
          
           
             Which
             the
             Lords
             found
             sufficient
             ,
             and
             Repelled
             the
             Defense
             ,
             and
             found
             no
             difference
             betwixt
             Incarceration
             ,
             and
             Arresting
             in
             Prison
             .
          
        
         
           
             Sinclar
             of
             Bryme
             Supplicant
             Eodem
             die
             .
          
           
             SInclar
             of
             Bryme
             gave
             in
             a
             Bill
             ,
             bearing
             ,
             that
             he
             had
             obtained
             Suspension
             of
             all
             Execution
             ,
             and
             specially
             of
             Appryzing
             ,
             which
             he
             presented
             at
             the
             time
             of
             the
             Appryzing
             ,
             and
             yet
             the
             Messenger
             ,
             and
             Writer
             went
             on
             ,
             and
             Appryzed
             ;
             and
             therefore
             craved
             ,
             that
             the
             Appryzing
             might
             be
             stopt
             at
             the
             Registers
             ,
             and
             Seals
             .
          
           
             The
             Lords
             refused
             to
             grant
             the
             desire
             of
             the
             Bill
             ,
             without
             there
             had
             been
             a
             Summons
             against
             the
             Appryzer
             past
             the
             Signet
             ;
             but
             would
             not
             upon
             a
             Bill
             cite
             Parties
             out
             of
             the
             Town
             ,
             having
             no
             dependence
             on
             the
             House
             ,
             nor
             annull
             ,
             or
             hinder
             any
             pretended
             Right
             they
             had
             ,
             without
             citing
             of
             them
             ,
             but
             resolved
             to
             take
             in
             consideration
             the
             contempt
             of
             the
             Messenger
             ,
             and
             Writer
             ,
             at
             the
             discussing
             of
             the
             Cause
             .
          
        
         
           
             Sir
             Hendrie
             Hoom
             contra
             Tennents
             of
             Kello
             ,
             and
             Sir
             Alexander
             Hoom.
             Iune
             13.
             1666.
             
          
           
             
               JOhn
               Hoom
            
             Younger
             of
             Kello
             ,
             being
             Forefaulted
             in
             the
             Parliament
             1661.
             
             For
             being
             with
             the
             English
             Armie
             ,
             against
             the
             Kings
             Armie
             ,
             at
             Worchester
             ,
             1651.
             
             Sir
             
               Alexander
               Hoom
            
             obtained
             Gift
             of
             the
             Forefaultry
             ,
             and
             thereupon
             came
             in
             possession
             .
             Sir
             
               Hendrie
               Hoom
            
             having
             Appryzed
             the
             Lands
             of
             Kello
             ,
             from
             the
             said
             
               Iohn
               Hoom
            
             ,
             and
             his
             Father
             
               Alexander
               Hoom
            
             upon
             their
             Bond
             ,
             and
             having
             charged
             the
             Superiout
             ,
             in
             1653.
             to
             Infeft
             him
             ,
             obtained
             Decreet
             of
             Maills
             and
             Duties
             against
             the
             Tennents
             ;
             which
             being
             Suspended
             upon
             double
             Poynding
             ;
             and
             Sir
             Hendrie
             and
             Sir
             Alexander
             competing
             .
             It
             was
             answered
             ,
             for
             
               Sir
               Alexander
            
             ,
             the
             Donatar
             ,
             that
             he
             had
             possest
             three
             years
             ,
             and
             offered
             him
             to
             prove
             ,
             that
             the
             Rebel
             had
             possest
             five
             years
             before
             ;
             therefore
             craved
             the
             benefit
             of
             a
             possessorie
             judgement
             .
             2dly
             ,
             That
             he
             was
             preferable
             in
             poynt
             of
             Right
             ,
             in
             so
             far
             as
             he
             offered
             him
             to
             prove
             ,
             that
             the
             Rebel
             was
             five
             years
             in
             possession
             ,
             before
             the
             Forefaulture
             ,
             which
             gives
             the
             King
             ,
             and
             his
             Donatar
             compleat
             Right
             by
             the
             Act
             of
             Parliament
             .
             It
             was
             answered
             ,
             for
             the
             Creditor
             ,
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             ,
             there
             being
             no
             retour
             upon
             the
             Act
             of
             Parliament
             ,
             finding
             by
             the
             Inquest
             ,
             that
             the
             Rebel
             was
             five
             years
             in
             possession
             ,
             as
             Heretable
             Possessor
             ,
             he
             can
             neither
             have
             the
             benefit
             of
             a
             possessory
             Judgement
             ,
             nor
             stop
             the
             Creditors
             Diligence
             ,
             who
             found
             themselves
             upon
             the
             Appryzing
             against
             the
             Father
             ,
             who
             stood
             publickly
             Infeft
             ,
             and
             there
             is
             no
             sufficient
             Right
             in
             the
             Rebels
             Person
             alleadged
             ,
             nor
             produced
             .
             It
             was
             answered
             ,
             that
             the
             five
             years
             possession
             might
             be
             proven
             by
             Witnesses
             ,
             by
             way
             of
             Exception
             .
             2dly
             ,
             It
             was
             offered
             ,
             to
             be
             proven
             by
             an
             Inquest
             ,
             conform
             to
             the
             Act
             of
             Parliament
             .
          
           
           
             The
             Lords
             found
             no
             benefit
             of
             a
             Possessory
             Iudgement
             competent
             ;
             neither
             would
             they
             sustain
             the
             five
             years
             possession
             by
             way
             of
             Defense
             ;
             but
             decerned
             superceeding
             Extract
             ,
             while
             the
             15.
             of
             July
             ,
             within
             which
             time
             ,
             if
             the
             Donatar
             obtained
             the
             retour
             of
             an
             Inquest
             ,
             he
             should
             be
             heard
             thereupon
             .
          
           
             The
             Donatar
             further
             alleadged
             seperatim
             that
             the
             Rebel
             was
             Infeft
             by
             the
             Father
             ,
             which
             was
             sufficient
             to
             prefer
             him
             without
             an
             Inquest
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             he
             had
             either
             been
             publickly
             Infeft
             ,
             or
             by
             base
             Infeftment
             cled
             with
             possession
             ,
             before
             the
             Superior
             was
             charged
             upon
             the
             Creditors
             Appryzing
             ,
             which
             ,
             being
             equivalent
             to
             a
             publick
             Infeftment
             ,
             is
             preferable
             to
             the
             Rebels
             base
             Infeftment
             .
             It
             was
             answered
             ,
             that
             the
             King
             ,
             or
             his
             Donatar
             needed
             no
             possession
             ,
             nor
             can
             be
             prejudged
             for
             want
             of
             Diligence
             .
          
           
             The
             Lords
             found
             the
             Creditors
             alleadgeance
             relevant
             .
          
        
         
           
             Iack
             contra
             Mowat
             .
             Eodem
             die
             .
          
           
             THE
             Lords
             found
             ,
             that
             Iack
             having
             obtained
             Decreet
             ,
             as
             Assigney
             by
             his
             Father
             ,
             it
             was
             relevant
             for
             the
             Debitor
             ,
             to
             alleadge
             and
             prove
             by
             the
             Assigneys
             Oath
             ,
             that
             the
             Assignation
             was
             without
             a
             cause
             onerous
             ,
             and
             by
             the
             Cedents
             Oath
             ,
             that
             the
             Debt
             was
             payed
             before
             Intimation
             .
          
        
         
           
             Sir
             Henrie
             Hoom
             contra
             Sir
             Alexander
             Hoom.
             Iune
             14.
             1666.
             
          
           
             IN
             the
             Cause
             debated
             yesterday
             ,
             betwixt
             Sir
             
               Henrie
               Hoom
            
             ,
             and
             Sir
             
               Alexander
               Hoom.
            
             It
             was
             further
             alleadged
             ,
             for
             Sir
             
               Alexander
               Hoom
            
             ,
             that
             the
             Rebel
             had
             not
             only
             five
             years
             possession
             ;
             but
             was
             Infeft
             by
             an
             Infeftment
             holden
             of
             his
             Father
             ,
             which
             was
             cled
             with
             Possession
             ,
             before
             the
             Appryzers
             charge
             against
             the
             Superior
             ,
             in
             so
             far
             as
             the
             Infeftment
             bore
             a
             reservation
             of
             the
             Fathers
             Liferent
             ,
             and
             so
             the
             Fathers
             Possession
             was
             the
             Rebells
             Possession
             ,
             and
             was
             sufficient
             to
             validat
             the
             base
             Infeftment
             ;
             seing
             there
             could
             be
             no
             other
             Possession
             attained
             ,
             during
             his
             Fathers
             lifetime
             ;
             or
             at
             least
             ,
             there
             was
             reserved
             to
             the
             Father
             a
             yearly
             Rent
             ,
             and
             the
             Rebel
             gave
             his
             Father
             a
             Warrand
             in
             Writ
             to
             continue
             his
             Possession
             ,
             of
             such
             of
             the
             Lands
             for
             the
             same
             .
          
           
             The
             Lords
             ordained
             the
             Donatar
             to
             condescend
             ,
             whether
             the
             Rebells
             Infeftment
             proceeded
             upon
             his
             Contract
             of
             Marriage
             ;
             
               And
               he
               declaring
               that
               it
               was
               by
               a
               distinct
               Right
               thereafter
               .
            
          
           
             The
             Lords
             found
             the
             Possession
             of
             the
             Father
             not
             relevant
             ,
             it
             being
             betwixt
             Conjunct
             Persons
             ,
             privat
             ,
             and
             suspect
             :
             For
             they
             thought
             ,
             if
             possession
             by
             such
             Reservation
             ,
             betwixt
             Father
             and
             Son
             were
             sufficient
             ,
             the
             Creditors
             would
             hardly
             be
             secure
             .
          
        
         
           
           
             Dumbar
             contra
             Lord
             Duffus
             .
             Eodem
             die
             .
          
           
             THE
             Lord
             Duffus
             having
             obtained
             a
             Decreet
             of
             removing
             ,
             against
             Dumbar
             ,
             his
             Tennent
             ,
             and
             having
             execute
             the
             same
             ,
             by
             Letters
             of
             Possession
             .
             The
             Tennents
             raises
             Suspension
             ,
             and
             Reduction
             of
             the
             Decreet
             ,
             and
             a
             Summons
             of
             Ejection
             ;
             the
             Reason
             of
             Reduction
             was
             ,
             that
             the
             Sheriff
             had
             done
             wrong
             ,
             in
             repelling
             and
             not
             expressing
             in
             the
             Decreet
             a
             relevant
             Defense
             .
             2dly
             ,
             That
             the
             Tennent
             could
             not
             be
             decerned
             to
             remove
             ;
             because
             he
             was
             already
             removed
             irregularly
             ,
             by
             Ejection
             ;
             and
             ought
             not
             to
             be
             put
             to
             defend
             in
             the
             removing
             ,
             till
             he
             were
             repossest
             ,
             
               spoliatus
               ante
               omnia
               est
               restituendus
            
             :
             which
             he
             instructed
             ,
             by
             an
             Instrument
             taken
             in
             the
             hand
             of
             the
             Clerk
             of
             Court
             ;
             and
             where
             it
             was
             replyed
             before
             the
             Sheriff
             ,
             that
             he
             had
             not
             found
             Caution
             ,
             for
             the
             violent
             Profits
             .
             He
             answered
             ,
             that
             he
             needed
             not
             ,
             seing
             the
             Pursuer
             himself
             was
             in
             possession
             ,
             by
             the
             Ejection
             .
             It
             was
             answered
             ,
             that
             the
             Lord
             Duffus
             offered
             him
             to
             prove
             ,
             that
             all
             he
             did
             ,
             was
             to
             put
             in
             some
             Corns
             ,
             and
             Plenishing
             in
             an
             ou●
             house
             ,
             long
             after
             the
             warning
             ,
             of
             the
             Tennent
             that
             had
             taken
             the
             Roum
             ;
             and
             that
             he
             continued
             to
             possesse
             all
             the
             rest
             of
             the
             house
             ,
             and
             the
             whole
             Land
             ,
             by
             his
             Cattel
             ,
             till
             he
             was
             Legally
             removed
             ;
             and
             neither
             the
             Family
             ,
             nor
             Goods
             of
             the
             new
             Tennent
             came
             in
             ,
             till
             then
             .
             It
             was
             answered
             ,
             that
             the
             alleadgeance
             was
             contrair
             to
             the
             Tennents
             Lybel
             of
             Ejection
             ,
             bearing
             ,
             that
             he
             was
             dispossest
             ,
             both
             from
             the
             house
             ,
             and
             Lands
             .
          
           
             The
             Lords
             considering
             ,
             that
             the
             Tennents
             was
             only
             positive
             ,
             in
             Ejection
             from
             the
             House
             ,
             and
             had
             once
             acknowledged
             ,
             that
             he
             was
             not
             Ejected
             from
             the
             Land
             ;
             they
             Asso●lzed
             from
             the
             Reduction
             of
             the
             Decreet
             of
             Removing
             ;
             but
             they
             sustained
             the
             Action
             of
             Ejection
             ,
             and
             Repelled
             the
             Defenses
             ,
             as
             contrair
             to
             the
             Lybell
             ,
             Reserving
             to
             themselves
             the
             modification
             of
             the
             violent
             profits
             ,
             and
             the
             other
             party
             to
             debate
             ,
             whether
             ,
             after
             the
             Decreet
             of
             Removing
             ,
             the
             Tennent
             should
             have
             re-possession
             ,
             or
             only
             the
             profits
             ,
             or
             damnages
             .
          
        
         
           
             George
             Tailzor
             contra
             Iames
             Kniter
             .
             Jun●
             15.
             1666.
             
          
           
             
               GEorge
               Tailzor
            
             ,
             having
             Appryzed
             some
             Lands
             in
             Perth
             ,
             set
             a
             Tack
             of
             a
             part
             of
             it
             to
             
               Iames
               Kniter
            
             ,
             who
             ,
             thereafter
             Appryzed
             the
             same
             .
             Tailzor
             now
             pursues
             a
             Removing
             against
             Kniter
             ,
             who
             alleadged
             ,
             absolvitor
             ,
             because
             he
             had
             Appryzed
             the
             Tenement
             ,
             within
             year
             and
             day
             of
             the
             Pursuer
             ;
             and
             so
             had
             Conjunct
             Right
             with
             him
             .
             It
             was
             answered
             ,
             that
             he
             could
             not
             invert
             his
             Masters
             Possession
             ,
             having
             taken
             Tack
             from
             him
             .
             The
             Defender
             answered
             ,
             it
             was
             no
             inversion
             ,
             seing
             the
             Pursuer
             ,
             by
             Act
             of
             Parliament
             had
             Right
             to
             a
             part
             ,
             but
             not
             to
             the
             whole
             ,
             and
             the
             Defender
             did
             not
             take
             Assignation
             to
             any
             new
             Debt
             ,
             but
             to
             an
             old
             Debt
             ,
             due
             to
             his
             Father
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             he
             offering
             the
             expenses
             of
             the
             Composition
             ,
             and
             Appryzing
             ,
             to
             the
             first
             Appryzer
             ,
             conform
             to
             the
             Act
             of
             Parliament
             .
          
        
         
           
           
             Alexander
             Stevinson
             contra
             Laird
             of
             Hermishills
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Stevinson
            
             ,
             as
             Assigney
             by
             his
             Father
             ,
             pursues
             Hermishills
             for
             payment
             of
             a
             Bond
             ,
             who
             alleadged
             ,
             absolvitor
             ,
             because
             the
             Defender
             ,
             as
             Heir
             to
             his
             Father
             ,
             had
             right
             to
             a
             Bond
             ,
             due
             by
             the
             Pursuers
             Father
             ,
             before
             the
             Assignation
             ;
             after
             which
             the
             Assignation
             was
             a
             Deed
             ,
             
               infraudem
               Creditorum
            
             ;
             and
             so
             null
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             the
             Cedent
             had
             been
             Bankrupt
             ,
             or
             at
             least
             insolvend●
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             Answer
             .
          
           
             The
             Defender
             furder
             alleadged
             Compensation
             upon
             the
             said
             Bond
             ;
             which
             was
             relevant●
             against
             the
             Pursuer
             ,
             both
             as
             Heir
             to
             ,
             and
             as
             Assigney
             by
             his
             Father
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ;
             against
             the
             Pursuer
             ,
             as
             Executor
             ,
             but
             for
             his
             fourth
             part
             ,
             being
             one
             of
             four
             Executors
             .
             2dly
             ,
             The
             Defenders
             Father
             was
             Tutor
             to
             the
             Pursuer
             ;
             
               &
               nondum
               reddidit
               rationes
            
             .
          
           
             The
             Lords
             found
             ,
             that
             Compensation
             being
             equivalent
             to
             a
             discharge
             ,
             taking
             away
             the
             Debt
             
               ipso
               facto
            
             ;
             it
             might
             be
             proponed
             against
             any
             of
             the
             Executors
             ,
             
               in
               solidum
            
             :
             but
             in
             regard
             the
             Tutors
             accompts
             were
             depending
             ,
             the
             Lords
             sisted
             his
             Process
             ,
             till
             he
             Tutors
             Compts
             proceeded
             .
          
        
         
           
             Sir
             Robert
             Sinclar
             contra
             Laird
             of
             Houstoun
             .
             Eodem
             die
             .
          
           
             
               SIr
               Robert
               Sinclar
            
             pursues
             a
             Poynding
             of
             the
             Ground
             ,
             of
             the
             Lands
             of
             Leni
             ,
             upon
             an
             old
             Annualrent
             ,
             of
             20.
             merks
             .
             Constitute
             above
             a
             100.
             years
             agoe
             .
             Houstoun
             alleadged
             absolvitor
             ,
             First
             ,
             Because
             he
             brooked
             these
             Lands
             past
             Prescription
             ,
             peaceably
             ,
             without
             any
             pursuit
             upon
             this
             Annualrent
             .
             2dly
             ,
             Because
             this
             Annualrent
             was
             base
             ,
             and
             never
             yet
             cled
             with
             Possession
             ;
             and
             his
             Infeftment
             was
             publick
             .
             It
             was
             answered
             to
             both
             ,
             that
             the
             Pursuer
             produced
             a
             Decreet
             of
             Poynding
             the
             Ground
             ,
             in
             Anno
             1608.
             
             Since
             which
             ,
             the
             Pursuers
             Minority
             being
             deduced
             ,
             it
             is
             not
             40.
             years
             .
             Likeas
             ,
             there
             is
             produced
             a
             Precept
             of
             Poynding
             ,
             for
             the
             said
             Annualrent
             .
             It
             was
             answered
             ,
             that
             the
             Decreet
             in
             Anno
             1608.
             was
             only
             against
             the
             Tennents
             ,
             and
             Possessors
             ;
             and
             so
             is
             null
             ,
             the
             ●eretor
             not
             being
             called
             .
             It
             was
             answered
             .
             First
             ,
             That
             albeit
             the
             Decreet
             had
             been
             defective
             ,
             for
             not
             calling
             the
             Master
             ,
             yet
             it
             was
             sufficient
             to
             interrupt
             Prescription
             .
             2dly
             ,
             It
             was
             sufficient
             to
             give
             possession
             ,
             and
             to
             validat
             a
             base
             Infeftment
             ,
             by
             a
             civil
             possession
             :
             for
             as
             natural
             possession
             ,
             by
             the
             Tennents
             payment
             would
             have
             been
             sufficient
             ,
             though
             without
             their
             Masters
             knowledge
             ,
             or
             consent
             :
             So
             a
             Decreet
             ,
             yea
             ,
             a
             citation
             against
             them
             ,
             is
             sufficient
             for
             a
             possession
             ,
             as
             being
             equivalent
             to
             a
             natural
             possession
             :
             and
             albeit
             the
             Proprietar
             could
             not
             be
             prejudged
             ,
             as
             to
             the
             constituting
             an
             Annualrent
             ,
             in
             the
             point
             of
             Right
             ,
             not
             being
             called
             :
             yet
             as
             to
             the
             Point
             of
             Possession
             the
             Right
             being
             constitute
             ,
             he
             might
             .
             3dly
             ,
             Albeit
             the
             Heretor
             must
             be
             called
             ,
             when
             his
             Ground
             is
             first
             affected
             with
             an
             Annualrent
             ,
             
               in
               attinenda
               possessione
            
             ,
             yet
             if
             the
             Annualrenter
             be
             in
             possession
             ,
             he
             may
             continue
             the
             same
             ,
             without
             calling
             the
             Master
             ;
             as
             well
             as
             in
             Tyends
             ,
             Thirlage
             .
             &c.
             And
             here
             the
             old
             Precept
             
             of
             Poynding
             was
             evidence
             sufficient
             of
             a
             prior
             Possession
             ,
             
               in
               re
               tam
               antiqua
            
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Decreet
             was
             Possession
             sufficient
             ,
             to
             interrupt
             Prescription
             .
          
        
         
           
             Minister
             of
             contra
             Lord
             Elphinstoun
             .
             Iune
             16.
             1666.
             
          
           
             MInister
             of
             pursues
             the
             Lord
             Elphinstoun
             ,
             for
             the
             Viccarage
             Teinds
             of
             his
             Lands
             in
             his
             Paroch
             .
             It
             was
             alleadged
             ,
             absolvitor
             ,
             because
             he
             brooked
             these
             Lands
             by
             immemorial
             possession
             ,
             without
             paying
             any
             Viccarage
             ,
             and
             so
             had
             prescribed
             Exemption
             ,
             and
             Liberty
             .
             It
             was
             answered
             ,
             that
             the
             Viccarage
             being
             due
             
               de
               jure
               cummuni
            
             ;
             desuetude
             cannot
             take
             them
             away
             ,
             nor
             can
             any
             Prescription
             give
             Right
             to
             them
             ,
             unless
             it
             were
             by
             a
             Title
             ;
             as
             if
             the
             Lands
             had
             been
             Templar
             Lands
             ,
             or
             belonging
             to
             these
             Orders
             ,
             which
             payed
             no
             Teynds
             ,
             but
             were
             exempted
             by
             the
             Cannon
             Law
             ;
             and
             therefore
             ,
             in
             the
             last
             Session
             ,
             it
             was
             found
             in
             the
             Case
             of
             the
             Earl
             of
             Panmoor
             ,
             that
             40.
             
             Years
             did
             not
             prescribe
             the
             Right
             of
             Parsonage
             ,
             except
             for
             the
             Years
             preceeding
             the
             40.
             
             It
             was
             answered
             ,
             that
             there
             was
             a
             great
             difference
             betwixt
             Parsonage
             and
             Viccarage
             ,
             which
             is
             Local
             ,
             and
             Consuetudinary
             ,
             which
             is
             therefore
             only
             found
             due
             ,
             according
             to
             what
             has
             been
             accustomed
             to
             be
             payed
             ;
             so
             that
             the
             Teynd
             of
             Lint
             ,
             Hemp
             ,
             Geess
             ,
             Stags
             ,
             Swine
             ,
             Fruits
             ,
             Fishes
             are
             only
             due
             in
             these
             parts
             ,
             where
             they
             have
             been
             so
             accustomed
             :
             and
             therefore
             ,
             as
             custome
             may
             take
             away
             a
             part
             ,
             so
             it
             may
             extinguish
             the
             whole
             .
          
           
             The
             Lords
             found
             the
             Defender
             could
             be
             no
             furder
             lyable
             ,
             then
             for
             that
             Viccarage
             ,
             which
             was
             commonly
             payed
             throughout
             all
             the
             Kingdom
             .
             viz.
             Stirk
             ,
             Lamb
             ,
             and
             Wool
             ;
             and
             sustained
             not
             the
             same
             for
             Milk
             ,
             or
             any
             other
             particular
             .
          
           
             But
             the
             Defender
             ,
             upon
             the
             twenty
             one
             of
             Iune
             ,
             having
             Supplicat
             to
             be
             further
             heard
             ,
             alleadging
             ,
             that
             it
             was
             a
             common
             Case
             ,
             that
             when
             the
             Lands
             were
             most
             in
             Labourage
             ,
             and
             the
             Viccarage
             small
             ,
             and
             not
             considerable
             ,
             that
             through
             the
             whole
             Country
             Viccarage
             was
             never
             craved
             ,
             time
             out
             of
             minde
             .
          
           
             The
             Lords
             stopped
             Interlocuquutor
             ,
             till
             they
             were
             further
             heard
             .
          
        
         
           
             Thomas
             Begg
             contra
             Patrick
             Nicoll
             .
             Iune
             22.
             1666.
             
          
           
             
               THomas
               Begg
            
             gave
             Commission
             ,
             bearing
             ,
             that
             he
             had
             delivered
             a
             certain
             Sum
             of
             Money
             to
             
               Patrick
               Nicoll
            
             ,
             to
             buy
             Wair
             for
             him
             in
             England
             ;
             whereunto
             there
             is
             subjoyned
             the
             said
             Patrick
             his
             acceptance
             ,
             bearing
             Sea
             hazard
             excepted
             .
             
               Thomas
               Begg
            
             now
             pursues
             for
             the
             Money
             ,
             or
             Wair●
             
               Patrick
               Nicoll
            
             alleadged
             absolvitor
             ;
             because
             he
             offers
             him
             to
             prove
             ,
             that
             shortly
             after
             the
             said
             Commission
             ,
             he
             went
             upon
             the
             Voyage
             ,
             and
             that
             the
             Ship
             was
             taken
             ,
             and
             the
             whole
             Goods
             there
             ,
             wherein
             it
             must
             be
             presumed
             ,
             the
             Pursuers
             Money
             was
             .
             It
             being
             impossible
             for
             the
             Defender
             ,
             to
             prove
             that
             ,
             that
             individual
             Money
             was
             there
             ,
             and
             yet
             he
             is
             willing
             to
             make
             faith
             ,
             that
             it
             was
             there
             .
             
             It
             was
             answered
             ,
             that
             the
             Defender
             had
             Factor-fee
             ,
             and
             should
             have
             transmitted
             the
             Money
             by
             Bill
             ,
             as
             he
             did
             some
             of
             his
             own
             ;
             and
             at
             least
             he
             might
             prove
             ,
             that
             he
             had
             a
             considerable
             Sum
             of
             Money
             in
             the
             Ship.
             
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             and
             Repelled
             the
             Reply
             ,
             and
             that
             the
             Defender
             being
             trusted
             by
             the
             Pursuer
             ,
             he
             could
             not
             refuse
             his
             Oath
             ,
             in
             Supplement
             ,
             that
             his
             very
             Money
             was
             taken
             ;
             seing
             he
             neither
             might
             ,
             nor
             could
             show
             ,
             what
             money
             he
             had
             ,
             when
             he
             entrèd
             to
             his
             voyage
             ,
             unless
             the
             Pursuer
             alleadged
             ,
             that
             he
             gave
             the
             Defender
             allowance
             for
             the
             Exchange
             .
          
        
         
           
             Earl
             of
             Eglingtoun
             contra
             Laird
             of
             Cunninghamhead
             .
             Iune
             23.
             1666.
             
          
           
             THE
             Earl
             of
             Eglingtoun
             ,
             pursues
             the
             Laird
             of
             Cunninghamhead
             for
             the
             Teynds
             of
             Peastoun
             ,
             who
             alleadged
             absolvitor
             ,
             for
             60.
             lib●
             Yearly
             ,
             which
             by
             Decreet
             of
             the
             Plat
             ,
             he
             payed
             to
             the
             Minister
             of
             Irving
             ,
             and
             produces
             the
             Decreet
             .
             It
             was
             alleadged
             ,
             that
             where
             the
             Decreet
             bore
             ,
             out
             of
             the
             Teinds
             ,
             it
             was
             meer
             Error
             of
             the
             Clerk
             ,
             and
             disconform
             to
             the
             ground
             of
             the
             Decreet
             ;
             which
             was
             a
             tripartite
             Contract
             ,
             whereby
             the
             Earl
             of
             Eglingtoun
             agreed
             for
             so
             much
             Victual
             ,
             out
             of
             his
             Teynd
             ,
             beside
             what
             was
             to
             be
             payed
             by
             the
             Town
             of
             Irving
             ,
             and
             Heretors
             ;
             and
             the
             Heretors
             oblidged
             them
             ,
             and
             their
             Heirs
             ,
             and
             Successors
             of
             these
             Lands
             to
             pay
             so
             much
             Money
             ;
             which
             cannot
             be
             understood
             ,
             out
             of
             their
             Teynd
             ;
             they
             being
             oblidged
             ,
             as
             Heretors
             ,
             and
             the
             Teynd
             not
             being
             theirs
             ;
             but
             the
             Earl
             of
             Eglintouns
             ,
             who
             was
             oblidged
             so
             much
             out
             of
             his
             Teynds
             ,
             besides
             these
             oblidgments
             .
             It
             was
             answered
             ,
             that
             this
             being
             ,
             to
             lay
             a
             burden
             of
             Stipend
             upon
             the
             Stock
             ,
             is
             most
             unfavourable
             ,
             and
             the
             meaning
             thereof
             cannot
             be
             inferred
             ,
             unless
             it
             had
             born
             expresly
             ,
             out
             of
             the
             Stock
             ;
             especially
             ,
             seing
             the
             Teynd
             was
             under
             Tack
             ,
             and
             it
             was
             
               ex
               gratia
            
             ,
             for
             them
             to
             pay
             any
             more
             then
             their
             Tack-duty
             ,
             but
             now
             when
             the
             Tacks
             are
             expired
             ,
             the
             Earl
             cannot
             crave
             the
             whole
             Teynd
             ,
             and
             lay
             this
             burden
             upon
             the
             Stock
             .
             2dly
             ,
             The
             Lords
             cannot
             alter
             the
             express
             tenor
             of
             the
             Decreet
             of
             Plat
             ,
             which
             was
             a
             Commission
             of
             Parliament
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             tripartite
             Contract
             ;
             as
             to
             this
             ,
             did
             not
             burden
             the
             Teynds
             ,
             and
             therefore
             ,
             seing
             the
             Plat
             could
             only
             decern
             out
             of
             Teynds
             ,
             they
             found
             that
             by
             this
             Contract
             ,
             the
             Heretors
             behoved
             to
             relieve
             the
             Teynds
             of
             this
             burden
             ,
             out
             of
             their
             Stock
             .
          
        
         
           
             Arbuthnet
             contra
             Mary
             Keith
             .
             Eodem
             die
             .
          
           
             
               Andrew
               Arbuthnet
            
             ,
             having
             gotten
             a
             Gift
             to
             the
             behove
             of
             the
             Viscount
             of
             Arbuthnet
             ,
             of
             the
             Marriage
             of
             the
             Heirs
             of
             
               Iohn
               Keith
            
             of
             P●tten
             ,
             did
             thereupon
             pursue
             the
             two
             Heirs
             Portioners
             ,
             one
             of
             them
             being
             dead
             ,
             he
             insists
             now
             against
             the
             other
             ,
             for
             her
             part
             ,
             who
             alleadged
             no
             Process
             ,
             because
             none
             was
             called
             to
             represent
             the
             other
             ,
             who
             is
             thus
             far
             interessed
             ,
             that
             the
             Probation
             of
             the
             avail
             of
             the
             Marriage
             ,
             against
             the
             one
             will
             prejudge
             the
             other
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             it
             would
             not
             prejudge
             the
             other
             ,
             against
             whom
             new
             Probation
             behoved
             to
             be
             used
             .
          
        
         
           
           
             Patoun
             and
             Mercer
             contra
             Patoun
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Patoun
            
             ,
             as
             Heretor
             of
             the
             Miln
             of
             Mukart
             ,
             pursues
             for
             the
             abstracted
             Multures
             ,
             and
             alleadges
             ,
             that
             the
             Miln
             is
             the
             Miln
             of
             the
             Barony
             ,
             and
             the
             Lands
             a
             part
             of
             the
             Barony
             ,
             and
             that
             they
             being
             in
             immemorial
             Possession
             of
             Intoun
             Multures
             ,
             of
             one
             peck
             of
             the
             Boll
             ;
             and
             that
             above
             thirty
             years
             ago
             ,
             there
             was
             a
             Decreet
             arbitral
             ,
             by
             the
             Marquess
             of
             Argyle
             ,
             Decerning
             these
             Multures
             .
             The
             Defenders
             alleadged
             Absolvitor
             ,
             because
             they
             were
             Infeft
             before
             the
             Pursuers
             Right
             produced
             ,
             
               cum
               molindinis
            
             ;
             and
             as
             to
             the
             Act
             of
             Court
             ,
             the
             whole
             Tennents
             were
             not
             present
             :
             and
             the
             Decreet
             Arbitral
             ,
             it
             is
             under
             Reduction
             .
          
           
             The
             Lords
             sustained
             the
             Pursuers
             Condescendence
             ,
             reserving
             the
             Reduction
             as
             accords
             .
          
        
         
           
             Masson
             contra
             Iune
             27.
             1666.
             
          
           
             MAsson
             pursuing
             a
             Declarator
             of
             Escheat
             .
             It
             was
             answered
             ,
             that
             all
             Parties
             having
             Interest
             were
             not
             Cited
             at
             the
             Mercat
             Cross
             ,
             conform
             to
             the
             Warrand
             of
             the
             Letters
             .
             It
             was
             answered
             ,
             that
             was
             but
             
               stilus
               curiae
            
             ,
             long
             indesuetude
             ,
             and
             it
             is
             enough
             that
             the
             Rebel
             is
             Cited
             ,
             and
             none
             would
             be
             prejudged
             ,
             who
             were
             not
             Cited
             ,
             and
             any
             may
             compear
             that
             pleases
             ,
             for
             their
             Entress
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             Forefault
             the
             amand
             given
             thereupon
             ,
             as
             being
             contrair
             to
             the
             common
             Custom
             .
          
        
         
           
             Laird
             of
             Philorth
             contra
             Lord
             Fraser
             .
             Iune
             28.
             1666.
             
          
           
             THe
             Laird
             of
             Philorth
             pursues
             a
             Declarator
             of
             Property
             ,
             of
             Lands
             lying
             about
             the
             Kirk-yard
             of
             Rathan
             ,
             and
             particularly
             ,
             that
             a
             part
             of
             the
             Land
             within
             the
             Kirk-yard-dyke
             ,
             is
             his
             Property
             ,
             and
             that
             therefore
             the
             Dyke
             ought
             to
             be
             Demolished
             ,
             and
             specially
             the
             Lord
             
             Fraser's
             Arms
             upon
             the
             common
             Entry
             of
             the
             Kirk-yard-dyke
             .
             It
             was
             alleadged
             for
             the
             Defenders
             ;
             first
             ,
             absolvitor
             ,
             because
             the
             Pursuer
             had
             homologat
             the
             Right
             of
             the
             K●rk
             ,
             as
             to
             the
             Kirk-yard-dyke
             ,
             and
             all
             within
             it
             ,
             in
             so
             far
             as
             he
             had
             buried
             the
             Dead
             of
             his
             own
             Family
             in
             the
             bounds
             in
             question
             ;
             and
             likewise
             his
             Tennents
             .
          
           
             The
             Lords
             found
             the
             former
             part
             Relevant
             ;
             but
             not
             the
             latter
             ,
             unless
             he
             had
             been
             present
             at
             his
             Tennents
             Burials
             ,
             or
             otherwise
             had
             consented
             .
          
           
           
             The
             Defenders
             further
             alleadged
             Absolvitor
             ,
             because
             the
             Minister
             ,
             and
             Parochioners
             of
             Rathan
             had
             possest
             the
             Kirk-yard
             ,
             and
             Dyke
             peaceably
             ,
             by
             the
             space
             of
             30
             years
             ,
             which
             is
             sufficient
             ,
             to
             give
             them
             a
             Right
             upon
             this
             Point
             .
          
           
             There
             occurred
             to
             the
             Lords
             these
             Points
             ;
             first
             ,
             Whether
             less
             Possession
             then
             40
             years
             could
             Constitute
             the
             full
             Right
             of
             a
             Kirk-yard
             ?
             2ly
             .
             VVhether
             less
             Possession
             ,
             by
             burying
             of
             the
             Dead
             ,
             could
             take
             away
             anothers
             Property
             ?
             And
             whether
             simply
             ,
             or
             so
             as
             to
             give
             him
             Damnage
             ,
             and
             Interest
             ?
             3ly
             .
             VVhether
             an
             Interruption
             ,
             made
             after
             the
             Building
             of
             this
             Dyke
             ,
             by
             the
             Pursuers
             raising
             Summons
             ,
             shortly
             thereafter
             ,
             could
             operate
             any
             thing
             ?
             if
             the
             Defenders
             had
             bruiked
             ,
             since
             the
             Interruption
             ,
             by
             that
             space
             ,
             that
             would
             have
             been
             sufficient
             to
             Constitute
             a
             full
             Right
             before
             Interruption
             .
          
           
             Many
             were
             of
             the
             opinion
             that
             Kirk-yards
             have
             as
             great
             priviledge
             as
             any
             Kirklands
             ;
             and
             that
             in
             Kirk-lands
             ,
             10.
             years
             Possession
             before
             the
             Reformation
             ,
             or
             30.
             years
             after
             ,
             according
             to
             the
             old
             Act
             of
             Sederunt
             of
             the
             Lords
             ,
             did
             Constitute
             a
             full
             Right
             ;
             as
             well
             as
             the
             long
             Prescription
             in
             other
             Cases
             ;
             and
             likewise
             that
             in
             Ecclesiasticis
             ,
             13.
             years
             Possession
             did
             Constitute
             a
             Right
             ,
             
               decennalis
               &
               triennalis
               possessor
               non
               tenetur
               docere
               de
               titulo
            
             ;
             and
             that
             accordingly
             the
             Lords
             were
             in
             use
             to
             decide
             in
             all
             such
             Rights
             ;
             But
             the
             Point
             to
             be
             decided
             was
             ,
             Whether
             Interruption
             once
             used
             ,
             endured
             for
             40.
             years
             ?
             so
             that
             albeit
             13.
             years
             would
             suffice
             ;
             yet
             the
             Interruption
             long
             before
             these
             13.
             would
             alwyse
             be
             sufficient
             till
             the
             Interruption
             did
             prescrive
             by
             40.
             years
             ;
             wherein
             many
             were
             in
             the
             Negative
             ,
             that
             as
             in
             a
             possessoy
             Judgement
             on
             7.
             years
             ,
             if
             Interruption
             were
             alleadged
             ,
             it
             was
             always
             a
             relevant
             Reply
             ,
             that
             since
             the
             Interruption
             ,
             the
             Defender
             has
             Possest
             7.
             years
             without
             Interruption
             :
             so
             if
             10.
             or
             13.
             years
             be
             sufficient
             to
             the
             Kirk
             ,
             no
             Interruption
             preceeding
             ,
             but
             only
             such
             as
             are
             done
             during
             these
             years
             ,
             can
             be
             sufficient
             ;
             for
             if
             13.
             years
             will
             take
             away
             the
             Solemnest
             Rights
             ,
             and
             Writs
             ;
             much
             more
             may
             it
             a
             Citation
             .
          
           
             Others
             were
             for
             the
             Affirmative
             ,
             on
             this
             ground
             ,
             that
             in
             the
             short
             Prescription
             of
             3.
             years
             ,
             in
             Spuilzies
             ,
             &c.
             
             Interruption
             once
             used
             serves
             for
             40.
             years
             ;
             so
             it
             must
             in
             this
             case
             ;
             for
             he
             that
             once
             Interrupts
             ,
             is
             alwise
             holden
             as
             continuing
             in
             that
             Interruption
             ,
             until
             it
             Prescrive
             ,
             or
             be
             otherwise
             past
             from
             .
             But
             it
             was
             answered
             ,
             that
             it
             did
             Prescrive
             by
             Possessing
             13.
             or
             30.
             years
             
               in
               rebus
               ecclesiae
            
             ,
             Church-men
             seldom
             have
             ,
             or
             keep
             Evidents
             ;
             albeit
             in
             other
             Cases
             ,
             Interruption
             would
             only
             prescrive
             in
             40
             years
             .
          
           
             Yet
             the
             plurality
             found
             ,
             that
             after
             Interruption
             ,
             no
             less
             then
             40.
             years
             Possession
             was
             sufficient
             ,
             but
             reserved
             to
             the
             Lords
             the
             Question
             anent
             the
             ground
             ,
             in
             so
             far
             as
             dead
             were
             buried
             therein
             ,
             after
             Probation
             .
          
        
         
           
             Iohn
             Mcmorlan
             contra
             William
             Melvil
             .
             Eodem
             die
          
           
             
               WIlliam
               Melvil
            
             ,
             and
             one
             Hatter
             an
             Englishman
             ,
             both
             Residing
             in
             England
             ,
             gave
             Bond
             to
             
               Gawin
               Lourie
            
             Residing
             there
             ,
             after
             the
             English
             Form
             ,
             who
             Assigns
             it
             to
             
               Iohn
               Mcmorlan
            
             .
             Melvil
             Suspends
             upon
             this
             Reason
             ,
             that
             he
             had
             made
             payment
             to
             
               Gawin
               Lourie
            
             the
             Cedent
             ,
             which
             he
             offered
             
             to
             prove
             by
             Gawins
             Oath
             ,
             and
             which
             could
             not
             be
             refused
             ,
             because
             he
             offered
             to
             prove
             that
             it
             was
             the
             Custom
             of
             England
             ,
             that
             the
             Cedents
             Oath
             can
             never
             be
             taken
             away
             by
             Assignation
             ,
             as
             it
             is
             in
             Scotland
             ,
             but
             that
             Assignations
             are
             only
             as
             Procuratories
             ,
             and
             that
             payment
             might
             be
             proven
             there
             by
             Witnesses
             ,
             to
             take
             away
             Writ
             .
             It
             was
             answered
             ,
             that
             the
             Law
             of
             Scotland
             must
             regulate
             the
             case
             ,
             because
             the
             Assignation
             is
             according
             to
             the
             Scots
             stile
             ,
             and
             the
             Debitor
             ,
             albeit
             Residing
             in
             England
             ,
             was
             a
             Scots
             man
             ,
             and
             knew
             the
             Custom
             of
             Scotland
             .
          
           
             The
             Lords
             found
             that
             the
             manner
             of
             Probation
             behoved
             to
             be
             Regulate
             according
             to
             the
             Custom
             of
             England
             ,
             and
             so
             ,
             that
             payment
             might
             be
             proven
             by
             witnesses
             ,
             or
             by
             the
             Cedents
             Oath
             ,
             yet
             so
             ,
             as
             the
             Cedent
             could
             not
             be
             holden
             as
             confest
             ,
             but
             the
             Debitor
             or
             Suspender
             behoved
             to
             produce
             him
             ,
             and
             move
             him
             to
             Depone
             :
             Wherein
             the
             Lords
             so
             Declared
             ,
             because
             they
             were
             informed
             ,
             that
             the
             Suspender
             proponed
             the
             Alleadgeance
             ,
             because
             the
             Cedent
             was
             Quaker
             ,
             and
             would
             not
             swear
             at
             all
             .
          
        
         
           
             Duke
             of
             Hamiltoun
             contra
             Duke
             of
             Buckcleugh
             .
             Eodem
             die
             .
          
           
             THe
             Duke
             of
             Hamiltoun
             ,
             as
             Collector
             of
             the
             Taxation
             ,
             having
             Charged
             the
             Duke
             of
             Buckcleugh
             for
             the
             Taxation
             of
             the
             Lordship
             of
             Dalkeith
             .
             He
             Suspended
             upon
             this
             Reason
             ,
             that
             the
             King
             Possest
             these
             Lands
             Himself
             ,
             the
             years
             of
             the
             Taxation
             ,
             and
             so
             cannot
             demand
             them
             from
             the
             Suspender
             ,
             who
             is
             a
             Singular
             Successor
             .
             The
             Charger
             answered
             ,
             that
             he
             had
             the
             Taxation
             from
             the
             King
             for
             a
             Cause
             Onerous
             ,
             viz.
             a
             Debt
             .
          
           
             The
             Lords
             found
             the
             Reason
             of
             Suspension
             Relevant
             .
          
        
         
           
             Dougal
             Mcpherson
             contra
             Sir
             Rory
             Mcclaud
             .
             Iune
             29.
             1666.
             
          
           
             
               DOwgal
               Mcpherson
            
             pursues
             Sir
             
               Rory
               Mcclaud
            
             ,
             for
             payment
             of
             a
             Sum
             ,
             upon
             his
             promise
             ,
             and
             the
             Summons
             bears
             a
             Warrand
             to
             Cite
             him
             at
             the
             Mercat
             Cross
             ,
             nearest
             the
             place
             of
             his
             Residence
             ,
             being
             in
             the
             lsles
             :
             whereupon
             the
             Pursuer
             craved
             him
             to
             be
             holden
             as
             confest
             .
             The
             Defender
             alleadged
             ,
             that
             he
             was
             not
             Personally
             apprehended
             ,
             and
             so
             could
             not
             be
             holden
             as
             consest
             ;
             and
             that
             this
             Citation
             at
             the
             Mercat
             Cross
             was
             
               periculo
               petentis
            
             ,
             and
             not
             to
             be
             Sustained
             in
             the
             time
             of
             Peace
             ,
             when
             there
             was
             no
             Trouble
             in
             the
             Countrey
             .
          
           
             The
             Lords
             found
             ,
             that
             Warrands
             for
             such
             Citations
             ought
             not
             to
             be
             granted
             by
             common
             Bills
             ,
             of
             course
             ,
             but
             only
             by
             the
             Lords
             ,
             upon
             special
             Bills
             
               in
               presentia
            
             ,
             but
             seing
             the
             Defender
             compeared
             ,
             they
             allowed
             his
             Procurator
             a
             long
             time
             to
             produce
             him
             .
          
        
         
           
           
             Ianet
             Kid
             contra
             Dickson
             .
             Eodem
             die
             .
          
           
             
               JAnet
               Kid
            
             pursues
             Reduction
             of
             a
             Disposition
             of
             some
             Tenements
             in
             Forfar
             ,
             made
             by
             her
             Father
             on
             this
             Ground
             ,
             that
             the
             Disposition
             is
             subscribed
             but
             by
             one
             Nottar
             ,
             and
             one
             Witness
             ,
             and
             the
             Charter
             by
             one
             Nottar
             ,
             and
             two
             VVitnesses
             ,
             and
             so
             is
             null
             by
             the
             
               Act
               of
               Parliament
            
             ,
             requiring
             two
             Nottars
             ,
             and
             four
             VVitnesses
             ,
             in
             VVrits
             of
             importance
             .
             It
             was
             answered
             ,
             that
             the
             Tenements
             being
             small
             ,
             the
             price
             of
             one
             exprest
             ,
             being
             200.
             merks
             ,
             and
             the
             other
             300.
             merks
             ,
             the
             foresaids
             two
             VVrits
             were
             sufficient
             ,
             cled
             with
             many
             years
             Possession
             ,
             in
             the
             Defuncts
             time
             .
             who
             never
             challenged
             the
             same
             .
             2ly
             ,
             They
             are
             Established
             by
             the
             Seasine
             given
             
               propriis
               manibus
            
             ,
             conform
             to
             the
             Obligement
             of
             the
             Disposition
             ,
             and
             Charterby
             a
             Town-clerk
             ,
             Registrat
             in
             the
             Town
             Books
             .
          
           
             The
             Lords
             having
             Ordained
             the
             Defenders
             to
             condescend
             ,
             upon
             any
             Adminicles
             they
             had
             ,
             for
             astructing
             the
             verity
             of
             the
             Subscription
             ,
             they
             condescended
             only
             on
             seven
             years
             Possession
             ,
             which
             the
             Lords
             found
             was
             not
             sufficient
             to
             Establish
             the
             Right
             ,
             without
             Reduction
             :
             but
             if
             the
             Defender
             had
             condescended
             on
             40.
             years
             Possession
             ,
             The
             Lords
             Declared
             they
             would
             hear
             them
             Dispute
             ,
             whether
             that
             could
             be
             sufficient
             ,
             or
             not
             .
          
        
         
           
             Chalmers
             contra
             Bassily
             .
             Iune
             30.
             1666.
             
          
           
             MR.
             
               William
               Chalmers
            
             being
             to
             go
             abroad
             ,
             grants
             a
             Factory
             to
             Bassily
             ,
             bearing
             ,
             to
             endure
             untill
             he
             returned
             ,
             and
             after
             Discharged
             the
             same
             in
             VVrit
             ;
             he
             now
             writes
             a
             Letter
             to
             his
             Father
             ,
             bearing
             ,
             That
             he
             would
             do
             any
             thing
             he
             could
             to
             recal
             ,
             and
             reduce
             that
             Factory
             ,
             whereon
             a
             Reduction
             was
             raised
             on
             this
             Reason
             ,
             That
             all
             Factories
             of
             their
             Nature
             are
             Revockable
             at
             the
             pleasure
             of
             the
             Constituent
             ,
             albeit
             they
             contain
             a
             Term
             of
             endurance
             .
             It
             was
             answered
             ,
             that
             this
             Factory
             ,
             containing
             such
             an
             endurance
             ,
             cannot
             be
             Revocked
             till
             the
             Term
             come
             .
             2ly
             .
             Albeit
             Factories
             be
             Revockable
             ,
             yet
             it
             must
             be
             
               re
               integra
            
             ;
             but
             here
             the
             Factor
             hath
             advanced
             considerable
             sums
             of
             Money
             ,
             upon
             consideration
             of
             the
             Factory
             .
          
           
             The
             Lords
             found
             the
             Factory
             Revockable
             ,
             the
             Factor
             being
             always
             refounded
             of
             what
             he
             profitably
             Expended
             upon
             consideration
             thereof
             before
             he
             quite
             Possession
             .
          
        
         
           
             Martin
             Stevinson
             contra
             Dobbie
             .
             Eodem
             die
             .
          
           
             DObby
             being
             Tennent
             to
             
               Iames
               Stevinson
            
             of
             certain
             Lands
             ,
             he
             gets
             an
             Infeftment
             of
             Annualrent
             out
             of
             the
             same
             Lands
             ,
             before
             Whitsonday
             ,
             but
             
             the
             first
             Terms
             payment
             of
             the
             Annualrent
             was
             Martinmas
             thereafter
             ;
             after
             Whitsonday
             and
             before
             
               Martinmas
               ,
               Martin
               Stevenson
            
             apprizes
             the
             Land
             ,
             and
             Charges
             the
             Superiour
             ,
             and
             thereupon
             pursues
             for
             Mails
             and
             Duties
             .
             Dobby
             excepts
             upon
             his
             Infeftment
             of
             Annualrent
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Infeftment
             was
             base
             ,
             and
             before
             it
             was
             ,
             or
             could
             be
             cled
             with
             Possession
             ,
             he
             had
             Charged
             the
             Superiour
             ,
             which
             was
             equivalent
             to
             a
             publick
             Infeftment
             .
             The
             Defender
             answered
             ,
             that
             a
             publick
             Infeftment
             interveening
             ,
             before
             the
             first
             term
             of
             payment
             of
             the
             Annualrent
             ,
             did
             not
             prejudge
             the
             base
             Infeftment
             ,
             which
             could
             not
             be
             presumed
             to
             be
             privat
             ,
             or
             simulat
             for
             want
             of
             Possession
             ,
             till
             the
             Term
             came
             ,
             at
             which
             Possession
             might
             be
             attained
             ,
             or
             pursued
             for
             .
             2ly
             ,
             The
             Defender
             being
             in
             Natural
             Possession
             ,
             from
             the
             very
             Date
             of
             his
             Seasine
             ,
             
               intus
               habet
            
             ,
             and
             he
             may
             retain
             his
             own
             Annualrent
             ,
             which
             begins
             to
             become
             due
             from
             the
             Date
             of
             his
             Seasine
             ,
             
               de
               momento
               in
               momentum
            
             ,
             albeit
             there
             be
             a
             Term
             appointed
             to
             pay
             accumulative
             ,
             so
             that
             as
             the
             getting
             payment
             from
             the
             Possessor
             of
             any
             part
             of
             the
             Annualrent
             ,
             or
             his
             Obligement
             for
             the
             same
             ,
             would
             be
             a
             Possession
             sufficient
             ;
             so
             the
             Defender
             having
             the
             same
             in
             his
             own
             hand
             as
             Possessor
             ,
             it
             is
             equivalent
             .
          
           
             The
             Lords
             found
             this
             Member
             of
             the
             Defense
             Relevant
             ,
             and
             had
             no
             necessity
             to
             decyde
             the
             other
             Point
             ;
             whether
             the
             interveening
             publict
             Infeftment
             ,
             before
             the
             first
             Term
             ,
             would
             exclude
             the
             base
             Infeftment
             ,
             without
             Possession
             ,
             wherein
             they
             thought
             that
             there
             was
             great
             odds
             ,
             if
             the
             Appryzers
             Infeftment
             ,
             or
             Diligence
             had
             been
             before
             Whitsonday
             ,
             in
             respect
             the
             first
             Term
             of
             the
             Annualreni
             ;
             was
             not
             the
             next
             Term
             after
             the
             Seasine
             ,
             and
             so
             if
             it
             might
             pass
             one
             Term
             ,
             by
             the
             same
             Reason
             it
             might
             pass
             ten
             Terms
             ,
             and
             be
             valid
             ;
             because
             in
             neither
             Case
             ,
             could
             Possession
             ,
             or
             Action
             proceed
             thereon
             ,
             and
             therefore
             might
             be
             suspected
             of
             Simulation
             ,
             so
             that
             if
             the
             Appryzers
             Diligence
             had
             been
             before
             Whitsonday
             ,
             the
             Annualrenter
             could
             have
             no
             Right
             to
             that
             Term
             ,
             and
             so
             the
             Appryzer
             would
             attain
             to
             the
             Possession
             ,
             and
             could
             hardly
             be
             excluded
             thereafter
             .
          
        
         
           
             Stevin
             contra
             Boyd
             .
             Eodem
             die
             .
          
           
             STevin
             pursues
             his
             Mother
             as
             his
             Tutrix
             ,
             and
             
               Iohn
               Boyd
            
             as
             Husband
             ,
             and
             Factor
             ,
             for
             an
             Accompt
             of
             his
             Fathers
             means
             :
             In
             which
             Accompt
             these
             Points
             were
             reported
             :
             First
             ,
             There
             was
             some
             old
             unfashionable
             Ware
             in
             the
             Defuncts
             Inventar
             not
             Sold
             ,
             whereof
             the
             Tutrix
             offered
             to
             the
             Pursuer
             his
             two
             third
             parts
             
               in
               specie
            
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Tutrix
             had
             priced
             the
             same
             ,
             and
             behoved
             to
             accept
             them
             at
             that
             price
             ,
             and
             that
             she
             ought
             to
             have
             done
             Diligence
             to
             have
             Sold
             them
             ;
             and
             Executors
             are
             never
             liberat
             but
             upon
             payment
             of
             the
             price
             .
          
           
             The
             Lords
             found
             ,
             that
             albeit
             Executors
             are
             comptable
             to
             Creditors
             always
             for
             the
             price
             ;
             yet
             not
             so
             to
             the
             Children
             ;
             and
             therefore
             if
             it
             was
             visible
             that
             the
             Ware
             was
             old
             ,
             and
             could
             not
             be
             Sold
             ,
             wherein
             the
             Tutrix
             was
             at
             the
             loss
             of
             her
             Third
             ,
             They
             found
             the
             same
             should
             be
             accepted
             ;
             but
             in
             that
             Case
             they
             found
             the
             Tutrix
             lyable
             for
             any
             greater
             price
             she
             got
             ,
             then
             that
             contained
             in
             the
             Testament
             .
             The
             second
             point
             was
             ,
             what
             Diligence
             the
             Tutrix
             should
             be
             lyable
             for
             ,
             whether
             Registrat
             Horning
             were
             sufficient
             ,
             or
             if
             Poinding
             and
             Apprizing
             behoved
             to
             be
             used
             .
          
           
           
             The
             Lords
             found
             ,
             that
             Horning
             would
             not
             be
             sufficient
             in
             all
             Cases
             ,
             but
             according
             to
             ehe
             Condition
             of
             the
             Debitors
             ,
             and
             therefore
             ordained
             the
             Parties
             to
             condescend
             thereon
             .
          
        
         
           
             Fleming
             contra
             Fleming
             .
             Iuly
             3.
             1666.
             
          
           
             DAm
             
               Elizabeth
               Fleming
            
             being
             Executrix
             to
             her
             Husband
             ,
             and
             Tutrix
             to
             her
             Children
             ,
             gave
             out
             the
             sum
             of
             6000.
             merks
             to
             the
             Lord
             Cardross
             ,
             and
             took
             a
             Bond●
             bearing
             the
             same
             payable
             to
             her self
             in
             Liserent
             ,
             and
             to
             Malcolm
             ,
             and
             
               Andrew
               Flemings
            
             ,
             and
             failzing
             the
             one
             by
             Decease
             ,
             to
             the
             other
             ;
             This
             Bond
             by
             a
             former
             Interlocutor
             ,
             was
             found
             not
             to
             be
             altogether
             a
             Donation
             ;
             but
             it
             satisfied
             the
             two
             Bairns
             Portions
             
               pro
               tanto
               .
               Malcolm
            
             being
             now
             dead
             ,
             Andrew
             the
             surviver
             claimed
             the
             sum
             by
             the
             Substitution
             .
             Thereafter
             the
             Children
             as
             Executors
             to
             Malcolm
             ,
             claimed
             the
             same
             ,
             on
             this
             ground
             ,
             that
             this
             sum
             not
             being
             found
             a
             Donation
             ,
             but
             to
             be
             given
             in
             satisfaction
             of
             of
             
             Andro's
             Portion
             ,
             the
             Tutor
             could
             not
             Substitute
             any
             Heir
             to
             Malcolm
             ,
             but
             behoved
             to
             remain
             as
             it
             had
             been
             lent
             ,
             as
             Malcoms
             own
             means
             ,
             in
             which
             case
             it
             would
             belong
             to
             his
             whole
             Brethren
             and
             Sisters
             ,
             and
             not
             to
             Andrew
             only
             .
             Andrew
             all
             eadged
             ,
             that
             he
             being
             Substitute
             by
             his
             Mother
             ,
             who
             had
             now
             Right
             from
             the
             remanent
             Children
             ,
             she
             who
             had
             Constitute
             this
             Substitution
             could
             never
             quarrel
             the
             same
             .
             It
             was
             answered
             for
             the
             Mother
             ,
             that
             she
             did
             not
             quarrel
             the
             Substitution
             ;
             but
             that
             albeit
             the
             Substitution
             took
             place
             ,
             Andrew
             was
             her
             Substitute
             ,
             and
             so
             was
             in
             the
             same
             condition
             as
             Malcolm
             ,
             so
             that
             Malcolms
             half
             behoved
             still
             to
             be
             taken
             away
             by
             Compensation
             ,
             in
             so
             far
             as
             she
             was
             Creditor
             to
             Malcolm
             ,
             as
             if
             Malcolm
             were
             alive
             .
             It
             was
             furder
             alleadged
             for
             Andrew
             ,
             that
             in
             such
             a
             Clause
             as
             this
             ,
             there
             was
             no
             Fiar
             ,
             and
             Heir
             ,
             but
             two
             conditional
             ,
             or
             alternative
             Fiars
             ,
             viz.
             either
             of
             the
             Children
             that
             Survived
             ;
             and
             therefore
             such
             Clauses
             would
             never
             make
             the
             Substitute
             Heir
             to
             represent
             the
             Defunct
             ,
             and
             be
             lyable
             to
             his
             Debts
             .
          
           
             The
             Lords
             found
             ,
             that
             by
             the
             Clause
             of
             Substitution
             ,
             the
             Person
             Substitute
             was
             Heir
             of
             Provision
             ,
             yet
             not
             so
             as
             to
             be
             lyable
             to
             the
             Person
             Substitute
             his
             whole
             Debt
             ;
             but
             
               quoad
               valorem
            
             ,
             of
             what
             the
             Substitute
             had
             obtained
             by
             the
             Substitution
             ;
             And
             therefore
             found
             the
             Sums
             to
             belong
             to
             Andrew
             as
             Heir
             Substitute
             ,
             and
             yet
             with
             the
             Burden
             of
             the
             Compensation
             ,
             in
             the
             same
             Case
             as
             was
             Competent
             against
             Malcolm
             himself
             .
          
           
             By
             which
             Decision
             it
             follows
             ,
             that
             the
             Mothers
             Substitution
             to
             Malcolm
             was
             Effectual
             ,
             for
             which
             there
             is
             no
             reason
             ,
             but
             the
             Error
             was
             in
             the
             first
             Concoction
             ,
             for
             this
             Sum
             should
             have
             been
             found
             a
             pure
             Donation
             by
             the
             Mother
             ,
             not
             only
             in
             respect
             of
             her
             Liferent
             reserved
             ,
             which
             she
             past
             from
             ,
             but
             in
             respect
             of
             the
             Substitution
             ,
             which
             she
             could
             not
             pass
             from
             ,
             being
             
               jus
               tertij
            
             .
          
        
         
           
           
             Earl
             of
             Kinghorn
             contra
             Laird
             of
             Udney
             .
             Eodem
             die
             .
          
           
             THe
             umquhil
             Earl
             of
             Kinghorn
             having
             granted
             a
             Wodset
             to
             the
             umLaird
             of
             Vdney
             ,
             he
             by
             his
             Missive●
             acknowledged
             the
             Sums
             to
             be
             satisfied
             ,
             and
             obliged
             him
             to
             grant
             a
             Renunciation
             ,
             whereupon
             the
             Earl
             of
             Kinghorn
             pursues
             this
             Vdney
             ,
             as
             representing
             his
             Father
             to
             grant
             Renunciation
             ,
             and
             Procuratory
             of
             Resignation
             ;
             and
             condescended
             upon
             the
             passive
             Titles
             thus
             ,
             that
             umquhil
             Vdney
             ,
             after
             the
             Receipt
             of
             the
             Sums
             contained
             in
             the
             Wodset
             ,
             had
             Infeft
             the
             Defender
             in
             the
             Estate
             of
             Vdney
             ,
             reserving
             to
             himself
             a
             power
             to
             alienat
             ,
             and
             Dispone
             ;
             after
             which
             Infeftment
             ,
             this
             Missive
             is
             subscribed
             ,
             acknowledging
             the
             Receipt
             of
             the
             Sums
             of
             before
             ;
             and
             thereupon
             alleadged
             ,
             first
             ,
             That
             the
             Father
             was
             oblieged
             by
             the
             Contract
             of
             Wodset
             ,
             upon
             payment
             of
             the
             Sums
             to
             Renunce
             ,
             and
             Resign
             ,
             in
             prejudice
             of
             which
             Obliegements
             ,
             he
             had
             Disponed
             his
             Estate
             to
             the
             Defender
             ,
             who
             was
             
               alioqui
               successurus
            
             ,
             and
             so
             as
             lucrative
             Successor
             ,
             is
             oblieged
             to
             grant
             the
             Resignation
             .
             2ly
             ,
             The
             Letter
             obliging
             the
             Father
             to
             grant
             Resignation
             ,
             albeit
             it
             be
             after
             the
             Infeftment
             ;
             yet
             seing
             there
             is
             a
             power
             reserved
             to
             the
             Father
             to
             Dispone
             his
             Obligement
             ,
             must
             oblige
             the
             Son.
             It
             was
             answered
             ,
             that
             there
             was
             nothing
             before
             the
             Defenders
             Infeftment
             ,
             to
             instruct
             payment
             ,
             the
             Letter
             being
             after
             ,
             and
             no
             Obligement
             therein
             could
             burden
             him
             thereafter
             ,
             unless
             his
             Father
             had
             Disponed
             ,
             or
             had
             given
             a
             Security
             out
             of
             the
             Estate
             ,
             conform
             to
             the
             Reservation
             .
          
           
             The
             Lords
             found
             this
             passive
             Title
             new
             and
             extraordinary
             ,
             therefore
             moved
             to
             the
             Pursuer
             to
             alter
             this
             Libel
             ,
             and
             Libel
             therein
             a
             Declarator
             of
             Redemption
             ,
             and
             to
             conclude
             the
             same
             ,
             either
             with
             a
             Reduction
             or
             Declarator
             ,
             for
             declaring
             that
             the
             Wodset
             Right
             being
             acknowledged
             by
             the
             Wodsetter
             to
             be
             satisfied
             ,
             might
             be
             declared
             Extinct
             ;
             in
             which
             case
             there
             needed
             no
             Resignation
             ;
             or
             otherwise
             might
             conclude
             the
             Defender
             to
             grant
             Resignation
             ,
             and
             the
             Defender
             thereupon
             Renuncing
             to
             be
             Heir
             ,
             the
             Pursuer
             might
             adjudge
             ,
             and
             thereupon
             be
             Infeft
             :
             But
             others
             ,
             thought
             that
             hardly
             could
             a
             Right
             be
             adjudged
             ,
             which
             was
             satisfied
             and
             extinct
             .
             The
             Lords
             referred
             to
             the
             Pursuers
             choise
             ,
             vvhich
             of
             the
             vvayes
             he
             thought
             fit
             .
          
        
         
           
             Iean
             Cuningham
             contra
             Laird
             of
             Robertland
             .
             Iuly
             4.
             1666.
             
          
           
             
               JEan
               Cuningham
            
             as
             Donatrix
             to
             the
             Escheat
             of
             umquhil
             Sir
             
               David
               Cuningham
            
             of
             Robertland
             ,
             pursued
             general
             Declarator
             against
             his
             Son
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Horning
             was
             null
             ,
             seing
             the
             Charge
             and
             Denunciation
             was
             only
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ,
             whereas
             by
             the
             Act
             of
             Parliament
             ,
             1597.
             c.
             294.
             all
             Hornings
             Execute
             against
             Persons
             within
             the
             Realm
             ,
             dwelling
             within
             Bailleries
             ,
             or
             Stewartries
             ,
             should
             be
             Execute
             at
             the
             head
             Burgh
             thereof
             .
             
               Ita
               est
            
             ,
             umquhil
             Robertland
             ,
             had
             his
             Dwelling-house
             at
             Robertland
             ,
             within
             the
             Baillerie
             of
             Cuningham
             ,
             albeit
             for
             a
             time
             he
             was
             out
             of
             the
             Countrey
             ,
             and
             was
             a
             Prisoner
             of
             War
             for
             the
             King.
             
          
           
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             sustained
             the
             Horning
             ,
             and
             found
             that
             the
             Act
             of
             Parliament
             met
             it
             not
             ;
             seing
             neither
             the
             Person
             Denunced
             was
             within
             the
             Realm
             ,
             nor
             dwelt
             within
             the
             Baillerie
             at
             that
             time
             ;
             but
             had
             remained
             several
             years
             in
             England
             .
          
        
         
           
             Hallyburton
             contra
             Hallyburton
             .
             Eodem
             die
             .
          
           
             HALLYBURTON
             pursues
             a
             Reduction
             of
             an
             Infeftment
             ,
             granted
             by
             by
             his
             Father
             upon
             his
             Death-bed
             ,
             to
             his
             Sisters
             ,
             who
             alleadged
             absolvitor
             ,
             because
             he
             had
             consented
             to
             the
             Disposition
             ,
             in
             so
             far
             as
             he
             had
             Subscribed
             Witness
             thereto
             ,
             and
             if
             need
             beis
             ,
             offered
             to
             prove
             that
             he
             had
             read
             the
             same
             .
             It
             was
             answered
             ,
             non
             relevat
             ,
             because
             the
             Subscribing
             as
             Witness
             ,
             relates
             only
             to
             the
             verity
             of
             the
             Parties
             Subscription
             ,
             and
             nothing
             to
             the
             matter
             therein
             contained
             ,
             so
             that
             whether
             the
             same
             was
             Read
             or
             not
             ,
             it
             can
             import
             no
             Probation
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             reserving
             to
             themselves
             to
             consider
             what
             the
             naked
             Subscription
             without
             the
             Reading
             of
             the
             Writ
             should
             work
             ,
             in
             case
             the
             Reading
             thereof
             were
             not
             proven
             .
          
        
         
           
             Earl
             of
             Hume
             contra
             His
             Wodsetters
             .
             July
             5.
             1666.
             
          
           
             THE
             Earl
             of
             Hume
             pursues
             certain
             Wodsetters
             to
             Compt
             and
             Reckon
             for
             the
             Superplus
             ,
             more
             then
             their
             Annualrents
             ,
             conform
             to
             the
             late
             Act
             between
             Debitor
             and
             Creditor
             ;
             Who
             alleadged
             ,
             first
             ,
             Absolvitor
             ,
             because
             the
             Reversion
             produced
             is
             null
             ,
             not
             being
             Registrat
             conform
             to
             the
             Act
             of
             Parliament
             1555.
             c.
             29.
             
             Ordaining
             all
             Reversions
             to
             be
             Sealed
             ,
             and
             Subscribed
             by
             the
             Parties
             own
             hand
             ,
             or
             a
             Notar
             ,
             which
             shall
             make
             no
             Faith
             ,
             if
             it
             be
             not
             Registrat
             .
             It
             was
             answered
             ,
             that
             that
             Act
             of
             Parliament
             was
             in
             desuetude
             ,
             not
             only
             upon
             the
             Point
             of
             not
             Registration
             ,
             but
             want
             of
             Seasine
             ;
             otherwise
             the
             Act
             of
             Parliament
             1617.
             
             Anent
             the
             Registration
             of
             Seasines
             ,
             had
             dot
             been
             necessar
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             the
             said
             old
             Act
             of
             Parliament
             to
             be
             in
             desuetude
             .
          
           
             One
             of
             the
             Defenders
             further
             alleadged
             ,
             that
             the
             Rights
             of
             these
             Reversions
             are
             prescribed
             ,
             because
             they
             were
             not
             pursued
             within
             the
             13
             years
             appointed
             by
             the
             
               Par.
               1617.
               c.
            
             12.
             
             It
             was
             answered
             ,
             that
             the
             Pursuer
             ,
             or
             his
             Predecessor
             were
             Minors
             ,
             during
             the
             space
             of
             4
             or
             5
             years
             of
             the
             said
             13
             
               &
               prescriptio
               non
               curit
               contra
               minorem
               .
            
             It
             was
             answered
             for
             the
             Defenders
             ,
             that
             in
             this
             part
             of
             the
             Act
             ,
             there
             is
             no
             exception
             of
             Minors
             ;
             albeit
             in
             the
             former
             part
             of
             the
             Act
             ,
             anent
             the
             40
             years
             ,
             Minority
             be
             expresly
             excepted
             .
             
               &
               exceptio
               firmat
               regulam
               in
               casibus
               non
               exceptis
               ,
            
             especially
             seing
             Reversions
             being
             but
             
               pacta
               de
               retro
               vendendo
            
             ,
             and
             so
             Bonds
             were
             prescribed
             by
             the
             old
             Act
             of
             Parliament
             ,
             so
             the
             addition
             of
             13
             years
             was
             
               ex
               mera
               gratia
            
             ,
             and
             ought
             to
             be
             strictly
             interpret
             .
          
           
           
             The
             Lords
             did
             also
             Repel
             this
             Defense
             ,
             and
             found
             that
             the
             13
             years
             run
             not
             against
             Minors
             .
          
           
             It
             was
             further
             alleadged
             for
             one
             of
             the
             Defenders
             ,
             that
             the
             Reversion
             made
             use
             of
             against
             him
             ,
             was
             since
             the
             Act
             of
             Parliament
             1617.
             and
             not
             Registrat
             ,
             and
             so
             could
             not
             operat
             against
             him
             ,
             who
             is
             singular
             Successor
             to
             the
             Granter
             thereof
             .
             The
             Pursuer
             Replyed
             ,
             that
             before
             the
             Defenders
             Right
             ,
             he
             had
             used
             an
             Order
             of
             Redemption
             ,
             and
             had
             Execute
             a
             Summons
             of
             Declarator
             ,
             whereby
             
               res
               fuit
               litigiosa
            
             ;
             and
             no
             Right
             granted
             thereafter
             ,
             can
             prejudge
             the
             Pursuer
             .
          
           
             The
             Lords
             found
             the
             Reply
             Relevant
             to
             elide
             the
             Defense
             .
          
        
         
           
             Laurence
             Scot
             contra
             The
             Heirs
             of
             Line
             of
             Auchinleck
             .
             Eodem
             die
             .
          
           
             
               LAurence
               Scot
            
             pursues
             the
             Daughters
             of
             umquhil
             
               David
               Boswel
            
             of
             Auchinleck
             ,
             and
             the
             Lord
             Cathcart
             ,
             and
             the
             Lairds
             of
             Adamton
             ,
             and
             Sornbeg
             ,
             for
             a
             thousand
             merks
             adebted
             by
             him
             to
             the
             Defunct
             .
             The
             Defenders
             offered
             to
             Renunce
             .
             The
             Pursuer
             Replyed
             ,
             they
             could
             not
             Renunce
             ,
             because
             they
             had
             behaved
             themselves
             as
             Heirs
             ,
             in
             so
             far
             as
             by
             agreement
             betwixt
             them
             ,
             and
             the
             Heir-male
             ,
             they
             had
             Renunced
             their
             Interest
             of
             the
             Heretage
             in
             his
             favours
             ,
             and
             had
             gotten
             sums
             of
             money
             therefore
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             they
             had
             so
             Renunced
             ,
             as
             to
             prejudge
             the
             Creditors
             ,
             or
             to
             Assign
             ,
             Dispone
             ,
             or
             Discharge
             any
             thing
             they
             might
             succeed
             to
             ,
             but
             if
             they
             only
             got
             Sums
             of
             Money
             from
             the
             Heir-male
             ,
             in
             way
             of
             gratuity
             for
             their
             kindliness
             to
             the
             Estate
             ,
             and
             to
             grant
             a
             Renunciation
             voluntarly
             ,
             as
             Law
             would
             compel
             them
             ,
             it
             would
             not
             make
             them
             lyable
             ;
             and
             the
             truth
             is
             ,
             that
             by
             the
             Defuncts
             Contract
             of
             Marriage
             ,
             the
             Estate
             is
             provided
             only
             to
             the
             Heirs-male
             ,
             and
             only
             10000
             merks
             to
             the
             Daughters
             :
             Likeas
             ,
             the
             Defunct
             Disponed
             the
             Estate
             to
             his
             Brothers
             Son
             ,
             who
             adjudged
             both
             upon
             the
             Clause
             of
             the
             Contract
             ,
             and
             Disposition
             ,
             and
             the
             Defenders
             Renunced
             to
             him
             ;
             as
             a
             Creditor
             ,
             in
             common
             form
             .
          
           
             The
             Lords
             found
             that
             the
             geting
             of
             Sums
             of
             Money
             ,
             for
             such
             a
             Renunciation
             ,
             by
             which
             the
             Creditors
             were
             not
             prejudged
             ,
             did
             not
             infer
             behaving
             as
             Heir
             .
          
        
         
           
             Collin
             Hay
             contra
             Magistrats
             of
             Elgin
             .
             Eodem
             die
             .
          
           
             
               COllin
               Hay
            
             insists
             in
             his
             pursuit
             against
             the
             Magistrats
             of
             Elgin
             ,
             for
             payment
             of
             a
             Debt
             due
             to
             him
             by
             a
             Debitor
             ,
             who
             escaped
             out
             of
             their
             Prison
             .
             It
             was
             alleadged
             by
             the
             Defenders
             ,
             that
             the
             Prisoner
             escapt
             vimajori
             ,
             without
             their
             fault
             ,
             in
             so
             far
             as
             on
             a
             Sabbath
             ,
             when
             the
             People
             were
             all
             at
             Preaching
             ,
             the
             Officer
             Keeper
             of
             the
             Prison
             opening
             the
             Door
             ,
             a
             Woman
             did
             cast
             a
             Plaid
             over
             the
             Officers
             head
             ,
             and
             pull'd
             him
             at
             unawars
             to
             the
             ground
             ,
             in
             the
             mean
             time
             the
             Rebel
             escap't
             ,
             whom
             the
             Officer
             followed
             ,
             and
             was
             wounded
             by
             several
             persons
             ,
             whom
             he
             had
             lying
             darn't
             in
             the
             Town
             ,
             to
             assist
             him
             .
          
           
           
             The
             Lords
             found
             the
             Condescendence
             not
             Relevant
             ,
             and
             that
             the
             Magistrats
             should
             have
             had
             their
             Tolbooth
             better
             Secured
             ,
             then
             the
             same
             could
             be
             forc'd
             by
             one
             Woman
             ;
             for
             there
             was
             no
             other
             alleadged
             present
             ,
             before
             the
             Prisoner
             got
             out
             ,
             neither
             was
             it
             a
             competent
             time
             to
             open
             the
             Tolbooth
             upon
             the
             Sabbath
             ,
             when
             the
             People
             could
             not
             concur
             in
             case
             of
             Force
             .
          
        
         
           
             Parson
             of
             Morum
             .
             contra
             Laird
             of
             Beirford
             and
             Beinstoun
             .
             Iuly
             6.
             1666.
             
          
           
             THe
             Parson
             of
             Morum
             pursues
             Reduction
             of
             a
             Tack
             set
             by
             the
             former
             Parson
             to
             Beirford
             and
             Beinstoun
             ,
             as
             being
             granted
             without
             consent
             of
             the
             Patron
             .
             The
             Defenders
             alleadged
             absolvitor
             ,
             because
             the
             Tacks
             were
             set
             by
             the
             Parson
             ,
             who
             had
             Commission
             from
             the
             Earl
             of
             Buckcleugh
             ,
             Patron
             to
             Set
             Tacks
             .
             2ly
             ,
             The
             Tacks
             were
             Set
             with
             consent
             of
             
               Francis
               Steuart
            
             ,
             Lord
             Bothwel
             expresly
             ,
             as
             Patron
             ,
             which
             
               Francis
               Steuart
            
             had
             Right
             to
             the
             ,
             Patronage
             ,
             in
             so
             far
             as
             this
             Patronage
             ,
             with
             the
             rest
             of
             the
             Estate
             of
             Bathwel
             ,
             being
             Forefault
             ,
             the
             Earls
             of
             Buckcleugh
             ,
             and
             ,
             Roxburgh
             got
             Gifts
             thereof
             ,
             but
             by
             the
             Kings
             Decreet
             Arbitral
             ,
             betwixt
             
               Francis
               Steuart
            
             and
             them
             ,
             Buckcleugh
             was
             ordained
             to
             denude
             himself
             of
             this
             Patronage
             ,
             and
             others
             in
             favours
             of
             this
             Francis.
             The
             Pursuer
             answered
             ,
             first
             ,
             That
             no
             Commission
             granted
             by
             the
             Patron
             to
             the
             Parson
             himself
             ,
             could
             be
             sufficient
             ,
             because
             the
             intent
             of
             the
             Act
             of
             Parliament
             ,
             requiring
             the
             consent
             of
             Patrons
             ,
             was
             not
             for
             any
             advantage
             ,
             or
             Interest
             of
             the
             Patron
             ,
             to
             his
             own
             behove
             ,
             but
             to
             the
             behove
             of
             the
             Benefice
             ,
             that
             the
             Incumbent
             might
             meliorat
             the
             same
             ;
             and
             so
             the
             Patron
             was
             by
             his
             Right
             of
             Patronage
             ,
             as
             Curator
             Ecclesiae
             ;
             but
             Curators
             cannot
             authorize
             their
             Minors
             by
             Commission
             ,
             at
             least
             the
             Patron
             cannot
             give
             commission
             to
             the
             Beneficed
             Parson
             himself
             ,
             no
             more
             then
             he
             could
             Renunce
             the
             benefit
             of
             the
             Act
             of
             Parliament
             ,
             and
             leave
             the
             Parson
             to
             himself
             .
             2.
             
             Before
             the
             Tack
             was
             Set
             ,
             the
             Earl
             of
             Buckcleugh
             ,
             Granter
             of
             the
             Commission
             was
             dead
             ,
             
               &
               morte
               mandatoris
               perimitur
               mandatum
            
             .
             As
             for
             
               Francis
               Steuarts
            
             consent
             ,
             he
             was
             not
             Patron
             ,
             not
             being
             Infeft
             ;
             but
             the
             Kings
             Decreet
             Arbitral
             ,
             imported
             only
             a
             Personal
             obligement
             for
             Buckcleugh
             to
             denude
             ;
             so
             that
             if
             Buckcleugh
             thereafter
             should
             have
             consented
             to
             another
             Tack
             ,
             that
             would
             have
             been
             preferred
             .
          
           
             The
             Lords
             found
             that
             Member
             of
             the
             Alleadgence
             ,
             of
             Buckcleughs
             ,
             being
             dead
             before
             the
             Tack
             ,
             not
             Relevant
             ,
             to
             annul
             the
             same
             ,
             as
             depending
             on
             his
             Commission
             ;
             but
             decided
             not
             the
             first
             Point
             ,
             whether
             Commission
             could
             be
             granted
             by
             the
             Patron
             ,
             to
             the
             Parson
             himself
             ;
             but
             found
             the
             last
             Member
             Relevant
             ,
             to
             defend
             the
             Tack
             ;
             for
             the
             Right
             of
             Patronage
             ,
             being
             
               jus
               incorporale
            
             ,
             might
             be
             Transmitted
             by
             Disposition
             ,
             without
             Infeftment
             ,
             and
             albeit
             Buckcleugh
             was
             not
             formerly
             denuded
             ,
             even
             by
             Disposition
             ,
             so
             that
             if
             he
             had
             consented
             to
             another
             Right
             ,
             that
             ,
             as
             more
             formal
             ,
             would
             have
             been
             preferred
             ,
             yet
             ,
             there
             being
             no
             competition
             ,
             the
             Parson
             cannot
             quarrel
             the
             want
             of
             the
             Patrons
             consent
             upon
             that
             ground
             .
          
        
         
           
           
             Isobel
             Tosh
             contra
             David
             Crookshank
             .
             Eodem
             die
             .
          
           
             
               ISobel
               Tosh
            
             pursuing
             Reduction
             of
             a
             Decreet
             ,
             pronunced
             
               in
               foro
               contradictorio
            
             ,
             and
             in
             presentia
             ,
             on
             this
             ground
             ,
             that
             it
             was
             Extracted
             by
             the
             Clerks
             unwarrantably
             ,
             contrair
             to
             what
             was
             done
             by
             the
             Lords
             ,
             which
             they
             offered
             to
             prove
             by
             the
             Oaths
             of
             the
             Advocats
             on
             the
             other
             side
             .
             It
             was
             answered
             ,
             this
             were
             a
             ground
             to
             Reduce
             all
             the
             Lords
             Decreets
             ,
             
               in
               foro
            
             .
          
           
             Yet
             the
             Lords
             sustained
             the
             reason
             to
             be
             proven
             ,
             as
             said
             is
             .
          
        
         
           
             Corbet
             contra
             Sterling
             .
             Eodem
             die
             .
          
           
             COrbet
             of
             Concorse
             pursues
             a
             Spuilzie
             of
             certain
             Goods
             out
             of
             his
             House
             at
             Glasgow
             ,
             against
             
               William
               Stirling
            
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             he
             had
             lawfully
             poinded
             them
             from
             his
             Debitor
             ,
             in
             whose
             Possession
             they
             were
             .
             The
             Pursuer
             answered
             ,
             that
             he
             offered
             him
             to
             prove
             ,
             that
             he
             had
             Disposition
             of
             these
             Goods
             from
             that
             Partie
             ,
             from
             whom
             the
             Defender
             alleadged
             to
             have
             poinded
             them
             ,
             and
             an
             Instrument
             of
             Possession
             thereupon
             ;
             and
             that
             he
             had
             payed
             Mail
             for
             the
             House
             where
             they
             were
             several
             years
             ,
             and
             still
             when
             he
             came
             to
             Glasgow
             he
             did
             Reside
             in
             the
             House
             ,
             and
             made
             use
             of
             the
             Goods
             .
             The
             Defender
             answered
             ,
             that
             his
             Defense
             did
             yet
             stand
             Relevant
             ,
             because
             the
             Condescendence
             makes
             it
             appear
             ,
             that
             the
             Pursuers
             Right
             was
             from
             the
             Defenders
             Debitor
             ,
             and
             any
             Possession
             he
             alleadges
             might
             be
             simulat
             ;
             and
             the
             Defender
             in
             Fortification
             of
             his
             Legal
             Execution
             ,
             offered
             him
             to
             prove
             ,
             that
             his
             Debitor
             remained
             in
             the
             natural
             Possession
             of
             the
             House
             ,
             and
             made
             use
             of
             the
             Goods
             ,
             as
             his
             own
             Goods
             ,
             and
             so
             was
             in
             natural
             Possession
             thereof
             ,
             whereby
             he
             might
             lawfully
             poynd
             from
             him
             .
             The
             Pursuer
             Repeated
             his
             Reply
             ;
             and
             further
             alleadged
             ,
             that
             one
             of
             the
             Baillies
             of
             Glasgow
             alleadged
             that
             they
             were
             his
             Goods
             ,
             at
             the
             time
             of
             the
             poinding
             ,
             and
             offered
             his
             Oath
             .
             The
             Defender
             answered
             ,
             that
             that
             Baillie
             was
             neither
             the
             Pursuers
             Servant
             ,
             neither
             had
             Commission
             .
          
           
             The
             Lords
             found
             the
             Defense
             for
             the
             Poynder
             Relevant
             ,
             and
             more
             pregnant
             then
             the
             condescenders
             alleadgence
             ,
             and
             Repelled
             that
             Member
             of
             the
             Duply
             ,
             anent
             the
             Baillies
             offering
             of
             his
             Oath
             .
          
        
         
           
             Cranstoun
             contra
             Wilkison
             .
             Iuly
             10.
             1666.
             
          
           
             IN
             a
             Pursuit
             betwixt
             Cranstoun
             and
             Wilkison
             ;
             The
             Defender
             being
             conveened
             as
             Heir
             to
             his
             Father
             ,
             who
             was
             Vitious
             Intrometter
             with
             the
             Pursuers
             Debitors
             Goods
             and
             Geir
             .
          
           
           
             The
             Lords
             having
             of
             their
             own
             proper
             motion
             ,
             taken
             this
             passive
             Title
             to
             Consideration
             ,
             as
             to
             this
             Point
             ,
             whether
             Vitious
             Intromission
             ,
             as
             it
             is
             an
             universal
             passive
             Title
             ,
             died
             with
             the
             Intromettor
             ,
             or
             if
             it
             might
             be
             pursued
             against
             his
             Representatives
             ,
             they
             ordained
             the
             Parties
             to
             be
             heard
             thereupon
             .
             which
             being
             Reported
             this
             day
             ,
             The
             Lords
             found
             ,
             that
             no
             person●
             as
             representing
             a
             Defunct
             ,
             could
             be
             lyable
             universaliter
             ,
             upon
             that
             Defuncts
             Vitious
             Intromission
             ,
             but
             only
             for
             the
             true
             value
             of
             his
             Intromission
             ,
             and
             that
             either
             by
             Action
             or
             Exception
             ;
             upon
             this
             Consideration
             ,
             that
             albeit
             ●uch
             Titles
             have
             been
             oft
             times
             Libelled
             ,
             and
             sometimes
             Sentence
             thereupon
             ,
             when
             none
             opposed
             ;
             yet
             there
             had
             never
             been
             a
             Decision
             ,
             nor
             Interlocutor
             for
             it
             ;
             and
             that
             the
             passive
             Title
             being
             poenal
             ,
             
               sapiens
               naturam
               delicti
               ,
               non
               transit
               in
               haeredes
               delinquentis
               in
               quantum
               penale
            
             ;
             for
             they
             thought
             it
             were
             of
             dangerous
             consequence
             ,
             if
             Persons
             might
             be
             lyable
             ,
             not
             only
             to
             their
             immediat
             Predecessor
             ,
             but
             to
             their
             Goodsire
             ,
             Grandsire
             ,
             or
             Fore-grandsires
             ,
             vitious
             Intromission
             ;
             but
             if
             the
             vitious
             Intromission
             had
             been
             Established
             against
             the
             Defunct
             ,
             in
             his
             own
             time
             ,
             it
             would
             be
             sufficient
             against
             all
             his
             Successors
             :
             Otherways
             after
             his
             death
             ,
             they
             could
             not
             be
             put
             to
             purge
             the
             Vitiosity
             .
             or
             to
             shew
             the
             manner
             ,
             or
             the
             Warrand
             of
             his
             Possession
             .
             But
             it
             was
             not
             determined
             ,
             if
             Action
             had
             been
             intented
             against
             the
             Defunct
             ,
             and
             he
             dyed
             before
             Sentence
             ,
             whether
             his
             Heir
             would
             be
             lyable
             ,
             there
             being
             different
             Cases
             as
             to
             that
             Point
             ,
             which
             required
             different
             Considerations●
             as
             if
             the
             Defunct
             dyed
             after
             Probation
             ,
             or
             if
             after
             Litiscontestation
             ,
             when
             at
             least
             the
             particulars
             were
             condescended
             on
             ,
             and
             the
             Defunct
             compearing
             ,
             alleadged
             nothing
             to
             purge
             :
             or
             if
             the
             Pursuit
             were
             
               de
               recenti
            
             ,
             and
             not
             long
             delayed
             ,
             but
             the
             Defunct
             dyed
             ,
             the
             Pursuer
             doing
             all
             Diligence
             ;
             or
             if
             Diligence
             were
             not
             used
             ,
             but
             the
             matter
             lay
             over
             ;
             in
             which
             case
             ,
             it
             seems
             litle
             respect
             could
             be
             had
             to
             the
             intenting
             the
             Action
             only
             ;
             and
             it
             would
             be
             as
             litle
             questionable
             ,
             that
             if
             Probation
             were
             led
             ,
             the
             Defunct
             compearing
             ,
             it
             would
             be
             as
             valid
             against
             him
             ,
             as
             if
             Sentence
             were
             obtained
             ,
             the
             midle
             Cases
             are
             more
             dark
             :
             But
             none
             of
             them
             were
             comprehended
             in
             this
             Decision
             .
          
        
         
           
             Iames
             Thomson
             contra
             Binnie
             .
             Eodem
             die
             .
          
           
             THere
             being
             a
             Decreet
             obtained
             against
             Binnie
             ,
             his
             Creditors
             finding
             him
             at
             Linlithgow
             ,
             secured
             him
             ,
             and
             he
             found
             two
             Burgesses
             Caution
             as
             Law
             will
             ,
             who
             being
             conveened
             for
             payment
             of
             the
             Debt
             ,
             alleadged
             absolvitor
             ,
             because
             they
             were
             only
             in
             common
             Form
             Obliged
             as
             Cautioners
             as
             Law
             will
             ,
             which
             doth
             not
             import
             
               judicio
               sisti
               ,
               &
               judicatum
               solvi
               ,
            
             but
             
               judicio
               sisti
               ,
               aut
               judicatum
               solvi
               .
               Ita
               est
               ,
            
             They
             sisted
             the
             Party
             for
             whom
             they
             were
             Cautioners
             ,
             and
             put
             him
             in
             the
             Provosts
             hands
             ,
             who
             put
             him
             in
             Ward
             ,
             and
             Protested
             to
             be
             free
             conform
             to
             an
             Instrument
             produced
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             because
             they
             only
             sisted
             him
             judici
             ,
             but
             not
             judicio
             ;
             they
             ought
             to
             have
             presented
             him
             in
             the
             Court
             ,
             when
             that
             Cause
             was
             called
             ;
             and
             the
             Pursuer
             was
             not
             obliged
             to
             know
             ,
             or
             take
             notice
             what
             they
             did
             otherways
             ,
             which
             might
             be
             by
             way
             of
             Collusion
             .
          
           
           
             The
             Lords
             found
             the
             alleadgence
             Relevant
             ,
             for
             there
             was
             no
             Collusion
             condescended
             on
             ,
             providing
             the
             Defenders
             prove
             by
             the
             Witnesses
             ,
             insert
             i●
             the
             Instrument
             ,
             that
             it
             was
             so
             Acted
             :
             For
             they
             thought
             ,
             that
             if
             the
             Cautioners
             put
             the
             Debitor
             in
             Ward
             ,
             at
             any
             time
             during
             the
             Process
             ,
             the
             Pursuer
             was
             not
             prejudged
             ;
             For
             if
             he
             insisted
             in
             his
             Process
             ,
             and
             upon
             not
             presenting
             of
             the
             Defender
             Protested
             ,
             the
             Cautioners
             would
             either
             then
             alleadge
             that
             he
             was
             in
             Prison
             ,
             or
             otherwayes
             it
             would
             import
             Collusion
             .
          
        
         
           
             Mr.
             Iohn
             Hay
             contra
             Sir
             Iames
             Dowglas
             .
             Eodem
             die
             .
          
           
             MR.
             
               Iohn
               Hay
            
             of
             Haistoun
             ,
             and
             Sir
             
               Iames
               Dowglas
            
             having
             both
             Rights
             of
             Appryzing
             of
             the
             Estate
             of
             Smithfield
             ,
             did
             agree
             ,
             that
             Sir
             Iames
             should
             have
             three
             parts
             ,
             and
             Mr.
             Iohn
             one
             ,
             and
             did
             obtain
             a
             Decreet
             at
             both
             their
             Instances
             for
             removing
             a
             Tennent
             ,
             from
             some
             Aikers
             ;
             but
             Sir
             Iames
             Laboured
             and
             did
             Sow
             the
             whole
             ;
             Mr.
             Iohn
             did
             thereafter
             Sow
             as
             much
             Corn
             upon
             the
             Sown
             Land
             ,
             as
             would
             have
             sown
             his
             quarter
             ,
             and
             now
             pursues
             an
             Intrusion
             against
             Sir
             Iames
             ,
             who
             alleadged
             absolvitor
             ,
             because
             Mr.
             Iohn
             was
             never
             in
             natural
             possession
             ,
             and
             offered
             to
             give
             the
             4.
             part
             of
             the
             Rent
             the
             Aikers
             payed
             before
             .
             The
             Pursuer
             answered
             ,
             that
             the
             removing
             of
             the
             natural
             Possessor
             was
             equivalent
             ,
             as
             if
             Mr.
             Iohn
             had
             been
             in
             natural
             Possession
             of
             his
             Quarter
             ;
             and
             therefore
             the
             offering
             to
             him
             the
             Rent
             was
             not
             sufficient
             ,
             yet
             he
             was
             willing
             to
             accept
             the
             Rent
             for
             this
             year
             ,
             so
             as
             Sir
             Iames
             would
             devide
             for
             time
             coming
             .
          
           
             The
             Lords
             found
             that
             in
             this
             Process
             they
             could
             not
             compel
             Sir
             Iames
             to
             devide
             ,
             but
             sustained
             the
             Process
             ,
             
               ad
               hunc
               effectum
            
             ,
             that
             Mr.
             Iohn
             should
             have
             the
             4.
             part
             of
             the
             Cropt
             ,
             paying
             Sir
             Iames
             the
             Expences
             of
             Labourage
             .
          
        
         
           
             Dam
             Margaret
             Hume
             contra
             Crawford
             of
             Kerse
             .
             Eodim
             die
             .
          
           
             
               DAM
               Margaret
               Hume
            
             having
             charged
             the
             Laird
             of
             Kerse
             ,
             who
             was
             Cautioner
             for
             the
             Earl
             of
             Lowdoun
             ,
             for
             her
             Liferent
             ,
             that
             she
             had
             out
             of
             the
             Estate
             of
             Lowdoun
             .
             He
             Suspends
             ,
             and
             alleadges
             that
             the
             Charger
             ought
             to
             assign
             him
             ,
             seing
             the
             Bond
             wants
             a
             Clause
             of
             Relief
             ,
             whereby
             he
             will
             have
             difficulty
             to
             have
             Relief
             of
             the
             other
             Cautioners
             bound
             .
          
           
           
             The
             Lords
             found
             that
             they
             could
             not
             compel
             the
             Charger
             to
             assign
             ,
             but
             in
             so
             far
             as
             of
             her
             own
             consent
             she
             would
             .
          
        
         
           
             Canna
             contra
             Eodem
             die
             .
          
           
             THere
             was
             a
             Disposition
             of
             some
             Tenements
             in
             Dumbar
             ,
             containing
             this
             provision
             ,
             that
             the
             Buyer
             should
             pay
             such
             a
             sum
             of
             Money●
             to
             a
             Creditor
             of
             the
             Sellers
             ,
             under
             the
             pain
             ,
             and
             penalty
             ,
             that
             the
             said
             Disposition
             should
             be
             null
             .
             Infeftment
             followed
             upon
             the
             Disposition
             ,
             and
             the
             Land
             is
             now
             Transmitted
             to
             singular
             Successors
             ,
             who
             pursuing
             for
             Mails
             and
             Duties
             .
             It
             was
             alleadged
             for
             the
             Creditor
             by
             the
             Reservation
             ,
             that
             this
             Reservation
             being
             a
             real
             Provision
             ,
             the
             Creditor
             must
             be
             preferred
             to
             the
             Mails
             and
             Duties
             ,
             ay
             and
             while
             the
             Sum
             be
             payed
             .
             It
             was
             answered
             ,
             first
             ,
             That
             this
             provision
             was
             neither
             in
             the
             Charter
             ,
             nor
             Seasine
             ,
             and
             any
             Provision
             in
             the
             Disposition
             ,
             could
             only
             be
             Personal
             ,
             and
             could
             not
             affect
             the
             Ground
             ,
             nor
             singular
             Successors
             ;
             seing
             no
             Inhibition
             ,
             nor
             other
             Diligence
             was
             used
             on
             it
             before
             their
             Right
             .
             2ly
             .
             Albeit
             it
             had
             been
             a
             Provision
             in
             the
             Investiture
             ;
             yet
             it
             could
             have
             no
             Effect
             against
             the
             Ground
             ;
             which
             can●not
             be
             affected
             but
             by
             an
             Infeftment
             ,
             and
             upon
             a
             Provision
             ,
             neither
             Action
             ,
             nor
             Poynding
             of
             Annualrents
             ,
             nor
             Mails
             and
             Duties
             could
             proceed
             .
             It
             was
             answered
             ,
             that
             real
             Provisions
             must
             necessarly
             affect
             the
             Ground
             ,
             and
             there
             can
             none
             be
             more
             real
             than
             this
             ,
             not
             only
             being
             a
             condition
             of
             the
             Disposition
             ;
             but
             also
             containing
             a
             Clause
             Irritant
             .
          
           
             The
             Lords
             having
             first
             ordained
             the
             Infeftment
             to
             be
             produced
             ,
             and
             finding
             that
             the
             Seasine
             proceeded
             upon
             the
             Precept
             in
             the
             Disposition
             ,
             without
             Charter
             ,
             being
             within
             burgh
             ,
             the
             Lords
             found
             that
             the
             Provision
             could
             give
             no
             present
             access
             to
             the
             Mails
             and
             Duties
             ,
             until
             the
             Clause
             Irritant
             were
             declared
             ;
             or
             that
             it
             were
             declared
             ,
             that
             they
             should
             have
             like
             Execution
             ,
             by
             vertue
             thereof
             ,
             against
             the
             Lands
             ,
             as
             if
             it
             were
             in
             the
             hands
             of
             the
             first
             Buyer
             ,
             which
             the
             Lords
             thought
             would
             operat
             ,
             but
             had
             not
             the
             occasion
             here
             to
             decide
             it
             .
          
        
         
           
             Iohn
             Scot
             contra
             Sir
             Robert
             Montgomery
             .
             Iuly
             12.
             1666.
             
          
           
             
               JOHN
               Scot
            
             pursues
             Sir
             
               Robert
               Montgomery
            
             ,
             as
             vitious
             Intrometter
             with
             the
             Goods
             and
             Gear
             of
             Sir
             
               Iames
               Scot
            
             of
             Rossie
             ,
             to
             pay
             a
             Debt
             due
             by
             Sir
             Iames
             to
             the
             Pursuer
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             ,
             any
             Goods
             he
             Intrometted
             with
             ,
             were
             Disponed
             to
             him
             ,
             for
             Onerous
             Causes
             ,
             by
             the
             Defunct
             ,
             and
             delivered
             conform
             to
             an
             Instrument
             of
             Possession
             produced
             .
          
           
           
             It
             was
             answered
             ,
             that
             the
             Disposition
             bears
             ,
             Horse
             ,
             Neat
             ,
             Insight
             ,
             Plenishing
             ,
             and
             all
             other
             Goods
             and
             Gear
             ,
             which
             cannot
             be
             extended
             to
             any
             thing
             of
             another
             kind
             ,
             nor
             of
             greater
             value
             ,
             as
             current
             Money
             ,
             Jewels
             ,
             Silver-plate
             ,
             Chains
             ,
             &c.
             which
             never
             past
             by
             such
             general
             Clauses
             ,
             unless
             it
             be
             specially
             Disponed
             .
             It
             was
             answered
             ,
             that
             albeit
             there
             had
             been
             such
             Moveables
             ,
             and
             the
             Defender
             had
             Intrometted
             therewith
             ,
             though
             another
             having
             a
             better
             Right
             ,
             might
             Evict
             the
             same
             ;
             yet
             the
             Defender
             had
             a
             probable
             Ground
             to
             Intromet
             ,
             which
             is
             sufficient
             to
             purge
             this
             Odious
             passive
             Title
             .
          
           
             The
             Lords
             found
             the
             Disposition
             and
             Delivery
             Relevant
             ,
             to
             purge
             the
             Vitiosity
             .
          
        
         
           
             Normand
             Livingstoun
             contra
             Lady
             Glenagies
             .
             Iuly
             13.
             1666.
             
          
           
             
               NOrmand
               Livingstoun
            
             having
             appryzed
             the
             Lands
             of
             Glenagies
             ,
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             ,
             wherein
             the
             Lady
             compeared
             ,
             aud
             alleadged
             ,
             that
             she
             ought
             to
             be
             preferred
             ,
             because
             she
             is
             Infeft
             in
             a
             Liferent
             in
             the
             Lands
             by
             her
             Contract
             of
             Marriage
             .
             It
             was
             Replyed
             ,
             that
             the
             Lady
             and
             her
             Husband
             ,
             for
             all
             Right
             that
             either
             of
             them
             had
             ,
             had
             given
             a
             Right
             to
             their
             Cautioners
             to
             uplist
             the
             Mails
             and
             Duties
             of
             the
             Lands
             in
             question
             ,
             for
             payment
             of
             Debts
             ,
             and
             this
             Debt
             particularly
             ,
             whereon
             this
             Appryzer
             proceeds
             ;
             with
             power
             also
             ,
             to
             the
             Cautioners
             ,
             to
             Dispone
             any
             part
             of
             the
             Lands
             for
             payment
             of
             the
             Debts
             ;
             which
             the
             Lady
             Ratified
             Judicially
             ,
             and
             which
             now
             Excludes
             her
             from
             hindring
             any
             of
             these
             Creditors
             to
             get
             payment
             .
             It
             was
             answered
             for
             the
             Lady
             ;
             first
             ,
             That
             this
             Right
             was
             but
             a
             Factory
             ,
             or
             Commission
             ,
             and
             so
             Expyred
             by
             the
             Lairds
             Death
             .
             2ly
             ,
             It
             was
             only
             in
             favours
             of
             the
             Cautioners
             ,
             for
             their
             Relief
             ;
             but
             the
             Creditors
             had
             no
             Interest
             to
             alleadge
             thereupon
             .
             3ly
             ,
             The
             Cautioners
             were
             never
             Distrest
             ;
             and
             it
             was
             a
             mistake
             ;
             being
             to
             them
             as
             Creditors
             in
             the
             Sum
             ;
             not
             being
             so
             in
             effect
             .
          
           
             The
             Lords
             having
             considered
             the
             Commission
             ,
             and
             that
             it
             buir
             not
             only
             the
             Lady
             to
             consent
             ,
             but
             for
             all
             her
             Right
             ,
             to
             grant
             Commission
             ,
             and
             that
             ,
             not
             only
             it
             was
             in
             favours
             of
             the
             Cautioners
             ,
             in
             case
             of
             Distress
             ;
             but
             also
             in
             favours
             of
             the
             Creditors
             :
             bearing
             ,
             to
             be
             for
             payment
             of
             the
             Creditors
             :
             Therefore
             they
             found
             the
             same
             Relevant
             against
             the
             Lady
             ;
             to
             exclude
             her
             Infeftment
             ,
             ay
             and
             while
             the
             Debts
             were
             payed
             .
             But
             this
             occurred
             to
             the
             Lords
             ,
             that
             if
             the
             Lady
             could
             condescend
             ,
             that
             by
             the
             Creditors
             ,
             or
             Cautioners
             fault
             ,
             in
             not
             making
             use
             of
             this
             Commission
             ,
             the
             Laird
             was
             suffered
             to
             continue
             in
             Possession
             ,
             so
             that
             if
             they
             had
             used
             Diligence
             ,
             the
             Debts
             would
             have
             been
             payed
             ,
             in
             whole
             ,
             or
             in
             part
             ,
             and
             the
             Ladies
             Liferent
             disburdened
             ,
             
               pro
               tanto
            
             ;
             they
             would
             find
             the
             same
             Relevant
             .
          
        
         
           
           
             Patrick
             Keith
             contra
             Laird
             Lesmore
             ,
             Troup
             and
             others
             .
             Iuly
             14.
             1666.
             
          
           
             
               PATRICK
               Keith
            
             having
             Right
             of
             Wodset
             ,
             granted
             by
             the
             Earl
             of
             Marischal
             ,
             pursues
             a
             Reduction
             against
             the
             Laird
             of
             Lesmore
             ,
             of
             a
             posterior
             Right
             ,
             granted
             by
             the
             Earl
             to
             him
             ;
             Which
             Right
             was
             Disponed
             to
             Muiresk
             ,
             who
             was
             Infeft
             ,
             and
             Dispon'd
             to
             Troup
             ,
             who
             is
             present
             Heretor
             ;
             who
             being
             all
             Called
             ,
             and
             Litiscontestation
             made
             ,
             and
             the
             Cause
             concluded
             ;
             at
             the
             Advising
             thereof
             ,
             it
             was
             alleadged
             for
             Troup
             ,
             that
             Muiresk
             was
             dead
             ,
             and
             there
             could
             be
             no
             advising
             of
             the
             Cause
             ,
             till
             some
             Representing
             him
             were
             Called
             ;
             for
             as
             
               in
               initio
            
             ,
             there
             could
             be
             no
             Process
             against
             Troup
             ,
             the
             present
             Heretor
             ,
             till
             Muiresk
             his
             Author
             were
             Called
             :
             So
             neither
             can
             there
             be
             any
             procedor
             now
             ,
             till
             some
             Representing
             him
             be
             Called
             .
             It
             was
             answered
             ,
             the
             Pursuer
             declares
             that
             he
             Insists
             against
             Lesmores
             Right
             principaliter
             ;
             against
             which
             only
             the
             Reasons
             are
             Sustained
             ;
             and
             as
             for
             Muiresk
             ,
             and
             Troups
             Rights
             ,
             they
             will
             fall
             in
             ,
             consequentiam●
          
           
             The
             Lords
             found
             that
             the
             Process
             behoved
             to
             be
             Transferred
             against
             Muiresks
             appearand
             Heir
             ,
             before
             it
             could
             be
             advised
             :
             For
             as
             the
             declaring
             that
             the
             Pursuer
             Insisted
             principaliter
             against
             the
             first
             Right
             ,
             would
             not
             have
             been
             Relevant
             
               ab
               initio
            
             ;
             seing
             the
             Law
             allows
             all
             mediat
             Authors
             to
             be
             Called
             ,
             that
             they
             may
             defend
             the
             Right
             ,
             whether
             and
             Reasons
             be
             Libelled
             against
             their
             Rights
             ,
             or
             their
             Authors
             ;
             which
             comes
             in
             the
             place
             of
             the
             old
             Custom
             ,
             of
             sisting
             Process
             until
             the
             Defenders
             Warrand
             were
             Called
             ,
             and
             Discust
             :
             So
             every
             Author
             has
             alike
             Interest
             ,
             to
             Object
             against
             the
             Reasons
             .
             although
             Libelled
             principaliter
             ,
             against
             the
             first
             Authors
             Right
             .
          
           
             But
             the
             Lords
             declared
             ,
             that
             ,
             seing
             the
             Defender
             made
             this
             unnecessar
             delay
             ,
             they
             would
             be
             more
             favourable
             in
             drawing
             back
             the
             Reduction
             ,
             
               ad
               litem
               motam
               ,
               aut
               contestatam
               .
            
          
        
         
           
             Sharp
             contra
             Glen
             .
             Eodem
             die
             .
          
           
             IN
             a
             Competition
             betwixt
             two
             Compryzers
             ;
             It
             was
             alleadged
             ,
             that
             the
             Pursuer
             ,
             who
             Insisted
             for
             the
             Mails
             and
             Duties
             ,
             his
             Appryzing
             was
             extinct
             ,
             by
             Intromission
             within
             the
             Legal
             ;
             Which
             was
             offered
             to
             be
             proven
             by
             his
             Pursuers
             Author
             ,
             his
             Oath
             .
             It
             was
             answered
             ,
             that
             his
             Authors
             Oath
             could
             not
             be
             Received
             against
             a
             Singular
             Successor
             ,
             standing
             now
             Infeft
             ;
             for
             as
             the
             Cedents
             Oath
             is
             not
             Receivable
             against
             the
             Assigney
             in
             personal
             Rights
             ;
             much
             less
             is
             the
             Authors
             Oath
             against
             the
             singular
             Successor
             in
             real
             Rights
             .
          
           
           
             It
             was
             answered
             ,
             that
             before
             this
             Pursuers
             Right
             ,
             
               res
               fuit
               litigiosa
            
             ,
             in
             so
             far
             ,
             as
             the
             Pursuers
             Author
             having
             before
             pursued
             Mails
             and
             Duties
             ,
             in
             that
             Process
             ,
             the
             Defender
             offered
             to
             prove
             by
             his
             Oath
             ,
             that
             the
             Appryzing
             was
             satisfyed
             ,
             whereupon
             litiscontestation
             was
             made
             ,
             whereby
             
               res
               fuit
               litigiosa
            
             ,
             and
             no
             posterior
             Right
             could
             prejudge
             the
             Defender
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             ordained
             the
             Authors
             Oath
             to
             be
             taken
             .
          
        
         
           
             Fountain
             and
             Brown
             contra
             Maxuell
             of
             Nethergate
             .
             Eodem
             die
             .
          
           
             BRown
             ,
             as
             Heir
             to
             Mr.
             
               Richard
               Brown
            
             ,
             who
             was
             Heir
             to
             
               Thomas
               Brown
            
             pursued
             for
             exhibition
             .
             and
             delivery
             of
             a
             Wodset
             Right
             ,
             granted
             in
             favours
             of
             Thomas
             ;
             Wherein
             the
             Lords
             having
             sustained
             Witnesses
             to
             be
             admitted
             to
             prove
             ,
             not
             only
             the
             having
             of
             the
             Writs
             ,
             since
             the
             intenting
             of
             the
             Cause
             ,
             but
             the
             having
             them
             before
             ,
             and
             the
             fraudful
             putting
             them
             away
             ,
             which
             ordinarly
             is
             only
             probable
             by
             Writ
             ,
             or
             Oath
             ;
             unless
             evidences
             of
             Fraud
             be
             condescended
             on
             ,
             in
             respect
             the
             matter
             was
             ancient
             ,
             and
             the
             Pursuer
             had
             long
             lived
             in
             England
             ,
             now
             at
             the
             advising
             of
             the
             Cause
             ;
             severall
             of
             the
             Witnesses
             were
             found
             to
             Depone
             ,
             that
             the
             Defender
             ,
             before
             the
             intenting
             of
             the
             Cause
             ,
             not
             only
             had
             such
             a
             Wodset
             Right
             ;
             but
             was
             dealing
             to
             get
             the
             same
             conveyed
             in
             his
             own
             Person
             ,
             which
             importing
             Fraud
             .
          
           
             The
             Lords
             would
             not
             absolutely
             decern
             him
             to
             exhibite
             ,
             but
             found
             that
             he
             behoved
             ,
             
               docere
               quomodo
               desijt
               possedere
            
             ,
             or
             otherwayes
             produce
             ,
             and
             therefore
             ordained
             him
             to
             compear
             ,
             that
             he
             might
             be
             interrogat
             ,
             and
             condescend
             upon
             the
             particular
             Writs
             .
          
        
         
           
             Thomas
             Ogilvy
             contra
             Lord
             Gray
             .
             Iuly
             17.
             1666.
             
          
           
             
               THomas
               Ogilvie
            
             pursues
             the
             Lord
             Gray
             ,
             as
             behaving
             himself
             as
             Heir
             to
             his
             Father
             ,
             by
             Intromission
             with
             the
             Mails
             and
             Duties
             ,
             of
             the
             Lands
             wherein
             his
             Father
             dyed
             Infeft
             :
             as
             of
             Fee
             ;
             for
             payment
             of
             a
             Debt
             of
             his
             Fathers
             ;
             who
             alleadged
             absolvitor
             ,
             because
             any
             Intromission
             he
             had
             ,
             was
             by
             a
             Warrand
             ,
             and
             tollerance
             of
             Sir
             
               George
               Kinnaird
            
             ,
             who
             stood
             Infeft
             in
             the
             Lands
             ,
             upon
             a
             Gift
             of
             Recognition
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             the
             Gift
             had
             been
             Declared
             ,
             before
             the
             Defenders
             Intromission
             ;
             because
             the
             Gift
             would
             not
             have
             given
             Right
             to
             the
             Donatar
             himself
             ,
             to
             possess
             .
             The
             Defender
             answered
             ,
             that
             the
             Gift
             was
             Declared
             before
             the
             Intention
             of
             the
             Pursuers
             cause
             ,
             which
             Declarator
             ,
             albeit
             after
             Intromission
             ,
             yet
             must
             be
             drawn
             back
             to
             the
             Gift
             ,
             to
             purge
             the
             vitiosity
             of
             the
             Defenders
             Intromission
             ,
             in
             the
             same
             way
             ,
             that
             the
             Confirmation
             of
             a
             Testament
             will
             purge
             anterior
             vitious
             intromission
             ,
             the
             Confirmation
             being
             before
             the
             intenting
             of
             the
             Cause
             .
          
           
           
             The
             Lords
             found
             the
             Defense
             relevant
             ,
             to
             elid
             the
             passive
             Title
             ,
             seing
             any
             colourable
             .
             Title
             is
             sufficient
             ,
             to
             excuse
             the
             vitiosity
             :
             but
             did
             not
             find
             ,
             that
             the
             Declarator
             ,
             before
             intenting
             the
             Cause
             ,
             had
             the
             same
             Effect
             ,
             as
             a
             Confirmation
             ;
             because
             by
             constant
             Customs
             ,
             such
             confirmations
             ,
             purge
             the
             preceeding
             vitiosity
             ;
             which
             has
             never
             yet
             been
             found
             in
             this
             Case
             of
             an
             Heirs
             intromission
             with
             the
             Rents
             of
             Lands
             :
             but
             the
             Lords
             found
             the
             Defender
             lyable
             for
             the
             single
             value
             of
             his
             Intromission
             .
          
        
         
           
             Alexander
             Burnet
             contra
             Iohnstouns
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Iohnstoun
            
             ,
             having
             disponed
             the
             Lands
             of
             Fraster-hill
             ,
             to
             Gordoun
             of
             Lesmore
             ,
             whose
             Right
             
               Alexander
               Burnet
            
             having
             appryzed
             ,
             and
             by
             the
             appryzing
             ,
             having
             Right
             to
             the
             Clause
             of
             Warrandice
             contained
             in
             the
             Disposition
             ;
             charges
             Iohnstoun
             the
             Disponer
             ,
             to
             warrand
             the
             Right
             against
             a
             posterior
             Right
             ,
             granted
             by
             him
             ,
             to
             
               William
               Iohnstoun
            
             ,
             who
             had
             obtained
             first
             Infeftment
             .
             It
             was
             answered
             ,
             that
             the
             Warrandice
             could
             have
             no
             effect
             ,
             because
             there
             neither
             was
             ,
             nor
             could
             be
             a
             distress
             ,
             in
             so
             far
             ,
             as
             in
             
               William
               Iohnstouns
            
             Disposition
             ,
             
               Iohn
               Iohnstouns
            
             ,
             and
             his
             Wifes
             Liferent
             were
             reserved
             ,
             during
             whose
             life
             he
             could
             never
             distresse
             
               Burnet
               .
               2ly
            
             .
             It
             was
             Burnets
             authors
             fault
             ,
             that
             for
             many
             years
             ,
             he
             did
             not
             take
             Infeftment
             ,
             having
             long
             Right
             before
             the
             second
             Disposition
             .
             It
             was
             answered
             ,
             that
             Iohnstoun
             himself
             could
             never
             object
             this
             delay
             ,
             to
             excuse
             his
             fraudulent
             Deed
             ,
             of
             granting
             double
             Dispositions
             ,
             whereby
             Parties
             become
             infamous
             by
             the
             Act
             of
             Parliament
             ,
             1540.
             cap.
             105.
             and
             unto
             the
             other
             point
             ,
             albeit
             there
             was
             no
             present
             distress
             ,
             yet
             there
             was
             unquestionable
             ground
             of
             a
             future
             distress
             ,
             against
             which
             the
             Defender
             could
             answer
             nothing
             ,
             that
             could
             elid
             it
             ,
             and
             who
             being
             but
             a
             naked
             Liferenter
             ,
             if
             no
             execution
             should
             pass
             upon
             the
             Clause
             of
             Warrandice
             during
             his
             Lifetime
             ,
             he
             would
             be
             fully
             frustrat
             .
          
           
             The
             Lords
             decerned
             Johnstoun
             the
             Disponer
             ,
             to
             purge
             the
             posterior
             Disposition
             ,
             granted
             by
             him
             ,
             and
             found
             neither
             of
             the
             alleadgeances
             ,
             in
             the
             contrair
             relevant
             .
          
        
         
           
             Brown
             and
             Duff
             contra
             Bizet
             .
             July
             18.
             1666.
             
          
           
             BRown
             ,
             and
             Duff
             ,
             having
             obtained
             Decreet
             against
             Bizet
             ,
             for
             a
             Sum
             due
             to
             Umquhil
             
               Andrew
               Duff
            
             Merchant
             in
             
               Polland
               ,
               Bizet
            
             raises
             Suspension
             ,
             and
             Reduction
             ,
             upon
             this
             Reason
             ,
             that
             this
             Sum
             having
             been
             
               in
               bonis
               defuncti
            
             ,
             the
             Charger
             could
             have
             no
             Right
             thereto
             ,
             till
             it
             were
             established
             in
             their
             Persons
             ,
             by
             a
             Confirmation
             in
             Scotland
             ,
             by
             the
             Commissaries
             of
             
               Edinburgh
               ,
               ut
               in
               communi
               patria
               .
            
             It
             was
             answered
             ,
             moveables
             
               sequuntur
               personam
            
             ,
             and
             therefore
             ,
             wheresoever
             the
             moveables
             be
             ,
             they
             are
             regulat
             according
             to
             the
             Law
             of
             the
             place
             where
             the
             Defunct
             resides
             ,
             and
             it
             is
             instructed
             by
             the
             Testimony
             of
             the
             Consul
             ,
             and
             Counsel
             
               civitatis
               Regiae
               pusensis
            
             ,
             that
             by
             the
             Common
             Law
             ,
             and
             Law
             of
             that
             place
             ,
             moveables
             belonged
             to
             the
             Wife
             ,
             and
             Bairns
             ,
             and
             the
             Pursuers
             were
             so
             cognosced
             by
             them
             ,
             
             declaring
             the
             said
             
               Clares
               Brown
            
             Wife
             ,
             and
             the
             said
             Duff
             ,
             the
             only
             Daughter
             of
             
               Andrew
               Duff
            
             ,
             and
             therefore
             they
             have
             sufficient
             Right
             without
             Confirmation
             in
             Scotland
             ,
             which
             appears
             by
             the
             
               Act
               of
               Parliament
               ,
               James
               1.
               cap.
               89.
               
               Par.
            
             1426.
             
             And
             it
             hath
             been
             still
             the
             Custome
             so
             to
             do
             ,
             and
             that
             it
             was
             so
             decyded
             ,
             the
             16.
             of
             
               Feb.
               1627.
               
               Lauson
            
             contra
             
               Bastil
               Kello
            
             .
             It
             was
             answered
             ,
             that
             it
             was
             otherwayes
             decided
             ,
             in
             the
             Case
             of
             Rob
             contra
             
               French
               ,
               25.
               
               Feb.
            
             1637.
             
             And
             there
             was
             no
             reason
             ,
             that
             these
             that
             lived
             out
             of
             the
             Country
             
               animo
               remanendi
            
             ,
             should
             be
             in
             better
             condition
             ,
             then
             these
             that
             resided
             in
             the
             same
             ,
             and
             behoved
             to
             Confirm
             ,
             and
             to
             pay
             the
             Quot
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             Testament
             behoved
             to
             be
             Confirmed
             ,
             by
             the
             Commissars
             of
             Edinburgh
             ;
             for
             having
             considered
             the
             old
             Act
             of
             Parliament
             ,
             they
             found
             ,
             that
             the
             poynt
             there
             ordered
             was
             ,
             to
             what
             Judicatures
             the
             Merchants
             going
             abroad
             to
             Trade
             ,
             should
             be
             lyable
             ,
             and
             that
             such
             as
             went
             abroad
             ,
             not
             
               animo
               remanendi
            
             ,
             should
             be
             subject
             to
             the
             jurisdiction
             of
             that
             place
             ,
             where
             their
             Testament
             would
             be
             confirmed
             .
             (
             viz.
             where
             they
             had
             their
             Domicills
             )
             but
             these
             that
             went
             out
             of
             the
             Country
             ,
             to
             remain
             ,
             are
             excepted
             ;
             but
             nothing
             exprest
             where
             their
             Testament
             should
             be
             Confirmed
             ;
             and
             for
             the
             Decision
             ,
             the
             Point
             in
             question
             ,
             was
             not
             whether
             a
             Confirmation
             in
             England
             was
             valid
             ,
             but
             whether
             a
             Confirmation
             without
             an
             Inventar
             ,
             was
             valid
             ,
             and
             therefore
             ,
             seing
             nothing
             was
             objected
             against
             the
             Confirmation
             it self
             .
             The
             Lords
             did
             justly
             find
             ,
             that
             the
             wanting
             of
             an
             Inventar
             ,
             in
             an
             English
             Confirmation
             ,
             where
             that
             was
             the
             custome
             ,
             did
             not
             prejudge
             it
             ,
             neither
             is
             the
             Case
             determined
             by
             the
             Decision
             betwixt
             Rob
             and
             French
             ,
             in
             respect
             ,
             that
             the
             Executor
             having
             Confirmed
             in
             England
             ,
             and
             rather
             being
             Confirmed
             by
             the
             Legatars
             ,
             would
             not
             own
             the
             Confirmation
             ,
             but
             renunced
             the
             same
             ;
             and
             therefore
             the
             Lords
             found
             no
             Consuetude
             ,
             or
             Decision
             in
             the
             Case
             ,
             but
             determined
             the
             same
             ,
             
               ex
               bono
               &
               aequo
            
             .
          
        
         
           
             Hellen
             Millar
             contra
             Watson
             Iuly
             21.
             1666.
             
          
           
             WAtson
             having
             obtained
             a
             Decreet
             before
             the
             Lords
             ,
             against
             
               Hellen
               Millar
            
             ,
             for
             the
             Rent
             of
             some
             Tenements
             in
             Glasgow
             .
             she
             Suspends
             ,
             and
             raises
             Reduction
             ,
             on
             these
             Reasons
             .
             First
             ,
             That
             the
             Decreet
             was
             null
             ,
             as
             being
             
               ultra
               petita
            
             ,
             in
             so
             far
             as
             the
             half
             of
             the
             Duties
             was
             only
             lybelled
             ,
             and
             the
             whole
             was
             decerned
             .
             2dly
             ,
             That
             
             Watson's
             Right
             was
             ,
             as
             Heir
             to
             Watson
             ,
             who
             was
             first
             Wife
             to
             Brown
             ,
             who
             
               stante
               matrimonio
            
             acquired
             this
             Right
             to
             him
             ,
             and
             her
             ,
             and
             the
             one
             half
             to
             her
             Heirs
             ,
             and
             the
             other
             to
             his
             ,
             which
             was
             a
             Donation
             betwixt
             Man
             and
             Wife
             ,
             revocable
             ,
             and
             revocked
             by
             the
             Infeftment
             granted
             to
             
               Hellen
               Millar
            
             ,
             in
             Liferent
             ,
             his
             second
             Wife
             .
             It
             was
             answered
             ,
             that
             the
             Decreet
             being
             
               in
               foro
               contradictorio
            
             ,
             was
             irreduceable
             .
             2dly
             ,
             That
             the
             Right
             was
             not
             granted
             by
             the
             Husband
             to
             the
             Wife
             ;
             but
             acquired
             from
             a
             third
             Partie
             .
          
           
             The
             Lords
             reduced
             the
             Decreet
             ,
             finding
             that
             it
             was
             visibly
             Extracted
             by
             error
             of
             the
             Clerks
             ,
             being
             
               ultra
               petita
            
             ,
             and
             therefore
             sustained
             the
             second
             Reason
             ,
             albeit
             it
             was
             omitted
             ,
             that
             it
             was
             a
             Donation
             betwixt
             Man
             and
             Wife
             ,
             being
             acquired
             to
             the
             Man
             and
             Wife
             ;
             and
             so
             presumed
             to
             be
             by
             his
             means
             which
             is
             equivalent
             ,
             as
             if
             he
             had
             been
             Author
             ,
             unless
             that
             Watson
             could
             condescend
             ,
             that
             it
             was
             by
             the
             Wifes
             means
             .
          
        
         
           
           
             Gavin
             Hamiltoun
             contra
             Duke
             Hamiltoun
             and
             Bishop
             of
             Edinburgh
             ,
             Eodem
             die
             .
          
           
             
               GAvin
               Hamiltoun
            
             ,
             as
             Assigney
             by
             the
             Collector
             of
             vaccand
             Stipends
             ,
             charges
             the
             Parochiners
             of
             Craufoord
             ,
             Compearance
             is
             made
             for
             the
             Bishop
             of
             Edinburgh
             ,
             alleadging
             ,
             that
             this
             was
             a
             Patrimonial
             Kirk
             of
             the
             Bishoprick
             of
             Edinburgh
             ,
             and
             so
             was
             not
             comprehended
             in
             the
             late
             Act
             of
             Parliament
             ,
             anent
             vaccand
             Stipends
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             and
             preferred
             the
             Collector
             of
             the
             Vaccand
             Stipends
             ;
             for
             they
             found
             the
             Act
             was
             general
             ,
             without
             any
             such
             exception
             .
          
        
         
           
             Mr.
             John
             Thomson
             contra
             Mckitrick
             ,
             Eodem
             die
             .
          
           
             MR.
             
               John
               Thomson
            
             pursues
             M●kitrick
             ,
             for
             reduceing
             of
             an
             Infeftment
             of
             some
             Tenements
             in
             Dumfries
             ,
             upon
             an
             appryzing
             ,
             on
             these
             Reasons
             ;
             First
             ,
             That
             the
             appryzing
             was
             null
             ,
             proceeding
             upon
             a
             Bond
             without
             Requisition
             ,
             or
             Charge
             ;
             without
             which
             ,
             the
             Heretable
             Bond
             could
             not
             become
             moveable
             .
             2dly
             ,
             Infeftment
             ,
             being
             within
             Burgh
             ,
             was
             not
             given
             by
             the
             Baillies
             ,
             and
             Town
             Clerk.
             3dly
             ,
             That
             it
             was
             neither
             Registrate
             in
             the
             Town
             Books
             ,
             nor
             in
             the
             Register
             of
             Seasings
             of
             the
             Shire
             .
             It
             was
             answered
             ,
             to
             the
             First
             ,
             that
             the
             Bond
             bare
             no
             Clause
             of
             Requisition
             ,
             but
             bore
             on
             the
             contrare
             to
             be
             payable
             ,
             without
             Requisition
             ,
             and
             so
             ,
             as
             Moveables
             the
             Defender
             might
             have
             poynded
             therefore
             ,
             without
             Charge
             ,
             so
             might
             Lands
             be
             Appryzed
             ;
             to
             the
             Second
             ,
             there
             being
             no
             Magistrats
             ,
             nor
             Town
             Clerk
             in
             Office
             at
             the
             time
             of
             this
             Seasine
             ,
             and
             the
             Defender
             being
             an
             Appryzer
             ,
             necessitat
             to
             do
             Diligence
             ,
             took
             Seasine
             by
             the
             Sheriff
             Clerk
             ,
             which
             was
             necessar
             ,
             and
             sufficient
             :
             To
             the
             Third
             ,
             the
             Act
             of
             Parliament
             requires
             no
             Registration
             of
             Seasines
             within
             Burgh
             ,
             and
             albeit
             ,
             they
             be
             ordinarly
             to
             be
             found
             in
             the
             Town
             Books
             ,
             yet
             if
             that
             should
             be
             neglected
             ,
             they
             would
             not
             be
             null
             .
          
           
             The
             Lords
             repelled
             the
             first
             Reason
             ,
             and
             found
             no
             necessity
             of
             a
             Charge
             :
             and
             they
             had
             formerly
             repelled
             the
             second
             Reason
             ,
             in
             respect
             of
             the
             Answer
             made
             thereto
             ,
             and
             did
             also
             repell
             the
             third
             Reason
             .
          
        
         
           
             Earl
             of
             Southesk
             contra
             Marquess
             of
             Huntlie
             .
             Iuly
             23.
             1666.
             
          
           
             THE
             Earl
             of
             Southesk
             ,
             and
             the
             late
             Marquess
             of
             Argyl
             ,
             being
             Cautioners
             for
             the
             late
             Marquess
             of
             Huntly
             ,
             for
             the
             Tochers
             of
             the
             Daughters
             of
             Huntly
             ,
             they
             got
             an
             Infeftment
             of
             the
             Lands
             of
             Badzenoch
             ,
             for
             their
             relief
             ,
             bearing
             ,
             that
             according
             as
             they
             should
             be
             distrest
             ,
             they
             should
             have
             access
             to
             the
             Rents
             of
             the
             Lands
             ,
             in
             so
             far
             as
             might
             pay
             the
             Annualrent
             of
             the
             Sum
             ,
             which
             they
             should
             be
             distrest
             for
             .
             whereupon
             they
             were
             Infeft
             in
             Anno
             1643.
             
             And
             thereafter
             Southesk
             was
             distrest
             ,
             in
             Anno
             1653.
             
             Whereupon
             ,
             in
             
             Anno
             1655.
             
             He
             pursued
             an
             Action
             of
             Maills
             and
             Duties
             ,
             upon
             the
             said
             Infeftment
             of
             relieff
             against
             the
             said
             Lord
             Argyl
             ,
             who
             was
             in
             Possession
             ;
             and
             my
             Lord
             Argyl
             having
             long
             before
             granted
             an
             Bond
             of
             relieff
             to
             Southesk
             ,
             he
             used
             Horning
             ,
             and
             Caption
             thereupon
             ,
             in
             Anno
             1655.
             and
             in
             Anno
             1658.
             he
             used
             Inhibition
             upon
             the
             said
             Bond
             against
             Argyl
             ,
             who
             in
             Anno
             1658
             Entered
             in
             a
             new
             Contract
             with
             Southesk
             ,
             whereby
             ,
             in
             Corroberation
             of
             the
             first
             Infeftment
             ,
             he
             granted
             him
             a
             Wodset
             of
             the
             Lands
             of
             Enzie
             ,
             with
             a
             Back-tack
             ,
             by
             vertue
             whereof
             ,
             Southesk
             uplifted
             several
             years
             of
             the
             Back-tack
             Dutie
             .
             Southesk
             now
             pursues
             the
             Marquess
             of
             Huntly
             ,
             and
             his
             Tenents
             ,
             for
             declaring
             of
             his
             Right
             ,
             and
             payment
             of
             the
             Maills
             and
             Duties
             .
             it
             was
             alleadged
             for
             the
             Defenders
             .
             First
             ,
             absolvitor
             ,
             because
             the
             Marquess
             of
             Argyl
             hath
             been
             Retoured
             ,
             to
             have
             possest
             the
             Lands
             of
             Badzenoch
             ,
             peaceably
             ,
             by
             the
             space
             of
             5
             years
             before
             his
             Forefaulture
             ,
             which
             was
             in
             Anno
             1661.
             
             Conform
             to
             the
             Act
             of
             Parliament
             1584.
             
             By
             vertue
             thereof
             ,
             this
             Marquess
             of
             Huntly
             ,
             as
             the
             King's
             Donatar
             ,
             to
             the
             Forefaulture
             ,
             in
             so
             far
             as
             concerns
             the
             Estate
             of
             Huntly
             ,
             has
             undoubted
             Right
             ,
             and
             needs
             not
             dispute
             what
             Right
             Southesk
             had
             ,
             before
             the
             five
             years
             .
             It
             was
             answered
             ,
             for
             the
             Pursuer
             .
             First
             ,
             That
             the
             Act
             of
             Parliament
             ,
             1584
             ,
             ought
             not
             now
             to
             take
             effect
             ,
             because
             ,
             by
             the
             late
             Act
             of
             Parliament
             1617.
             
             Seasine
             and
             Reversions
             are
             appointed
             to
             be
             Registrat
             ,
             otherwise
             they
             are
             null
             ,
             and
             therefore
             the
             ground
             of
             the
             Act
             of
             Parliament
             1584.
             
               viz.
               The
               abstracting
               of
               Evidents
               Ceasing
               ,
            
             the
             said
             Act
             it self
             must
             also
             cease
             .
             2dly
             .
             The
             said
             Act
             can
             only
             take
             place
             ,
             where
             it
             is
             not
             constant
             ,
             what
             Right
             the
             Forefault
             Person
             had
             ,
             but
             that
             he
             was
             repute
             to
             be
             the
             ancient
             Heretor
             of
             the
             Lands
             ,
             but
             where
             the
             Forefault
             Persons
             Right
             is
             known
             ,
             to
             have
             been
             Beations
             Compryzing
             ,
             or
             this
             Conjunct
             Right
             ,
             granted
             to
             him●
             and
             the
             Pursuer
             ,
             for
             their
             Cautionrie
             ,
             
               presumptio
               cedit
               veritati
            
             ,
             and
             the
             Right
             must
             only
             be
             holden
             to
             be
             such
             a
             Right
             as
             truly
             it
             was
             .
             3dly
             .
             The
             five
             years
             Possession
             being
             in
             effect
             a
             Prescription
             ,
             in
             favours
             of
             the
             King
             ,
             and
             his
             Donatar
             ,
             whatsoever
             would
             interrupt
             any
             other
             Prescription
             ;
             must
             interrupt
             this
             ;
             as
             if
             within
             the
             five
             years
             ,
             the
             Pursuer
             had
             intented
             a
             Reduction
             of
             the
             Forefault
             Persons
             Right
             ;
             or
             an
             Action
             for
             Maills
             and
             Duties
             ,
             or
             had
             required
             for
             his
             Sums
             ,
             and
             charged
             thereupon
             ,
             all
             these
             would
             be
             sufficient
             interruptions
             ,
             against
             this
             quinquennial
             Possession
             ,
             and
             would
             take
             away
             the
             presumption
             of
             Collusion
             ,
             or
             abstracting
             .
             4thly
             ,
             The
             five
             years
             possession
             ,
             by
             the
             Act
             of
             Parliament
             bears
             ,
             expresly
             ,
             to
             be
             peaceable
             ,
             so
             that
             if
             it
             was
             
               turbata
               possessio
            
             ,
             it
             would
             not
             be
             enough
             ,
             and
             being
             once
             a
             troubled
             possession
             ,
             by
             any
             legall
             interruption
             ,
             after
             the
             said
             interruption
             ,
             that
             subsequent
             possession
             ceases
             not
             to
             be
             a
             troubled
             possession
             ;
             though
             there
             be
             no
             furder
             interruption
             ,
             within
             the
             5
             years
             ,
             because
             interruption
             once
             used
             ,
             endures
             for
             40.
             years
             .
             
               Ita
               est
               ,
               Argyls
            
             possession
             was
             troubled
             ,
             by
             pursuits
             ,
             to
             compt
             for
             the
             Maills
             and
             Duties
             of
             these
             Lands
             ,
             upon
             this
             Right
             ,
             and
             that
             within
             a
             year
             ,
             or
             two
             ,
             before
             the
             five
             ,
             and
             likewise
             within
             the
             5.
             year
             ,
             the
             Marquess
             of
             Argyl
             did
             corroborat
             this
             Right
             ,
             and
             in
             corroboration
             thereof
             granted
             Wodset
             of
             the
             Lands
             of
             Enzie
             ,
             for
             the
             Sums
             accummulat
             ,
             by
             vertue
             whereof
             ,
             the
             Pursuer
             ,
             within
             the
             5.
             years
             ,
             was
             in
             Possession●
             by
             uplifting
             the
             Back-tack
             Dutie
             ;
             which
             being
             a
             Cumulative
             Right
             ,
             possession
             thereon
             is
             valid
             ,
             for
             both
             .
             The
             Defender
             answered
             ,
             that
             his
             Defense
             upon
             the
             Act
             of
             Parliament
             stood
             valid
             ,
             notwithstanding
             of
             all
             the
             Replyes
             ,
             because
             the
             Act
             is
             clear
             ,
             and
             unrepealled
             ,
             that
             5.
             years
             peaceable
             possession
             of
             the
             Forefault
             Person
             ,
             gives
             the
             King
             unquestionable
             Right
             ,
             it
             being
             retoured
             by
             an
             Inquest
             ,
             as
             now
             this
             is
             .
             And
             as
             to
             the
             troubling
             of
             the
             possession
             ,
             no
             Deed
             ,
             done
             before
             the
             5
             years
             ,
             can
             have
             any
             effect
             ,
             because
             ,
             as
             the
             5
             years
             cut
             off
             the
             most
             Solemn
             anterior
             Rights
             ,
             much
             more
             
             a
             Citation
             ,
             or
             other
             Interruption
             ,
             and
             as
             to
             the
             Interruptions
             ,
             within
             the
             5.
             years
             ,
             they
             are
             only
             two
             ,
             one
             is
             an
             Inhibition
             against
             Argyl
             ,
             which
             proceeds
             not
             upon
             this
             Infeftment
             ,
             but
             upon
             a
             Personal
             obligement
             ,
             by
             Argyl
             ,
             to
             relieve
             the
             Pursuer
             ;
             neither
             does
             it
             at
             all
             relate
             to
             the
             possession
             ,
             nor
             any
             other
             Action
             ;
             but
             only
             as
             an
             Inhibition
             ,
             prohibits
             Alienation
             .
             And
             as
             for
             the
             Contract
             of
             Wodset
             with
             Argyl
             ,
             it
             is
             
               post
               commissum
               crimen
            
             ,
             and
             so
             cannot
             prejudge
             the
             Donatar
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Forefault
             Persons
             Deeds
             being
             voluntar
             ,
             
               post
               commissum
               crimen
            
             ,
             cannot
             be
             effectual
             ;
             yet
             where
             it
             is
             upon
             a
             cause
             anterior
             to
             the
             Crime
             .
             
               viz.
               Argyls
            
             Intromission
             ,
             by
             the
             Infeftment
             of
             Relieff●
             and
             the
             distress
             occurring
             against
             the
             Pursuer
             after
             the
             Crime
             ,
             and
             he
             having
             pursued
             Argyl
             for
             compt
             and
             reckoning
             ,
             in
             anno
             1655.
             does
             not
             constitute
             any
             new
             voluntar●
             Right
             ,
             nor
             can
             it
             be
             any
             way
             collusive
             ,
             being
             for
             an
             anterior
             cause
             ;
             and
             after
             a
             pursuit
             :
             and
             therefore
             it
             must
             work
             this
             much
             ,
             to
             show
             ,
             that
             the
             5
             years
             was
             interrupted
             ,
             and
             in
             the
             Course
             thereof
             ,
             both
             the
             Pursuer
             ,
             and
             Forefaulted
             Person
             acknowledged
             this
             Right
             in
             question
             .
          
           
             The
             Lords
             found
             the
             Reply
             relevant
             ,
             upon
             the
             Deeds
             of
             Interruption
             ,
             alleadged
             by
             the
             Pursuer
             ,
             joyntly
             ,
             to
             elid
             the
             Act
             of
             Parliament
             .
          
        
         
           
             Mr.
             Iohn
             Harper
             contra
             his
             Vassall
             .
             Iuly
             25.
             1666.
             
          
           
             
               MR.
               Iohn
               Harper
            
             ,
             pursues
             a
             Declarator
             of
             Non-entry
             ,
             against
             his
             Vassall
             ,
             who
             alleadged
             that
             he
             was
             only
             lyable
             for
             theretour
             Maills
             ,
             till
             the
             Decreet
             of
             general
             Declarator
             was
             obtained
             :
             It
             was
             answered
             ,
             the
             common
             custome
             was
             ,
             that
             from
             the
             Citation
             in
             the
             general
             Declarator
             ,
             Mails
             and
             Duties
             were
             due
             in
             the
             special
             ,
             because
             the
             general
             Declarator
             ,
             declares
             the
             Non-entry
             since
             the
             date
             of
             the
             Summons
             ,
             and
             so
             the
             Mails
             and
             Duties
             are
             not
             due
             from
             the
             date
             of
             obtaining
             the
             Decreet
             ,
             but
             from
             the
             years
             decerned
             therein
             ,
             which
             is
             from
             the
             date
             of
             the
             Summons
             .
          
           
             The
             Lords
             found
             the
             Mails
             and
             Duties
             due
             since
             the
             time
             of
             the
             Citation
             ,
             and
             not
             only
             since
             the
             time
             of
             the
             Sentence
             .
          
        
         
           
             Earl
             of
             Southesk
             contra
             Marquess
             of
             Huntly
             .
             Iuly
             last
             ,
             1666.
             
          
           
             EArl
             of
             Southesks
             cause
             mentioned
             23
             Iuly
             last
             ,
             was
             this
             day
             advised
             ,
             as
             to
             another
             Defense
             .
             viz.
             That
             my
             Lord
             Argyl
             had
             right
             to
             Beatouns
             Appryzing
             of
             the
             Estate
             of
             Huntly
             ,
             which
             was
             long
             anterior
             to
             the
             Pursuers
             Infeftment
             ,
             and
             whereunto
             Huntly
             hath
             right
             ,
             as
             Donatar
             to
             Argyl's
             Forefaulture
             .
             This
             Coutract
             of
             the
             Cumulative
             Wodset
             ,
             being
             granted
             ,
             in
             Anno
             1656.
             
             It
             was
             answered
             ,
             that
             Beatoun
             ,
             before
             he
             was
             Infeft
             upon
             that
             Appryzing
             ,
             had
             renunced
             all
             benefit
             of
             the
             Appryzing
             ,
             and
             discharged
             the
             same
             ,
             in
             so
             far
             as
             it
             might
             be
             prejudicial
             to
             the
             Pursuers
             Right
             ;
             which
             is
             presently
             instructed
             .
             It
             was
             answered
             ,
             that
             Renunciation
             was
             but
             personal
             ,
             and
             was
             never
             Registrat
             ;
             and
             so
             could
             not
             be
             effectuall
             against
             any
             singular
             Successor
             ;
             much
             less
             against
             the
             Kings
             Donatar
             ,
             having
             a
             real
             Right
             .
             It
             was
             answered
             ,
             
             that
             Appryzings
             are
             not
             of
             the
             nature
             of
             other
             real
             Rights
             ,
             but
             they
             may
             be
             taken
             away
             ,
             by
             Intromission
             ,
             Payment
             ,
             or
             Discharge
             of
             the
             Appryzer
             ,
             and
             there
             needs
             no
             Resignation
             ,
             nor
             Infeftment
             .
             It
             was
             answered
             ,
             that
             albeit
             ,
             by
             the
             Act
             of
             Parliament
             1621.
             
             Appryzings
             may
             be
             taken
             away
             by
             Intromission
             ,
             and
             that
             it
             hath
             been
             extended
             to
             payment
             ,
             yet
             never
             to
             such
             personal
             Back-Bonds
             .
          
           
             The
             Lords
             found
             the
             Appryzing
             to
             be
             taken
             away
             ,
             by
             Beatons
             Back
             Bond
             ,
             renuncing
             the
             same
             ,
             in
             so
             far
             as
             concerns
             this
             Pursuer
             ;
             and
             found
             the
             same
             relevant
             against
             the
             Donatar
             .
          
        
         
           
             Thomas
             Crawfoord
             contra
             Town
             of
             Edinburgh
             .
             Eodem
             die
             .
          
           
             
               THomas
               Crawfoord
            
             ,
             having
             Gift
             of
             
               ultimus
               haeres
            
             of
             a
             person
             ,
             to
             whom
             the
             Town
             of
             Edinburgh
             was
             Debitor
             ,
             pursues
             for
             payment
             thereof
             .
             The
             Defender
             alleadged
             no
             Process
             ,
             till
             the
             Gift
             were
             declared
             .
             The
             Pursuer
             answered
             ,
             no
             necessity
             of
             a
             Declarator
             in
             this
             case
             ,
             more
             then
             in
             a
             Gift
             of
             Recognition
             ,
             and
             Waird
             ,
             and
             that
             there
             was
             no
             person
             that
             could
             be
             particularly
             cited
             .
          
           
             The
             Lords
             found
             the
             Defense
             relevant
             ,
             that
             this
             Gift
             ,
             behoved
             to
             ●e
             declared
             albeit
             it
             were
             but
             upon
             a
             Citation
             generally
             against
             all
             and
             sundry
             at
             the
             Mercat
             Cross.
             
          
        
         
           
             Sir
             Lodovick
             Gordon
             contra
             Sir
             Iohn
             Keith
             .
             Eodem
             die
             .
          
           
             SIr
             
               Lodovick
               Gordon
            
             ,
             being
             Assigned
             to
             a
             Sum
             due
             to
             Sir
             
               Robert
               Farquhar
            
             by
             Sir
             
               Iohn
               Keith
            
             ,
             pursues
             Sir
             John
             ,
             for
             payment
             ,
             who
             alleadged
             absolvitor
             ,
             because
             he
             had
             Right
             to
             the
             Sum
             himself
             ,
             as
             Donatar
             to
             Sir
             Roberts
             Escheat
             ,
             and
             that
             the
             Sum
             was
             Moveable
             ,
             albeit
             it
             bare
             Annualrent
             ,
             in
             so
             far
             as
             the
             Term
             of
             payment
             was
             not
             come
             .
             It
             was
             answered
             ,
             that
             Sums
             were
             Heretable
             ,
             as
             to
             the
             Fisk
             ,
             by
             the
             Clause
             of
             Annualrent
             ,
             and
             the
             only
             exception
             was
             ,
             that
             if
             the
             Term
             of
             payment
             of
             the
             Annualrent
             was
             not
             come
             ,
             the
             Same
             was
             Moveable
             ;
             and
             nothing
             in
             relation
             to
             the
             Term
             of
             payment
             ;
             if
             the
             Annualrent
             was
             come
             due
             ,
             before
             the
             Rebellion
             .
          
           
             The
             Lords
             found
             ,
             that
             the
             coming
             of
             the
             Term
             of
             payment
             of
             the
             Annualrents
             made
             the
             Sum
             to
             become
             heretable
             ,
             as
             to
             the
             Fisk
             ,
             and
             therefore
             repelled
             the
             Donatars
             defense
             .
          
        
         
           
             Merchants
             in
             Dundee
             contra
             Spruce
             Englishman
             .
             November
             3.
             1666.
             
          
           
             SOme
             Merchants
             of
             Dundee
             having
             sold
             a
             considerable
             quantity
             of
             Winesto
             one
             Spruce
             ,
             an
             Englishman
             ,
             they
             pursue
             him
             for
             the
             price
             ,
             and
             because
             ,
             he
             disappeared
             ,
             and
             no
             body
             came
             to
             receive
             the
             Wines
             ,
             they
             supplicat
             the
             Lords
             ,
             that
             they
             would
             give
             warrand
             to
             them
             ,
             to
             sell
             the
             Wines
             ,
             least
             they
             should
             perish
             ,
             and
             to
             be
             lyable
             only
             for
             the
             best
             price
             they
             could
             get
             for
             them
             :
             
             they
             did
             also
             represent
             ,
             that
             Spruce
             had
             a
             Factor
             in
             Edinburgh
             ,
             who
             being
             cited
             by
             a
             Macer
             ,
             did
             not
             appear
             .
          
           
             The
             Lords
             refused
             the
             Supplication
             ,
             and
             found
             ,
             that
             the
             day
             of
             the
             appearance
             of
             the
             Summons
             ,
             not
             being
             come
             ,
             and
             the
             Englishman
             ,
             neither
             being
             present
             ,
             nor
             oblidged
             to
             be
             present
             ,
             they
             could
             do
             nothing
             against
             him
             ,
             more
             then
             if
             he
             had
             not
             be
             in
             cited
             ,
             and
             so
             could
             not
             sequestrat
             ,
             nor
             appoint
             the
             Wines
             to
             be
             sold
             :
             but
             they
             lowed
             the
             Partie
             to
             protest
             ,
             that
             they
             had
             done
             all
             diligence●
             that
             the
             Wines
             might
             not
             perish
             ,
             whereof
             the
             Lords
             would
             take
             consideration
             in
             any
             Process
             that
             should
             occure
             .
          
        
         
           
             Thomas
             Canham
             contra
             Iames
             Adamson
             .
             November
             7.
             1666.
             
          
           
             
               JAmes
               Adamson
            
             ,
             having
             disponed
             a
             Tenement
             to
             
               Ioseph
               Iohnstoun
            
             ,
             who
             married
             his
             Daughter
             ,
             in
             Conjunct-fee
             ,
             and
             the
             Heirs
             betwixt
             them
             ,
             which
             failzing
             ,
             to
             devide
             between
             their
             other
             Heirs
             ,
             in
             the
             Disposition
             there
             was
             expresly
             this
             Clause
             ,
             providing
             that
             the
             said
             Joseph
             ,
             and
             his
             foresaids
             make
             payment
             to
             the
             said
             
               James
               Adamson
            
             ,
             or
             any
             he
             shall
             name
             ,
             the
             Sum
             of
             six
             hundred
             pounds
             ,
             wherein
             ,
             if
             he
             failzie
             ,
             the
             said
             Right
             ,
             and
             Disposition
             shall
             expire
             ,
             
               ipso
               facto
            
             .
             In
             the
             Infeftment
             the
             former
             Clause
             was
             repeated
             ,
             but
             not
             the
             Clause
             Irritant
             .
             This
             Canham
             appryses
             the
             Land
             from
             
               Joseph
               Johnstoun
            
             upon
             Joseph's
             debt
             ,
             and
             being
             Infeft
             ,
             did
             pursue
             
               James
               Adamson
            
             for
             removing
             ,
             who
             objecting
             the
             proviso
             ,
             was
             notwithstanding
             decerned
             to
             remove
             .
             Now
             he
             pursues
             for
             the
             Maills
             and
             Duties
             ,
             during
             his
             occupation
             .
             
               James
               Adamson
            
             alleadges
             that
             he
             ought
             to
             have
             the
             600
             lib.
             because
             he
             had
             disponed
             with
             that
             provision
             .
             It
             was
             answered
             ,
             this
             was
             but
             personal
             ,
             to
             pay
             ,
             and
             could
             never
             oblidge
             a
             singular
             Successor
             ;
             and
             all
             the
             Pursuer
             could
             do
             ,
             was
             to
             proceed
             upon
             the
             Clause
             irritant
             by
             way
             of
             Declarator
             .
          
           
             The
             Lords
             ,
             in
             the
             end
             of
             the
             last
             Session
             ,
             having
             only
             seen
             the
             Disposition
             containing
             the
             said
             Clause
             ,
             but
             not
             the
             Infeftment
             ,
             repelled
             the
             Defense
             ,
             but
             reserved
             the
             Declarator
             :
             but
             now
             having
             seen
             ,
             that
             the
             proviso
             of
             payment
             was
             in
             the
             Infeftment
             ;
             the
             cause
             being
             so
             favourable
             ,
             a
             person
             disponing
             to
             his
             own
             Daughter
             ,
             and
             good
             Son
             ,
             and
             the
             Disponer
             yet
             in
             possession
             ,
             they
             did
             without
             multiplying
             furder
             Process
             ,
             sustaine
             it
             by
             exception
             .
          
        
         
           
             George
             Shein
             contra
             James
             Chrystie
             .
             November
             15.
             1666.
             
          
           
             
               GEorge
               Shein
            
             ,
             having
             pursued
             umquhil
             
               David
               Chrystie
            
             ,
             as
             charged
             to
             enter
             Heir
             to
             
               James
               Chrystie
            
             his
             Father
             ,
             for
             payment
             of
             a
             Debt
             of
             his
             Fathers
             ,
             David
             renunces
             to
             be
             Heir
             ,
             whereupon
             George
             obtained
             Decreet
             ,
             
               cognitionis
               causa
            
             ;
             and
             David
             being
             now
             dead
             ,
             he
             pursues
             
               James
               Chrystie
            
             ,
             as
             now
             appearand
             Heir
             to
             his
             Debitor
             ,
             for
             Adjudication
             of
             an
             Annualrent
             ,
             as
             belonging
             to
             the
             Defunct
             Debitor
             ,
             out
             of
             the
             Lands
             of
             Bassilie
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             absolvitor
             ,
             because
             that
             Annualrent
             was
             but
             base
             ,
             never
             cled
             with
             possession
             ,
             and
             the
             Defender
             stands
             validly
             Infeft
             ,
             
               singulari
               titulo
            
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defense
             is
             not
             competent
             
               hoc
               loco
            
             ,
             when
             the
             Pursuer
             is
             but
             
               suo
               periculo
            
             ,
             craving
             Adjudication
             of
             his
             Debitors
             Right
             ,
             and
             cannot
             be
             forced
             to
             dispute
             the
             same
             ,
             till
             after
             Adjudication
             ,
             he
             use
             diligence
             for
             getting
             
             of
             the
             same
             ;
             but
             this
             Defense
             will
             be
             Competent
             ,
             whensoever
             upon
             his
             Adjudication
             ,
             he
             shall
             pursue
             .
             The
             Defender
             alleadged
             a
             Pratique
             betwixt
             S●haw
             of
             Sornbeg
             and
             the
             Lord
             Forrester
             ,
             wherein
             Forresters
             publick
             Infeftment
             was
             excepted
             in
             the
             Adjudication
             .
          
           
             Yet
             the
             Lords
             shewed
             no
             Inclination
             to
             follow
             that
             Pratique
             ,
             and
             therefore
             Repelled
             the
             Defense
             ,
             and
             Adjudged
             .
          
        
         
           
             Mr.
             Iohn
             Abercromie
             contra
             Anderson
             .
             Eodem
             die
             .
          
           
             MR.
             
               Iohn
               Abercromie
            
             as
             Assigney
             having
             pursued
             Anderson
             ,
             as
             Debitor
             for
             the
             Debt
             Assigned
             :
             he
             alleadged
             no
             Process
             ,
             because
             the
             Assignation
             was
             posterior
             to
             the
             date
             of
             the
             Summons
             and
             Executions
             ;
             so
             that
             the
             Assignation
             ,
             being
             his
             sole
             Title
             ,
             the
             Process
             could
             not
             be
             sustained
             .
             It
             was
             answered
             ,
             that
             the
             Defender
             had
             no
             prejudice
             ,
             and
             that
             the
             Cedent
             concurred
             .
             It
             was
             answered
             that
             the
             Summons
             was
             not
             in
             the
             Cedents
             name
             ,
             and
             so
             his
             Concourse
             could
             operat
             nothing
             ,
             so
             that
             the
             Decreet
             thereupon
             would
             be
             null
             :
             For
             in
             the
             like
             case
             ,
             the
             Lords
             ,
             last
             Week
             ,
             in
             the
             Cause
             betwixt
             
               David
               Hamiltoun
            
             and
             
               Iohn
               Kennedy
            
             and
             Symintoun
             ,
             Reduced
             an
             Appryzing
             led
             tvventy
             years
             since
             ,
             because
             the
             Appryzing
             proceeded
             upon
             a
             Charge
             to
             Enter
             Heir
             ;
             and
             some
             of
             the
             Debts
             vvere
             Assigned
             to
             the
             Appryzer
             ,
             after
             the
             date
             of
             the
             Charge
             ,
             As
             to
             which
             the
             Lords
             found
             the
             Appryzing
             null
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             and
             found
             no
             Process
             ,
             and
             had
             respect
             to
             the
             said
             Decision
             of
             Reduction
             of
             the
             Appryzing
             ,
             which
             they
             found
             to
             be
             ,
             as
             is
             r●a●ed
             ,
             though
             it
             was
             alleadged
             that
             after
             so
             long
             time
             ,
             an
             Appryzer
             was
             not
             oblieged
             to
             produce
             the
             Letters
             of
             Appryzing
             ,
             or
             Charge
             to
             Enter
             Heir
             ,
             or
             Executions
             ;
             yet
             seing
             
               de
               facto
            
             these
             were
             produced
             ,
             and
             deduced
             in
             the
             Appryzing
             ,
             and
             mentioning
             the
             dates
             as
             aforesaid
             ,
             the
             same
             was
             Reduced
             
               pro
               tanto
            
             ;
             but
             there
             was
             no
             debate
             reported
             ,
             whether
             it
             should
             stand
             
               pro
               reliquo
            
             ;
             or
             how
             far
             it
             should
             extend
             ,
             seing
             the
             Appryzer
             ,
             as
             to
             the
             rest
             ,
             offered
             to
             prove
             it
             satisfied
             by
             Intromission
             .
          
        
         
           
             Alexander
             Downy
             contra
             Robert
             Young.
             Nov.
             17.
             1666.
             
          
           
             UMquhil
             
               Alexander
               Downy
            
             granted
             an
             Assignation
             to
             his
             Oye
             
               Alexander
               Downy
            
             ,
             of
             tvvo
             Bonds
             ,
             vvho
             finding
             ,
             that
             after
             his
             Goodsires
             Decease
             ,
             Mr.
             
               Iohn
               Hay
            
             vvas
             Confirmed
             Executor
             to
             his
             Goodsire
             ,
             and
             had
             given
             up
             these
             bonds
             in
             his
             Inventar
             ,
             but
             had
             not
             recovered
             payment
             :
             He
             Confirms
             himself
             Executor
             ,
             
               ad
               non
               Executa
            
             ,
             to
             his
             Goodsire
             ,
             and
             pursues
             the
             Debitors
             for
             payment
             of
             the
             Bonds
             .
             Compearance
             is
             made
             for
             
               Robert
               Young
            
             ,
             who
             alleadges
             that
             he
             is
             Executor
             Da●ive
             to
             Mr.
             
               John
               Hay
            
             ,
             vvho
             Execute
             Downies
             Testament
             ,
             by
             obtaining
             Sentence
             for
             payment
             of
             their
             Bonds
             ;
             so
             that
             the
             Bonds
             vvere
             no
             more
             
               in
               bonis
            
             of
             
               Alexander
               Downie
            
             ,
             but
             of
             Mr.
             
               John
               Hay
            
             :
             and
             that
             the
             Testament
             being
             Execute
             by
             Decreet
             there
             could
             be
             no
             Executor
             ,
             
               ad
               non
               executa
            
             
             to
             Downie
             ,
             the
             first
             Defunct
             .
             It
             was
             answered
             that
             the
             Testament
             was
             not
             Execute
             by
             a
             Decreet
             ,
             unless
             the
             Executor
             had
             obtained
             payment
             ;
             especially
             where
             the
             Executor
             was
             a
             meer
             stranger
             ,
             and
             was
             neither
             nearest
             of
             Kin
             ,
             Creditor
             ,
             nor
             Legatar
             .
          
           
             The
             Lords
             found
             the
             Testament
             of
             Downie
             Execute
             by
             Hay
             ,
             by
             the
             Sentence
             obtained
             in
             Hayes
             Name
             ;
             and
             therefore
             found
             that
             
               Alexander
               Downie
            
             ,
             the
             Oye
             ,
             his
             Confirmation
             as
             Executor
             ,
             
               ad
               non
               executa
            
             null
             .
          
           
             It
             was
             further
             alleadged
             that
             Downie
             being
             not
             only
             Executor
             ,
             but
             Assigney
             by
             his
             Goodsire
             ;
             the
             Assignation
             ,
             though
             it
             had
             been
             but
             a
             Legacy
             ,
             would
             have
             been
             sufficient
             against
             Mr.
             
               Iohn
               Hay
            
             ,
             who
             is
             the
             Cedents
             Executor
             :
             and
             therefore
             is
             also
             sufficient
             against
             Young
             ,
             who
             is
             the
             Executors
             Executor
             ,
             and
             so
             represents
             the
             first
             Defunct
             ,
             Downie
             the
             Cedent
             .
             It
             was
             answered
             ,
             that
             Young
             was
             not
             only
             
               legitimo
               modo
            
             the
             Executor
             ,
             but
             he
             is
             also
             Creditor
             of
             the
             first
             Defunct
             ,
             Downie
             ,
             in
             so
             far
             as
             he
             is
             Donatar
             of
             the
             Escheat
             of
             
               Iohn
               Hilstoun
            
             ,
             and
             thereupon
             has
             obtained
             Declarator
             ,
             and
             so
             is
             in
             the
             place
             of
             
               Iohn
               Hilstoun
            
             ,
             to
             whom
             umquhil
             
               Alexander
               Downie
            
             was
             Debitor
             ,
             by
             his
             Ticket
             produced
             ,
             whereby
             Downie
             acknowledges
             that
             he
             had
             in
             his
             hands
             ,
             Goods
             worth
             6000
             pounds
             ,
             belonging
             to
             him
             ,
             and
             Hilstoun
             ,
             in
             Copartinary
             ;
             and
             obliged
             him
             to
             be
             comptable
             therefore
             ;
             which
             is
             anterior
             to
             the
             Assignation
             ,
             granted
             to
             Downies
             own
             Oye
             for
             Love
             and
             Favour
             ;
             whereupon
             he
             hath
             Reduction
             depending
             against
             the
             Assignation
             ,
             as
             
               in
               fraudem
               Creditorum
            
             .
             It
             was
             answered
             that
             the
             Ticket
             ,
             in
             relation
             to
             the
             Copartinary
             ,
             was
             not
             liquid
             ,
             bearing
             only
             an
             Obligment
             to
             be
             comptable
             ,
             with
             express
             Exception
             of
             desperat
             Debts
             ,
             and
             others
             .
          
           
             The
             Lords
             found
             ,
             that
             in
             respect
             the
             Debt
             was
             not
             liquid
             ,
             Downie
             the
             Assigney
             ought
             to
             be
             preferr'd
             ,
             and
             get
             payment
             ,
             but
             Ordained
             him
             to
             find
             Caution
             ,
             that
             in
             case
             Young
             prevailed
             ,
             he
             should
             refound
             .
          
        
         
           
             William
             Blackwood
             contra
             Adam
             Purves
             .
             Nov.
             20.
             1666.
             
          
           
             
               ADam
               Purves
            
             pursues
             Reduction
             and
             Improbation
             of
             two
             Bonds
             ,
             alleadged
             granted
             by
             him
             to
             
               Ianet
               Baxter
            
             ,
             and
             of
             an
             Appryzing
             led
             thereon
             ,
             against
             certain
             Tenements
             in
             Edinburgh
             ,
             belonging
             to
             him
             ,
             and
             craved
             Certification
             
               contra
               non
               producta
               .
               William
               Blackwood
               ,
            
             to
             whom
             by
             progress
             ,
             the
             Right
             is
             now
             come
             ,
             produces
             the
             Appryzing
             ,
             and
             the
             Extract
             of
             one
             of
             the
             Bonds
             ,
             whereupon
             it
             proceeded
             ,
             and
             alleadges
             no
             Certification
             against
             the
             Letters
             ,
             and
             Executions
             of
             the
             Appryzing
             after
             so
             long
             time
             ;
             the
             Appryzing
             being
             led
             in
             Anno
             1621.
             and
             no
             Process
             of
             Reduction
             Rais'd
             ,
             till
             after
             the
             year
             1650.
             
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
           
             Likeas
             ,
             he
             further
             alleadged
             ,
             no
             Certification
             for
             not
             production
             of
             any
             of
             the
             principal
             Bonds
             ,
             because
             they
             were
             Registrat
             in
             the
             Registers
             of
             Session
             ,
             and
             the
             Principals
             were
             lost
             .
             The
             Pursuer
             answered
             ,
             that
             there
             were
             pregnant
             Points
             of
             Falshood
             ,
             
               viz.
               Purves
            
             having
             gone
             and
             left
             the
             Kingdom
             in
             Anno
             1618.
             
             And
             having
             been
             a
             Souldier
             Abroad
             ,
             till
             the
             year
             1630.
             and
             these
             Bonds
             and
             the
             Appryzing
             thereon
             ,
             both
             in
             
             one
             Month
             ,
             and
             the
             Bonds
             granted
             to
             a
             Woman
             who
             had
             no
             such
             Estate
             ,
             but
             the
             Servant
             of
             a
             Waiter
             ,
             of
             an
             evil
             Fame
             :
             and
             one
             Blair
             a
             Witness
             who
             was
             hang'd
             for
             Falshood
             .
          
           
             The
             Lords
             refused
             Certification
             for
             not
             production
             of
             the
             principal
             Bonds
             ,
             but
             prejudice
             to
             the
             Pursuer
             to
             insist
             in
             his
             Improbation
             ,
             by
             these
             or
             other
             Evidences
             ,
             by
             the
             direct
             manner
             ,
             but
             they
             admitted
             Certification
             against
             that
             Bond
             ,
             the
             Extract
             whereof
             was
             not
             produced
             :
             yet
             conditionally
             to
             a
             time
             ,
             that
             the
             Defender
             might
             upon
             the
             Adminicle
             of
             the
             Appryzing
             ,
             Insist
             to
             prove
             the
             Tenor.
             
          
        
         
           
             The
             Parochioners
             of
             Port
             Supplicant
             .
             Decem
             :
             4
             :
             1666
             :
          
           
             THe
             Parochioners
             of
             Port
             having
             built
             a
             Manse
             upon
             the
             Gleib
             to
             their
             Minister
             ,
             where
             there
             was
             no
             Manse
             before
             ,
             and
             having
             valued
             the
             same
             according
             to
             the
             late
             Act
             of
             Parliament
             ,
             and
             stented
             the
             same
             upon
             the
             Parochioners
             and
             others
             ;
             They
             did
             Supplicat
             the
             Lords
             for
             Letters
             of
             Horning
             ,
             conform
             to
             the
             stent
             Roll
             ,
             in
             respect
             that
             the
             said
             late
             Act
             of
             Parliament
             ,
             being
             the
             twentieth
             Act
             of
             the
             third
             Session
             of
             the
             last
             Parliament
             ,
             bears
             no
             warrand
             for
             Horning
             .
          
           
             The
             Lords
             ordained
             Letters
             of
             Horning
             to
             be
             past
             .
          
        
         
           
             Sir
             Alexander
             Vrquhart
             contra
             Sherem
             .
             Eodem
             die
             .
          
           
             IN
             anno
             1636
             :
             Sir
             
               Thomas
               Vrquhart
            
             of
             Cromerty
             gave
             a
             Security
             of
             a
             House
             and
             some
             Lands
             ,
             and
             a
             Salmond-fishing
             near
             Bamff
             ,
             for
             4000
             :
             merks
             :
             and
             in
             anno
             1637
             :
             There
             was
             700
             :
             merks
             eiked
             and
             a
             Back-bond
             relating
             to
             the
             first
             Wodset
             Renounced
             ,
             and
             a
             full
             Possession
             granted
             on
             both
             :
             There
             is
             a
             Clause
             of
             Redemption
             and
             Requisition
             upon
             payment
             of
             the
             principal
             Sums
             ,
             and
             Annualrents
             resting
             for
             the
             time
             .
             Sir
             
               Alexander
               Vrquhart
            
             pursues
             Sherem
             ,
             as
             now
             having
             Right
             to
             the
             Wodset
             ,
             for
             Compt
             and
             Reckoning
             :
             Who
             alleadged
             Absolvitor
             ,
             because
             this
             being
             a
             proper
             Wodset
             ,
             wherein
             he
             had
             the
             full
             Possession
             ,
             hazard
             of
             the
             Profits
             was
             not
             comptable
             ,
             especially
             ,
             seing
             the
             chief
             part
             of
             the
             Wodset
             was
             a
             Fishing
             ,
             which
             was
             most
             uncertain
             ;
             and
             though
             
               de
               facto
            
             he
             happened
             to
             get
             much
             more
             then
             his
             Annualrent
             yet
             it
             is
             no
             Usurary
             Wodset
             ,
             seing
             he
             might
             have
             losed
             all
             .
             The
             Pursuer
             Replyed
             ,
             that
             by
             the
             saids
             Clauses
             of
             Redemption
             ,
             and
             Requisition
             ,
             he
             was
             not
             only
             obliged
             for
             the
             principal
             Sums
             ,
             but
             for
             the
             bygone
             Annualrents
             ,
             resting
             unpayed
             ;
             so
             that
             the
             Wodsetter
             had
             no
             hazard
             :
             and
             therefore
             it
             is
             no
             proper
             Wodset
             ,
             and
             he
             is
             comptable
             .
             The
             Defender
             answered
             ,
             that
             the
             Clause
             was
             only
             adjected
             
               ex
               stylo
            
             ,
             for
             it
             did
             not
             bear
             ,
             that
             what
             Annualrent
             should
             be
             resting
             over
             and
             above
             Intromission
             ,
             should
             be
             Consigned
             ,
             but
             the
             whole
             resting
             Annualrents
             ;
             or
             at
             least
             it
             had
             been
             adjected
             ,
             in
             respect
             of
             the
             Back-bond
             ,
             restricting
             the
             first
             Wodset
             :
             or
             in
             case
             the
             Wodsetter
             had
             been
             excluded
             from
             Possession
             .
          
           
           
             The
             Lords
             found
             the
             Defender
             comptable
             in
             respect
             of
             the
             saids
             Clauses
             ,
             but
             there
             occurred
             to
             themselves
             this
             question
             ,
             whether
             the
             Superplus
             more
             then
             the
             Annualrent
             should
             compense
             ?
             and
             abate
             the
             principal
             Sum
             at
             the
             time
             of
             the
             Intromission
             ,
             or
             only
             now
             ,
             whereanent
             the
             Lords
             were
             of
             different
             opinions
             ,
             many
             thought
             that
             when
             the
             meaning
             of
             the
             Parties
             was
             not
             full
             ,
             and
             express
             ,
             that
             should
             be
             followed
             ,
             which
             is
             most
             ordinar
             amongst
             provident
             Pers●ns
             ,
             hardly
             could
             it
             be
             thought
             that
             any
             would
             take
             a
             Wodset
             upon
             these
             Terms
             to
             draw
             out
             the
             principal
             Sum
             ,
             with
             excress
             yearly
             ,
             but
             the
             Lords
             reserved
             that
             Point
             to
             be
             considered
             ,
             while
             it
             appeared
             whether
             there
             was
             any
             excress
             above
             the
             Annualrent
             .
          
        
         
           
             Monteith
             contra
             Laird
             of
             Gloret
             .
             Dec
             :
             7
             :
             1666
             :
          
           
             IN
             a
             Competition
             between
             Monteith
             and
             the
             Laird
             of
             Gloret
             .
             It
             was
             alleadged
             for
             Monteith
             ,
             that
             he
             ought
             to
             be
             preferred
             to
             the
             Sums
             in
             question
             ,
             because
             Glorets
             Assignation
             was
             obtained
             by
             Hamiltoun
             of
             Kinglass
             ,
             and
             was
             lying
             by
             him
             blank
             in
             the
             Assigneys
             name
             ,
             and
             by
             him
             filled
             up
             with
             Glorets
             Name
             ,
             and
             delivered
             to
             him
             ,
             so
             that
             Kinglass
             being
             his
             true
             Author
             ,
             any
             Discharge
             granted
             by
             him
             while
             the
             Bonds
             were
             blank
             ,
             and
             in
             his
             power
             ,
             was
             relevant
             against
             Gloret
             his
             Assigney
             ,
             
               Ita
               est
               Kinglass
            
             ,
             while
             or
             before
             the
             Bonds
             were
             in
             his
             power
             ,
             did
             equivalent
             to
             a
             Discharge
             ,
             viz.
             oblieged
             himself
             to
             pay
             this
             Sum
             ,
             and
             relieve
             the
             principal
             Debitor
             thereof
             ;
             and
             instead
             of
             the
             Discharge
             he
             took
             this
             blank
             Assignation
             ,
             filled
             up
             by
             him
             in
             Glorets
             Name
             .
             2ly
             ,
             The
             Charge
             though
             in
             Glorets
             Name
             ,
             is
             to
             Kinglass's
             behove
             :
             and
             if
             he
             were
             Charging
             his
             Obliegment
             to
             pay
             the
             Debt
             ,
             would
             exclude
             him
             :
             And
             therefore
             must
             exclude
             the
             Charger
             .
             It
             was
             answered
             that
             Gloret
             was
             in
             
               bona
               fide
            
             ,
             to
             take
             this
             Assignation
             ,
             knowing
             nothing
             of
             the
             Back-bond
             ;
             and
             that
             an
             Obliegment
             to
             satisfie
             the
             Debt
             ,
             was
             not
             equivalent
             to
             a
             Discharge
             :
             Neither
             is
             the
             having
             of
             the
             Assignation
             ,
             though
             blank
             ,
             equivalent
             to
             an
             Assignation
             ,
             unless
             the
             Name
             of
             Kinglassie
             had
             been
             filled
             up
             and
             Intimat
             .
          
           
             The
             Lords
             having
             taken
             Glorets
             Oath
             before
             Answer
             ,
             wherein
             he
             acknowledged
             ,
             that
             he
             got
             this
             Assignation
             from
             Kinglassy
             ,
             and
             payed
             no
             money
             for
             it
             ,
             and
             that
             it
             was
             on
             these
             Terms
             ▪
             Kinglassie
             being
             owing
             him
             a
             greater
             Sum
             ,
             he
             was
             to
             allow
             what
             he
             got
             by
             this
             Assignation
             ,
             in
             part
             thereof
             ,
             but
             Deponed
             he
             knew
             not
             if
             it
             was
             blank
             when
             Kinglasse
             had
             it
             or
             not
             .
          
           
             The
             Lords
             found
             that
             the
             Assignation
             being
             accepted
             by
             Gloret
             in
             Terms
             aforesaid
             ,
             that
             it
             was
             but
             a
             Corroborative
             Security
             ,
             and
             so
             found
             the
             Assignation
             to
             Kinglassies
             behove
             ,
             and
             found
             the
             Back-bond
             Relevant
             to
             exclude
             him
             ,
             and
             therefore
             preferred
             Monteith
             .
          
        
         
           
           
             Sir
             George
             Mckenzie
             contra
             Fairholm
             .
             Eodem
             die
             .
          
           
             SIr
             
               George
               Mckenzie
            
             Advocat
             pursues
             a
             Reduction
             of
             a
             Bond
             granted
             by
             him
             as
             Cautioner
             for
             his
             Father
             ,
             (
             the
             Bond
             is
             now
             Assigned
             to
             
               Iohn
               Fairholm
            
             )
             on
             these
             Reasons
             .
             First
             ,
             That
             the
             Bond
             is
             null
             ,
             as
             being
             done
             by
             a
             Minor
             ,
             being
             in
             his
             Fathers
             Family
             ,
             and
             not
             being
             Authorized
             by
             his
             Father
             ,
             as
             lawful
             Administrator
             :
             And
             therefore
             in
             the
             same
             condition
             as
             a
             Minor
             having
             Curators
             ,
             they
             not
             Confirming
             such
             Deeds
             are
             null
             ,
             and
             may
             be
             Reduced
             at
             any
             time
             ,
             though
             they
             have
             not
             been
             quarrelled
             within
             the
             Minors
             Age
             of
             twenty
             five
             .
             2ly
             ,
             Because
             Curators
             being
             chosen
             as
             a
             Security
             to
             the
             Levity
             of
             Minors
             ,
             they
             cannot
             Authorise
             the
             Minor
             to
             the
             Curators
             behove
             ,
             but
             such
             Deeds
             are
             null
             :
             So
             neither
             could
             the
             Pursuers
             Father
             Authorize
             him
             to
             be
             Cautioner
             for
             himself
             .
             The
             Defender
             answered
             ;
             First
             ,
             That
             albeit
             a
             Father
             ,
             as
             lawful
             Administrator
             ,
             and
             Tutor
             to
             his
             Children
             ,
             excludes
             all
             other
             Tutors
             ,
             yet
             he
             is
             not
             Curator
             after
             their
             Pupillarity
             ,
             because
             they
             may
             choose
             other
             Curators
             ,
             and
             that
             
               filij
               familias
            
             ,
             in
             the
             Civil
             Law
             could
             not
             Contract
             without
             their
             Fathers
             consent
             .
             It
             was
             a
             special
             Statute
             ,
             
               per
               Senatus
               consultum
               Macedonianum
            
             ,
             and
             not
             as
             Curator
             .
             2ly
             ,
             The
             Father
             cannot
             be
             lyable
             for
             his
             Omissions
             by
             his
             unprofitable
             Authorizing
             his
             Children
             ,
             for
             such
             Actions
             would
             be
             
               contra
               pietatem
               &
               obsequium
               .
               3ly
               ,
            
             There
             is
             nothing
             more
             frequent
             in
             Scotland
             ,
             then
             Sons
             to
             have
             a
             distinct
             Estate
             ,
             while
             in
             their
             Fathers
             Families
             ,
             given
             by
             the
             Father
             ,
             or
             otherwise
             ,
             whereof
             they
             have
             the
             full
             Administration
             without
             Authority
             .
             4ly
             ,
             Whatever
             may
             be
             alleadged
             for
             Children
             residing
             in
             the
             Family
             of
             their
             Father
             ,
             yet
             that
             cannot
             be
             extended
             to
             Children
             ,
             Acting
             by
             themselves
             ,
             far
             from
             their
             Fathers
             Family
             :
             but
             the
             Pursuer
             was
             so
             living
             ,
             and
             Acting
             at
             Edinburgh
             ,
             attending
             the
             Tolbooth
             ,
             and
             was
             
               majori
               ae●ati
               proximus
            
             ,
             being
             past
             20.
             
             The
             Pursuer
             answered
             ,
             that
             his
             Reason
             stood
             still
             Relevant
             ,
             because
             by
             the
             Law
             of
             Scotland
             ,
             a
             Father
             is
             lawful
             Administrator
             to
             his
             Children
             ,
             and
             is
             not
             ordinarly
             designed
             lawful
             Tutor
             ,
             but
             lawful
             Administrator
             ,
             which
             does
             not
             only
             endure
             during
             their
             Pupillarity
             ,
             but
             during
             their
             Minority
             ;
             but
             at
             least
             ,
             till
             they
             be
             Married
             ,
             or
             Forisfamiliat
             ;
             or
             till
             they
             have
             a
             distinct
             Subsistence
             or
             Calling
             .
             And
             albeit
             the
             Children
             be
             not
             Residing
             in
             the
             Family
             ,
             yet
             they
             are
             
               in
               familia
            
             ,
             so
             long
             as
             they
             are
             there
             ,
             and
             not
             separat
             from
             the
             same
             ,
             as
             the
             Pursuer
             was
             :
             and
             albeit
             the
             Son
             may
             choose
             other
             Curators
             ,
             if
             the
             Father
             permit
             ,
             or
             the
             Judge
             think
             fit
             ,
             and
             is
             not
             conveenable
             for
             his
             Mis-authorizing
             ,
             or
             Omission
             ,
             that
             infers
             only
             that
             he
             is
             only
             Curator
             honorarius
             .
             The
             Defender
             did
             furder
             alleadged
             ,
             that
             the
             Father
             had
             furder
             Authorized
             ,
             in
             so
             far
             as
             he
             Subscribed
             the
             said
             Bond
             ,
             and
             so
             consented
             that
             his
             Son
             should
             Subscribe
             ,
             and
             neither
             was
             the
             Deed
             
               in
               rem
               su●m
            
             ,
             but
             
               in
               rem
               credito●is
            
             .
          
           
           
             The
             Lords
             found
             the
             Reasons
             of
             Reduction
             Relevant
             ,
             and
             Repelled
             the
             Defenses
             :
             and
             albeit
             many
             thought
             that
             the
             Father
             Subscribing
             with
             the
             Son
             ,
             was
             sufficient
             to
             Authorize
             ;
             yet
             that
             it
             was
             not
             sufficient
             ,
             being
             Caution
             for
             himself
             ,
             
               in
               rem
               suam
            
             but
             did
             not
             proceed
             to
             cause
             the
             Parties
             condescend
             how
             near
             Sir
             George
             was
             to
             Majority
             ,
             and
             what
             was
             his
             way
             of
             living
             .
          
        
         
           
             Earl
             Cassils
             contra
             Tennents
             of
             Dalmortoun
             and
             John
             Whitefoord
             of
             Blarquhan
             .
             Decem
             :
             11
             :
             1666
             :
          
           
             AN
             Action
             of
             Double
             Poynding
             ,
             at
             the
             Instance
             of
             the
             Tennents
             of
             Balmortoun
             ,
             against
             the
             Earl
             of
             Cassils
             on
             the
             one
             part
             :
             and
             
               Iohn
               Whitefoord
            
             of
             Blarquhan
             on
             the
             other
             ,
             both
             claiming
             Right
             to
             their
             Multures
             .
             It
             was
             alleadged
             for
             the
             Earl
             of
             Cassils
             ,
             that
             the
             Lands
             in
             question
             being
             holden
             Ward
             of
             him
             ,
             is
             now
             in
             his
             hands
             ,
             by
             reason
             of
             the
             Ward
             of
             Knockdaw
             his
             Vassal
             ,
             he
             had
             now
             Right
             to
             their
             Multures
             ,
             and
             they
             ought
             to
             come
             to
             the
             Miln
             of
             his
             Barony
             ,
             whereof
             these
             Lands
             were
             Pertinent
             ,
             and
             shew
             his
             Infeftment
             ,
             containing
             the
             Lands
             of
             
               Dalmortoun
               per
               expressum
            
             .
             It
             was
             alleadged
             for
             
               Iohn
               Whitefoord
            
             ,
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             that
             Kennedy
             of
             Blarquhan
             ,
             the
             Earls
             Vassal
             ,
             both
             of
             the
             Lands
             of
             Dalmortoun
             and
             Blarquhan
             ,
             had
             Disponed
             to
             him
             the
             Lands
             of
             Blarquhan
             and
             Miln
             of
             Sklintoch
             ,
             with
             astricted
             Multures
             ,
             used
             and
             wont
             :
             at
             which
             time
             Blarquhan
             caused
             his
             Tennents
             of
             Dalmortoun
             ,
             to
             come
             to
             the
             said
             Miln
             of
             Sklintoch
             ,
             whereby
             the
             Thirlage
             was
             not
             only
             Constitute
             of
             the
             Lands
             of
             Blarquhan
             ,
             but
             of
             Dalmortoun
             .
             It
             was
             answered
             for
             the
             Earl
             :
             First
             ,
             That
             the
             Thirlage
             of
             Dalmortoun
             could
             not
             be
             Constitute
             by
             the
             said
             Clause
             ;
             because
             the
             Lands
             of
             Dalmortoun
             being
             no
             part
             of
             that
             Barony
             ,
             whereof
             the
             Miln
             of
             Sklintoch
             is
             the
             Miln
             :
             But
             a
             distinct
             Tenement
             holden
             of
             a
             distinct
             Superiour
             :
             Such
             a
             general
             Clause
             could
             never
             have
             Constitute
             a
             Thirlage
             ,
             unless
             the
             Lands
             had
             been
             exprest
             .
             2ly
             ,
             Albeit
             the
             Servitude
             had
             been
             Constitute
             never
             so
             clearly
             by
             the
             Vassal
             :
             Yet
             if
             it
             was
             without
             the
             Superiours
             consent
             ,
             it
             could
             not
             prejudge
             him
             by
             Ward
             ,
             or
             Non-entry
             .
             It
             was
             answered
             for
             
               Iohn
               Whitefoord
            
             to
             the
             First
             ,
             That
             the
             Clause
             was
             sufficient
             to
             Constitute
             the
             Thirlage
             :
             and
             if
             it
             wrought
             not
             that
             Effect
             ,
             it
             was
             of
             no
             Effect
             ,
             because
             the
             hail
             Lands
             of
             the
             Barony
             were
             Disponed
             with
             the
             Miln
             ,
             and
             neither
             needed
             ,
             nor
             could
             be
             Thirled
             :
             And
             therefore
             the
             Clause
             of
             Thirlage
             behoved
             to
             be
             meaned
             of
             some
             other
             Lands
             .
             2ly
             ,
             Vassals
             may
             lawfully
             Constitute
             Servitudes
             without
             consent
             of
             the
             Superiour
             which
             are
             not
             Evacuat
             by
             Ward
             ,
             or
             Non-entry
             .
             3ly
             ,
             It
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Earl
             consented
             to
             the
             Right
             of
             the
             ●●lture
             ,
             in
             so
             far
             as
             the
             Lands
             of
             Dalmortoun
             being
             Appryzed
             from
             Blarquhan
             by
             
               Iohn
               Gilmour
            
             ,
             he
             assigned
             the
             Appryzing
             to
             
               Iohn
               Whitefoord
            
             ,
             who
             Assigned
             or
             Disponed
             the
             same
             to
             Kilkerren
             :
             in
             which
             Asignation
             ,
             there
             was
             an
             express
             Reservation
             of
             the
             Multurs
             of
             Dalmortoun
             to
             the
             Miln
             of
             Sklintoch
             :
             upon
             which
             Infeftment
             the
             Earl
             received
             Kilkerren
             in
             these
             Lands
             ,
             who
             is
             Author
             to
             the
             present
             Vassal
             .
          
           
           
             The
             Lords
             found
             the
             Clause
             aforesaid
             in
             
               Iohn
               Whitefords
            
             Charter
             not
             to
             infer
             a
             Servitude
             of
             the
             Lands
             of
             Dalmortoun
             ,
             not
             being
             therein
             exprest
             ;
             and
             holden
             of
             another
             Superiour
             :
             Nor
             no
             Decreets
             nor
             Enrolments
             of
             Court
             ,
             alleadged
             to
             astruct
             the
             Servitude
             .
             And
             found
             also
             the
             second
             Reason
             Relevant
             ,
             viz.
             That
             the
             Earl
             as
             Superiour
             ,
             not
             having
             consented
             ,
             was
             not
             prejudged
             by
             any
             Deed
             of
             the
             Vassals
             .
             But
             as
             to
             the
             third
             Point
             ,
             the
             Lords
             found
             that
             the
             Reservation
             in
             Kilkerrens
             Right
             ,
             unless
             it
             were
             
               per
               expressum
            
             ,
             contained
             in
             the
             Charter
             Subscribed
             by
             the
             Earl
             of
             Cassils
             ,
             could
             not
             infer
             his
             consent
             ;
             albeit
             the
             Charter
             related
             to
             a
             Disposition
             ,
             containing
             that
             Clause
             ,
             but
             if
             it
             were
             alleadged
             to
             be
             exprest
             in
             the
             Charter
             :
             they
             Ordained
             before
             answer
             ,
             the
             Charter
             to
             be
             produced
             ,
             that
             they
             might
             consider
             the
             terms
             of
             the
             Reservation
             .
          
        
         
           
             Sir
             Henry
             Home
             contra
             Creditors
             of
             Kello
             and
             Sir
             Alexander
             Home
             .
             Decemb
             :
             12
             :
             1666
             :
          
           
             SIR
             
               Henry
               Home
            
             having
             appryzed
             the
             Lands
             of
             Kello
             ,
             before
             the
             year
             1652.
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             :
             Compearance
             is
             made
             for
             either
             Creditors
             appryzers
             ,
             who
             alleadged
             they
             ought
             to
             come
             in
             with
             him
             
               pari
               passu
            
             ,
             by
             the
             late
             Act
             between
             Creditor
             and
             Debitor
             ;
             because
             the
             appryzings
             being
             since
             the
             year
             1652.
             was
             within
             a
             year
             of
             his
             appryzings
             ,
             being
             effectual
             by
             Infeftment
             ,
             or
             Charge
             .
             It
             was
             answered
             ▪
             that
             the
             Act
             of
             Parliament
             was
             only
             in
             relation
             to
             Compryzings
             ,
             both
             being
             since
             the
             year
             1652.
             and
             the
             Pursuers
             appryzing
             being
             led
             before
             ,
             falls
             not
             within
             the
             same
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Parliament
             in
             that
             Clause
             thereof
             in
             the
             beginning
             ,
             mentions
             expresly
             ,
             that
             Compryzings
             led
             since
             1652.
             shall
             come
             in
             
               pari
               passu
            
             with
             other
             appryzings
             ;
             but
             doth
             not
             express
             ,
             whether
             these
             other
             appryzings
             are
             since
             1652
             :
             but
             in
             that
             is
             general
             ,
             and
             the
             Reason
             of
             the
             Law
             is
             also
             general
             ,
             and
             extensive
             to
             this
             Case
             .
             It
             was
             answered
             that
             the
             posterior
             part
             of
             that
             same
             Clause
             ,
             clears
             that
             point
             ,
             both
             in
             relation
             to
             the
             appryzings
             ,
             in
             whose
             favours
             ,
             and
             against
             which
             the
             Law
             is
             introduced
             ,
             viz.
             that
             the
             Clause
             is
             only
             meant
             the
             appryzings
             led
             since
             1652
             :
             shall
             come
             in
             
               pari
               passu
            
             ,
             which
             must
             both
             comprehend
             these
             that
             come
             in
             ,
             and
             these
             with
             whom
             they
             come
             in
             .
          
           
             The
             Lords
             Repelled
             the
             alleadgence
             ,
             quoad
             other
             Compryzings
             ,
             and
             found
             that
             their
             Compryzings
             could
             not
             come
             in
             with
             the
             Pursuer
             ,
             he
             having
             appryzed
             before
             the
             year
             1652.
             and
             Charged
             before
             their
             appryzing
             .
          
        
         
           
             Ianet
             Thomson
             contra
             Stevinson
             .
             Decem
             :
             13
             :
             1666
             :
          
           
             
               JAnet
               Thomson
            
             pursues
             a
             Reduction
             of
             a
             Disposition
             made
             by
             her
             to
             Stevinson
             ,
             upon
             Minority
             and
             Lesion
             ;
             and
             also
             upon
             this
             Reason
             ,
             that
             the
             Disposition
             was
             done
             within
             some
             few
             dayes
             after
             her
             Pupillarity
             ,
             and
             it
             being
             of
             Land
             ,
             ought
             not
             to
             have
             been
             done
             without
             authority
             of
             a
             Judge
             ,
             especially
             
             seing
             she
             had
             no
             Curators
             .
             The
             Defender
             answered
             to
             the
             first
             ,
             there
             was
             no
             Lesion
             ,
             because
             the
             Disposition
             bears
             a
             sum
             equivalent
             to
             the
             value
             of
             the
             Land.
             To
             the
             second
             ,
             
               non
               Relevat
            
             .
             The
             pursuer
             answered
             ,
             that
             the
             Subscribing
             and
             acknowledging
             the
             receipt
             of
             Money
             by
             a
             Minor
             ,
             cannot
             prove
             it self
             ,
             but
             the
             Minor
             is
             Les'd
             in
             Subscribing
             the
             same
             .
             The
             Defender
             Duplyed
             ,
             that
             he
             offered
             to
             prove
             by
             Witnesses
             ,
             that
             the
             price
             was
             truely
             payed
             ,
             and
             profitably
             Employed
             .
          
           
             The
             Lords
             found
             not
             the
             second
             Reason
             of
             Reduction
             Relevant
             ,
             the
             authority
             of
             a
             Judge
             being
             only
             required
             to
             the
             alienation
             of
             Lands
             made
             by
             Tutors
             of
             their
             Pupils
             Lands
             .
          
        
         
           
             Anna
             Fairly
             contra
             Creditors
             of
             Sir
             William
             Dick.
             December
             14
             :
             1666
             :
          
           
             
               ANna
               Fairly
            
             alleadging
             that
             she
             obtained
             an
             Assignation
             from
             umquhil
             Mr.
             
               Alexander
               Dick
            
             ,
             as
             Factor
             for
             his
             Father
             ,
             in
             satisfaction
             of
             a
             Sum
             due
             to
             her
             by
             his
             Father
             ,
             pursues
             for
             delivery
             of
             the
             assignation
             .
             The
             Creditors
             alleadged
             that
             the
             assignation
             being
             in
             the
             hands
             and
             custody
             of
             Mr.
             Alexander
             the
             Granter
             ,
             it
             must
             be
             proven
             by
             Writ
             ,
             he
             being
             dead
             ▪
             that
             it
             was
             delivered
             ,
             and
             not
             by
             Witnesses
             ;
             for
             there
             is
             nothing
             more
             frequent
             ,
             then
             Parties
             upon
             intentions
             ,
             to
             subscribe
             Bonds
             ,
             Assignations
             ,
             and
             other
             Rights
             ,
             and
             yet
             do
             not
             ,
             
               de
               facto
            
             ,
             deliver
             them
             :
             or
             if
             they
             have
             been
             delivered
             ,
             to
             satisfie
             them
             and
             retire
             them
             and
             if
             Witnesses
             were
             admitted
             to
             prove
             the
             delivery
             ,
             or
             redelivery
             of
             such
             Writs
             ,
             the
             Lieges
             would
             be
             in
             extream
             unsecurity
             ,
             contrary
             to
             our
             Law
             ,
             that
             admits
             not
             Witnesses
             above
             an
             hundred
             Pounds
             ;
             and
             therefore
             
               Chirographum
               apud
               debitorem
               repeatum
               praesumitur
               solutum
            
             ;
             which
             presumption
             cannot
             be
             taken
             away
             by
             Witnesses
             .
             The
             Pursuer
             answered
             ,
             that
             though
             this
             holds
             in
             Bonds
             ,
             where
             there
             is
             a
             Debitor
             ,
             and
             no
             other
             adminicle
             to
             instruct
             the
             Debt
             ;
             yet
             this
             is
             an
             Assignation
             ,
             and
             the
             Cause
             thereof
             otherwise
             instructed
             ,
             and
             most
             likely
             to
             be
             truely
             done
             :
             and
             it
             is
             offered
             to
             be
             proven
             ,
             that
             this
             Assignation
             was
             delivered
             back
             to
             Mr.
             Alexander
             ,
             to
             be
             made
             use
             of
             as
             Agent
             for
             the
             Pursuer
             .
          
           
             The
             Lords
             refused
             to
             sustain
             this
             Member
             of
             the
             Probation
             ,
             but
             because
             of
             the
             poverty
             of
             the
             poor
             Woman
             ,
             recommended
             the
             case
             to
             the
             Creditors
             ,
             to
             be
             favourable
             to
             her
             ,
             and
             did
             forbear
             to
             write
             the
             Interlocutor
             .
          
        
         
           
           
             Hay
             of
             Knockondy
             contra
             Litlejohn
             .
             Eodem
             die
             .
          
           
             HAY
             of
             Knockondy
             pursues
             Litlejohn
             for
             the
             damnage
             sustained
             by
             him
             ,
             by
             the
             fall
             of
             Litlejohns
             House
             ,
             called
             the
             
               Tower
               of
               Babylon
            
             ,
             whereby
             the
             Pursuers
             House
             ,
             adjacent
             ,
             was
             broken
             down
             .
             The
             Defender
             alleadged
             ;
             First
             ,
             The
             Libel
             was
             not
             relevant
             ,
             unless
             he
             had
             been
             required
             to
             find
             Caution
             ,
             
               de
               damno
               infecto
            
             ,
             as
             is
             required
             by
             the
             Civil
             Law
             ,
             whereby
             if
             that
             Caution
             were
             not
             required
             ,
             there
             is
             an
             express
             Text
             in
             the
             Title
             
               de
               damno
               infecto
            
             ,
             that
             there
             shall
             be
             no
             Action
             ,
             but
             the
             Party
             shall
             impute
             his
             loss
             to
             his
             own
             negligence
             .
             Likeas
             we
             have
             two
             special
             Statutes
             ,
             concerning
             ruinous
             Houses
             ,
             which
             prescrive
             the
             method
             of
             preserving
             them
             ,
             and
             making
             up
             the
             damnage
             ,
             none
             of
             which
             being
             followed
             ,
             the
             Defender
             is
             not
             lyable
             .
          
           
             2ly
             ,
             Whatsoever
             might
             be
             alleadged
             against
             the
             Heretor
             of
             the
             said
             House
             ,
             the
             Defender
             is
             only
             an
             Appryzer
             of
             a
             Liferent-Right
             ,
             for
             a
             small
             Sum
             ;
             and
             the
             Liferenter
             was
             not
             obliged
             to
             repair
             a
             Tenement
             manifestly
             ruinous
             ,
             that
             could
             not
             be
             preserved
             ,
             but
             with
             great
             Expence
             and
             Rebuilding
             :
             much
             less
             the
             Appryzer
             who
             hath
             but
             a
             small
             Sum
             on
             it
             .
             The
             Pursuer
             answered
             to
             the
             first
             Defense
             ,
             that
             his
             Libel
             was
             most
             Relevant
             Damnage
             upon
             any
             fault
             ,
             being
             due
             and
             Reparable
             by
             the
             Law
             of
             Nature
             :
             and
             as
             for
             the
             Civil
             Law
             ,
             it
             hath
             no
             Effect
             with
             us
             in
             this
             point
             ,
             our
             Custom
             neither
             giving
             nor
             requiring
             such
             Caution
             ;
             much
             less
             refusing
             Action
             ,
             if
             it
             be
             neglected
             :
             and
             as
             to
             our
             own
             Statutes
             ,
             though
             they
             be
             very
             convenient
             wayes
             for
             securing
             of
             damnage
             ,
             yet
             they
             are
             not
             exclusive
             ,
             nor
             have
             they
             any
             Clause
             ,
             except
             in
             these
             Cases
             ,
             and
             in
             that
             method
             ,
             Damnage
             shall
             be
             irrecoverable
             .
             To
             the
             2d
             ,
             it
             was
             answered
             ,
             The
             Pursuer
             was
             not
             obliged
             to
             know
             ,
             or
             enquire
             whether
             the
             Defender
             was
             Heretor
             or
             not
             :
             but
             he
             finding
             that
             he
             was
             a
             Neighbour
             ,
             behaving
             himself
             as
             Heretable
             Possessor
             ,
             by
             uplifting
             the
             Duties
             he
             did
             pursue
             him
             ,
             and
             if
             need
             beis
             ,
             offers
             him
             to
             prove
             ,
             that
             he
             did
             require
             him
             to
             keep
             him
             skaithless
             ,
             though
             he
             took
             no
             Instrument
             thereon
             .
             The
             Defender
             answered
             ,
             that
             he
             was
             not
             obliged
             to
             take
             notice
             of
             such
             Requisitions
             ,
             not
             being
             Solemn
             by
             Instrument
             .
          
           
             The
             Lords
             found
             the
             Defender
             lyable
             ,
             albeit
             there
             had
             been
             no
             Requisition
             verbal
             or
             otherwise
             ,
             it
             being
             proven
             that
             the
             Ruinousness
             of
             the
             Tenement
             that
             fell
             ,
             was
             notour
             and
             manifest
             to
             the
             Defender
             himself
             ,
             whereby
             he
             was
             obliged
             ,
             either
             to
             demolish
             the
             House
             ,
             if
             it
             was
             not
             Reparable
             ,
             or
             to
             have
             quite
             his
             Possession
             ,
             to
             evite
             the
             imminent
             damnage
             of
             Neighbours
             .
          
        
         
           
             Lord
             Colvil
             contra
             Feuars
             of
             Culross
             .
             Decemb.
             15.
             1666.
             
          
           
             THe
             Lord
             Colvil
             as
             Heretable
             Bailzie
             of
             Culross
             ,
             having
             Charged
             the
             Lord
             Kincairn
             and
             others
             for
             the
             Taxation
             of
             their
             Lands
             in
             Culross
             ,
             conform
             to
             the
             stent
             Roll
             ;
             They
             Suspended
             ,
             and
             alleadged
             that
             the
             stent
             Roll
             contained
             a
             fifth
             part
             more
             then
             the
             Taxation
             .
             It
             was
             answered
             ,
             and
             
             offered
             to
             be
             proven
             ,
             that
             it
             was
             the
             Custom
             of
             that
             and
             other
             Benefices
             at
             their
             meeting
             of
             making
             the
             Stent-roll
             ,
             to
             add
             a
             fifth
             part
             for
             Expenses
             and
             Charges
             of
             ingathering
             the
             Taxation
             .
             The
             Defenders
             answered
             ,
             that
             if
             any
             such
             Custom
             were
             ,
             it
             was
             against
             Law
             ,
             and
             against
             the
             Liberty
             of
             the
             Subject
             ,
             who
             could
             be
             lyable
             for
             no
             payment
             ,
             but
             by
             Law
             ,
             or
             of
             their
             own
             consent
             ;
             or
             if
             any
             such
             Custome
             were
             ,
             it
             hath
             been
             by
             the
             consent
             of
             the
             Vassals
             ,
             or
             at
             least
             they
             have
             not
             questioned
             the
             same
             ,
             nor
             is
             there
             any
             ground
             for
             such
             an
             addition
             ,
             for
             the
             Kings
             Officers
             being
             obliged
             by
             their
             Office
             ,
             to
             Collect
             His
             Majesties
             Taxations
             ,
             they
             can
             demand
             nothing
             of
             them
             who
             payed
             without
             Process
             ;
             and
             if
             they
             be
             put
             to
             Process
             ,
             the
             Lords
             will
             modifie
             such
             Expences
             as
             they
             see
             cause
             .
             The
             Charger
             answered
             ,
             That
             such
             immemorial
             Customes
             have
             the
             strength
             of
             Law
             ;
             and
             that
             it
             was
             done
             with
             the
             consent
             of
             all
             the
             Vassals
             who
             conveened
             ;
             and
             that
             it
             was
             the
             Suspenders
             fault
             that
             they
             conveened
             not
             to
             make
             the
             stent
             Roll
             ,
             which
             should
             not
             put
             them
             in
             better
             case
             then
             they
             had
             conveened
             :
             or
             if
             they
             had
             conveened
             ,
             and
             disassented
             ,
             there
             is
             no
             reason
             ,
             that
             the
             dissassent
             of
             a
             few
             should
             be
             preferred
             to
             the
             consent
             of
             the
             most
             part
             ,
             who
             as
             they
             may
             Vot
             in
             the
             stent
             Roll
             ,
             for
             the
             Taxation
             it self
             ;
             in
             which
             the
             plurality
             carries
             :
             so
             must
             they
             for
             the
             necessary
             Expences
             :
             and
             all
             that
             can
             be
             alleadged
             with
             reason
             is
             ,
             that
             the
             Lords
             may
             modifie
             the
             Expences
             of
             a
             fifth
             part
             ,
             if
             it
             be
             too
             high
             .
             The
             Suspenders
             answered
             ,
             that
             Law
             authorized
             the
             Feuars
             ,
             as
             a
             Court
             and
             Judicature
             ,
             to
             meet
             and
             stent
             ,
             which
             implyes
             a
             power
             to
             the
             Plurality
             ,
             but
             there
             is
             no
             such
             warrand
             for
             Expences
             ;
             as
             to
             which
             ,
             the
             consent
             of
             a
             hundred
             cannot
             oblige
             the
             dissassent
             of
             one
             ,
             or
             of
             one
             absent
             ,
             and
             the
             absents
             have
             loss
             enough
             ,
             that
             they
             have
             not
             a
             Vot
             in
             their
             own
             Stent
             .
          
           
             The
             Lords
             sustained
             the
             Reason
             of
             the
             Suspension
             ,
             notwithstanding
             of
             the
             answer
             ;
             and
             found
             that
             no
             Expences
             ,
             nor
             any
             thing
             more
             than
             the
             Taxation
             could
             be
             stented
             ,
             to
             have
             effect
             against
             these
             who
             consented
             not
             ,
             but
             they
             would
             modifie
             Expences
             ,
             in
             case
             of
             Suspension
             ,
             as
             the
             Cause
             required
             ,
             but
             modified
             none
             in
             this
             case
             ,
             because
             a
             fifth
             part
             was
             Charged
             for
             ,
             more
             then
             was
             due
             .
          
        
         
           
             Lord
             Newbeath
             contra
             Dumbar
             of
             Burgie
             .
             Decemb.
             18.
             1666.
             
          
           
             THE
             Lord
             Newbeath
             having
             right
             from
             
               Iames
               Mcken
            
             ,
             who
             had
             appryzed
             the
             Lands
             of
             Burgie
             ,
             pursues
             Reduction
             and
             Improbation
             against
             young
             Burgie
             and
             
               Iohn
               Watson
            
             ;
             and
             insists
             on
             this
             Reason
             ,
             that
             any
             Rights
             they
             have
             are
             null
             ,
             and
             fraudulent
             ,
             being
             Contracted
             after
             his
             Debt
             ,
             and
             the
             Right
             granted
             to
             young
             Burgie
             is
             null
             ,
             as
             being
             but
             a
             base
             Infeftment
             ,
             not
             cled
             with
             Possession
             ,
             before
             the
             Pursuers
             publick
             Infeftment
             .
             The
             Defender
             alleadged
             that
             his
             Infeftment
             was
             cled
             with
             Possession
             ,
             in
             so
             far
             as
             his
             Fathers
             Liferent
             was
             reserved
             thereby
             ,
             and
             his
             Father
             Possessing
             by
             vertue
             of
             the
             Reservation
             ,
             did
             validat
             his
             Infeftment
             .
             2ly
             ,
             Albert
             the
             Fathers
             own
             Possession
             could
             not
             be
             sufficient
             ,
             yet
             the
             Father
             having
             Transmitted
             his
             Right
             to
             Watson
             ,
             and
             Watson
             Possessing
             ,
             the
             Suspicion
             of
             ●●mulation
             ceased
             ,
             and
             there
             is
             a
             Disposition
             produced
             by
             the
             Father
             to
             Watson
             ,
             which
             though
             it
             bear
             to
             be
             of
             the
             Fee
             ,
             yet
             can
             import
             no
             more
             ,
             but
             to
             be
             of
             the
             
             Liferent
             ,
             seing
             the
             Father
             had
             no
             more
             ,
             neither
             needs
             it
             have
             an
             Infeftment
             ,
             seing
             it
             hath
             but
             the
             effect
             of
             an
             Assignation
             to
             a
             Liferent
             .
             It
             was
             answered
             ,
             that
             if
             the
             Father
             had
             expresly
             assigned
             his
             Liferent
             ,
             reserved
             in
             the
             base
             Infeftment
             ,
             it
             might
             have
             been
             the
             ground
             of
             a
             question
             ,
             whether
             the
             Assigneys
             Possessing
             so
             ,
             would
             have
             validat
             the
             base
             Infeftment
             ?
             But
             since
             the
             Father
             has
             not
             taken
             notice
             of
             the
             Reservation
             ,
             but
             Dispones
             as
             Heretor
             ,
             it
             clears
             that
             he
             did
             not
             Possess
             by
             the
             Reservation
             ,
             but
             by
             his
             own
             prior
             Right
             .
          
           
             The
             Lords
             found
             the
             Reason
             of
             Reduction
             and
             Reply
             Relevant
             ,
             and
             that
             the
             Fathers
             Possessing
             by
             himself
             ,
             or
             Watsons
             Possessing
             by
             himself
             ,
             could
             not
             validat
             the
             base
             Infeftment
             .
          
        
         
           
             Charles
             Cass
             contra
             Mr.
             Iohn
             Wat.
             Eodem
             die
             .
          
           
             DOctor
             Cass
             having
             taken
             Infeftment
             of
             an
             annualrent
             ,
             out
             of
             the
             Lands
             of
             Robertland
             ,
             in
             name
             of
             Cockpen
             and
             
               Adam
               Wat
               ,
               Charles
               Cass
            
             as
             Heir
             to
             the
             Doctor
             ,
             pursues
             Mr.
             
               Iohn
               Wat
            
             ,
             as
             Heir
             to
             his
             Father
             ,
             for
             Compt
             and
             Reckoning
             of
             the
             Mails
             and
             Duties
             ,
             and
             Charges
             him
             with
             the
             hail
             Rental
             being
             intrometted
             ,
             or
             ought
             to
             have
             been
             intrometted
             with
             by
             him
             and
             his
             Father
             ,
             by
             vertue
             of
             the
             Trust
             in
             their
             Person
             ;
             and
             also
             
               Adam
               Wat
            
             took
             a
             gift
             of
             Tutory
             to
             the
             Pursuer
             ,
             and
             so
             is
             lyable
             as
             his
             Tutor
             .
             The
             Defender
             answered
             ,
             that
             his
             Fathers
             Name
             being
             borrowed
             on
             Trust
             ,
             could
             lay
             no
             Obligation
             on
             him
             to
             do
             any
             Diligence
             ,
             but
             what
             he
             thought
             fit
             ,
             seing
             by
             his
             Back-bond
             he
             was
             obliged
             to
             denude
             himself
             ,
             whenever
             the
             Doctor
             pleased
             ;
             and
             the
             Pursuer
             has
             reason
             to
             thank
             him
             for
             what
             he
             did
             ,
             and
             not
             burden
             him
             with
             what
             he
             omitted
             ,
             seing
             he
             had
             no
             allowance
             therefore
             :
             and
             as
             for
             the
             Tutory
             ,
             there
             was
             a
             multiple
             Poinding
             all
             the
             time
             thereof
             ,
             depending
             among
             five
             or
             six
             Parties
             ,
             pretending
             Right
             by
             the
             dependence
             whereby
             the
             Tutor
             was
             excluded
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defenders
             Name
             was
             not
             borrowed
             without
             his
             knowledge
             ,
             but
             that
             he
             accepted
             thereof
             ,
             and
             entred
             to
             Possession
             ;
             and
             as
             an
             Appryzer
             is
             not
             obliged
             to
             Possess
             ,
             but
             if
             he
             Possess
             ,
             must
             be
             answerable
             for
             the
             Rents
             of
             the
             Lands
             conform
             to
             the
             Rental
             ,
             so
             must
             the
             Defender
             .
          
           
             The
             Lords
             found
             the
             Defender
             not
             lyable
             to
             Diligence
             .
             by
             vertue
             of
             the
             Trust
             ,
             albeit
             he
             did
             Possess
             ,
             but
             Ordained
             him
             to
             Compt
             for
             his
             intromission
             ,
             and
             to
             condescend
             what
             Diligence
             his
             Father
             did
             as
             Tutor
             ,
             that
             if
             he
             be
             found
             deficient
             therein
             ,
             there
             might
             be
             an
             additional
             Accompt
             to
             what
             he
             intrometted
             with
             .
          
        
         
           
           
             Mr.
             Iames
             Cheap
             contra
             Mr.
             Iohn
             Philip.
             Decem.
             19.
             1666.
             
          
           
             MR.
             
               Iames
               Cheap
            
             charges
             Mr.
             
               Iohn
               Philip
            
             ,
             to
             fulfil
             a
             Minute
             of
             Alienanation
             of
             the
             Lands
             of
             Ormestoun
             ,
             sold
             by
             Mr.
             Iames
             to
             Mr.
             Iohn
             ,
             whereby
             Mr.
             Iohn
             was
             obliged
             to
             pay
             25500
             merks
             ,
             as
             the
             price
             ,
             or
             to
             assign
             sufficient
             Bonds
             therefore
             :
             He
             Suspends
             ,
             and
             offers
             to
             Consign
             Bonds
             ,
             and
             amongst
             the
             rest
             ,
             a
             Bond
             of
             8000
             merks
             due
             by
             the
             Town
             of
             Edinburgh
             .
             The
             Charger
             alleadged
             that
             he
             was
             not
             obliged
             to
             accept
             that
             Bond
             ,
             because
             at
             the
             time
             of
             the
             agreement
             ,
             and
             Subscription
             of
             the
             Minut
             ;
             the
             Charger
             particularly
             excepted
             the
             Town
             of
             Edinburghs
             Debt
             ,
             and
             the
             Suspender
             declared
             ,
             that
             it
             should
             be
             no
             part
             of
             the
             price
             ,
             which
             he
             offered
             to
             prove
             by
             the
             Writer
             and
             Witnesses
             insert
             in
             the
             Minute
             .
             The
             Suspender
             answered
             ,
             that
             Witnesses
             were
             not
             competent
             in
             this
             Case
             ,
             where
             the
             words
             of
             the
             Minute
             are
             not
             dubious
             ,
             but
             clear
             and
             general
             of
             any
             sufficient
             Debt
             ,
             for
             if
             this
             were
             sustained
             ,
             the
             alteration
             of
             the
             price
             ,
             as
             well
             as
             the
             manner
             of
             payment
             ,
             might
             be
             proven
             by
             Witnesses
             .
             It
             was
             answered
             ,
             that
             it
             was
             no
             way
             alike
             ,
             nothing
             being
             here
             in
             question
             ,
             but
             the
             manner
             of
             payment
             ,
             and
             not
             the
             quantity
             of
             the
             price
             .
          
           
             The
             Lords
             Ordained
             the
             Writer
             and
             Witnesses
             to
             be
             Examined
             before
             answer
             .
          
        
         
           
             Ianet
             Thomson
             contra
             Stevinson
             .
             Eodem
             die
             .
          
           
             IN
             the
             Reduction
             on
             Minority
             ,
             at
             the
             Instance
             of
             
               Ianet
               Thomson
            
             contra
             Stevinson
             .
          
           
             The
             Lords
             Ordained
             the
             Pursuers
             Mother
             to
             be
             received
             Witness
             of
             her
             Age
             ,
             
               cum
               nota
            
             ,
             there
             being
             a
             Testificat
             already
             produced
             ,
             and
             there
             being
             30
             or
             40
             years
             since
             the
             Pursuers
             Birth
             :
             after
             which
             time
             ,
             it
             was
             not
             likely
             that
             others
             would
             remember
             ;
             but
             she
             was
             ordained
             to
             Depon●
             who
             were
             Witnesses
             at
             the
             Birth
             and
             Baptism
             ,
             and
             these
             to
             be
             Examined
             .
          
        
         
           
             Corstorphin
             contra
             Martines
             .
             Decem.
             21.
             1666.
             
          
           
             
               JAmes
               Corstorphin
            
             pursues
             a
             Reduction
             of
             a
             Disposition
             made
             by
             his
             Fathers
             Sister
             ,
             
               in
               lecto
            
             .
             It
             was
             alleadged
             by
             Martines
             ,
             to
             whom
             the
             Disposition
             was
             made
             ,
             that
             he
             could
             not
             quarrel
             the
             same
             ,
             because
             his
             Father
             to
             whom
             he
             is
             Heir
             ,
             and
             the
             other
             Brethren
             and
             Sisters
             of
             the
             Defunct
             had
             approven
             whatsoever
             Testament
             ,
             Legacy
             or
             Disposition
             ,
             made
             or
             to
             be
             made
             by
             the
             Defunct
             ,
             of
             her
             Goods
             and
             Gear
             ,
             Debts
             and
             sums
             of
             Money
             ,
             and
             others
             whatsoever
             ,
             that
             she
             had
             ,
             or
             should
             have
             the
             time
             of
             her
             Decease
             ;
             so
             that
             
             she
             having
             made
             this
             Disposition
             ,
             he
             cannot
             quarrel
             the
             same
             .
             The
             Pursuer
             answered
             ;
             First
             ,
             That
             the
             Ratification
             in
             the
             Terms
             foresaid
             ,
             could
             not
             be
             extended
             to
             Lands
             or
             Annualrents
             ,
             Constitute
             by
             Infeftment
             ,
             there
             being
             no
             mention
             of
             Lands
             ,
             Annualrents
             or
             Heretage
             therein
             .
             2ly
             ,
             It
             could
             not
             be
             extended
             to
             any
             Disposition
             ,
             but
             Legally
             made
             ,
             and
             therefore
             not
             to
             Dispositions
             on
             Death-bed
             .
             The
             Defender
             answered
             ,
             that
             the
             Ratification
             bearing
             expresly
             sums
             of
             Money
             ,
             did
             comprehend
             all
             sums
             ,
             although
             Infeftment
             of
             Annualrent
             were
             granted
             for
             security
             thereof
             ,
             which
             being
             but
             accessory
             to
             the
             sum
             ,
             follows
             the
             same
             .
             2ly
             ,
             There
             could
             be
             no
             other
             effect
             of
             the
             Ratification
             ,
             if
             it
             were
             not
             to
             exclude
             the
             Heir
             from
             quarreling
             thereof
             ,
             as
             being
             
               in
               lecto
            
             ,
             for
             if
             the
             same
             was
             made
             by
             the
             Defunct
             in
             her
             
               leige
               poustie
            
             ,
             it
             were
             valide
             and
             unquarrelable
             in
             it self
             ,
             and
             albeit
             it
             bear
             not
             mention
             of
             Death-bed
             ,
             yet
             it
             expresses
             Disposition
             of
             all
             Goods
             ,
             she
             should
             happen
             to
             have
             the
             time
             of
             her
             Death
             ;
             so
             that
             if
             she
             had
             acquired
             Rights
             after
             her
             sickness
             contracted
             ,
             she
             might
             Dispone
             the
             same
             validly
             by
             this
             Ratification
             ,
             and
             yet
             behoved
             to
             be
             on
             Death-bed
             .
          
           
             The
             Lords
             found
             this
             Ratificatiou
             not
             to
             extend
             to
             sums
             whereupon
             Infeftment
             of
             Annualrent
             followed
             ,
             which
             was
             carried
             but
             by
             one
             Vote
             ,
             and
             so
             they
             came
             not
             to
             the
             second
             Point
             .
          
        
         
           
             William
             Yeoman
             contra
             Mr.
             Patrick
             Oliphant
             :
             Eodem
             die
             .
          
           
             
               WIlliam
               Yeoman
            
             having
             apprized
             the
             Lands
             of
             
               Iames
               Oliphant
            
             ,
             Son
             to
             Sir
             
               Iames
               Oliphant
            
             ;
             and
             Mr.
             
               Patrick
               Oliphant
            
             having
             also
             appryzed
             the
             same
             ,
             William
             insists
             on
             this
             reason
             ,
             that
             Mr.
             Patricks
             appryzing
             was
             satisfied
             by
             Intromission
             within
             the
             legal
             ;
             Mr.
             Patrick
             alleadged
             that
             his
             whole
             Intromission
             could
             not
             be
             countable
             to
             satisfie
             his
             Appryzing
             ,
             because
             the
             two
             part
             thereof
             did
             only
             belong
             to
             his
             Debitor
             ,
             and
             the
             third
             part
             to
             Dame
             
               Geils
               Moncrief
            
             ,
             who
             had
             right
             to
             a
             Terce
             thereof
             ,
             and
             to
             whom
             Mr.
             Patrick
             was
             only
             lyable
             and
             countable
             ,
             and
             for
             a
             part
             of
             the
             years
             he
             was
             her
             Tennent
             ,
             and
             had
             Right
             from
             her
             .
             It
             was
             answered
             that
             the
             Tercer
             had
             no
             compleat
             Right
             ,
             till
             she
             was
             Served
             ,
             and
             kend
             to
             her
             Terce
             ,
             which
             ,
             being
             done
             after
             the
             years
             in
             question
             ,
             the
             Fiar
             might
             have
             Possest
             the
             whole
             till
             her
             Service
             ,
             and
             might
             have
             forced
             the
             Possessors
             to
             pay
             him
             ,
             so
             the
             Appryzer
             entring
             in
             Possession
             of
             the
             whole
             ,
             upon
             his
             Appryzing
             ,
             cannot
             pretend
             the
             Right
             of
             the
             Tercer
             ,
             and
             his
             taking
             Tack
             of
             her
             ,
             was
             unwarrantable
             till
             she
             was
             Served
             ,
             and
             done
             of
             purpose
             ,
             that
             his
             Appryzing
             might
             not
             be
             fully
             satisfied
             ,
             and
             so
             the
             Legal
             might
             expyre
             ,
             which
             is
             most
             rigorous
             and
             unjust
             ,
             and
             offered
             presently
             to
             satisfie
             the
             Tercer
             of
             her
             third
             .
             It
             was
             answered
             that
             the
             Service
             whensoever
             done
             ,
             is
             drawn
             back
             to
             the
             Husbands
             death
             ,
             and
             doth
             but
             declare
             ,
             and
             not
             constitute
             the
             Wifes
             Right
             ,
             like
             the
             Service
             of
             an
             Heir
             .
          
           
             The
             Lords
             found
             that
             
               Mr.
               Patrick
            
             could
             not
             cloath
             himself
             with
             the
             Tercers
             Right
             ,
             to
             cause
             the
             legal
             expyre
             ;
             but
             found
             the
             offer
             Relevant
             ,
             for
             besides
             the
             favour
             of
             the
             Cause
             ,
             the
             case
             is
             not
             alike
             with
             an
             appear
             and
             Heir
             ,
             whose
             Right
             ,
             
             though
             not
             declared
             ,
             yet
             he
             continues
             in
             his
             Predecessors
             Possession
             ,
             and
             none
             other
             hath
             any
             Interest
             ,
             but
             the
             Fiar
             might
             possess
             the
             whole
             ,
             and
             exclude
             the
             Tercer
             till
             she
             were
             Served
             .
          
        
         
           
             Paul
             Henrison
             contra
             Laird
             Ludquharn
             .
             Decemb.
             22.
             1666.
             
          
           
             
               PAul
               Henrison
            
             Indweller
             in
             the
             Island
             of
             Helgilland
             ,
             being
             at
             the
             mouth
             of
             the
             Elve
             ,
             fraughted
             to
             Scotland
             by
             Hamburgers
             ,
             was
             taken
             by
             a
             Privateer
             ,
             and
             declared
             Pryze
             at
             Peterhead
             by
             the
             Laird
             of
             Ludquharn
             ,
             Admiral
             Depute
             there
             ,
             whereupon
             he
             addrest
             himself
             to
             the
             Admiral
             Court
             at
             Leith
             ,
             and
             obtained
             Decreet
             for
             restoring
             of
             his
             Ship
             upon
             compearance
             :
             Ludquharn
             gives
             in
             a
             Bill
             of
             Suspension
             of
             this
             Decreet
             ,
             and
             to
             dispatch
             the
             Stranger
             ,
             because
             it
             was
             ordained
             to
             be
             heard
             upon
             the
             Bill
             :
             Ludquharn
             alleadged
             that
             the
             Admirals
             Decreet
             was
             unjust
             ,
             because
             he
             offered
             him
             to
             prove
             by
             Merchants
             in
             Edinburgh
             ,
             that
             Helligilland
             is
             a
             part
             of
             the
             Dominion
             of
             Denmark
             ,
             and
             albeit
             it
             be
             in
             the
             present
             Possession
             of
             the
             Duke
             of
             Holstein
             ;
             yet
             he
             holds
             it
             of
             the
             Crown
             of
             Denmark
             ,
             and
             as
             to
             that
             ,
             he
             is
             Subject
             to
             the
             King
             of
             Denmark
             ,
             and
             therefore
             the
             Inhabitants
             of
             that
             Island
             are
             in
             the
             state
             of
             enimity
             with
             the
             King
             ,
             and
             so
             lawful
             Pryze
             ,
             It
             was
             answered
             ,
             that
             the
             Stranger
             hath
             produced
             a
             Pass
             of
             Sir
             
               William
               Swan
            
             ,
             the
             Kings
             Agent
             at
             Hamburgh
             ,
             bearing
             that
             he
             had
             taken
             tryal
             ;
             and
             found
             the
             Ship
             to
             be
             free
             ;
             and
             it
             being
             notour
             and
             acknowledged
             ,
             that
             this
             Stranger
             is
             a
             Subject
             of
             the
             Duke
             of
             Holstein
             ,
             who
             is
             a
             Prince
             of
             the
             Empire
             ,
             and
             in
             Amity
             with
             His
             Majesty
             ,
             as
             is
             declared
             by
             a
             Letter
             of
             the
             King
             to
             the
             Lord
             Commissioner
             ,
             it
             must
             extend
             to
             all
             His
             present
             Subjects
             ,
             who
             are
             not
             oblieged
             to
             Dispute
             how
             he
             holds
             this
             Islands
             ,
             or
             when
             he
             got
             the
             Right
             thereof
             :
             and
             his
             Pass
             bears
             him
             to
             be
             a
             Natural
             Subject
             of
             the
             Duke
             of
             Holsteins
             ,
             and
             not
             of
             the
             King
             of
             Denmark
             .
             It
             was
             answered
             ,
             that
             the
             Right
             of
             this
             Island
             was
             only
             in
             Impignoration
             ,
             and
             only
             in
             Possession
             of
             the
             Duke
             of
             Holstein
             within
             this
             ten
             year
             .
          
           
             The
             Lords
             adhered
             to
             the
             Admirals
             Decreet
             ,
             and
             Repelled
             the
             Reasons
             of
             the
             Bill
             .
          
        
         
           
             Tweeddies
             contra
             Tweeddie
             .
             Eodem
             die
             .
          
           
             UMquhil
             Tweeddie
             of
             having
             Disponed
             his
             whole
             Estate
             to
             his
             Eldest
             Son
             ,
             at
             the
             same
             time
             ,
             his
             Son
             gives
             a
             Bond
             to
             his
             Mother
             and
             her
             Heirs
             of
             six
             thousand
             merks
             ,
             the
             Mother
             being
             dead
             ,
             the
             other
             five
             Bairns
             pursues
             a
             Declarator
             of
             Trust
             against
             the
             Heir
             ,
             that
             this
             was
             the
             Bairns
             Provision
             ,
             put
             in
             the
             Name
             of
             the
             Mother
             ,
             and
             offers
             to
             prove
             the
             same
             by
             the
             Wryter
             and
             Witnesses
             insert
             .
             It
             was
             answered
             ,
             that
             Trust
             was
             not
             so
             probable
             ,
             otherwise
             all
             Rights
             
             might
             be
             inverted
             by
             Witnesses
             ,
             whose
             Testimonies
             ,
             our
             Law
             hath
             Restricted
             to
             an
             hundred
             Pounds
             .
             It
             was
             answered
             ,
             that
             much
             more
             was
             to
             be
             attribute
             to
             Witnesses
             insert
             ,
             upon
             whose
             Testimonies
             the
             Parties
             condescend
             ,
             and
             confide
             ,
             than
             to
             common
             Witnesses
             .
             2dly
             ,
             Albeit
             Witnesses
             were
             not
             receiveable
             to
             prove
             Trust
             alone
             :
             Yet
             where
             there
             are
             strong
             presumptions
             concurring
             ,
             they
             are
             admittable
             even
             to
             annul
             Writs
             of
             the
             greatest
             importance
             ,
             as
             is
             ordinarly
             used
             in
             the
             indirect
             manner
             of
             Improbations
             ;
             and
             here
             are
             strong
             presumptions
             ,
             viz.
             That
             the
             Father
             ,
             at
             the
             time
             of
             this
             Bond
             ,
             did
             Dispone
             to
             the
             Defender
             ,
             his
             Eldest
             Son
             ,
             his
             whole
             Estate
             ,
             without
             a
             Reservation
             of
             his
             own
             Liferent
             ,
             or
             any
             other
             thing
             ,
             and
             there
             were
             five
             Children
             beside
             ,
             who
             had
             no
             Provision
             :
             So
             that
             albeit
             this
             Bond
             be
             conceived
             to
             the
             Wife
             ,
             her
             Heirs
             and
             Assigneys
             ,
             yet
             cannot
             be
             presumed
             to
             be
             intended
             to
             have
             fallen
             back
             to
             the
             Defender
             as
             her
             Heir
             .
          
           
             The
             Lords
             in
             respect
             of
             the
             presumptions
             ,
             were
             inclinable
             to
             admit
             the
             Witnesses
             ,
             but
             they
             ordained
             the
             Pursuers
             before
             answer
             ,
             to
             what
             could
             make
             a
             sufficient
             Probation
             to
             adduce
             such
             Witnesses
             as
             they
             would
             make
             use
             of
             for
             astructing
             these
             Presumptions
             and
             the
             Trust.
             
          
        
         
           
             Iames
             Hoge
             in
             Edinburgh
             contra
             Iames
             Hoge
             in
             Dalkeith
             .
             Ianuary
             2.
             1667.
             
          
           
             
               JAmes
               Hoge
            
             in
             Edinburgh
             ,
             pursues
             a
             Declarator
             of
             Redemption
             agaist
             
               Iames
               Hoge
            
             in
             Dalkeith
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             whole
             sum
             ,
             contained
             in
             the
             Reversion
             ,
             was
             not
             Consigned
             .
             It
             was
             answered
             ,
             there
             was
             Consigned
             the
             equivalent
             ,
             viz.
             A
             Decreet
             against
             the
             Defender
             ,
             for
             a
             Liquide
             sum
             ,
             which
             behoved
             to
             compense
             .
             It
             was
             answered
             ,
             that
             Reversions
             being
             
               strictissimi
               juris
            
             ,
             Compensations
             are
             not
             to
             be
             admitted
             therein
             :
             otherwayes
             Wodsetters
             may
             be
             much
             prejudgeed
             by
             taking
             Assignations
             from
             their
             Creditors
             ,
             and
             Consigning
             the
             same
             ,
             and
             frustrating
             them
             of
             their
             Moneys
             ,
             which
             they
             had
             designed
             for
             other
             Creditors
             ,
             and
             other
             uses
             .
             It
             was
             answered
             ,
             that
             this
             was
             no
             Extrinsick
             Compensation
             ,
             but
             a
             Decreet
             founded
             upon
             an
             Article
             contained
             in
             the
             Contract
             of
             Wodset
             .
          
           
             Upon
             which
             consideration
             the
             Lords
             Sustained
             the
             Order
             ,
             and
             Declared
             .
          
        
         
           
           
             Earl
             of
             Murray
             contra
             Iohn
             Hume
             .
             Eodem
             die
             .
          
           
             THE
             Earl
             of
             Murray
             pursues
             Hume
             his
             Tennent
             to
             find
             Caution
             for
             his
             Duties
             ,
             or
             else
             to
             Remove
             :
             Who
             alleadged
             Absolvitor
             ,
             because
             the
             Earl
             was
             Debitor
             to
             him
             in
             a
             Sum
             exceeding
             all
             the
             bygone
             Rents
             ,
             and
             this
             Action
             hath
             no
             place
             ,
             but
             when
             there
             are
             some
             years
             Rent
             Resting
             .
             It
             was
             answered
             ,
             That
             the
             Defender
             was
             at
             the
             Horn
             ,
             and
             his
             Escheat
             taken
             ,
             and
             so
             was
             manifestly
             ,
             
               vergent
               ad
               inopiam
            
             .
          
           
             The
             Lords
             would
             not
             Sustain
             this
             Member
             ,
             unless
             bygones
             had
             been
             owing
             ,
             but
             Superceeded
             to
             give
             answer
             ,
             till
             the
             Compensation
             were
             proven
             .
          
        
         
           
             Francis
             Hamiltoun
             contra
             Eodem
             die
             .
          
           
             
               FRancis
               Hamiltoun
            
             having
             Suspended
             a
             Decreet
             ,
             obtained
             against
             him
             for
             House-mails
             ,
             on
             this
             Reason
             ,
             that
             his
             Wife
             only
             took
             the
             Tack
             ,
             which
             could
             not
             oblige
             him
             .
             It
             was
             answered
             ,
             that
             his
             Wife
             keeping
             a
             publick
             Tavern
             ,
             was
             evidently
             
               praeposita
               huic
               negotio
            
             .
          
           
             Which
             the
             Lords
             Sustained
             .
          
           
             Another
             Reason
             was
             ,
             that
             the
             House
             became
             insufficient
             in
             the
             Roof
             ,
             and
             the
             Defender
             before
             the
             Term
             ,
             required
             the
             Pursuer
             to
             Repair
             the
             same
             ,
             which
             he
             did
             not
             ;
             and
             the
             Neighbouring
             House
             ,
             called
             
               The
               Tower
               of
               Babel
            
             ,
             falling
             upon
             the
             Roof
             ,
             made
             it
             Ruinous
             .
             It
             was
             answered
             ,
             That
             was
             an
             accident
             without
             the
             Pursuers
             fault
             ,
             and
             the
             Tennent
             ought
             to
             pursue
             these
             whose
             Tenement
             it
             was
             that
             fell
             .
          
           
             The
             Lords
             found
             the
             Reason
             was
             not
             Relevant
             to
             Liberate
             from
             the
             Mail
             ,
             unless
             the
             Suspender
             had
             abstained
             to
             Possesse
             ,
             but
             found
             it
             Relevant
             to
             abate
             the
             Duties
             in
             so
             far
             as
             he
             was
             Damnified
             .
          
        
         
           
             Oliphant
             contra
             Hamiltoun
             of
             Kilpoty
             .
             Eodem
             die
             .
          
           
             
               WILLIAM
               OLIPHANT
            
             having
             obtained
             a
             Decreet
             for
             Poynding
             of
             the
             Ground
             ,
             against
             Hamiltoun
             .
             He
             Suspends
             on
             this
             Reason
             ,
             that
             he
             was
             neither
             
             Decerned
             as
             Heir
             ,
             nor
             Possessor
             ,
             but
             as
             appearand
             Heir
             to
             the
             Heretor
             ,
             and
             was
             never
             Charged
             to
             Enter
             Heir
             .
          
           
             The
             Lords
             Repelled
             the
             Reason
             ,
             and
             found
             this
             Action
             ,
             being
             real
             ,
             was
             competent
             against
             the
             appear
             and
             Heir
             without
             a
             Charge
             .
          
        
         
           
             William
             Oliphant
             contra
             Hamiltoun
             .
             Eodem
             die
             .
          
           
             OLiphant
             pursuing
             the
             foresaid
             Poinding
             of
             the
             Ground
             upon
             an
             Annualrent
             .
             It
             was
             alleadged
             Absolvitor
             from
             the
             bygones
             before
             the
             Pursuers
             Right
             ,
             because
             his
             author
             was
             Debitor
             to
             the
             Defender
             in
             a
             liquid
             sum
             equivalent
             .
             It
             was
             answered
             ,
             that
             the
             Pursuer
             was
             singular
             Successor
             ,
             and
             no
             personal
             Debt
             of
             his
             Authors
             could
             infer
             Compensation
             of
             a
             real
             Right
             against
             him
             .
          
           
             The
             Lords
             found
             that
             the
             bygain
             Annualrents
             were
             moveable
             and
             compensable
             with
             any
             liquid
             Debt
             of
             the
             Pursuers
             Authors
             .
          
        
         
           
             contra
             Brand.
             Ianuary
             3.
             1667.
             
          
           
             Chapman
             having
             left
             his
             Pack
             in
             custody
             with
             Brand
             ,
             In
             Dundee
             ,
             about
             ten
             or
             twelve
             dayes
             after
             ,
             Brand
             opened
             the
             Pack
             ,
             and
             made
             use
             of
             the
             Ware.
             The
             Chapman
             now
             pursues
             him
             for
             a
             Spuilzie
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Pack
             was
             put
             in
             his
             hands
             for
             security
             of
             a
             Debt
             due
             by
             the
             Pack-man
             ,
             and
             he
             being
             informed
             that
             the
             Pack-man
             would
             not
             rerurn
             ,
             did
             ,
             by
             warrand
             of
             a
             Baillie
             in
             Dundee
             ,
             cause
             four
             of
             the
             Neighbours
             ,
             Inventar
             and
             Price
             the
             Ware.
             It
             was
             answered
             
               non
               relevat
            
             ,
             for
             though
             the
             Pack
             had
             been
             impignorat
             ,
             the
             Defender
             could
             not
             appryze
             it
             summarly
             ,
             but
             behoved
             to
             take
             a
             Sentence
             to
             Poind
             the
             same
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             .
          
           
             It
             was
             further
             alleadged
             ,
             that
             there
             could
             be
             no
             Spuilzie
             ,
             nor
             Oath
             
               in
               litem
            
             of
             the
             Pursuer
             ,
             because
             there
             was
             no
             Violence
             .
             It
             was
             answered
             that
             the
             Oath
             
               in
               litem
            
             is
             Competent
             ,
             whether
             it
             were
             a
             Spuilzie
             or
             a
             breach
             of
             Trust
             ,
             
               actione
               depos●●
            
             .
             It
             was
             answered
             ,
             that
             the
             Oath
             
               in
               litem
            
             being
             granted
             mainly
             ,
             because
             Parties
             injured
             by
             breach
             of
             such
             Trusts
             ,
             cannot
             be
             put
             to
             prove
             by
             VVitnesses
             ,
             that
             which
             is
             taken
             from
             them
             ,
             none
             being
             oblieged
             to
             make
             patent
             his
             Pack
             ,
             or
             other
             privat
             Goods
             to
             VVitnesses
             ,
             yet
             where
             there
             is
             another
             clear
             way
             to
             prove
             the
             quantities
             ,
             viz
             ,
             the
             Oathes
             of
             the
             four
             Persons
             who
             opened
             the
             Pack
             ,
             there
             is
             no
             reason
             to
             put
             it
             to
             the
             Pursuers
             Oath
             ,
             especially
             seing
             their
             Inventar
             is
             not
             the
             eight
             part
             of
             what
             he
             claimes
             .
          
           
           
             The
             Lords
             admîtted
             the
             Pursuers
             Oath
             ,
             
               in
               litem
            
             ,
             reserving
             their
             own
             Modification
             ,
             with
             liberty
             to
             the
             Defender
             ,
             if
             he
             thought
             fit
             to
             produce
             what
             of
             the
             Ware
             he
             had
             ,
             and
             to
             produce
             these
             four
             Persons
             ,
             that
             the
             Pack-man
             may
             Depone
             in
             their
             presence
             .
          
        
         
           
             Earl
             of
             Sutherland
             contra
             Earls
             of
             Errol
             and
             Marischal
             .
             Eodem
             die
             .
          
           
             THere
             being
             a
             Decreet
             of
             Parliament
             ranking
             the
             Nobility
             ,
             whereby
             Earl
             of
             Sutherland
             was
             put
             after
             the
             Earls
             of
             Errol
             and
             Marischal
             :
             In
             which
             Decreet
             ,
             there
             is
             a
             Reservation
             to
             any
             to
             be
             heard
             before
             the
             Judge
             Ordinar
             ,
             upon
             production
             of
             more
             ancient
             Evidents
             ;
             whereupon
             the
             Earl
             of
             Sutherland
             pursues
             Reduction
             of
             the
             Decreet
             of
             Ranking
             ,
             containing
             an
             Improbation
             of
             all
             VVrits
             ,
             Patents
             ,
             and
             other
             Evidents
             granted
             to
             the
             Defenders
             ,
             or
             their
             Predecessors
             ,
             whereby
             they
             are
             Constitute
             or
             Designed
             Earls
             :
             they
             did
             produce
             the
             Decreet
             of
             Ranking
             ,
             and
             the
             Earl
             of
             Errols
             Retour
             ,
             whereupon
             the
             Pursuer
             craved
             Certification
             
               contra
               non
               producta
            
             ,
             after
             all
             the
             Terms
             were
             run
             .
             The
             Defenders
             alleadged
             no
             Certification
             ,
             because
             they
             had
             produced
             sufficiently
             ,
             by
             producing
             the
             Decreet
             of
             Ranking
             ,
             and
             their
             Retoures
             ,
             and
             the
             Pursuer
             had
             only
             produced
             his
             own
             Retoure
             ,
             which
             was
             since
             the
             Decreet
             of
             Ranking
             ;
             so
             that
             the
             Decreet
             of
             Ranking
             was
             sufficient
             to
             exclude
             all
             his
             Titles
             produced
             .
             It
             was
             answered
             ,
             the
             Retour
             being
             the
             Sentence
             of
             a
             Court
             ,
             Serving
             this
             Earl
             as
             Heir
             to
             his
             Fore-Grandsire
             Grandsires
             Grandsires
             ,
             Fore-Grandsires
             Goodsire
             ,
             who
             is
             Designed
             Earl
             by
             King
             Alexander
             the
             second
             :
             It
             was
             sufficient
             
               in
               initio
               litis
            
             .
             Likeas
             he
             did
             formerly
             produce
             the
             Original
             Evidents
             ,
             and
             which
             was
             now
             in
             the
             Clerks
             hands
             ,
             and
             might
             have
             been
             seen
             by
             the
             Defenders
             ,
             if
             they
             pleased
             .
          
           
             The
             Lords
             found
             the
             Retoures
             not
             sufficient
             alone
             ,
             and
             Ordained
             the
             rest
             to
             be
             Reproduced
             ,
             and
             seen
             by
             the
             Defenders
             .
          
        
         
           
             Smeatoun
             contra
             Crawfoord
             .
             Eodem
             die
             .
          
           
             UMquhil●
             
               Patrick
               Smeatoun
            
             granted
             a
             Disposition
             to
             Crawfoord
             his
             VVife
             ,
             and
             her
             Heirs
             ,
             of
             a
             Tenement
             of
             Land
             ,
             whereupon
             nothing
             followed
             during
             her
             Lifetime
             ,
             her
             younger
             Brothre
             
               Iames
               Crawfoord
            
             Served
             himself
             Heir-General
             to
             her
             ,
             and
             obtained
             a
             Decreet
             of
             Implement
             against
             
               Iohn
               Smeaton
            
             as
             Heir
             to
             his
             Father
             ,
             and
             having
             used
             Horning
             thereon
             ,
             obtained
             Adjudication
             against
             Smeatoun
             ,
             and
             his
             Superiour
             ,
             and
             thereupon
             was
             Infeft
             :
             which
             Right
             was
             Disponed
             by
             him
             ,
             with
             consent
             of
             
               William
               Crawfoord
            
             ,
             elder
             Brother
             to
             the
             VVife
             .
             The
             said
             
               Iohn
               Smeatoun
            
             Dispones
             the
             same
             Tenement
             to
             
               Alexandor
               Smeatoun
            
             ,
             and
             he
             is
             Infeft
             ,
             and
             thereupon
             pursues
             a
             Reduction
             of
             
               Iames
               Crawfoords
            
             Retour
             ,
             and
             of
             all
             that
             followed
             thereupon
             in
             consequence
             on
             this
             Reason
             ,
             that
             the
             Disposition
             to
             the
             VVife
             belonged
             not
             to
             
               Iames
               Crawfoord
            
             her
             younger
             Brother
             ,
             who
             was
             Heir
             of
             Line
             ,
             but
             to
             
               William
               Crawfoord
            
             ,
             her
             elder
             Brother
             ,
             as
             Heir
             of
             Conquest
             ,
             and
             so
             the
             Service
             
             was
             null
             ,
             following
             thereupon
             ;
             and
             the
             Pursuer
             being
             first
             Infeft
             from
             Smeatoun
             ,
             he
             hath
             the
             only
             Right
             ,
             because
             any
             Infeftment
             to
             William
             the
             Heir
             of
             Conquest
             will
             be
             posterior
             .
             It
             was
             answered
             ,
             that
             it
             was
             
               jus
               tertij
            
             to
             the
             Pursuer
             ,
             whether
             the
             Heir
             of
             Line
             was
             Served
             or
             Infeft
             ,
             or
             the
             Heir
             of
             Conquest
             :
             likeas
             the
             Heir
             of
             Conquest
             did
             concur
             ,
             and
             had
             consented
             to
             the
             Disposition
             .
          
           
             The
             Lords
             found
             not
             the
             Defenses
             Relevant
             ,
             but
             considering
             the
             Case
             as
             Calumnious
             ,
             seing
             it
             was
             but
             of
             late
             cleared
             by
             Decisions
             ,
             whether
             the
             Heirs
             of
             Line
             ,
             had
             right
             to
             Dispositions
             without
             Infeftment
             ,
             they
             did
             superceed
             to
             give
             answer
             ,
             but
             ordained
             the
             Defender
             to
             give
             in
             what
             Evidences
             he
             could
             give
             ,
             of
             the
             onerous
             cause
             of
             his
             Disposition
             .
          
        
         
           
             Paul
             Henrison
             contra
             Laird
             of
             Ludquharn
             and
             Captain
             Seatoun
             .
             Ianuary
             4.
             1667.
             
          
           
             THe
             Debate
             betwixt
             
               Paul
               Henrison
            
             and
             Ludquharn
             ,
             was
             this
             day
             heard
             again
             ,
             and
             it
             was
             alleadged
             that
             the
             Kings
             Proclamation
             declared
             War
             against
             the
             King
             of
             Denmark
             and
             his
             Subjects
             ,
             
               Ita
               est
            
             the
             Owners
             of
             the
             Ship
             are
             Subjects
             to
             the
             King
             of
             Denmark
             ,
             because
             it
             is
             notour
             that
             this
             Isle
             is
             a
             part
             of
             the
             Kingdom
             of
             Denmark
             ,
             and
             till
             of
             late
             was
             in
             the
             same
             condition
             ,
             as
             any
             other
             of
             his
             Territories
             ;
             and
             albeit
             the
             Duke
             of
             Holstein
             have
             now
             an
             Interest
             by
             Possession
             ,
             or
             Infeodation
             ,
             that
             alters
             not
             their
             subjection
             to
             the
             Crown
             of
             Denmark
             ,
             but
             the
             same
             is
             still
             presumed
             ,
             unless
             they
             will
             positively
             prove
             ,
             that
             the
             same
             is
             alter'd
             ,
             and
             the
             Duke
             of
             Holstein
             constitute
             Soveraign
             therein
             ,
             and
             they
             liberat
             from
             his
             Jurisdiction
             ,
             Tolls
             ,
             and
             Imposts
             for
             War.
             It
             was
             answered
             ,
             that
             this
             Stranger
             was
             not
             obliged
             to
             Dispute
             the
             Right
             or
             Investiture
             of
             the
             Duke
             of
             Holstein
             ;
             but
             it
             was
             sufficient
             for
             him
             to
             say
             ,
             that
             before
             this
             War
             they
             did
             own
             him
             as
             their
             Prince
             for
             simple
             acknowledgement
             of
             a
             Superiour
             ,
             or
             Investitur
             from
             him
             ,
             doe
             not
             make
             Subjects
             ,
             or
             comprehend
             them
             within
             the
             Wars
             ,
             and
             Quarrels
             of
             their
             Superiours
             :
             yea
             ,
             though
             there
             were
             a
             Tribute
             or
             Jurisdiction
             due
             to
             that
             Superiour
             ,
             yet
             if
             the
             Prince
             do
             enjoy
             the
             Priviledges
             of
             making
             War
             and
             Peace
             ,
             he
             is
             not
             a
             simple
             Subject
             ,
             but
             in
             so
             far
             a
             Soveraign
             Prince
             ,
             as
             some
             of
             the
             Princess
             of
             the
             Empyre
             ,
             hold
             of
             the
             Emperour
             paying
             him
             Tribute
             :
             and
             there
             lyes
             an
             appeal
             to
             the
             Soveraign
             Imperial
             Court
             ;
             yet
             because
             they
             can
             make
             War
             and
             Peace
             ,
             they
             are
             not
             necessarly
             involved
             within
             the
             Emperours
             Quarrels
             .
             So
             the
             Duke
             of
             Holstein
             being
             a
             Soveraign
             Prince
             ,
             and
             possessing
             this
             Island
             ,
             so
             as
             to
             make
             use
             of
             the
             Subjects
             thereof
             in
             Peace
             and
             War
             ;
             therefore
             is
             not
             comprehended
             in
             the
             King
             of
             Denmarks
             Quarrel
             ;
             nor
             is
             he
             ,
             or
             his
             Subjects
             in
             the
             Sense
             of
             the
             Proclamation
             .
          
           
             The
             Lords
             adhered
             to
             their
             former
             Interlocutor
             upon
             the
             22
             of
             December
             ,
             when
             this
             Case
             was
             Debated
             ,
             and
             Repelled
             the
             Alleadgences
             proponed
             for
             Ludquhurn
             ,
             unless
             it
             were
             alleadged
             that
             the
             Inhabitants
             of
             this
             Island
             do
             contribute
             with
             the
             King
             of
             Denmark
             in
             this
             War
             against
             the
             King
             ,
             and
             they
             so
             alleadging
             .
          
           
           
             The
             Lords
             Ordained
             the
             Ship
             and
             Goods
             to
             be
             valued
             ,
             and
             delivered
             to
             the
             Stranger
             upon
             Caution
             ;
             or
             otherwise
             to
             be
             Sequestrat
             in
             some
             Merchants
             hands
             ,
             that
             the
             Ship
             might
             be
             made
             use
             of
             for
             Fraught
             ,
             and
             the
             Goods
             sold
             ,
             and
             not
             made
             unprofitable
             :
             and
             according
             to
             the
             course
             of
             Admirality
             ,
             the
             Lords
             Ordained
             Ludquharn
             to
             find
             Caution
             for
             Cost
             ,
             Skaith
             and
             Damnage
             ,
             by
             the
             delay
             of
             that
             alleadgence
             .
          
        
         
           
             Mr.
             Iames
             Cheap
             contra
             Mr.
             Iohn
             Philip.
             Ian.
             5.
             1667.
             
          
           
             THe
             Lords
             having
             Considered
             the
             Testimonies
             of
             the
             Witnesses
             adduced
             before
             answer
             ,
             betwixt
             Mr.
             
               Iames
               Cheap
            
             and
             Mr.
             
               Iohn
               Philip
            
             ,
             upon
             the
             Debate
             mentioned
             the
             19.
             of
             December
             last
             ,
             found
             the
             same
             to
             prove
             ,
             and
             to
             qualifie
             the
             Minute
             ,
             they
             being
             the
             Witnesses
             insert
             above
             exception
             ,
             and
             it
             but
             a
             Minute
             ,
             wherein
             particulars
             are
             not
             at
             all
             ,
             nor
             fully
             set
             down
             ,
             which
             will
             not
             be
             drawn
             in
             example
             ,
             as
             to
             any
             full
             and
             extended
             Writs
             ,
             either
             for
             altering
             any
             Clause
             therein
             exprest
             ;
             or
             for
             adding
             thereunto
             any
             omitted
             .
          
        
         
           
             Laird
             of
             Polwart
             contra
             Laird
             of
             Halyburtoun
             .
             Ianu.
             16.
             1667.
             
          
           
             THe
             Laird
             of
             Polwart
             as
             Heir
             to
             his
             Father
             ,
             pursues
             Hallyburtoun
             for
             payment
             of
             a
             Ticket
             of
             250
             merks
             ,
             due
             by
             the
             Defender
             to
             the
             Pursuers
             Father
             ,
             and
             for
             a
             composition
             payed
             by
             the
             Pursuers
             Father
             ,
             for
             receiving
             him
             in
             certain
             Lands
             ,
             Disponed
             to
             him
             by
             the
             Defender
             ,
             wherein
             he
             was
             oblieged
             to
             obtain
             him
             Infeft
             .
             The
             Defender
             alleadged
             absolvitor
             from
             the
             payment
             of
             the
             Ticket
             ,
             because
             it
             must
             be
             presumed
             to
             be
             payed
             on
             these
             grounds
             ;
             first
             ,
             Since
             the
             Ticket
             ,
             the
             Defender
             sold
             Land
             to
             the
             Pursuer
             ,
             so
             that
             it
             must
             be
             presumed
             it
             was
             Counted
             and
             included
             in
             the
             price
             ,
             and
             albeit
             that
             presumption
             were
             not
             sufficient
             alone
             ,
             it
             is
             fortified
             by
             these
             two
             ,
             viz.
             That
             it
             is
             twenty
             eight
             years
             since
             the
             Bond
             was
             granted
             ,
             and
             no
             word
             ever
             heard
             thereof
             :
             and
             that
             umquhil
             Polwart
             in
             his
             Testament
             ,
             gave
             up
             an
             Inventar
             of
             the
             Debts
             owing
             to
             him
             ,
             wherein
             no
             mention
             is
             of
             the
             Bond.
             It
             was
             answered
             ,
             that
             a
             Writ
             could
             not
             be
             taken
             away
             by
             Witnesses
             proving
             payment
             :
             much
             less
             by
             presumptions
             :
             and
             as
             to
             the
             Taciturnity
             ,
             which
             is
             the
             main
             one
             ,
             umquhil
             Polwart
             dyed
             about
             seven
             years
             after
             the
             Bond
             was
             granted
             ,
             and
             the
             Pursuer
             was
             Minor
             most
             of
             the
             time
             since
             .
             It
             was
             answered
             ,
             that
             Presumptions
             have
             been
             oftimes
             sufficient
             to
             take
             away
             VVrits
             ,
             as
             was
             found
             in
             the
             case
             of
             the
             Lady
             Trabroun
             .
          
           
             The
             Lords
             Found
             the
             Presumptions
             not
             Relevant
             ,
             and
             that
             they
             were
             nothing
             so
             strong
             ,
             as
             these
             of
             the
             Lady
             Trabroun
             ,
             which
             were
             thus
             ;
             Trabroun
             granted
             a
             Bond
             of
             5000
             merks
             to
             
               Alexander
               Peebles
            
             ,
             which
             was
             taken
             away
             on
             these
             Presumptions
             ,
             that
             thereafter
             Trabroun
             had
             granted
             a
             Bond
             of
             10000
             merks
             to
             the
             said
             Mr.
             Alexander
             ,
             who
             was
             his
             Advocat
             ,
             with
             whom
             he
             had
             many
             Affairs
             ;
             and
             therefore
             it
             was
             to
             be
             presumed
             ,
             the
             last
             Bond
             included
             the
             first
             ;
             especially
             seing
             Trabroun
             decaying
             in
             his
             Fortune
             ,
             
             Mr.
             Alexander
             apdryzed
             his
             Lands
             upon
             the
             last
             Bond
             ,
             and
             not
             upon
             the
             first
             ,
             which
             he
             might
             have
             done
             with
             the
             same
             Expence
             ,
             and
             that
             he
             never
             moved
             any
             thing
             thereupon
             all
             his
             Life
             ,
             by
             the
             space
             of
             twenty
             six
             years
             ;
             and
             in
             the
             Inventar
             of
             his
             Testament
             ,
             he
             made
             no
             mention
             of
             it
             :
             and
             that
             his
             Executors
             being
             Examined
             
               ex
               officio
            
             ,
             did
             acknowledge
             they
             had
             found
             it
             amongst
             old
             cast
             Papers
             .
             The
             Defender
             furder
             alleadged
             absolvitor
             from
             the
             Composition
             ,
             because
             he
             was
             never
             required
             by
             Polwart
             ,
             to
             procure
             the
             Infeftment
             from
             the
             Earl
             of
             Hume
             ,
             which
             he
             could
             easily
             have
             done
             gratis
             ,
             he
             being
             his
             Uncle
             ,
             especially
             seing
             there
             was
             no
             Term
             in
             his
             Obligation
             to
             perform
             ;
             and
             therefore
             
               Interpellatio
               tantum
               inducit
               moram
            
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             and
             Assoilzied
             from
             the
             Composition
             .
             albeit
             it
             was
             alleadged
             that
             Polwart
             for
             several
             years
             had
             not
             Componed
             ,
             that
             the
             Composition
             was
             much
             less
             then
             a
             years
             Rent
             ,
             and
             that
             Halyburtoun
             was
             not
             in
             good
             Terms
             with
             the
             Earl
             of
             Hume
             ,
             which
             was
             not
             respected
             ,
             seing
             Hslyburtoun
             was
             not
             required
             .
          
        
         
           
             Reid
             contra
             Salmond
             .
             Eodem
             die
             .
          
           
             REid
             pursues
             
               Barbara
               Salmond
            
             and
             
               Iames
               Telz●fer
            
             her
             Husband
             ,
             for
             a
             debt
             due
             by
             her
             Father
             ,
             as
             behaving
             her self
             as
             Heir
             ,
             by
             Possessing
             a
             House
             wherein
             her
             Father
             died
             Infeft
             ;
             and
             by
             Setting
             another
             House
             of
             his
             to
             Tennents
             .
             It
             was
             answered
             ,
             that
             
               Iames
               Telzifer
            
             was
             Tennent
             in
             the
             House
             Possest
             by
             him
             ,
             before
             the
             Defuncts
             Death
             ,
             and
             might
             Possess
             ,
             
               per
               tacitam
               relocationem
            
             :
             Neither
             could
             he
             safely
             leave
             the
             House
             ,
             till
             he
             had
             given
             it
             over
             to
             some
             having
             Right
             .
          
           
             VVhich
             the
             Lords
             found
             Relevant
             :
          
           
             2ly
             .
             It
             was
             alleadged
             that
             the
             Defunct
             had
             Disponed
             the
             same
             Tenement
             to
             the
             defenders
             Son
             ,
             his
             Oye
             ,
             which
             disposition
             ,
             albeit
             it
             attained
             not
             Infeftment
             ;
             yet
             it
             was
             a
             sufficient
             Title
             for
             Mails
             and
             Duties
             ,
             and
             to
             continue
             Possession
             ,
             and
             to
             purge
             the
             vitious
             Title
             of
             behaving
             as
             Heir
             .
          
           
             Which
             the
             Lords
             found
             also
             Relevant
             .
          
        
         
           
             Barbara
             Chapman
             contra
             Iohn
             White
             .
             Ianu.
             18.
             1667.
             
          
           
             
               BArbara
               Chapman
            
             pursues
             a
             Reduction
             
               ex
               capite
               inhibitionis
               ,
               viz.
            
             That
             Calander
             being
             Charged
             to
             enter
             Heir
             to
             his
             Father
             ,
             who
             was
             the
             Pursuers
             Debitor
             ,
             and
             upon
             the
             Charge
             Inhibition
             was
             used
             against
             him
             ,
             after
             which
             he
             Disponed
             to
             the
             Defenders
             Father
             .
             It
             was
             alleadged
             by
             the
             Defender
             ,
             that
             he
             is
             
               minor
               &
               non
               tenetur
               placitare
               de
               haereditate
               paterna
               .
            
             It
             was
             answered
             ,
             that
             Calander
             ,
             his
             Fathers
             Author
             ,
             was
             never
             Infeft
             .
             Secondly
             ,
             That
             the
             Defenders
             Father
             did
             Dispone
             the
             Land
             to
             
             his
             second
             Son
             ,
             by
             both
             which
             ,
             it
             could
             not
             be
             called
             
               haereditas
               paterna
            
             .
          
           
             The
             Lords
             Sustained
             the
             Defense
             ,
             notwithstanding
             of
             the
             Reply
             ,
             and
             found
             no
             Process
             ,
             till
             the
             Defenders
             majority
             ,
             and
             that
             he
             was
             not
             oblieged
             to
             Dispute
             whether
             his
             Fathers
             Authors
             were
             Infeft
             :
             or
             whether
             his
             Father
             had
             disponed
             ,
             or
             not
             until
             his
             Majority
             ,
             that
             he
             might
             seek
             out
             his
             Evidences
             ,
             and
             defend
             himself
             .
          
        
         
           
             Reid
             contra
             Ianu.
             19.
             1667.
             
          
           
             IN
             a
             Process
             betwixt
             Reid
             and
             whereof
             the
             Title
             was
             a
             Service
             of
             the
             Pursuer
             ,
             as
             Heir
             deduced
             before
             the
             Bailzie
             of
             Regality
             ,
             of
             Spenzie
             .
             It
             was
             alleadged
             by
             the
             Defender
             ,
             that
             this
             Title
             was
             not
             sufficient
             ,
             seing
             the
             Service
             was
             not
             retoured
             .
             It
             was
             answered
             ,
             that
             the
             Service
             being
             within
             the
             Regality
             ,
             and
             of
             a
             Person
             dwelling
             there
             ,
             neither
             needed
             ,
             nor
             used
             to
             be
             Retoured
             ,
             in
             respect
             the
             Service
             it self
             was
             in
             Record
             in
             the
             Bailzies
             Books
             .
             It
             was
             answered
             ,
             that
             albeit
             a
             special
             Service
             of
             Lands
             within
             the
             Regality
             ,
             needed
             not
             be
             Retoured
             in
             the
             Kings
             Chancellary
             ,
             because
             there
             was
             no
             Precept
             thence
             to
             issue
             ,
             but
             the
             Service
             within
             the
             Regality
             was
             sufficient
             ,
             that
             thereupon
             the
             Precepts
             of
             the
             Lord
             of
             the
             Regality
             might
             proceed
             against
             the
             Superiour
             within
             the
             Regality
             ,
             who
             was
             Infeft
             :
             but
             in
             a
             general
             Service
             ,
             which
             may
             be
             before
             any
             Judge
             ,
             whether
             the
             Heir
             Reside
             in
             his
             Jurisdiction
             or
             not
             ;
             there
             is
             no
             difference
             betwixt
             a
             Regality
             and
             any
             other
             Court
             ,
             but
             all
             must
             be
             Retoured
             in
             the
             Chancellary
             .
             It
             was
             answered
             ,
             that
             the
             Regality
             having
             their
             own
             Chapel
             and
             Chancellary
             ,
             were
             not
             oblieged
             to
             Retour
             it
             in
             the
             Kings
             Chancellary
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             and
             sustained
             the
             Service
             .
          
        
         
           
             Isobel
             Findlason
             contra
             Lord
             Cowper
             .
             Ianu.
             22.
             1667.
             
          
           
             ELphingstoun
             of
             Selmes
             having
             given
             a
             Precept
             to
             
               Isobel
               Findlason
            
             ,
             and
             direct
             to
             the
             Lord
             Cowper
             ,
             that
             he
             should
             pay
             to
             the
             said
             Isobel
             ,
             a
             Sum
             owing
             by
             Selmes
             to
             her
             ,
             and
             receive
             Selmes
             Bond
             from
             her
             ;
             upon
             the
             foot
             of
             which
             Precept
             ,
             the
             Lord
             Cowper
             directs
             another
             Precept
             to
             
               Iames
               Gilmore
            
             ,
             to
             pay
             the
             said
             sum
             :
             the
             VVoman
             not
             being
             payed
             ,
             pursues
             both
             the
             Lord
             Cowper
             and
             
               Iames
               Gilmore
            
             ,
             for
             payment
             .
             It
             was
             alleadged
             for
             
               Iames
               Gilmore
            
             absolvitor
             ,
             because
             he
             had
             not
             accepted
             the
             Precept
             ,
             neither
             was
             there
             any
             ground
             alleadged
             for
             which
             he
             was
             oblieged
             to
             accept
             ,
             or
             pay
             the
             Lord
             Cowpers
             Precept
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
           
           
             It
             was
             alleadged
             for
             the
             Lord
             Cowper
             ,
             that
             the
             giving
             of
             the
             Precept
             should
             not
             obliege
             him
             ,
             seing
             it
             mentioned
             not
             value
             received
             ,
             or
             any
             other
             Cause
             ;
             and
             therefore
             resolved
             into
             a
             meer
             desire
             .
             It
             was
             answered
             ,
             that
             the
             giving
             of
             the
             Precept
             was
             an
             acceptance
             of
             Selmes
             Precept
             ,
             and
             behoved
             at
             least
             to
             import
             a
             Donation
             ,
             to
             be
             made
             effectual
             by
             the
             Drawer
             of
             the
             Precept
             :
             or
             otherwise
             ,
             an
             Intercession
             ,
             or
             Expromission
             for
             Selmes
             .
          
           
             The
             Lords
             sustained
             the
             Process
             ,
             and
             found
             the
             Lord
             Cowper
             lyable
             by
             the
             Precept
             ,
             to
             pay
             in
             case
             of
             none
             acceptance
             ,
             especially
             seing
             it
             was
             consequent
             to
             Selmes
             Precept
             direct
             to
             Cowper
             .
          
        
         
           
             Mr.
             Iohn
             Mair
             contra
             Steuart
             of
             Shambelly
             .
             Eodem
             die
             .
          
           
             MR.
             
               Iohn
               Mair
            
             Minister
             of
             Traquair
             ,
             having
             obtained
             Decreet
             against
             Shambellie
             ,
             and
             the
             Parochioners
             ,
             to
             pay
             him
             545.
             merks
             ,
             Expended
             for
             Reparation
             of
             the
             Manse
             ,
             and
             to
             meet
             and
             Stent
             themselves
             for
             that
             Effect
             :
             upon
             which
             Decreet
             ,
             he
             took
             Shambellie
             with
             Caption
             ,
             whereupon
             he
             gave
             him
             a
             Bond
             of
             fourscore
             pounds
             for
             his
             part
             .
             Shambellie
             now
             Suspends
             the
             Bond
             on
             this
             Reason
             ;
             that
             albeit
             it
             bear
             ,
             borrowed
             Money
             ,
             he
             offers
             to
             prove
             by
             the
             Chargers
             Oath
             ,
             that
             it
             was
             granted
             for
             his
             part
             of
             that
             Stent
             ,
             and
             that
             his
             proportion
             thereof
             ,
             casting
             the
             Sum
             according
             to
             the
             Valuation
             of
             the
             Paroch
             would
             not
             exceed
             fourty
             merks
             ;
             and
             that
             he
             granted
             this
             Bond
             for
             fear
             of
             Imprisonment
             .
             It
             was
             answered
             ,
             the
             Reason
             was
             not
             Relevant
             to
             take
             away
             the
             Suspenders
             Bond
             ,
             being
             
               major
               sciens
               &
               prudens
            
             ;
             and
             there
             was
             here
             no
             
               justus
               metus
            
             ,
             because
             the
             Caption
             was
             a
             lawful
             Diligence
             ,
             so
             that
             the
             giving
             of
             the
             Bond
             was
             a
             Transaction
             of
             the
             Parties
             ,
             which
             is
             a
             strong
             Obligation
             .
             It
             was
             answered
             ,
             that
             the
             Suspender
             when
             he
             was
             taken
             at
             his
             House
             ,
             was
             sick
             and
             unable
             to
             travel
             ;
             yet
             the
             Messenger
             would
             carry
             him
             away
             ,
             and
             being
             at
             the
             Tolbooth
             ,
             gave
             the
             Bond
             rather
             ,
             than
             in
             that
             Case
             to
             go
             to
             Prison
             ,
             which
             was
             an
             irregular
             force
             ,
             and
             a
             just
             cause
             of
             fear
             ;
             but
             this
             addition
             was
             not
             proponed
             peremptory
             .
          
           
             The
             Lords
             Repelled
             the
             Reason
             of
             suspension
             ,
             unless
             the
             said
             addition
             were
             also
             instructed
             instanter
             ,
             otherways
             it
             could
             only
             be
             reserved
             by
             Reduction
             ,
             
               ex
               metus
               causa
            
             .
          
        
         
           
             Sir
             Henry
             Hoom.
             contra
             Tennents
             of
             Kello
             and
             Sir
             Alexander
             Hoom.
             Janu.
             24.
             1667.
             
          
           
             SIR
             
               Henry
               Hoom
            
             having
             Appryzed
             the
             Lands
             of
             Kello
             from
             Henry
             and
             
               Iohn
               Hooms
            
             ,
             and
             being
             Infeft
             ,
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             Sir
             
               Alexander
               Hoom
            
             ,
             Donatar
             to
             the
             Forefaultor
             of
             the
             said
             
               Iohn
               Hoom
            
             of
             Kello
             ,
             who
             alleadged
             that
             the
             Forefault
             Person
             ,
             the
             time
             of
             the
             Doom
             of
             Forefaultor
             ,
             was
             in
             Possession
             of
             the
             Lands
             
             in
             question
             ,
             in
             whose
             place
             the
             Donatar
             now
             succeeds
             ,
             and
             by
             the
             Act
             of
             Parliament
             1584.
             
             It
             is
             Statuted
             ,
             that
             where
             the
             forefault
             Person
             was
             in
             Possession
             the
             time
             of
             the
             Forefaulture
             ,
             albeit
             not
             by
             the
             space
             of
             five
             years
             ,
             which
             would
             Constitute
             a
             Right
             to
             him
             ,
             that
             the
             Donatar
             must
             be
             put
             in
             Possession
             ,
             and
             continue
             five
             years
             in
             Possession
             ,
             that
             in
             the
             mean
             time
             he
             may
             search
             and
             seek
             after
             the
             Rebels
             Rights
             .
             It
             was
             answered
             ;
             First
             ,
             That
             this
             part
             of
             the
             Statute
             is
             only
             in
             case
             the
             Rebel
             had
             Tacks
             ,
             or
             Temporary
             Rights
             ,
             which
             neither
             is
             ,
             nor
             can
             be
             alleadged
             in
             this
             Case
             .
             Secondly
             ,
             The
             five
             years
             Possession
             must
             be
             reckoned
             from
             the
             Doom
             of
             Forefaulture
             ,
             after
             which
             the
             Kings
             Officers
             or
             Donatar
             ,
             might
             have
             attained
             Possession
             ,
             and
             if
             they
             did
             not
             ,
             their
             neglect
             cannot
             prejudge
             others
             .
             
               Ita
               est
            
             ,
             there
             are
             five
             years
             since
             the
             Forefaulture
             ,
             and
             the
             Rents
             are
             Extant
             ,
             being
             sequestred
             .
             It
             was
             answered
             that
             the
             Act
             Expresses
             ,
             not
             only
             in
             Case
             of
             Tacks
             ,
             but
             also
             in
             Possession
             ,
             and
             that
             the
             five
             years
             must
             be
             after
             the
             Possession
             began
             ,
             and
             not
             the
             Forefaulture
             .
          
           
             The
             Lords
             found
             the
             alleadgance
             Relevant
             ,
             that
             the
             Rebel
             was
             in
             Possession
             ,
             and
             preferred
             the
             Donatar
             to
             the
             five
             years
             Rent
             ,
             after
             the
             date
             of
             the
             Forefaulture
             .
          
           
             It
             was
             further
             alleadged
             ,
             that
             the
             Pursuers
             Right
             being
             but
             an
             Appryzing
             ,
             the
             Donatar
             would
             instantly
             satisfie
             the
             same
             at
             the
             Bar.
             It
             was
             answered
             
               non
               Relevat
            
             ,
             to
             retain
             by
             way
             of
             Exception
             ,
             but
             the
             Donatar
             behoved
             to
             use
             an
             Order
             ,
             and
             pursue
             a
             Declarator
             .
             It
             was
             answered
             ,
             that
             in
             Appryzings
             ,
             an
             Order
             upon
             24
             hours
             Requisition
             ,
             was
             sufficient
             ,
             there
             being
             no
             further
             Solemnity
             required
             ,
             then
             that
             the
             Appryzer
             might
             come
             to
             receive
             his
             Money
             .
          
           
             The
             Lords
             found
             that
             the
             Appryzing
             might
             be
             summarly
             satisfied
             
               hoc
               ordine
            
             .
          
        
         
           
             Earl
             of
             Argile
             contra
             George
             Campbel
             .
             Eodem
             die
             .
          
           
             THE
             Earl
             of
             Argile
             pursues
             
               George
               Campbel
            
             ,
             to
             remove
             from
             certrin
             Lands
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             Warning
             was
             null
             ,
             not
             being
             used
             at
             the
             right
             Paroch
             Kirk
             ,
             where
             Divine
             Service
             at
             that
             time
             was
             accustomed
             .
             It
             was
             answered
             
               non
               Relevat
            
             ,
             unless
             it
             were
             alleadged
             that
             the
             other
             Kirk
             were
             Erected
             by
             Parliament
             or
             Commission
             thereof
             ,
             and
             that
             thereby
             the
             Old
             Paroch
             was
             supprest
             and
             divided
             .
             2ly
             ,
             Though
             that
             were
             alleadged
             ,
             it
             ought
             to
             be
             Repelled
             ,
             because
             it
             is
             offered
             to
             be
             proven
             ,
             that
             all
             VVarnings
             and
             Inhibitions
             have
             been
             used
             at
             the
             Old
             Paroch
             Kirk
             ,
             and
             particularly
             by
             the
             Defender
             himself
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             simply
             ,
             unless
             the
             Erection
             were
             alleadged
             as
             aforesaid
             ,
             and
             found
             in
             that
             Case
             ,
             the
             Reply
             Relevant
             to
             elide
             the
             same
             .
          
        
         
           
           
             Earl
             of
             Argile
             contra
             George
             Campbel
             .
             Ianu
             :
             25
             :
             1667
             :
          
           
             THE
             Earl
             of
             Argile
             insisting
             in
             the
             Removing
             against
             
               George
               Campbel
            
             .
             It
             was
             alleadged
             no
             Removing
             ,
             because
             the
             VVarning
             was
             null
             ,
             not
             bearing
             ,
             to
             have
             been
             Read
             at
             the
             Kirk
             Door
             ,
             either
             at
             the
             time
             Divine
             Service
             uses
             to
             be
             ,
             or
             at
             least
             before
             Noon
             .
             It
             was
             answered
             ,
             that
             the
             VVairning
             bore
             ,
             that
             the
             same
             was
             affixed
             on
             the
             Kirk
             Door
             ,
             and
             lawfully
             Intimat
             there
             ;
             which
             does
             import
             the
             lawful
             time
             of
             the
             Day
             .
             2ly
             ,
             The
             Pursuer
             offered
             to
             mend
             the
             Executions
             at
             the
             Bar
             ,
             and
             abide
             by
             it
             as
             so
             done
             .
             It
             was
             answered
             ,
             that
             the
             Defender
             accepted
             the
             Executions
             ,
             as
             produced
             ,
             after
             which
             they
             could
             not
             be
             amended
             ,
             and
             that
             lawfully
             could
             not
             supply
             that
             Speciality
             ;
             otherwise
             if
             the
             VVarning
             had
             only
             born
             ,
             that
             the
             Officer
             had
             VVarned
             the
             Party
             lawfully
             ,
             it
             would
             have
             been
             enough
             .
          
           
             The
             Lords
             admitted
             the
             Pursuer
             to
             amend
             the
             Execution
             ,
             he
             biding
             thereby
             ,
             and
             Ordained
             the
             Defender
             to
             see
             the
             same
             .
          
        
         
           
             Hercules
             Scot
             contra
             Gibb
             .
             Ianuary
             29
             :
             1667.
             
          
           
             
               HErcules
               Scot
            
             having
             given
             his
             Horse
             to
             
               John
               Gib
            
             ,
             Stabler
             in
             Brunt-Island
             ,
             to
             be
             kept
             :
             pursues
             Gibb
             for
             the
             price
             of
             his
             Horse
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             he
             having
             put
             out
             the
             Horse
             to
             the
             Grass
             ,
             it
             being
             in
             the
             Month
             of
             July
             ,
             the
             Horse
             fell
             over
             a
             Rock
             and
             brake
             his
             neck
             ,
             and
             the
             Defender
             is
             not
             lyable
             
               pro
               casu
               fortuito
            
             .
             It
             was
             answered
             ,
             that
             the
             Accident
             was
             by
             the
             Defenders
             fault
             ,
             because
             he
             put
             the
             Horse
             to
             Grassing
             above
             the
             Craigs
             of
             Brunt-Island
             ,
             and
             caused
             ty
             his
             Head
             and
             Foot
             together
             .
             2ly
             ,
             It
             is
             offered
             to
             be
             proved
             by
             Witnesses
             ,
             that
             the
             Pursuer
             directed
             him
             to
             keep
             the
             Horse
             in
             the
             Stable
             at
             hard
             Meat
             ,
             and
             not
             to
             put
             him
             out
             to
             Grass
             .
             The
             Defender
             answered
             ,
             that
             he
             was
             not
             
               in
               culpa
            
             ,
             because
             he
             had
             put
             out
             the
             Horse
             in
             a
             place
             ,
             where
             ordinarly
             other
             Horses
             were
             put
             out
             ,
             and
             had
             tyed
             him
             no
             other
             way
             then
             the
             rest
             of
             the
             Horses
             .
          
           
             2ly
             ,
             The
             Command
             to
             keep
             ,
             is
             only
             relevant
             to
             be
             proven
             ,
             
               scripto
               vel
               ju●amento
            
             ,
             and
             the
             emission
             of
             words
             without
             any
             Fact
             ,
             is
             not
             otherwise
             probable
             .
          
           
             The
             Lords
             found
             the
             Defense
             and
             Duply
             Relevant
             to
             elid
             the
             Summons
             ,
             but
             found
             the
             Reply
             and
             Triply
             Relevant
             to
             elide
             the
             same
             ;
             and
             found
             it
             Probable
             by
             Witnesses
             ,
             in
             respect
             it
             was
             a
             part
             of
             the
             Bargain
             betwixt
             the
             Pursuer
             and
             the
             Stabler
             .
          
        
         
           
           
             Henderson
             contra
             Henderson
             .
             Ianu.
             31.
             1667.
             
          
           
             UMquhil
             Henderson
             grants
             a
             Writ
             in
             favours
             of
             
               Allan
               Henderson
            
             ,
             whereby
             he
             appoints
             the
             said
             Allan
             to
             be
             his
             Heir
             ,
             and
             Donatar
             to
             all
             his
             Lands
             and
             Estate
             ,
             and
             assigns
             him
             to
             the
             Rights
             and
             Evidences
             thereof
             ;
             with
             power
             to
             Enter
             by
             the
             Superiour
             :
             But
             in
             the
             Narrative
             ,
             it
             bears
             the
             ordinar
             Narrative
             of
             a
             Testament
             ,
             and
             has
             a
             Clause
             subjoyned
             to
             all
             ,
             in
             case
             of
             his
             Return
             ,
             he
             may
             alter
             and
             annul
             the
             same
             ,
             there
             having
             nothing
             followed
             in
             his
             Life
             .
             The
             said
             Allan
             pursues
             Henderson
             his
             appearand
             Heir
             ,
             to
             fullfil
             the
             former
             Writ
             ,
             and
             to
             Enter
             Heir
             ,
             and
             Resign
             in
             his
             favours
             ,
             conform
             to
             the
             meaning
             thereof
             .
             The
             Defender
             alleadged
             Absolvitor
             ;
             First
             ,
             Because
             this
             Writ
             is
             no
             Disposition
             ,
             but
             a
             Testament
             ,
             or
             a
             Donation
             ,
             
               mortis
               causa
            
             ,
             in
             which
             no
             Disposition
             of
             Land
             can
             be
             valid
             .
             2ly
             ,
             Albeit
             this
             could
             be
             a
             Disposition
             ,
             yet
             it
             is
             not
             done
             
               habili
               modo
            
             ,
             there
             being
             no
             Disposition
             of
             the
             Right
             of
             the
             Land
             ,
             or
             any
             Obligement
             to
             Infeft
             ,
             neither
             can
             a
             Person
             be
             Constitute
             Heir
             ,
             but
             either
             by
             Law
             or
             Investiture
             ;
             or
             at
             least
             ,
             by
             an
             Obligement
             to
             grant
             Investiture
             .
             3ly
             ,
             This
             being
             
               dona●io
               mortis
               causa
            
             ,
             expresly
             Revocable
             by
             the
             Defunct
             at
             his
             return
             ,
             it
             is
             ambulatory
             and
             conditional
             :
             
               Ita
               est
            
             ,
             he
             returned
             and
             granted
             Commissions
             ,
             and
             Factories
             ,
             whereby
             his
             mind
             appeared
             to
             be
             changed
             .
          
           
             The
             Lords
             Repelled
             all
             these
             Alleadgances
             ,
             and
             sustained
             the
             Summons
             ,
             because
             though
             the
             Writ
             was
             unformal
             ,
             yet
             they
             found
             the
             Defuncts
             meaning
             was
             to
             alienat
             his
             Right
             from
             his
             Heirs
             to
             this
             Pursuer
             ,
             to
             take
             effect
             after
             his
             death
             ;
             and
             albeit
             he
             returned
             ,
             seing
             he
             did
             no
             Deed
             to
             annul
             ,
             or
             recal
             this
             Writ
             ,
             this
             was
             effectual
             against
             his
             Heir
             to
             compleat
             the
             same
             .
          
        
         
           
             Creditors
             of
             Sir
             James
             Murray
             contra
             Iames
             Murray
             .
             Feb.
             1.
             1667.
             
          
           
             THere
             being
             a
             Wodset
             of
             the
             Lands
             of
             Stirling
             granted
             by
             Sir
             
               Iames
               Murray
            
             to
             
               Iames
               Livingstoun
            
             of
             the
             Bed-Chamber
             ,
             containing
             a
             Clause
             of
             Requisition
             ,
             and
             Reversion
             ,
             on
             payment
             at
             London
             ,
             the
             Lands
             being
             Appryzed
             by
             Sir
             Iame's
             Creditors
             ,
             they
             having
             the
             Right
             of
             Reversion
             ,
             did
             use
             an
             Order
             at
             Edinburgh
             ,
             against
             
               Iames
               Murray
            
             ,
             as
             now
             having
             a
             Right
             to
             the
             Wodset
             ,
             and
             pursue
             a
             Declarator
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Order
             is
             not
             conform
             to
             the
             Reversion
             ,
             which
             is
             
               strictissimi
               juris
            
             ,
             and
             behoved
             to
             be
             done
             at
             London
             .
             It
             was
             answered
             ,
             the
             place
             being
             adjected
             in
             favour
             of
             
               Iames
               Livingstoun
            
             ,
             who
             resided
             at
             London
             :
             The
             Pursuers
             have
             done
             more
             ,
             having
             consigned
             at
             the
             present
             Wodsetters
             Domicile
             ,
             London
             being
             only
             appointed
             ,
             as
             it
             was
             the
             former
             Wodsetters
             Domicile
             ,
             wherein
             he
             hath
             benefit
             ,
             and
             can
             have
             no
             detriment
             .
             It
             was
             answered
             ,
             he
             was
             not
             obliged
             to
             Debate
             his
             detriment
             ,
             for
             if
             his
             Money
             were
             in
             London
             ,
             he
             would
             get
             six
             of
             the
             hundreth
             of
             Exchange
             to
             Scotland
             .
          
           
           
             The
             Lords
             sustained
             the
             Order
             ,
             the
             Pursuers
             making
             up
             what
             should
             be
             modified
             by
             the
             Lords
             ,
             for
             the
             Interest
             of
             the
             Wodsetters
             .
          
        
         
           
             Earl
             Tullibardine
             contra
             Murray
             of
             Ochtertyre
             .
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Tullibardine
             having
             Wodset
             the
             Lands
             of
             Logie-Almond
             ,
             to
             Murray
             of
             Ochtertyre
             ,
             he
             did
             thereafter
             Discharge
             the
             Reversion
             ,
             and
             at
             that
             same
             time
             ,
             got
             a
             Back-bond
             ,
             bearing
             ,
             That
             for
             payment
             of
             56000.
             merks
             ,
             with
             all
             other
             sums
             that
             should
             happen
             to
             be
             due
             to
             him
             by
             Tullibardine
             ,
             and
             all
             Expenses
             ,
             that
             he
             should
             Dispone
             the
             Lands
             back
             to
             Tullibardine
             ,
             or
             the
             Heirs
             or
             Assigneys
             of
             his
             own
             Body
             ;
             but
             with
             this
             provision
             ,
             that
             if
             he
             were
             not
             payed
             before
             Martinmass
             1662.
             the
             Bond
             should
             be
             null
             ,
             without
             Declartor
             .
             Tullibardine
             premonishes
             ,
             and
             after
             Premonition
             ,
             Dispones
             the
             Lands
             to
             Sir
             
               Iohn
               Drummond
            
             ,
             and
             they
             both
             joyntly
             Consign
             ,
             and
             now
             pursue
             Declarator
             .
             It
             was
             alleadged
             for
             the
             Defender
             
               Ochtertyre
               .
               First
            
             ,
             No
             Declarator
             upon
             this
             Order
             ,
             because
             the
             Back-bond
             is
             Personal
             to
             my
             Lord
             ,
             and
             to
             the
             Heirs
             or
             Assigneys
             ,
             being
             of
             his
             Body
             ;
             so
             that
             Sir
             
               John
               Drummond
            
             ,
             nor
             no
             Stranger
             can
             have
             Right
             thereby
             to
             Redeem
             .
             2ly
             ,
             The
             Back-bond
             is
             extinct
             ,
             and
             null
             by
             committing
             of
             the
             Clause
             Irritant
             ,
             in
             so
             far
             as
             payment
             has
             not
             been
             made
             before
             1662.
             
             The
             Purswer
             answered
             to
             the
             first
             ,
             that
             albeit
             the
             Reversion
             had
             been
             Personal
             to
             my
             Lord
             ,
             only
             excluding
             his
             Heirs
             and
             Assigneys
             ;
             yet
             my
             Lord
             in
             his
             own
             Lifetime
             might
             Redeem
             ,
             and
             being
             Redeemed
             ,
             the
             Right
             would
             belong
             to
             any
             to
             whom
             my
             Lord
             had
             ,
             or
             should
             Dispone
             .
             2ly
             ,
             This
             Clause
             Irritant
             is
             
               pactum
               legis
               commissoriae
               in
               pignoribus
            
             ,
             which
             by
             the
             Civil
             Law
             and
             our
             Custom
             is
             void
             ,
             at
             least
             may
             be
             still
             purged
             before
             Declarator
             obtained
             ,
             as
             being
             rigorous
             and
             penal
             ,
             and
             so
             abiding
             the
             Lords
             Modification
             ,
             as
             well
             as
             Penalties
             in
             Bonds
             Modified
             of
             consent
             of
             Parties
             ,
             especially
             in
             this
             case
             ,
             where
             the
             performance
             is
             not
             of
             a
             single
             liquid
             sum
             ,
             but
             comprehends
             a
             general
             Clause
             of
             all
             Debts
             that
             were
             ,
             or
             should
             be
             after
             due
             .
             The
             Defender
             answered
             ,
             that
             Clauses
             Irritant
             in
             Wodsets
             ,
             are
             not
             rejected
             by
             our
             Law
             ,
             but
             are
             valide
             ,
             only
             ,
             where
             Declarators
             are
             requisit
             ,
             The
             Lords
             may
             Reduce
             them
             to
             the
             just
             Interest
             of
             Parties
             before
             Declarator
             :
             But
             here
             there
             needs
             no
             Declarator
             ,
             because
             the
             Defender
             is
             in
             Possession
             ,
             and
             may
             except
             upon
             the
             Clause
             Irritant
             committed
             ,
             and
             the
             Clause
             bears
             ,
             to
             be
             Effectual
             without
             Declarator
             ,
             and
             albeit
             this
             Clause
             could
             now
             be
             Reduced
             to
             the
             just
             Interest
             ,
             it
             is
             only
             this
             ,
             that
             seing
             Tullibardine
             hath
             sold
             the
             Land
             ,
             the
             Defender
             should
             give
             as
             great
             a
             price
             as
             it
             is
             sold
             for
             to
             Sir
             
               Iohn
               Drummond
            
             ,
             which
             the
             Defender
             is
             willing
             to
             do
             .
          
           
             The
             Lords
             sustained
             the
             Order
             ,
             in
             so
             far
             as
             it
             is
             at
             the
             Instance
             of
             Tullibardine
             ,
             but
             not
             as
             to
             Sir
             
               John
               Drummond
            
             ,
             but
             prejudice
             to
             Sir
             
               John
               Drummonds
            
             Disposition
             ;
             They
             found
             also
             that
             this
             Clause
             Irritant
             might
             be
             purged
             now
             at
             the
             Bar
             ,
             or
             any
             time
             before
             Declarator
             ,
             which
             is
             always
             necessar
             ,
             though
             Renunced
             ,
             that
             
               medio
               tempore
            
             ,
             Parties
             may
             purge
             ;
             And
             the
             Lords
             inclined
             ,
             that
             Ochtertyre
             should
             have
             the
             Lands
             for
             the
             Price
             Sir
             
               John
               Drummond
            
             gave
             ,
             which
             is
             eighty
             eight
             thousand
             merks
             ;
             but
             upon
             Examining
             him
             and
             my
             Lord
             ,
             it
             appeared
             that
             my
             Lord
             had
             offered
             the
             Land
             to
             him
             ,
             
               re
               integra
            
             ,
             and
             that
             he
             had
             
             never
             been
             special
             ,
             as
             to
             so
             great
             a
             Price
             as
             this
             ;
             but
             only
             general
             ,
             that
             he
             would
             give
             as
             great
             a
             price
             as
             any
             other
             would
             give
             ,
             which
             they
             thought
             not
             sufficient
             ,
             seing
             any
             other
             thereby
             would
             be
             scarred
             from
             Bargaining
             .
          
        
         
           
             Executors
             of
             Lady
             Pilton
             contra
             Hay
             of
             Balhousy
             .
             Feb.
             2.
             1667.
             
          
           
             MR.
             
               Francis
               Hay
            
             granted
             a
             Bond
             to
             his
             Wifes
             Sister
             ,
             the
             Lady
             Piltoun
             ,
             bearing
             ,
             That
             for
             good
             Considerations
             ,
             he
             obliged
             him
             to
             pay
             her
             a
             1000
             merks
             yearly
             ,
             during
             her
             Life
             ,
             with
             this
             Provision
             ,
             that
             it
             should
             be
             Leisum
             to
             her
             to
             Employ
             the
             same
             ,
             for
             the
             Abuliaments
             and
             Ornaments
             of
             her
             Body
             ,
             or
             any
             other
             use
             she
             pleased
             ;
             and
             but
             any
             Right
             and
             Interest
             in
             her
             Husband
             thereto
             ,
             
               jure
               mariti
            
             ;
             her
             Executors
             do
             now
             pursue
             Balhousie
             as
             Heir
             ,
             for
             payment
             ,
             who
             alleadged-Absolvitor
             ,
             because
             he
             had
             payed
             to
             Piltoun
             her
             Husband
             ;
             and
             albeit
             it
             was
             provided
             ,
             that
             it
             might
             be
             leisum
             to
             his
             Wife
             to
             Dispose
             upon
             the
             sum
             ,
             yet
             she
             had
             not
             done
             it
             ,
             but
             the
             Husband
             had
             provided
             her
             with
             all
             Abuiliaments
             necessar
             .
             It
             was
             answered
             ,
             that
             the
             Husbands
             
               jus
               mariti
            
             ,
             was
             excluded
             by
             Mr.
             Francis
             himself
             :
             And
             whatever
             might
             be
             alleadged
             of
             what
             belongs
             to
             a
             Wife
             ,
             
               proprio
               jure
            
             ,
             that
             nothing
             more
             can
             remain
             with
             her
             ,
             but
             her
             necessary
             Aliment
             ,
             and
             all
             the
             rest
             being
             in
             the
             Person
             of
             the
             Wife
             ,
             doth
             return
             to
             the
             Husband
             
               jure
               mariti
            
             ;
             albeit
             the
             
               jus
               mariti
            
             were
             renunced
             in
             her
             favours
             ;
             yet
             the
             Right
             here
             is
             freely
             given
             by
             a
             third
             Party
             ,
             excluding
             the
             Husband
             ,
             which
             third
             Party
             might
             gift
             with
             what
             Provisions
             he
             pleas'd
             ,
             and
             his
             gift
             returns
             to
             himself
             ,
             unless
             these
             Provisions
             be
             observed
             ,
             and
             this
             must
             be
             thought
             to
             be
             a
             gift
             ,
             seing
             it
             bears
             no
             Cause
             onerous
             .
             It
             was
             answered
             ,
             that
             it
             bears
             good
             Considerations
             and
             Expresses
             not
             to
             be
             a
             Gift
             ,
             or
             done
             for
             love
             and
             favour
             .
             2ly
             ,
             If
             the
             Gifter
             were
             opposing
             the
             Husband
             ,
             or
             his
             Creditors
             Right
             ,
             and
             making
             use
             of
             that
             Provision
             ,
             that
             his
             Gift
             might
             return
             ,
             seing
             the
             Provision
             was
             not
             keeped
             ,
             it
             might
             have
             weight
             ;
             but
             here
             the
             Donators
             Heir
             makes
             not
             use
             of
             the
             Provision
             ,
             but
             concurreth
             with
             the
             Husband
             and
             payeth
             him
             .
          
           
             
               The
               Lords
               found
               the
               payment
               made
               by
               the
               Donator
               ,
               or
               his
               Heir
               to
               the
               Husband
               Relevant
               ,
               to
               exclude
               the
               Executors
               of
               the
               Wife
               .
            
          
        
         
           
             Pourie
             contra
             Dykes
             .
             Eodem
             die
             .
          
           
             UMquhil
             Dykes
             having
             Subscrybed
             a
             Bond
             to
             Pourie
             ,
             of
             this
             Tenor
             ,
             That
             he
             acknowledged
             himself
             to
             be
             resting
             to
             Pourie
             56
             pounds
             yearly
             ,
             as
             the
             annualrent
             of
             a
             1400
             hundred
             merks
             ;
             which
             sum
             of
             56
             pounds
             ,
             he
             oblieged
             himself
             to
             pay
             yearly
             .
             This
             was
             the
             Tenor
             of
             the
             Bond
             ,
             whereupon
             Pourie
             pursued
             Dykes
             his
             Successors
             ,
             not
             only
             for
             the
             payment
             of
             the
             annualrent
             ,
             but
             for
             payment
             of
             the
             principal
             sum
             of
             1400
             merks
             ,
             alleadging
             that
             she
             being
             but
             a
             simple
             Woman
             ,
             had
             entrusted
             Dykes
             with
             the
             drawing
             of
             the
             Bond
             ,
             and
             he
             had
             deceived
             her
             ,
             and
             not
             mentioned
             
             the
             payment
             of
             the
             principal
             ,
             but
             that
             the
             acknowledgement
             that
             the
             Annualrent
             was
             due
             ,
             as
             the
             Annualrent
             of
             1400
             merks
             ,
             behoved
             to
             infer
             that
             the
             1400
             merks
             was
             also
             due
             ;
             this
             Ticket
             being
             holograph
             ,
             without
             Witness
             ,
             there
             was
             no
             clearing
             of
             the
             meaning
             by
             the
             Witnesses
             insert
             .
          
           
             Therefore
             the
             Lords
             allowed
             the
             Pursuer
             to
             adduce
             such
             adminicles
             and
             witnesses
             ,
             as
             she
             would
             use
             for
             clearing
             of
             the
             same
             .
          
           
             She
             adduced
             an
             Instrument
             ,
             bearing
             ,
             Umquhil
             Dykes
             upon
             his
             Death-bed
             ,
             to
             have
             acknowledged
             that
             he
             thought
             the
             principal
             sum
             had
             been
             contained
             in
             the
             Obligatory
             Clause
             ,
             and
             that
             it
             was
             through
             his
             neglect
             ,
             or
             unskilfulness
             ,
             all
             the
             Witnesses
             in
             the
             Instrument
             being
             now
             dead
             ,
             the
             Nottar
             ,
             and
             he
             who
             is
             mentioned
             as
             Procurator
             ,
             to
             have
             taken
             Instruments
             in
             the
             Pursuers
             Name
             ,
             were
             Examined
             ,
             both
             acknowledged
             that
             Dykes
             had
             exprest
             his
             mind
             in
             the
             matter
             before
             them
             ;
             but
             they
             were
             contrary
             in
             the
             particular
             ;
             the
             Nottar
             Deponed
             conform
             to
             the
             Instrument
             ;
             but
             the
             Procurator
             Deponed
             contrary
             ,
             that
             the
             woman
             had
             quite
             the
             principal
             sum
             ,
             and
             had
             taken
             her
             to
             the
             Annualrent
             .
          
           
             The
             Lords
             having
             considered
             the
             whole
             matter
             :
             And
             first
             ,
             Whether
             the
             Ticket
             could
             import
             that
             the
             principal
             sum
             was
             due
             ?
             They
             found
             neither
             by
             the
             Ticket
             nor
             by
             the
             Instrument
             ,
             that
             that
             could
             be
             Instructed
             :
             They
             considered
             next
             ,
             Whether
             the
             Annualrent
             was
             due
             ,
             during
             the
             womans
             Lifetime
             only
             ,
             or
             as
             a
             perpetual
             Annualrent
             ,
             to
             her
             ,
             her
             Heirs
             or
             Assigneys
             ?
             The
             difficulty
             was
             ,
             that
             the
             Obligement
             bore
             ,
             that
             Dykes
             should
             pay
             the
             Annualrent
             yearly
             ,
             but
             did
             not
             express
             ,
             neither
             to
             her
             ,
             her
             Heirs
             nor
             Assigneys
             ,
             but
             simply
             in
             these
             Terms
             ,
             To
             pay
             the
             56
             pounds
             yearly
             ;
             Which
             the
             Lords
             found
             to
             carry
             a
             perpetual
             Annualrent
             ,
             though
             Heirs
             and
             Assigneys
             were
             not
             exprest
             .
          
        
         
           
             Lady
             Traquair
             contra
             Marion
             Houatson
             .
             Feb.
             5.
             1667.
             
          
           
             THe
             Lady
             Traquair
             pursues
             
               Marion
               Houatson
            
             for
             the
             Mails
             and
             Duties
             of
             a
             part
             of
             the
             Liferent-Lands
             ;
             who
             alleadged
             Absolvitor
             ,
             because
             her
             umquhil
             Husband
             ,
             who
             was
             immediat
             Tennent
             to
             the
             umquhil
             Earl
             ,
             had
             ,
             
               bona
               fide
            
             ,
             made
             payment
             to
             him
             .
             Likeas
             the
             Defender
             being
             only
             Sub-tennent
             to
             her
             Son
             ,
             had
             ,
             
               bona
               fide
            
             ,
             made
             payment
             to
             her
             Son
             of
             her
             Duty
             .
             The
             Pursuer
             answered
             .
             that
             neither
             of
             the
             Alleadgances
             were
             Relevant
             ;
             because
             any
             payment
             that
             was
             made
             by
             the
             Defender
             ,
             or
             her
             umquhil
             Husband
             ,
             was
             before
             the
             Term
             of
             payment
             ,
             and
             so
             could
             neither
             be
             said
             to
             be
             
               bona
               fide
               nam
               ex
               nimia
               diligentia
               suspecta
               est
               fides
               ,
            
             neither
             could
             it
             prejudge
             the
             Pursuer
             .
          
           
             The
             Lords
             were
             all
             clear
             that
             the
             payment
             made
             by
             the
             principal
             Tacks-man
             ,
             before
             the
             Term
             ,
             was
             not
             Relevant
             ;
             but
             as
             to
             the
             payment
             made
             by
             the
             Sub-tennent
             to
             the
             principal
             Tennent
             .
             The
             Lords
             Debate
             the
             same
             amongst
             themselves
             ,
             some
             being
             of
             opinion
             ,
             that
             the
             Sub-tennents
             payment
             
               bona
               fide
            
             ,
             before
             the
             Term
             was
             sufficient
             ,
             because
             he
             was
             only
             obliged
             to
             the
             principal
             Tennent
             ,
             and
             he
             might
             have
             a
             Tack
             for
             a
             less
             Duty
             then
             he
             ,
             or
             for
             an
             elusory
             Duty
             ,
             which
             if
             he
             payed
             ,
             and
             were
             Discharged
             ,
             he
             was
             not
             conveenable
             :
             and
             oft
             times
             the
             Sub-tennents
             Term
             was
             before
             the
             principal
             
             Tennents
             Yet
             the
             Lords
             found
             that
             payment
             made
             
               bona
               fide
            
             ,
             by
             the
             Sub-tennent
             to
             the
             principal
             Tennent
             ,
             was
             not
             Relevant
             ,
             and
             that
             because
             the
             Master
             of
             the
             Ground
             has
             Action
             ,
             not
             only
             against
             the
             Tennent
             ,
             but
             also
             against
             the
             Sub-tennent
             ,
             or
             any
             who
             enjoyed
             the
             Fruits
             of
             his
             Ground
             ,
             and
             may
             conveen
             them
             personally
             for
             his
             Rent
             ,
             as
             well
             as
             really
             ,
             he
             has
             an
             Hypothick
             in
             the
             Fruits
             ;
             neither
             can
             the
             Sub-tennent
             prejudge
             the
             Master
             of
             the
             Ground
             of
             that
             Obligation
             and
             Action
             ,
             by
             paying
             before
             the
             Term
             ;
             otherways
             he
             might
             pay
             the
             whole
             Terms
             of
             the
             Tack
             ,
             at
             the
             very
             entry
             thereof
             ,
             and
             so
             Evacuat
             the
             Heretors
             Interest
             ,
             as
             to
             the
             Sub-tennent
             ;
             yea●
             though
             the
             Sub-tennents
             Tack-duty
             were
             less
             then
             the
             principal
             Tennents
             ,
             it
             would
             not
             Exclude
             the
             Heretor
             ,
             pursuing
             him
             as
             Possessor
             for
             the
             whole
             ,
             but
             only
             give
             him
             Regress
             for
             Warrandice
             against
             the
             principal
             Tacks-man
             ;
             but
             the
             Term
             being
             come
             ,
             if
             the
             Heretor
             Arrested
             ,
             nor
             pursued
             not
             the
             Sub-tacksman
             ,
             he
             might
             impute
             it
             to
             himself
             ,
             and
             the
             Sub-tacks-man
             might
             justly
             presume
             that
             the
             principal
             Tacks-man
             had
             payed
             ,
             and
             so
             might
             pay
             him
             
               bona
               fide
            
             .
          
        
         
           
             Countess
             of
             Hume
             contra
             Tennents
             of
             Alcambus
             and
             Mr.
             Rodger
             Hoge
             .
             Eodem
             die
             .
          
           
             THe
             Countess
             of
             Hume
             being
             provided
             by
             her
             Contract
             of
             Marriage
             ,
             to
             the
             Lands
             of
             
               Alcambus
               ;
               Pyperlaw
            
             ,
             and
             Windilaw
             ,
             extended
             to
             24
             Husband-Lands
             ,
             she
             gets
             a
             Charter
             upon
             her
             Contract
             ,
             bearing
             ,
             For
             Implement
             thereof
             ,
             to
             Dispone
             to
             her
             the
             Lands
             and
             Barony
             of
             Alcambus
             ,
             &c.
             with
             a
             Seasine
             taken
             at
             Alcambus
             ;
             She
             thereupon
             pursues
             the
             Tennents
             .
             Compearance
             is
             made
             for
             Mr.
             
               Roger
               Hog
            
             ,
             and
             other
             Creditors
             ,
             who
             bought
             these
             Lands
             from
             Wauchtoun
             ,
             who
             had
             bought
             them
             from
             the
             Earl
             of
             Hume
             ,
             and
             alleadged
             Absolvitor
             from
             the
             Mails
             and
             Duties
             of
             the
             Miln
             of
             Alcambus
             ,
             because
             my
             Lady
             by
             her
             Contract
             of
             Marriage
             was
             not
             provided
             to
             the
             Miln
             ;
             neither
             was
             she
             Infeft
             therein
             ,
             
               per
               expressum
            
             ;
             and
             Milns
             do
             not
             pass
             as
             Pertinents
             ,
             without
             a
             special
             Infeftment
             .
             2ly
             ,
             Absolvitor
             for
             the
             Rents
             of
             Pyperlaw
             and
             Windilaw
             ,
             because
             my
             Ladies
             Seasine●
             bears
             ,
             Only
             In●eftment
             in
             the
             Lands
             of
             Alcambus
             ,
             and
             mentions
             not
             these
             Lands
             which
             are
             particularly
             in
             the
             Contract
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             That
             by
             her
             Charter
             ,
             she
             was
             Infeft
             in
             the
             Lands
             of
             Alcambus
             ,
             with
             the
             Milns
             ;
             with
             other
             Lands
             mentioned
             therein
             ,
             
               &c.
               2ly
            
             ,
             That
             Alcambus
             bore
             ,
             by
             her
             Charter
             ,
             to
             be
             a
             Barony
             ,
             which
             is
             
               nomen
               universitatis
            
             ,
             and
             carries
             Milns
             ,
             albeit
             not
             exprest
             .
             To
             the
             second
             ,
             It
             is
             offered
             to
             be
             proven
             ,
             that
             Alcambus
             is
             the
             common
             known
             Designation
             ,
             and
             is
             commonly
             known
             to
             comprehend
             Pyperlaw
             and
             Windilaw
             ,
             as
             Parts
             and
             Pertinents
             thereof
             ,
             and
             that
             they
             are
             all
             holden
             of
             one
             Superiour
             ,
             and
             lyes
             contigue
             ;
             so
             that
             they
             are
             naturally
             unite
             ,
             and
             without
             any
             further
             union
             in
             a
             Barony
             or
             Tenement
             ;
             and
             a
             Seasine
             upon
             any
             place
             of
             them
             serves
             for
             all
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             to
             the
             first
             Point
             ,
             That
             Alcambus
             was
             not
             a
             Barony
             ,
             neither
             doth
             the
             Designation
             thereof
             by
             the
             Earl
             of
             Hume
             ,
             make
             it
             a
             Barony
             ,
             unless
             it
             were
             instructed
             .
             2ly
             ,
             The
             adding
             of
             Milns
             in
             the
             Charter
             ,
             if
             the
             Lady
             had
             not
             Right
             thereto
             by
             the
             Contract
             ,
             is
             a
             Donation
             by
             a
             Husband
             ,
             and
             is
             Revocked
             by
             his
             Disposition
             of
             the
             Lands
             of
             Alcambus
             ,
             and
             Miln
             thereof
             ,
             to
             the
             Laird
             of
             Wauchtoun
             ,
             the
             Defenders
             Author
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Charter
             was
             but
             an
             Explication
             of
             the
             meaning
             of
             the
             Parties
             ,
             that
             
             by
             the
             Contract
             ,
             the
             intention
             was
             to
             Dispone
             the
             Miln
             ,
             especially
             ,
             seing
             the
             Miln
             hath
             no
             Sucken
             but
             these
             Husband-Lands
             of
             Alcambus
             ,
             which
             are
             Disponed
             without
             any
             Rest●iction
             of
             the
             Multure
             ;
             so
             that
             the
             Miln
             would
             be
             of
             little
             consequence
             without
             the
             Thir●e
             .
          
           
             The
             Lords
             having
             compared
             the
             Contract
             and
             Charter
             ,
             found
             that
             by
             the
             Contract
             ,
             the
             Lady
             could
             not
             have
             Right
             to
             the
             Miln
             ,
             〈◊〉
             she
             would
             be
             free
             of
             the
             Multures
             ;
             and
             found
             that
             the
             Charter
             did
             not
             only
             bear
             for
             Implement
             of
             the
             Contract
             ,
             but
             also
             for
             love
             and
             favour
             ,
             and
             so
             found
             the
             Adjection
             of
             the
             Miln
             ,
             to
             be
             a
             donation
             Revocked
             ;
             Nor
             had
             they
             respect
             to
             the
             Designation
             of
             the
             Lands
             as
             a
             Barony
             ,
             but
             they
             found
             it
             Relevan●
             ,
             if
             the
             Lady
             should
             ●rove
             that
             it
             was
             a
             Barony
             ,
             to
             carry
             the
             Right
             of
             the
             Mi●n
             ,
             or
             that
             in
             my
             Lords
             Infeftments
             ,
             there
             was
             no
             express
             men●●●n
             of
             the
             Miln
             ,
             but
             that
             my
             Lady
             had
             them
             in
             the
             same
             Terms
             my
             Lord
             had
             them
             :
             They
             found
             also
             ,
             that
             Reply
             Relevant
             ,
             that
             Alcambus
             was
             the
             Name
             of
             the
             whole
             Lands
             ,
             to
             extend
             the
             Sea
             sine
             to
             the
             Lands
             of
             Pyp●rlaw
             and
             Windilaw
             ,
             though
             not
             named
             ,
             and
             that
             they
             might
             be
             yet
             Parts
             and
             Pertinents
             of
             the
             Tenement
             ,
             under
             one
             Common
             Name
             .
          
        
         
           
             Andrew
             Smeatoun
             contra
             Tabbert
             .
             Feb.
             7.
             1667.
             
          
           
             
               ANdrew
               Smeatoun
            
             being
             Infeft
             in
             an
             Annulrent
             out
             of
             a
             Tenement
             in
             the
             Canongate
             ,
             pursues
             a
             Poinding
             of
             the
             Ground
             ,
             and
             produces
             his
             own
             Infeftment
             and
             his
             Authors
             ,
             but
             not
             the
             original
             Infeftment
             of
             the
             Annualrent
             .
             It
             was
             alleadged
             no
             Process
             ,
             until
             the
             original
             Infeftment
             were
             produced
             ,
             constituting
             the
             Annualrent
             ,
             especially
             seing
             the
             Pursuit
             is
             for
             all
             bygones
             ,
             since
             the
             date
             of
             the
             Authors
             Infeftment
             ;
             so
             that
             neither
             the
             Pursuer
             ,
             nor
             his
             immediat
             Author
             hath
             been
             in
             Possession
             .
             2ly
             .
             If
             need
             beis
             ,
             it
             was
             offered
             to
             be
             proven
             ,
             that
             before
             the
             Rights
             produced
             ,
             the
             Authors
             were
             denuded
             .
             It
             was
             answered
             ,
             that
             the
             Pursuer
             hath
             produced
             sufficiently
             ,
             and
             that
             his
             Right
             was
             cled
             with
             Possession
             ,
             in
             the
             Person
             of
             his
             mediat
             Author
             ,
             before
             the
             years
             in
             question
             .
             To
             the
             second
             ,
             this
             Pursuer
             hath
             the
             benefit
             of
             a
             possessory
             judgement
             by
             his
             Infeftment
             ,
             cled
             with
             Possession
             ,
             and
             is
             not
             obliged
             to
             Dispute
             ,
             whether
             his
             Author
             were
             denuded
             or
             not
             ,
             unless
             it
             were
             in
             a
             Reduction
             .
          
           
             The
             Lords
             sustained
             the
             Pursuers
             Title
             ,
             unless
             the
             Defender
             produced
             a
             Right
             anterior
             thereto
             ;
             in
             whi●h
             case
             they
             ordained
             the
             Parties
             to
             be
             heard
             thereupon
             ,
             and
             so
             inclined
             not
             to
             exclude
             the
             Pursuer
             ,
             upon
             the
             alleadgeance
             of
             a
             poss●ssory
             judgement
             ;
             but
             that
             Point
             came
             not
             fully
             to
             be
             debated
             :
             It
             is
             certain
             that
             a
             possessory
             judgement
             is
             not
             relevant
             in
             favours
             of
             a
             Proprietar
             ,
             against
             an
             Annualrenter
             ,
             to
             put
             him
             to
             Reduce
             ,
             because
             an
             Annualrent
             is
             
               debitum
               fundi
            
             ;
             but
             whether
             an
             Annualrenter
             possessing
             seven
             years
             ,
             could
             ex●●ude
             a
             Proprietar
             ,
             until
             he
             Reduce
             ,
             had
             not
             been
             decided
             ,
             but
             in
             this
             case
             the
             Lords
             inclined
             to
             the
             Negative
             .
          
        
         
           
           
             Mr.
             Alexander
             Foulis
             and
             Lord
             Collingtoun
             contra
             Tennents
             of
             Innertyle
             and
             La.
             Collingtoun
             .
             Feb.
             9.
             1667.
             
          
           
             SIr
             
               Iames
               Foulis
            
             of
             Collingtoun
             ,
             being
             in
             treaty
             of
             Marriage
             with
             Dam
             
               Margaret
               Erskin
            
             ,
             Lady
             Tarbet
             ,
             She
             did
             dispone
             36
             Chalders
             of
             Victual
             ,
             of
             her
             Joynture
             in
             the
             North
             ,
             to
             a
             confident
             Person
             ,
             that
             she
             might
             make
             use
             thereof
             ,
             for
             the
             benefit
             of
             her
             Children
             ;
             and
             Disponed
             36
             Chalders
             of
             her
             Liferent
             of
             the
             Lands
             of
             Innertyle
             ,
             to
             Cuninghame
             of
             Woodhal
             ,
             who
             transferred
             the
             same
             to
             Mr.
             
               Alexander
               F●ulis
            
             of
             Ratho
             ,
             who
             granted
             a
             Back-bond
             ,
             bearing
             ,
             That
             his
             Name
             was
             made
             use
             of
             for
             the
             use
             and
             behove
             of
             Collingtoun
             and
             his
             Lady
             ,
             and
             that
             to
             this
             effect
             ,
             that
             the
             profit
             of
             the
             Liferent
             should
             be
             applyed
             to
             the
             Aliment
             of
             their
             Families
             joyntly
             ;
             and
             therefore
             obliged
             himself
             to
             Dispone
             in
             their
             favours
             ,
             and
             
               de
               presenti
            
             did
             Dispone
             .
             The
             next
             day
             after
             this
             Disposition
             ,
             there
             is
             a
             Contract
             of
             Marriage
             betwixt
             Collingtoun
             and
             the
             Lady
             ,
             wherein
             there
             is
             this
             Clause
             ,
             that
             Col●ingtoun
             Renunces
             his
             
               jus
               mariti
            
             ,
             to
             the
             Lady's
             Liferent
             ,
             or
             any
             other
             Right
             he
             might
             have
             thereto
             by
             the
             subsequent
             Marriage
             ,
             and
             takes
             his
             hazard
             for
             what
             he
             may
             have
             any
             other
             way
             .
             Mr.
             Alexander
             pursues
             the
             Tennents
             upon
             his
             Disposition
             .
             Compearance
             is
             made
             for
             the
             Lady
             ,
             who
             alleadges
             he
             hath
             no
             interest●
             because
             he
             is
             denuded
             by
             the
             Back-bond
             .
             Compearance
             is
             made
             for
             Collingtoun
             ,
             who
             declared
             he
             concurred
             with
             Ratho
             ,
             and
             consented
             he
             should
             have
             the
             Mails
             and
             Duties
             ,
             to
             the
             effect
             contained
             in
             the
             Back-bond
             ,
             and
             that
             he
             would
             not
             make
             further
             use
             of
             the
             Re-disposition
             contained
             therein
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             Collingtouns
             concourse
             could
             not
             sustain
             this
             Process
             ,
             because
             Ratho
             was
             already
             
               de
               presenit
            
             ,
             denuded
             in
             favours
             of
             Collingtoun
             and
             her
             ;
             Likeas
             Collingtoun
             was
             denuded
             by
             his
             Contract
             of
             Marriage
             whereby
             he
             renunces
             his
             
               jus
               ma●iti
            
             ,
             and
             all
             other
             Right
             he
             can
             have
             to
             the
             Liferent
             La●ds
             ,
             in
             favours
             of
             the
             Lady
             ,
             and
             so
             renunces
             the
             Clause
             of
             the
             Back-bond
             ,
             in
             so
             far
             as
             it
             is
             in
             his
             favours
             .
             It
             was
             answered
             ,
             that
             the
             Contract
             of
             Marriage
             could
             not
             derogat
             to
             the
             Back-bond
             ,
             unless
             the
             Back-bond
             had
             been
             
               per
               expressum
            
             ,
             Discharged
             or
             Renunced
             therein
             ,
             because
             albeit
             the
             Contract
             of
             Marriage
             be
             a
             day
             posterior
             to
             the
             Back-bond
             ,
             yet
             both
             are
             parts
             of
             one
             Treaty
             of
             Marriage
             ,
             and
             so
             in
             the
             same
             condition
             ,
             as
             if
             they
             were
             in
             one
             Writ
             ,
             so
             that
             a
             posterior
             Clause
             in
             general
             Terms
             ,
             cannot
             take
             away
             a
             prior
             special
             Clause
             of
             this
             moment
             ;
             yea
             though
             it
             were
             in
             a
             Contract
             le●s
             favourable
             then
             a
             Contract
             of
             Marriage
             ,
             which
             is
             
               ube●●mae
               fidei
            
             ,
             general
             Clauses
             are
             not
             extended
             above
             what
             is
             specially
             exprest
             ,
             and
             the
             
               jus
               mariti
            
             being
             exprest
             ,
             and
             the
             Back-bond
             not
             exprest
             ,
             it
             cannot
             be
             presumed
             ,
             that
             they
             changed
             their
             minds
             in
             one
             night
             ,
             to
             Renunce
             the
             benefit
             of
             the
             Back-bond
             ;
             but
             this
             Conveyance
             was
             made
             of
             purpose
             ,
             because
             Collingtoun
             being
             in
             Debt
             ,
             if
             the
             Right
             were
             Constitute
             in
             a
             third
             Party
             ,
             and
             only
             to
             their
             behove
             as
             an
             aliment
             ,
             the
             Creditors
             could
             not
             reach
             the
             same
             ,
             but
             it
             were
             the
             greatest
             Cheat
             imaginable
             ,
             to
             conceive
             that
             the
             general
             Clause
             subsequent
             ,
             should
             evacuat
             the
             whole
             design
             ,
             and
             take
             away
             the
             provision
             of
             the
             Back-bond
             :
             Neither
             doth
             the
             general
             Clause
             renunce
             all
             Right
             that
             Collingtoun
             had
             ,
             or
             might
             have
             to
             the
             Liferent-lands
             ,
             any
             manner
             of
             way
             ;
             but
             only
             all
             Right
             he
             could
             have
             by
             the
             subsequent
             Marriage
             ,
             any
             manner
             of
             way
             .
             
               Ita
               est
            
             ,
             that
             he
             doth
             not
             claim
             Right
             
               jure
               mariti
            
             ,
             nor
             by
             the
             subsequent
             Marriage
             ;
             but
             by
             the
             Paction
             contained
             
             in
             the
             Back-bond
             ;
             and
             it
             is
             most
             certain
             that
             the
             
               jus
               Mariti
            
             ,
             which
             is
             most
             peculiar
             to
             this
             Nation
             ,
             doth
             not
             comprehend
             all
             Rights
             a
             Husband
             hath
             ,
             in
             relation
             to
             the
             Person
             ,
             or
             Means
             of
             his
             Wife
             ,
             but
             only
             the
             Right
             of
             moveable
             Goods
             ,
             or
             Sums
             ,
             which
             without
             any
             Paction
             ,
             whatsoever
             way
             they
             come
             in
             her
             Person
             ,
             belong
             
               ipso
               facto
            
             to
             him
             ,
             not
             by
             Paction
             ,
             but
             by
             Law
             ;
             and
             that
             
               jure
               mariti
            
             ,
             or
             by
             vertue
             of
             the
             Marriage
             :
             so
             tha●
             albeit
             he
             could
             not
             have
             Right
             ,
             even
             by
             the
             Paction
             ,
             except
             that
             he
             were
             Husband
             ,
             or
             that
             Marriage
             had
             followed
             ,
             yet
             his
             Paction
             is
             his
             Title
             ,
             and
             not
             the
             Marriage
             ,
             which
             is
             but
             
               tacita
               conditio
            
             ,
             or
             
               causa
               sine
               qua
               non
            
             ,
             so
             that
             Discharging
             ,
             or
             Renuncing
             of
             the
             
               jus
               mariti
            
             ,
             or
             the
             benefit
             by
             the
             Marriage
             ,
             if
             it
             were
             posterior
             to
             the
             Contract
             of
             Marriage
             ,
             would
             not
             take
             away
             the
             Contract
             ,
             and
             being
             in
             the
             Contract
             ,
             cannot
             take
             away
             the
             prior
             ●action
             ,
             and
             Disposition
             granted
             by
             the
             Wife
             ,
             in
             favours
             of
             a
             Husband
             ,
             or
             a
             third
             Party
             to
             his
             behove
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             she
             adheres
             to
             the
             clear
             express
             Terms
             of
             the
             Contract
             of
             Marriage
             ,
             which
             Renunces
             not
             only
             the
             
               jus
               mariti
            
             ,
             but
             all
             other
             Right
             to
             the
             Liferent-lands
             ,
             by
             the
             subsequent
             Marriage
             ,
             which
             being
             a
             several
             Writ
             ,
             and
             a
             Day
             posterior
             ,
             most
             necess●rly
             take
             away
             the
             Back-bond
             ,
             without
             considering
             the
             meaning
             of
             Parties
             ,
             
               quia
               in
               claris
               non
               est
               lo●us
               conjecturis
            
             ;
             at
             least
             the
             meaning
             can
             be
             no
             otherways
             cleared
             but
             by
             Writ
             ,
             or
             the
             Ladies
             Oath
             ;
             otherwise
             the
             most
             clear
             and
             solemn
             Contract
             shall
             be
             arbitrary
             ,
             and
             may
             be
             taken
             away
             by
             presumptions
             or
             conjectures
             ,
             and
             no
             man
             shall
             be
             secure
             of
             any
             Right
             .
             
               2ly
               ,
               Verba
               sumendasunt
               cum
               effe●●u
            
             ;
             i●
             this
             did
             not
             take
             away
             the
             Back-bond
             ,
             it
             had
             no
             effect
             for
             the
             L●dy
             ,
             before
             the
             Contract
             was
             denuded
             ,
             of
             her
             whole
             Liferent
             ,
             both
             of
             Inne●tyle
             and
             in
             the
             North
             ,
             so
             that
             there
             was
             no
             need
             to
             Renunce
             the
             
               jus
               mariti
            
             ,
             or
             Right
             by
             the
             Marriage
             to
             the
             Liferent-lands
             .
             It
             was
             further
             alleadged
             by
             the
             Lady
             ,
             that
             albeit
             the
             Renunciation
             could
             not
             reach
             the
             Back-bond
             ,
             in
             so
             far
             as
             it
             is
             a
             Paction
             ,
             so
             that
             it
             yet
             stood
             effectal
             for
             application
             of
             the
             Liferent
             right
             ,
             for
             the
             aliment
             of
             the
             Lady
             and
             Collingtouns
             Family
             joyntly
             ,
             yet
             thereby
             they
             both
             had
             a
             Communion
             and
             Society
             equally
             ,
             and
             the
             Husband
             could
             pretend
             no
             Right
             in
             the
             administration
             or
             manadgement
             ,
             but
             only
             
               jure
               mariti
            
             ,
             in
             so
             far
             as
             he
             is
             Husband
             ,
             and
             therefore
             he
             acknowledging
             that
             he
             has
             renunced
             his
             
               jus
               mariti
            
             ,
             cannot
             pretend
             to
             the
             administration
             of
             this
             aliment
             ,
             but
             it
             must
             remain
             intirely
             to
             the
             Lady
             .
          
           
             The
             Lords
             found
             that
             the
             Claus●
             in
             the
             Contract
             of
             Marriage
             ,
             did
             not
             derogat
             to
             the
             Back-bond
             ;
             and
             as
             to
             the
             Point
             of
             administration
             ,
             they
             consid●red
             it
             to
             consist
             in
             two
             things
             ,
             in
             uplifting
             the
             Rent
             ,
             and
             manadging
             the
             Liferent-lands
             ,
             and
             in
             the
             application
             thereof
             to
             the
             use
             of
             the
             Family
             ,
             and
             manadging
             the
             Affairs
             of
             the
             Family
             ,
             As
             to
             the
             first
             ,
             they
             found
             th●●
             both
             Parties
             having
             entrusted
             Ratho
             ,
             the
             Trust
             of
             manadgement
             of
             the
             Rent
             ,
             could
             not
             be
             taken
             from
             him
             without
             Collingtouns
             consent
             ;
             and
             as
             for
             the
             manadgement
             of
             the
             Family
             it self
             ,
             they
             found
             ,
             that
             it
             neither
             was
             ,
             nor
             could
             be
             re●un●ed
             by
             the
             Husband
             ,
             in
             favours
             of
             the
             Wife
             ,
             and
             that
             any
             such
             Paction
             ,
             though
             it
             had
             been
             clear
             and
             express
             ,
             taking
             the
             Power
             and
             Government
             of
             the
             Family
             from
             the
             Husband
             ,
             and
             ●●ating
             it
             in
             the
             Wife
             ,
             is
             
               contra
               bonos
               mores●
            
             and
             void
             ,
             a●d
             that
             the
             
               jus
               mariti●
            
             as
             it
             is
             properly
             taken
             in
             our
             Law
             ,
             for
             the
             Husbands
             interest
             to
             the
             Wifes
             Moveables
             ,
             being
             Renunced
             ,
             cannot
             be
             understood
             to
             re●●h
             to
             the
             Renunciation
             of
             the
             Husbands
             power
             ,
             to
             Rule
             his
             Wife
             and
             Family
             ,
             and
             to
             administrat
             the
             aliment
             thereof
             .
          
        
         
           
           
             Elizabeth
             Ramsay
             contra
             Ker
             of
             Westnisbet
             .
             Eodem
             die
             .
          
           
             
               ELizabeth
               Ramsay
            
             having
             pursued
             an
             adjudication
             of
             certain-Lands
             upon
             the
             Renunciation
             of
             
               Barbara
               Nisbet
            
             ,
             insists
             upon
             that
             Member
             of
             the
             Summons
             against
             the
             Superiour
             
               Iohn
               Ker
            
             ,
             that
             he
             should
             receive
             and
             Infeft
             her
             ;
             who
             alleadged
             no
             Process
             ,
             unless
             the
             Pursuer
             show
             the
             Right
             of
             the
             former
             Vassal
             ,
             whose
             Heir
             had
             Renunced
             ,
             for
             the
             Pursuer
             can
             be
             in
             no
             better
             case
             then
             the
             appearand
             Heir
             ,
             who
             if
             she
             were
             craving
             to
             be
             Entred
             ,
             behoved
             to
             Instruct
             her
             Predecessors
             Right
             .
             The
             Pursuer
             answered
             ,
             that
             her
             adjudication
             against
             the
             Defender
             as
             Superiour
             ,
             is
             in
             common
             form
             ,
             which
             hath
             been
             ever
             sustained
             upon
             good
             ground
             ,
             because
             a
             Creditor
             has
             no
             Interest
             to
             have
             his
             Debitors
             Rights
             ,
             when
             he
             is
             seeking
             adjudication
             ,
             which
             must
             be
             his
             Title
             ,
             to
             demand
             the
             Rights
             ,
             but
             the
             Superiour
             is
             obliged
             by
             Law
             to
             reserve
             the
             Adjudger
             ,
             without
             Instructing
             any
             Right
             further
             then
             the
             adjudication
             ,
             which
             hath
             been
             frequently
             so
             found
             in
             the
             case
             of
             Appryzers
             .
          
           
             The
             Lords
             having
             considered
             the
             case
             and
             paralel
             ,
             with
             that
             of
             Appryzers
             ,
             found
             this
             difference
             ,
             that
             Superiours
             got
             a
             years
             Rent
             for
             receiving
             Appryzers
             ,
             but
             not
             of
             Adjudgers
             ;
             yet
             in
             respect
             of
             the
             common
             custom
             of
             these
             Summons
             ,
             they
             ●epelled
             the
             defence
             ,
             and
             Decerned
             the
             Superiour
             ,
             to
             receive
             the
             Pursuer
             ,
             
               salvo
               jure
               ●ujuslibet
               &
               suo
            
             .
          
        
         
           
             Dam
             Geibs
             Moncreiff
             contra
             Tennents
             of
             Neutoun
             and
             William
             Yeoman
             Eodem
             die
             .
          
           
             DAm
             
               Geils
               Moncrief
            
             being
             Served
             to
             a
             Terce
             of
             the
             Lands
             of
             Newtoun
             pursues
             the
             Tennents
             for
             a
             third
             part
             of
             the
             Duties
             ,
             who
             having
             Deponed
             that
             they
             payed
             so
             much
             for
             Stock
             and
             Teind
             joyntly
             for
             Yeards
             ,
             Parks
             ,
             and
             the
             whole
             Lands
             possest
             by
             them
             .
             Compeared
             
               William
               Yeoman
            
             ,
             as
             now
             having
             Right
             to
             the
             Fee
             ,
             who
             alleadged
             no
             Terce
             of
             the
             Teinds
             ,
             because
             they
             fell
             not
             under
             Terce
             .
             2ly
             ,
             No
             Terce
             of
             the
             yeards
             ,
             because
             as
             the
             Mannor-place
             belonged
             to
             the
             Fiar
             without
             division
             ,
             so
             behoved
             the
             closs
             Gairdens
             ,
             Orchards
             ,
             yards
             ,
             &c.
             
          
           
             The
             Lords
             found
             the
             Pursuer
             to
             have
             no
             Right
             to
             the
             Teind
             by
             her
             Terce
             ,
             unless
             there
             had
             been
             an
             Infeftment
             of
             the
             Teinds
             by
             Erection
             ,
             and
             therefore
             laid
             by
             the
             fourth
             part
             for
             the
             Teind
             ;
             and
             found
             that
             the
             years
             in
             question
             being
             possest
             by
             the
             Tennents
             ,
             and
             there
             being
             nothing
             alleadged
             nor
             instructed
             ,
             that
             there
             was
             a
             Tower
             ,
             Fortalice
             ,
             or
             Mannor-place
             ,
             having
             a
             Garden
             ,
             or
             Orchard
             for
             pleasure
             ,
             rather
             then
             profite
             ,
             they
             found
             no
             necessity
             to
             decide
             ,
             what
             Interest
             a
             Tercer
             would
             have
             in
             such
             ,
             but
             these
             being
             set
             by
             appearance
             ,
             as
             Grass
             Yeards
             ,
             they
             Repelled
             the
             alleadgeance
             .
          
        
         
           
           
             Earl
             Tullibardine
             contra
             Murray
             of
             Oc●tertyre
             .
             Feb.
             12.
             1667.
             
          
           
             IN
             the
             Declarator
             at
             the
             Instance
             of
             Tullibardine
             ,
             against
             Murray
             of
             Ochtertyre
             ,
             Dispute
             the
             first
             of
             ●ebruary
             last
             ,
             It
             was
             now
             further
             alleadged
             for
             Ochertyre
             ,
             that
             Clauses
             Irritant
             in
             Wodsets
             ,
             not
             being
             illegal
             ,
             or
             null
             by
             our
             Law
             ,
             albeit
             the
             Lords
             do
             sometimes
             Restrict
             the
             Effect
             thereof
             ,
             
               ad
               bonum
               &
               aequum
            
             ,
             to
             the
             just
             Interest
             of
             the
             Parties
             ,
             against
             whom
             the
             same
             is
             conceived
             ,
             they
             do
             never
             proceed
             any
             fur●her
             ;
             But
             here
             Ochertyre
             is
             content
             to
             make
             up
             to
             the
             Earl
             his
             just
             Interest
             ,
             by
             paying
             a
             greater
             price
             for
             the
             Land
             then
             Sir
             
               Iohn
               Drummond
            
             :
             and
             whereas
             it
             was
             alleadged
             ,
             that
             this
             was
             not
             receivable
             now
             ,
             after
             the
             Earl
             had
             made
             bargain
             with
             Sir
             
               Iohn
               Drummond
               ,
               Ochetyre
            
             now
             offered
             to
             prove
             ,
             that
             before
             any
             Bargain
             was
             agreed
             ,
             in
             Word
             or
             Writ
             ,
             he
             did
             make
             offer
             to
             the
             Earl
             of
             fourscore
             ten
             thousand
             merks
             ,
             which
             he
             offered
             to
             prove
             by
             Witnesses
             ,
             above
             all
             exception
             ,
             who
             communed
             betwixt
             them
             ,
             viz.
             the
             Lord
             ●tormount
             and
             the
             Laird
             of
             Kylar
             .
             It
             was
             answered
             ,
             that
             the
             Pursuers
             adhered
             to
             the
             Lords
             former
             Interlocutor
             ,
             whereby
             they
             have
             restored
             the
             Earl
             against
             the
             Clause
             irritant
             ,
             he
             satisfying
             Ochtertyre
             his
             whole
             Interest
             ,
             
               cum
               omni
               causae
            
             ,
             the
             same
             Point
             being
             then
             alleadged
             and
             Dispute
             ,
             a●d
             both
             Parties
             being
             judicially
             called
             ,
             and
             having
             declared
             their
             minds
             concerning
             any
             such
             offer
             ,
             whereby
             the
             Earl
             upon
             his
             ho●our
             ,
             declared
             that
             before
             the
             agreement
             with
             Sir
             
               Iohn
               Drummond
               :
               Ochtertyre
            
             offered
             not
             so
             much
             by
             4000
             merks
             .
             2ly
             ,
             Any
             such
             alleadgence
             albeit
             it
             were
             competent
             ,
             it
             were
             only
             probable
             
               s●ripto
               vel
               juramento
            
             ;
             the
             Earl
             now
             having
             Disponed
             to
             Sir
             
               Iohn
               Drummond
            
             ,
             so
             that
             the
             Effect
             would
             be
             ,
             to
             draw
             him
             into
             double
             Dispositions
             ,
             which
             is
             of
             great
             consequence
             ,
             both
             as
             to
             his
             Honour
             and
             Interest
             ,
             especially
             seing
             that
             Ochtertyre
             did
             not
             take
             an
             Instrument
             upon
             the
             Offer
             .
             It
             was
             answered
             for
             Ochtertyre
             ,
             that
             the
             former
             Interlocutor
             cannot
             exclude
             him
             ,
             especially
             seing
             he
             did
             only
             then
             alleadge
             ,
             that
             he
             made
             a
             general
             offer
             of
             as
             much
             for
             the
             Land
             as
             Sir
             
               Iohn
               Drummond
            
             would
             give
             therefore
             ,
             but
             now
             he
             offers
             to
             prove
             ,
             that
             he
             offered
             90000
             merks
             ,
             which
             is
             2000
             merks
             more
             then
             Sir
             John's
             price
             .
          
           
             The
             Lords
             found
             that
             they
             would
             only
             restrict
             the
             Clause
             irritant
             ,
             to
             the
             Effect
             that
             the
             granter
             of
             the
             Wodset
             might
             suffer
             no
             detriment
             ,
             which
             they
             found
             to
             be
             Effectual
             ,
             if
             the
             Wodsetter
             offered
             as
             great
             ,
             or
             a
             greater
             sum
             then
             the
             other
             buyer
             ,
             before
             any
             Bargain
             agreed
             between
             them
             ,
             either
             in
             Word
             or
             Writ
             ;
             ●ut
             found
             it
             not
             probable
             by
             Witnesses
             ,
             but
             by
             Writ
             ,
             or
             the
             Earls
             Oath
             ;
             and
             found
             that
             a
             general
             offer
             was
             not
             sufficient
             ,
             unless
             it
             had
             Exprest
             a
             particu●ar
             sum
             .
          
        
         
           
             Lord
             Iustice
             Clerk
             contra
             Rentoun
             of
             Lambertoun
             .
             Feb.
             13.
             1667.
             
          
           
             THe
             Lord
             Rentoun
             ,
             Justice
             Clerk
             ,
             putsues
             Rentoun
             of
             Lambertoun
             ,
             as
             heir
             to
             his
             Father
             for
             Compt
             and
             Payment
             of
             his
             Rents
             ,
             Woods
             and
             Planting
             ,
             intrometted
             with
             by
             Lambertoun
             ,
             in
             the
             beginning
             of
             the
             troubles
             .
             
             It
             was
             alleadged
             for
             the
             Defender
             ,
             absolvitor
             ,
             because
             by
             the
             
               Act
               of
               Indemnity
            
             ,
             the
             Leidges
             are
             secured
             ,
             as
             to
             all
             things
             done
             by
             any
             pretended
             Authority
             for
             the
             time
             .
             
               Ita
               est
            
             ,
             The
             pursuer
             being
             sequestred
             ,
             the
             Defenders
             Father
             medled
             by
             Warrand
             from
             the
             Committee
             of
             Estates
             ,
             and
             made
             Compt
             to
             them
             ,
             as
             appears
             by
             his
             Compt
             produced●
             which
             is
             ballanced
             by
             the
             Committee
             .
             2ly
             ,
             The
             said
             accompt
             bears
             ,
             That
             Lambertoun
             made
             Faith
             that
             it
             was
             a
             true
             accompt
             ,
             nothing
             omitted
             in
             prejudice
             of
             the
             publick
             ;
             after
             which
             he
             could
             not
             be
             questioned
             ,
             either
             for
             any
             thing
             in
             the
             accompt
             ,
             or
             for
             any
             thing
             omitted
             and
             not
             charged
             .
             The
             Pursuer
             answered
             ,
             that
             the
             
               Act
               of
               Indemnity
            
             contains
             an
             express
             exception
             of
             all
             Persons
             ,
             that
             medled
             with
             any
             publick
             Moneys
             ,
             and
             had
             not
             made
             Compt
             therefore
             ,
             that
             they
             should
             yet
             be
             comptable
             .
             2ly
             ,
             The
             accompt
             produced
             contains
             two
             accompts
             ,
             one
             in
             anno
             1641
             :
             another
             in
             anno
             1643.
             
             The
             first
             is
             not
             approven
             by
             the
             Committee
             ,
             but
             adjusted
             by
             three
             persons
             ,
             who
             were
             no
             members
             of
             the
             Committee
             ,
             and
             whose
             Warrand
             is
             not
             Instructed
             :
             and
             the
             second
             compt
             is
             only
             approven
             ,
             wherein
             the
             Charge
             is
             a
             Rest
             in
             the
             Tennents
             hands
             of
             the
             former
             accompt
             ,
             and
             the
             Oath
             is
             only
             adjected
             to
             the
             second
             accompt
             ,
             which
             cannot
             Import
             that
             Lambertoun
             ommitted
             nothing
             in
             the
             first
             accompt
             ,
             but
             only
             that
             he
             ommitted
             nothing
             in
             the
             second
             ,
             and
             his
             Oath
             is
             only
             to
             the
             best
             of
             his
             knowledge
             ,
             and
             can
             import
             no
             more
             ,
             than
             the
             Oath
             of
             an
             Executor
             upon
             the
             Inventar
             ,
             which
             excludes
             not
             the
             Probation
             of
             super
             Intromission
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             the
             second
             accompt
             being
             the
             rest
             of
             the
             first
             accompt
             ,
             the
             approbation
             of
             the
             second
             must
             approve
             both
             ,
             and
             the
             approbation
             is
             sufficient
             Warrand
             for
             him
             to
             intromet
             ,
             and
             the
             Auditors
             to
             compt
             with
             him
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             upon
             the
             Act
             of
             Indemnity
             ,
             in
             respect
             of
             the
             foresaid
             Exception
             contained
             therein
             ;
             and
             likewise
             found
             ,
             that
             the
             Oath
             subjoyned
             to
             the
             second
             accompt
             ,
             could
             not
             exclude
             the
             Pursuer
             from
             insisting
             ,
             for
             the
             Defenders
             Fathers
             intromissions
             ommitted
             out
             of
             the
             first
             accompt
             ,
             and
             wherewith
             he
             Charged
             not
             himself
             ,
             but
             found
             that
             the
             Defender
             was
             secure
             by
             the
             Act
             of
             Indemni●y
             ,
             so
             far
             as
             he
             had
             charged
             himself
             with
             ,
             and
             compted
             ;
             and
             found
             that
             he
             was
             not
             obliged
             ,
             after
             so
             long
             a
             time
             to
             instruct
             his
             Commission
             ,
             or
             the
             Warrand
             of
             the
             Auditors
             ,
             that
             fitted
             his
             accompts
             ;
             but
             that
             the
             approbation
             was
             sufficient
             to
             astruct
             the
             same
             .
          
        
         
           
             Lady
             Diana
             Maxwel
             contra
             Lord
             Burley
             and
             others
             .
             Feb.
             15.
             1667.
             
          
           
             LAdy
             
               Diana
               Maxwel
            
             ,
             Lady
             Cranburn
             and
             other
             Executors
             confirmed
             to
             the
             Countess
             of
             Dirletoun
             ;
             pursued
             the
             Lord
             Burley
             ,
             as
             Representing
             his
             Father
             ,
             for
             payment
             of
             a
             Bond
             granted
             by
             his
             Father
             and
             others
             ;
             to
             the
             umquhil
             Earl
             of
             Dirletoun
             ,
             for
             the
             price
             of
             a
             great
             quantity
             of
             Victual
             ,
             and
             that
             upon
             these
             Grounds
             ,
             that
             the
             Pursuers
             are
             Executors
             surrogat
             to
             the
             Countess
             ,
             and
             have
             licence
             to
             pursue
             ;
             which
             Countess
             had
             an
             assignation
             from
             the
             Earl
             to
             his
             Houshold-stuff
             ,
             which
             bore
             this
             general
             Clause
             ,
             And
             to
             his
             Chattel
             ,
             and
             other
             Moveable-goods
             and
             Gear
             whatsomever
             ;
             under
             which
             generality
             ,
             this
             Bond
             is
             Comprehended
             ,
             being
             moveable
             ,
             and
             for
             
             Victual
             ,
             and
             so
             is
             a
             Chattel
             ,
             as
             the
             word
             is
             understood
             by
             the
             Law
             of
             England
             ;
             whereby
             all
             that
             is
             not
             by
             Infeftment
             of
             Fee
             ,
             is
             comprehended
             by
             the
             word
             Chattels
             ,
             and
             belong
             to
             the
             Executors
             ,
             as
             Laisses
             ,
             
               &c.
               2ly
            
             ,
             The
             Countess
             was
             nominat
             universal
             Legatrix
             in
             the
             Earls
             Testament
             ,
             and
             thereby
             has
             Right
             to
             this
             Moveable-bond
             :
             3ly
             ,
             As
             Relict
             she
             has
             Right
             to
             the
             half
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             no
             Process
             upon
             any
             of
             these
             Titles
             .
             First
             ,
             Because
             the
             assignation
             cannot
             be
             extended
             to
             this
             Bond
             ;
             neither
             is
             the
             word
             Chattels
             to
             be
             Interpret
             according
             to
             the
             Law
             of
             England
             ,
             the
             assignation
             being
             made
             by
             a
             Stots-man
             ,
             and
             made
             in
             Scotland
             ,
             after
             the
             Scottish
             manner
             .
             2ly
             ,
             The
             Pursuers
             as
             Executors
             to
             the
             Countess
             ,
             cannot
             pursue
             upon
             the
             universal
             Legacy
             ,
             the
             Debitors
             of
             the
             Defunct
             ,
             but
             only
             the
             Defuncts
             Executors●
             because
             this
             Bond
             is
             yet
             
               in
               bonis
               primi
               defuncti
            
             ,
             and
             must
             be
             Confirmed
             .
             3ly
             ,
             The
             Relict
             cannot
             pursue
             the
             Debitors
             for
             her
             half
             ,
             but
             at
             least
             ,
             she
             must
             call
             the
             Executors
             .
          
           
             The
             Lords
             found
             both
             the
             last
             Alleadgences
             Relevant
             ,
             but
             as
             to
             the
             first
             ,
             before
             answer
             they
             ordained
             the
             Pursuer
             to
             adduce
             what
             Evidences
             they
             had
             to
             instruct
             the
             signification
             of
             the
             word
             Chattels
             ,
             by
             the
             Law
             of
             Engl●nd
             ,
             in
             respect
             it
             was
             notour
             to
             them
             ,
             that
             the
             Lord
             Dirletoun
             beìng
             a
             Servant
             of
             the
             Kings
             ,
             lived
             the
             most
             part
             of
             his
             time
             in
             England
             ,
             and
             in
             Scotland
             there
             is
             no
             use
             of
             the
             word
             Chattels
             .
          
        
         
           
             Isobel
             Glen
             contra
             Iohn
             Hume
             .
             Feb.
             19.
             1667.
             
          
           
             
               ISobel
               Glen
            
             as
             assigney
             by
             Mr.
             
               Edward
               Jameson
            
             ,
             having
             obtained
             Decreet
             against
             the
             umquhil
             Earl
             of
             Hume
             ,
             for
             certain
             by-run
             Stipends
             ,
             and
             thereupon
             having
             arrested
             in
             my
             Lord
             Whitekirks
             hands
             ,
             certain
             Sums
             due
             by
             him
             ,
             to
             the
             Earl
             of
             Hume
             :
             She
             now
             pursues
             to
             make
             forthcoming
             .
             Compearance
             is
             made
             for
             
               Iohn
               Hume
               ▪
            
             who
             produces
             an
             assignation
             by
             the
             Earl
             of
             Hume
             ,
             to
             the
             sums
             due
             by
             Whitekirk
             ,
             and
             also
             produces
             a
             Gift
             of
             the
             Earls
             Liferent-Escheat
             ;
             and
             alleadges
             ,
             first
             ,
             No
             Process
             at
             the
             Arresters
             Instance
             ,
             because
             the
             Earl
             of
             Hume
             being
             dead
             ,
             the
             Debt
             must
             be
             first
             Establisht
             by
             a
             Decreet
             ,
             against
             one
             Representing
             him
             ,
             who
             must
             be
             called
             principaliter
             ,
             before
             the
             Person
             in
             whose
             hands
             the
             arrestment
             is
             made
             ,
             can
             be
             decerned
             to
             pay
             that
             which
             was
             the
             Defuncts
             .
             
               2ly
               ,
               Iohn
               Hume
            
             must
             be
             preferred
             as
             Donatar
             ,
             because
             the
             arrestment
             was
             laid
             on
             after
             the
             Earl
             of
             Humes
             Rebellion
             ,
             by
             which
             his
             Goods
             belonged
             to
             the
             King
             ,
             and
             no
             Sums
             can
             be
             made
             forth-coming
             ,
             as
             belonging
             to
             him
             after
             the
             Rebellion
             ,
             because
             they
             belonged
             to
             the
             King.
             It
             was
             answered
             to
             the
             first
             ;
             That
             if
             the
             Earl
             of
             Hume
             had
             not
             dyed
             at
             the
             Horn
             ,
             the
             Pursuer
             would
             have
             either
             Confirmed
             as
             Ex●cutor
             Creditor
             ,
             or
             called
             the
             Earls
             Executors
             ,
             but
             that
             is
             not
             necessar
             ,
             seing
             the
             Earl
             died
             at
             the
             Horn
             ,
             and
             could
             not
             have
             one
             to
             Represent
             him
             
               in
               mobilibus
            
             ;
             and
             that
             now
             the
             Donatar
             who
             succeeds
             ,
             compears
             .
             To
             the
             2.
             the
             Pursuer
             as
             Arrester
             ,
             ought
             to
             be
             preferred
             ▪
             because
             albeit
             the
             arrestment
             be
             after
             the
             Rebellion
             ,
             yet
             it
             is
             before
             the
             Gift
             or
             Declarator
             ;
             and
             it
             is
             for
             a
             Debt
             due
             by
             the
             Earl
             ,
             before
             the
             Rebellion
             ,
             and
             so
             doth
             exclude
             the
             Donatar
             ,
             for
             which
             they
             produced
             a
             Decision
             marked
             by
             
               Dury
               ,
               Pilmour
            
             contra
             Gaigie
             .
             In
             which
             case
             the
             Gift
             was
             granted
             by
             a
             Lord
             of
             a
             Regality
             ,
             having
             the
             benefit
             of
             the
             Escheat
             ,
             whereanent
             the
             Lord
             Advocat
             
             Represented
             ,
             that
             this
             could
             not
             be
             drawn
             in
             consequence
             ,
             to
             prejudge
             the
             King
             or
             his
             Donatar
             ,
             because
             the
             Lord
             of
             Regality
             being
             a
             Subject
             ,
             
               debuit
               invigilare
               sibi
            
             ,
             by
             declaring
             the
             Rebellion
             without
             delay
             ,
             but
             the
             King
             cannot
             so
             soon
             know
             ,
             nor
             is
             he
             prejudged
             by
             the
             neglect
             of
             his
             Officers
             .
          
           
             Yet
             the
             ●ords
             u●animouslie
             preferred
             the
             Arrester
             ,
             the
             Advocat
             forbearing
             to
             Vote
             ,
             for
             they
             t●●ught
             the
             c●se
             of
             Creditors
             for
             Debts
             before
             Rebellion
             were
             not
             to
             be
             prejudged
             ,
             ●●●ng
             Diligence
             before
             Declarator
             ,
             or
             if
             they
             should
             Poind
             ,
             Arrest
             ,
             Adjudge
             ,
             &c.
             
          
        
         
           
             Cranstoun
             contra
             Wilki●on
             Feb.
             20.
             1667.
             
          
           
             BY
             Contract
             of
             Marriage
             betwixt
             Wilkison
             and
             his
             Spouse
             ,
             he
             is
             obliged
             to
             Infeft
             her
             in
             a
             Tenement
             ,
             exprest
             therein
             ,
             and
             in
             all
             the
             Conquest
             during
             the
             Marriage
             ;
             which
             Infeftments
             were
             to
             be
             taken
             to
             them
             ,
             the
             longest
             liver
             of
             them
             two
             ,
             in
             Conjunct-Fee
             ,
             and
             their
             Heirs
             betwixt
             them
             :
             Which
             failzing
             ,
             to
             the
             Heirs
             of
             the
             Mars
             Body
             :
             Which
             failzing
             ,
             to
             the
             Wifes
             Heirs
             whatsomever
             ;
             after
             which
             the
             Husband
             purch●sed
             a
             piece
             of
             Land
             ,
             but
             took
             the
             Infeftment
             thereof●
             to
             him
             and
             his
             ●ife
             ,
             and
             the
             heirs
             betwixt
             them
             :
             Which
             ●ailzing
             ,
             to
             his
             own
             heirs
             whatsomever
             ,
             omitting
             the
             wifes
             heirs
             .
             This
             Cranstoun
             obtains
             hi●
             self
             Infeft
             in
             this
             Conquest
             Tenement
             ,
             as
             Heir
             to
             the
             Wife
             ,
             and
             thereupon
             obtained
             Decreet
             for
             Mails
             and
             Duties
             .
             Wi●●ison
             as
             Heir
             to
             the
             Husband
             ,
             pursues
             Reduction
             of
             the
             Decreet
             on
             these
             grounds
             :
             first
             ,
             That
             Cranstouns
             Infeftment
             ,
             as
             Heir
             to
             the
             Wife●
             was
             null
             ,
             because
             the
             Wife
             was
             not
             Fiar
             ,
             but
             Liferenter
             .
             2ly
             ,
             The
             Wife
             having
             accepted
             of
             an
             Infeftment
             ,
             posterior
             to
             the
             Contract
             ,
             without
             mention
             of
             her
             Heirs
             ,
             that
             innovat
             the
             Provision
             of
             the
             Contract
             ,
             and
             excludes
             her
             Heirs
             .
             It
             was
             answered
             ;
             first
             That
             the
             Man
             and
             Wife
             being
             Conj●nct
             fiars
             ,
             the
             Wife
             was
             Fiar●
             and
             the
             Man
             but
             Life
             ●enter
             ,
             because
             the
             last
             Termination
             of
             Heirs
             whatsomever
             ,
             Terminat
             upon
             her
             .
             2ly
             ,
             Albeit
             Cranstoun
             had
             taken
             his
             Infeftment
             wrong
             ,
             Wi●kison
             cannot
             quarrel
             the
             same
             ,
             because
             he
             ,
             as
             Heir
             to
             Wilkison
             ,
             was
             obliged
             to
             Infeft
             him
             ,
             as
             Heir
             to
             the
             Wife
             ;
             and
             to
             the
             posterior
             In●eftment
             ,
             it
             is
             contrair
             to
             the
             provision
             of
             the
             Contract
             of
             Marriage
             ,
             and
             there
             does
             appear
             no
             accepting
             thereof
             by
             the
             Wife
             .
             
               3ly
               ,
               Cranstoun
            
             is
             not
             obliged
             to
             disput
             the
             validity
             of
             this
             Right
             ,
             because
             he
             hath
             been
             Infeft
             
               qua●●ter
               qunque
            
             ,
             and
             by
             vertue
             of
             his
             Infeftment
             ,
             hath
             been
             seven
             years
             in
             Possessi●n
             ,
             whereby
             he
             hath
             the
             benefit
             of
             a
             possessory
             Judgement
             ,
             ●ay
             and
             while
             his
             Infeftment
             be
             Reduced
             .
          
           
             The
             Lords
             found
             ,
             that
             even
             by
             the
             Contract
             of
             Marriage
             ,
             the
             Husband
             was
             Fiar
             ,
             and
             not
             the
             Wife
             :
             But
             that
             the
             Wifes
             Heirs
             of
             line
             ,
             were
             Heirs
             of
             Provision
             to
             the
             Husband
             ,
             and
             that
             if
             there
             had
             been
             an
             heir
             of
             the
             Ma●riage
             ,
             or
             an
             ●●ir
             of
             the
             Mans
             Body
             ,
             they
             could
             never
             have
             been
             served
             ●eirs
             to
             the
             Wife
             :
             and
             that
             by
             the
             deficiency
             thereof
             ,
             the
             condition
             of
             the
             Fee
             cannot
             change
             :
             and
             therefore
             they
             found
             that
             Cranstoun
             was
             wrong
             i●feft
             ;
             yet
             they
             found
             the
             alleadgence
             of
             his
             seven
             years
             Possession
             Relevant
             ,
             to
             give
             him
             the
             b●n●fit
             of
             a
             possessory
             judg●ment
             ,
             without
             Disputing
             ,
             whether
             the
             Provision
             of
             the
             Contract
             
             of
             Marriage
             ,
             in
             favours
             of
             the
             wife
             ,
             was
             derogat
             ,
             by
             the
             posterior
             Infeftment
             ,
             omitting
             her
             heirs
             .
          
        
         
           
             Andrew
             Litlejohn
             contra
             Dutches
             of
             Monmouth
             .
             Eodem
             die
             .
          
           
             
               ANdrew
               Litlejohn
            
             pursues
             the
             Dutches
             of
             Monmouth
             ,
             and
             her
             Curators
             ,
             for
             payment
             of
             a
             Taylor
             accompt
             ,
             taken
             off
             by
             the
             Dutches
             for
             her
             Marriage
             Sow
             ;
             to
             the
             fit
             whereof
             ,
             she
             adjoyns
             these
             words
             ,
             
               I
               acknowledge
               the
               Accompt
               above-written
               ,
               and
               subscrives
               the
               same
               .
            
             It
             was
             alleadged
             by
             the
             Curators
             ,
             that
             the
             Countess
             Subscription
             ,
             being
             after
             her
             Marriage
             ,
             can
             neither
             oblige
             her self
             ,
             nor
             her
             Husband
             ,
             because
             Wives
             Obligations
             are
             
               ipso
               jure
            
             ,
             null
             .
             It
             was
             answered
             that
             the
             Dutches
             being
             
               persona
               illustris
            
             ,
             and
             the
             accompt
             for
             Furniture
             to
             her
             Body
             at
             her
             Marriage
             ;
             her
             accompt
             fell
             not
             under
             the
             Nullity
             of
             Ordinary
             Obligations
             by
             Wives
             ,
             whose
             Bonds
             are
             null
             ,
             not
             so
             much
             because
             their
             Subscriptions
             prove
             not
             the
             Receipt
             of
             the
             Money
             ,
             as
             because
             ,
             being
             
               in
               potestate
               viri
            
             ,
             they
             cannot
             imploy
             it
             profitably
             for
             their
             own
             use
             ,
             which
             ceases
             here
             ,
             the
             accompt
             being
             for
             necessar
             Furnishing
             ,
             which
             both
             obliges
             the
             Wife
             ,
             and
             her
             Husband
             ,
             who
             is
             obliged
             to
             Entertain
             his
             Wife
             .
          
           
             The
             Lords
             Decerned
             ,
             the
             Pursuer
             always
             making
             Faith
             ,
             that
             it
             was
             a
             just
             ,
             and
             true
             accompt
             ,
             truely
             Resting
             ,
             and
             owing
             ;
             and
             would
             not
             put
             the
             Pursuer
             to
             instruct
             the
             delivery
             by
             witnesses
             ,
             who
             are
             at
             London
             :
             considering
             especially
             ,
             that
             the
             Dutches
             ,
             being
             such
             an
             illustrious
             Person
             ,
             her
             Subscription
             could
             not
             be
             questioned
             upon
             so
             small
             a
             Matter
             ,
             as
             obtained
             without
             delivery
             .
          
        
         
           
             Helen
             Iohnstoun
             contra
             Robert
             Johnstoun
             .
             Eodem
             die
             .
          
           
             
               HElen
               Iohnstoun
            
             alleadging
             that
             there
             was
             a
             Blank-bond
             in
             her
             Brother
             Roberts
             hand
             ,
             to
             her
             use
             ,
             and
             that
             he
             promised
             to
             apply
             the
             benefit
             thereof
             to
             her
             ,
             doth
             pursue
             the
             brother
             ,
             either
             to
             deliver
             the
             Bond
             ,
             or
             otherwise
             the
             sums
             therein
             ,
             and
             offers
             her
             to
             prove
             by
             the
             Debitors
             Oath
             ,
             that
             the
             Bond
             was
             blank
             in
             the
             Creditors
             Name
             ,
             when
             it
             was
             Subscribed
             by
             him
             ,
             and
             by
             Witnesses
             above
             Exception
             ,
             that
             it
             was
             blank
             when
             she
             delivered
             it
             to
             the
             Defender
             ;
             and
             craved
             the
             Defenders
             Oath
             of
             Calumny
             concerning
             the
             promise
             .
             The
             Defender
             alleadged
             ,
             that
             he
             was
             not
             obliged
             to
             give
             his
             Oath
             of
             Calumny
             upon
             one
             Point
             of
             the
             Lybel
             ,
             but
             upon
             the
             whole
             .
          
           
             The
             Lords
             found
             ,
             that
             he
             was
             obliged
             to
             give
             his
             Oath
             upon
             one
             point
             of
             the
             Lybel
             ;
             But
             they
             found
             that
             VVitnesses
             were
             not
             Receiveable
             to
             prove
             the
             Bond
             to
             have
             been
             Blank
             ,
             to
             infer
             Redelivery
             of
             the
             Bond
             ,
             or
             Sums
             ;
             And
             found
             likewise
             ,
             that
             s●ing
             the
             whole
             Lybel
             was
             only
             probable
             by
             his
             Oath
             ,
             he
             was
             not
             oblieged
             to
             give
             his
             Oath
             of
             Calumny
             ,
             but
             only
             his
             Oath
             of
             Verity
             ,
             seing
             
             he
             might
             be
             ensnared
             by
             denying
             upon
             his
             Oath
             of
             Calumny
             ,
             which
             was
             lubrick
             ,
             and
             of
             d●bious
             ●nterpretation
             ,
             what
             it
             imported
             ,
             and
             so
             might
             be
             prompted
             to
             wrong
             himself
             in
             his
             Oath
             of
             verity
             ,
             least
             it
             should
             clash
             with
             his
             Oath
             of
             Calumny
             .
             
               vid.
               21.
               
               Feb.
            
             1667.
             inter
             eosdem
             .
          
        
         
           
             Lord
             Thesaurer
             ,
             and
             Lord
             Advocat
             ,
             contra
             Lord
             Colvil
             ,
             Eodem
             die
             .
          
           
             THe
             Lord
             Thesaurer
             ,
             and
             Lord
             Advocat
             pursue
             the
             Lord
             Colvil
             for
             the
             single
             avail
             of
             his
             Marriage
             ,
             in
             so
             far
             as
             he
             was
             Married
             when
             his
             Predecessor
             was
             on
             Death-bed
             ,
             and
             was
             moribundus
             ,
             and
             was
             Married
             without
             proclamation
             ,
             within
             seven
             ,
             or
             eight
             dayes
             before
             his
             Predecessors
             Death
             ,
             which
             precipitation
             of
             his
             Marriage
             did
             manifestly
             p●esume
             that
             it
             was
             of
             fraud
             ,
             to
             seclude
             the
             King
             from
             the
             benefite
             of
             the
             Marriage
             ,
             and
             so
             it
             was
             in
             the
             same
             case
             as
             if
             he
             had
             been
             Married
             after
             his
             Predecessors
             death
             ;
             and
             repeated
             the
             opinion
             of
             Sir
             
               Iohn
               Skeen
            
             in
             his
             Explicati●ns
             upon
             
               Quoniam
               Atachiamenta
               se
               Maritagio
            
             ,
             bearing
             that
             it
             was
             
               praxis
               fori
            
             ,
             that
             if
             the
             Vassal
             g●ve
             his
             Heir
             in
             Marriage
             upon
             Death-bed
             ,
             it
             was
             est●emed
             a
             fraud●●ent
             precipitation
             ,
             in
             prejudice
             of
             the
             Superior
             ,
             and
             gave
             the
             Superior
             the
             single
             avail
             of
             the
             Marriage
             ;
             and
             sets
             down
             three
             Decisions
             ,
             whereby
             it
             was
             so
             found
             .
             It
             was
             answered
             for
             the
             Defender
             Absolvitor
             ,
             because
             there
             is
             neither
             Law
             ,
             nor
             Custome
             gives
             the
             Superior
             the
             avail
             of
             the
             Vassals
             Marriage
             ,
             if
             he
             be
             Married
             before
             his
             Predecessors
             Death
             ,
             but
             Craig
             ,
             and
             other
             Lawyers
             do
             define
             this
             casualty
             to
             be
             ,
             the
             avail
             of
             the
             appearand
             Heir
             of
             the
             Vassals
             Marriage
             ,
             Marrying
             after
             his
             Predecessors
             Death
             :
             and
             as
             to
             the
             ground
             insinuat
             of
             fraud
             ,
             by
             precipitation
             it
             is
             no
             wayes
             relevant
             .
             First
             ,
             Because
             ,
             albeit
             it
             did
             appear
             that
             the
             Defunct
             Vassal
             had
             Married
             his
             Heir
             ,
             of
             design
             to
             prevent
             the
             Marriage
             ,
             yet
             here
             is
             no
             fraud
             ,
             but
             a
             warrantable
             Providence
             ,
             which
             is
             not
             
               dolus
               malus
               sed
               do●us
               bonus
            
             ;
             for
             fraud
             is
             never
             understood
             ,
             but
             when
             it
             is
             
               contra
               jus
               delatum
            
             ,
             and
             not
             of
             the
             preveening
             of
             
               jus
               deferendum
            
             ,
             for
             thereby
             only
             the
             Right
             ,
             and
             Interest
             of
             another
             is
             taken
             away
             :
             as
             for
             example
             ,
             any
             Heretor
             may
             dam
             ,
             or
             divert
             the
             water
             upon
             his
             ground
             ,
             as
             he
             pleases
             ,
             and
             cannot
             be
             hindred
             ,
             upon
             pretence
             that
             his
             Neighbour
             might
             thereafter
             make
             use
             of
             that
             water
             for
             a
             Miln
             to
             be
             built
             ,
             and
             yet
             if
             the
             Miln
             were
             built
             ,
             he
             could
             not
             thereafter
             alter
             the
             course
             of
             the
             water
             ;
             so
             here
             the
             Superior
             having
             no
             present
             Right
             ,
             but
             in
             spe
             ,
             the
             Vassal
             endeavouring
             to
             prevent
             the
             casualty
             ,
             commits
             neither
             fraud
             ,
             nor
             fault
             ;
             otherwise
             upon
             pretence
             of
             fraud
             ,
             a
             Marriage
             might
             be
             claimed
             ,
             when
             the
             Predecessors
             resign
             in
             favours
             of
             his
             appearand
             Heir
             ,
             or
             suffers
             his
             Land
             to
             be
             Appryzed
             ,
             in
             name
             ,
             or
             to
             the
             behove
             of
             the
             appearand
             Heir
             ,
             which
             yet
             was
             never
             challenged
             ,
             neither
             hath
             a
             Marriage
             been
             obtained
             ,
             or
             demanded
             upon
             this
             ground
             by
             the
             space
             of
             these
             threescore
             years
             .
             2ly
             ,
             Albeit
             prevention
             could
             be
             fraud
             ,
             yet
             here
             is
             nothing
             alledged
             to
             infer
             fraud
             ,
             which
             is
             never
             presumed
             ,
             unless
             it
             be
             evidently
             proven
             ,
             and
             when
             any
             other
             Cause
             is
             possible
             ,
             the
             Effect
             is
             never
             attribute
             to
             a
             fraudulent
             Cause
             :
             But
             here
             there
             is
             a
             most
             probable
             Cause
             .
             viz.
             That
             the
             Defunct
             desired
             to
             see
             his
             Successor
             Married
             to
             his
             satisfaction
             ,
             it
             being
             very
             ordinar
             that
             the
             ruine
             of
             Families
             arises
             either
             through
             the
             not
             Marrying
             ,
             or
             Marrying
             unfitly
             of
             the
             Heir
             .
             And
             as
             for
             the
             presumptions
             of
             fraud
             ;
             here
             they
             are
             neither
             evident
             ,
             nor
             pregnant
             :
             As
             to
             the
             Decisions
             ,
             no
             respect
             to
             
             them
             ;
             first
             ,
             Because
             they
             are
             three●core
             years
             in
             desuetude
             ;
             2ly
             ,
             There
             is
             here
             nothing
             but
             the
             very
             instancing
             of
             the
             Practiques
             ,
             without
             deducing
             the
             Case
             dispute
             ,
             and
             Reason
             of
             Decision
             ,
             neither
             can
             Sk●ens
             conclusion
             take
             place
             ,
             in
             all
             the
             largeness
             he
             sets
             it
             down
             ,
             or
             else
             there
             shall
             need
             no
             more
             to
             infer
             a
             Marriage
             ,
             but
             that
             the
             Vassal
             was
             in
             
               lecto
               egritudinis
            
             ,
             albeit
             he
             had
             so
             continued
             of
             a
             Lent
             Disease
             ,
             above
             a
             year
             ,
             nothing
             should
             Capacitat
             him
             to
             Marry
             his
             Heir
             ,
             although
             he
             used
             all
             the
             Solemnities
             of
             Treaty
             ,
             Contract
             ,
             and
             Proclamation
             :
             so
             that
             the
             Law
             
               de
               lecto
               ●gritudinis
            
             ,
             which
             is
             only
             introduced
             in
             favours
             of
             Heirs
             ,
             that
             their
             Predecessors
             shall
             not
             prejudge
             them
             ,
             shall
             now
             be
             made
             use
             of
             against
             the
             Heir
             ,
             that
             his
             Predecessor
             can
             do
             nothing
             to
             his
             benefite
             ,
             on
             Death-bed
             .
             The
             Pursuer
             answered
             ,
             that
             the
             feudal
             Contract
             being
             of
             its
             own
             Nature
             Gratuitous
             and
             most
             favourable
             on
             the
             Part
             of
             the
             Superior
             ,
             that
             which
             he
             hath
             for
             his
             Fee
             ,
             being
             ordinarly
             the
             Service
             of
             the
             Vassal
             ,
             and
             the
             profit
             of
             the
             Fee
             when
             the
             Vassal
             is
             unserviceable
             ,
             through
             Minority
             (
             reserving
             the
             Vassals
             own
             Aliment
             )
             and
             the
             profit
             of
             the
             Vassals
             Tocher
             ;
             the
             Vassal
             ought
             not
             to
             defraud
             ,
             or
             prejudge
             him
             therein
             .
             And
             albeit
             custom
             hath
             introduced
             an
             exception
             ,
             that
             the
             Tocher
             is
             not
             due
             to
             the
             Superior
             ,
             which
             was
             gotten
             during
             the
             Predecessors
             Life
             ,
             it
             being
             ordinarly
             consumed
             ,
             and
             applyed
             to
             the
             Predecessors
             use
             ;
             yet
             that
             by
             precipitation
             the
             appearand
             Heir
             should
             enjoy
             the
             same
             ,
             and
             not
             the
             Superior
             ,
             is
             against
             the
             Gratitude
             ,
             Amity
             ,
             and
             Obliegement
             of
             the
             Vassal
             :
             neither
             is
             there
             any
             Parity
             in
             the
             Case
             of
             a
             Resignation
             ,
             to
             which
             the
             Superior
             consents
             ,
             or
             in
             the
             Case
             of
             an
             Appryzing
             ,
             wherein
             the
             Superior
             must
             Receive
             ,
             by
             the
             force
             of
             Law
             ;
             nor
             can
             the
             forbearance
             of
             sixty
             years
             infer
             a
             contrary
             Custome
             ,
             because
             this
             is
             a
             Case
             rarely
             contingent
             ,
             and
             oft
             times
             not
             known
             to
             the
             Kings
             Officers
             ;
             and
             though
             it
             were
             ,
             their
             negligence
             prejudges
             not
             the
             King
             ,
             by
             an
             express
             Act
             of
             Parliament
             ;
             neither
             is
             that
             a
             Custome
             which
             People
             use
             to
             do
             ,
             but
             Customes
             here
             are
             only
             such
             as
             are
             Judicial
             ,
             by
             the
             Kings
             Ministers
             of
             Justice
             ,
             whereanent
             Skeen
             expresly
             saith
             ,
             that
             this
             is
             
               praxis
               ,
               forensis
            
             ;
             and
             albeit
             the
             Decisions
             Adduced
             by
             him
             be
             not
             at
             large
             ,
             yet
             the
             circumstances
             of
             fraud
             here
             ,
             are
             so
             pregnant
             ,
             that
             they
             cannot
             be
             thought
             to
             have
             been
             more
             pregnant
             in
             any
             other
             Case
             ,
             where
             there
             was
             no
             Proclamation
             ,
             and
             where
             the
             Defunct
             was
             not
             only
             in
             lecto
             ,
             but
             was
             moribundus
             ,
             Physicians
             having
             so
             declared
             ,
             the
             common
             Reputation
             being
             ,
             that
             he
             would
             not
             Live
             ,
             and
             D●ing
             
               de
               facto
            
             ,
             within
             a
             few
             dayes
             after
             ,
             and
             there
             being
             no
             singularity
             in
             the
             Match
             ,
             nor
             any
             pressing
             necessity
             of
             the
             Marriage
             ,
             for
             any
             other
             Effect
             .
          
           
             The
             Lords
             found
             the
             Lybel
             ,
             and
             Reply
             relevant
             ;
             viz.
             That
             the
             Marriage
             was
             done
             ,
             when
             the
             Predecessors
             Father
             was
             moribundus
             ,
             and
             done
             wîthout
             Proclamation
             ,
             and
             that
             he
             Died
             within
             eight
             dayes
             after
             ,
             there
             being
             nothing
             alleadged
             to
             take
             off
             the
             Presumption
             of
             fraud
             upon
             these
             Circumstances
             .
          
        
         
           
           
             Robert
             Miln
             contra
             Clarkson
             ,
             February
             21.
             1667.
             
          
           
             
               RObert
               Miln
            
             as
             Donatar
             to
             a
             Liferent
             Escheat
             ,
             having
             obtained
             a
             general
             Declarator
             ,
             insists
             now
             in
             a
             special
             Declarator
             for
             Mails
             and
             Duties
             .
             It
             is
             alleadged
             for
             Clarkson
             ,
             that
             the
             Pursuer
             has
             no
             right
             to
             the
             Mails
             and
             Duties
             ,
             because
             he
             stands
             Infeft
             before
             the
             Rebellion
             .
             It
             was
             answered
             ,
             any
             Infefetment
             Clarkson
             has
             ,
             is
             but
             a
             base
             Infeftment
             ,
             never
             clede
             with
             Possession
             till
             the
             Rebellion
             ,
             and
             year
             and
             day
             was
             run
             ,
             and
             so
             is
             null
             ,
             as
             to
             the
             Superiour
             ,
             or
             his
             Donatar
             .
             It
             was
             answered
             ,
             that
             the
             base
             Infeftment
             is
             valide
             in
             it self
             ,
             and
             albeit
             by
             the
             Act
             of
             Parliament
             ,
             1540.
             
             A
             Posterior
             publick
             Infeftment
             ,
             for
             Causes
             Onerous
             be
             preferable
             ,
             yet
             that
             cannot
             be
             extended
             to
             the
             Right
             of
             a
             Liferent
             Escheat
             ,
             or
             to
             a
             Donatar
             .
             It
             was
             answered
             ,
             that
             by
             the
             course
             of
             Rebellion
             ,
             year
             and
             day
             the
             Superiors
             Infeftment
             Revives
             ,
             as
             to
             the
             Property
             ,
             during
             the
             Rebels
             Liferent
             ,
             and
             cannot
             but
             be
             in
             as
             good
             condition
             as
             any
             Posterior
             publick
             Infeftment
             ;
             and
             it
             was
             so
             decided
             ,
             March
             19.
             1633.
             
             Lady
             Rentoun
             contra
             Blackader
             .
          
           
             The
             Lords
             found
             that
             the
             base
             Infeftment
             ,
             though
             Prior
             to
             the
             Denunciation
             ,
             not
             having
             attained
             Possession
             within
             year
             and
             day
             ,
             could
             not
             exclude
             the
             Liferent
             Escheat
             .
          
        
         
           
             Helen
             Iohnstoun
             contra
             Robert
             Iohnstoun
             ,
             Eodem
             die
             .
          
           
             IN
             the
             Cause
             betwixt
             
               Helen
               Iohnstoun
            
             and
             
               Robert
               Iohnstoun
            
             her
             Brother
             ,
             It
             was
             further
             alleadged
             for
             her
             ,
             that
             the
             Pursuit
             ,
             being
             a
             matter
             of
             breach
             of
             Trust
             ,
             and
             Fraud
             ,
             betwixt
             Parties
             so
             nigh
             as
             Brother
             and
             Sister
             ;
             the
             same
             ought
             to
             be
             Probable
             by
             Witnesses
             above
             exception
             ,
             and
             ought
             not
             to
             be
             referred
             to
             the
             Defenders
             Oath
             ;
             because
             it
             s
             offered
             to
             be
             proven
             that
             he
             did
             Depone
             before
             the
             Justices
             of
             Peace
             in
             Fife
             ,
             that
             he
             had
             never
             had
             the
             Bond
             in
             question
             ,
             and
             yet
             in
             this
             Process
             it
             is
             Judicially
             acknowledged
             in
             the
             Dispute
             that
             he
             hath
             the
             Bond
             ,
             and
             that
             he
             received
             it
             blank
             from
             the
             Pursuers
             Husband
             ;
             and
             it
             s
             now
             offered
             to
             be
             proven
             by
             his
             own
             Brother
             ,
             and
             other
             Witnesses
             ,
             above
             exception
             ,
             that
             the
             Pursuer
             delivered
             the
             Bond
             to
             him
             blank
             after
             her
             Husbands
             death
             ,
             which
             being
             a
             matter
             of
             Fact
             ,
             and
             Probable
             by
             Witnesses
             ,
             necessarly
             infers
             that
             the
             Bond
             was
             not
             redelivered
             to
             her
             Umquhil
             Husband
             .
          
           
             The
             Lords
             before
             answer
             ordained
             the
             Witnesses
             ex
             officio
             to
             be
             examined
             ,
             upon
             the
             Pursuers
             delivery
             of
             the
             Bond
             after
             her
             Husbands
             Death
             .
          
        
         
           
           
             Earl
             of
             Errol
             contra
             Hay
             of
             Crimunmogat
             .
             February
             23.
             1667.
             
          
           
             THe
             Earl
             of
             Errol
             Pursues
             a
             Declarator
             of
             Redemption
             ,
             against
             Hay
             of
             Crimunmogot
             :
             It
             was
             alledged
             Absolvitor
             ,
             because
             the
             Defender
             stands
             Infeft
             upon
             a
             Charter
             granted
             by
             Barcklay
             ,
             with
             the
             consent
             of
             the
             Earl
             of
             
               Errol
               ,
               proomni
               suo
               jure
            
             ,
             long
             after
             the
             reversion
             ,
             granted
             be
             Barcklay
             ,
             whereupon
             this
             Redemption
             proceeds
             .
             It
             was
             answered
             for
             the
             Pursuer
             .
             1.
             
             That
             the
             Earl
             only
             consents
             ,
             and
             the
             Charter
             bears
             that
             the
             Sums
             were
             payed
             to
             Barcklay
             ,
             whose
             Right
             produced
             is
             a
             Wodset
             ,
             granted
             by
             the
             Earl
             of
             Errol
             ,
             and
             Hay
             of
             Vrie
             ,
             bearing
             an
             Expresse
             Reversion
             to
             any
             lawful
             Eldest
             Son
             of
             Hay
             of
             Vrie
             ,
             which
             failzieing
             to
             the
             Earl
             of
             
               Errol
               .
               Ita
               est
            
             that
             the
             time
             the
             Earl
             Subscrived
             this
             Charter
             ,
             Hay
             of
             Vrie
             was
             alive
             ,
             and
             had
             Sons
             ,
             at
             least
             
               in
               spe
            
             ;
             so
             that
             the
             Earl
             of
             Errol
             had
             not
             thereby
             the
             Right
             of
             the
             Reversion
             ,
             and
             therefore
             his
             consent
             ,
             without
             any
             Sums
             received
             ,
             or
             any
             absolute
             Warrandice
             ,
             cannot
             extend
             to
             any
             superveening
             Right
             ,
             which
             he
             then
             had
             not
             actually
             ,
             but
             in
             
               spe
               et
               in
               apparentia
               .
               2ly
               ,
            
             The
             Earls
             consent
             to
             Barcklayes
             Disposition
             ,
             who
             had
             only
             the
             Right
             of
             Wodset
             ,
             not
             bearing
             irredeemable
             ,
             or
             
               absque
               reversione
            
             ,
             cannot
             take
             away
             the
             expresse
             Reversion
             of
             Barcklayes
             Right
             :
             for
             albeit
             an
             Heritable
             Right
             be
             presumed
             Irredeemable
             ,
             
               presumptio
               cedit
               veritati
            
             ,
             and
             it
             cannot
             take
             away
             a
             Reversion
             where
             it
             is
             .
          
           
             The
             Lords
             found
             that
             the
             Reversion
             granted
             in
             Barcklayes
             Right
             was
             not
             taken
             away
             by
             this
             Posterior
             Right
             ,
             and
             Charter
             ;
             but
             that
             the
             Earls
             consent
             imported
             only
             his
             Favour
             ,
             and
             Goodwil
             to
             transmit
             the
             Right
             to
             the
             Defender
             ;
             in
             respect
             of
             the
             alledgeances
             aforesaid
             .
          
        
         
           
             Laird
             of
             May
             contra
             John
             Rosse
             .
             Eodem
             Die.
             
          
           
             UMquhil
             Dumbaith
             having
             Disponed
             several
             Lands
             to
             his
             Oy
             ,
             
               Iohn
               Rosse
            
             Brother
             to
             Kilraick
             ,
             the
             Laird
             of
             
               May
               ,
               Dumbaiths
            
             Heir-male
             pursues
             Improbation
             and
             Reduction
             of
             the
             Disposition
             :
             and
             insisted
             upon
             this
             ground
             that
             the
             Disposition
             was
             false
             in
             the
             Date
             ;
             and
             that
             the
             Defunct
             was
             ali●it
             the
             time
             it
             appeares
             to
             have
             been
             subscrived
             ,
             and
             therefore
             is
             false
             in
             all
             .
             It
             was
             answered
             that
             there
             was
             only
             an
             Error
             in
             the
             Date
             ,
             in
             respect
             ,
             the
             same
             Right
             having
             been
             conceived
             formerly
             in
             formerly
             in
             favours
             of
             another
             ,
             Dumbaith
             gave
             order
             to
             draw
             it
             over
             in
             favours
             of
             the
             Defender
             verbatim
             ,
             and
             the
             Writer
             ignorantly
             Wrote
             over
             the
             Date
             as
             it
             was
             in
             that
             first
             Disposition
             ,
             which
             can
             no
             ways
             annul
             the
             Writ
             ,
             especially
             seeing
             it
             was
             offered
             to
             be
             proven
             by
             the
             Witnesses
             insert
             that
             the
             Writ
             was
             truly
             subscribed
             by
             Dumbaith
             ,
             and
             them
             as
             Witnesses
             ,
             when
             he
             was
             in
             his
             Liege-poustie
             ,
             against
             which
             no
             alledgeance
             of
             alibi
             by
             other
             Witnesses
             not
             insert
             can
             be
             respected
             .
          
           
           
             This
             having
             been
             Dispute
             in
             the
             English
             time
             ▪
             the
             Witnesses
             were
             Examined
             before
             answer
             ,
             by
             three
             of
             the
             Judges
             ,
             and
             now
             the
             Cause
             was
             Advised
             .
          
           
             The
             Lords
             found
             the
             Defense
             relevant
             to
             elide
             the
             Improbation
             ,
             that
             the
             Writ
             was
             truly
             subscribed
             before
             the
             Defunct
             was
             on
             death-bed
             ,
             and
             found
             the
             samen
             proven
             by
             the
             Witnesses
             adduc'd
             ,
             and
             thereafter
             assoilzied
             .
          
        
         
           
             Laird
             of
             Rentoun
             Iustice
             Clerk
             ,
             contra
             Lady
             Lamberton
             ,
             Eodem
             Die.
             
          
           
             THe
             Lord
             Rentoun
             insisted
             in
             the
             Cause
             against
             Lambertoun
             mentioned
             the
             13.
             
             February
             1667.
             
             He
             now
             insists
             on
             this
             member
             ,
             offering
             to
             prove
             that
             Umquhil
             Lambertoun
             by
             his
             Commission
             or
             Bond
             was
             oblidged
             to
             the
             Estates
             for
             exact
             diligence
             ;
             and
             the
             Pursuer
             being
             now
             Restored
             ,
             he
             is
             lyable
             to
             Count
             to
             him
             in
             the
             same
             manner
             as
             to
             the
             Estates
             ,
             not
             only
             for
             his
             Intromission
             ,
             but
             for
             his
             Negligence
             ,
             whereby
             he
             suffered
             other
             Persons
             publickly
             ,
             and
             avowedly
             to
             cut
             the
             Pursuers
             Woods
             of
             a
             great
             value
             ,
             and
             did
             no
             ways
             stop
             nor
             hinder
             the
             same
             ,
             nor
             call
             them
             to
             an
             Account
             .
             2ly
             ,
             He
             himself
             Intrometred
             with
             the
             said
             Wood
             ,
             at
             least
             others
             by
             his
             Warrand
             ;
             which
             Warrand
             must
             be
             presumed
             in
             so
             far
             as
             he
             having
             a
             Commission
             ,
             and
             oblidged
             for
             diligence
             ,
             did
             not
             only
             suffer
             the
             Wood
             openly
             to
             be
             cutted
             ,
             but
             applyed
             a
             part
             thereof
             to
             his
             own
             use
             ,
             and
             was
             oftimes
             present
             when
             it
             was
             in
             cutting
             by
             others●
             The
             Defender
             answered
             ,
             First
             ,
             That
             he
             could
             never
             be
             lyable
             to
             the
             Pursuer
             for
             his
             Omission
             ,
             because
             his
             only
             Tittle
             was
             his
             Right
             of
             Property
             ,
             whereby
             the
             Defender
             was
             lyable
             to
             Restore
             to
             him
             what
             he
             had
             Intrometted
             with
             ,
             and
             not
             Counted
             for
             ,
             but
             for
             his
             oblidgement
             to
             do
             Diligence
             ,
             it
             was
             only
             personal
             granted
             to
             the
             Estates
             ;
             and
             albeit
             they
             Restored
             the
             Pursuer
             to
             the
             Estate
             ,
             they
             never
             Assigned
             him
             to
             that
             Obligation
             .
             2ly
             ,
             The
             Defender
             is
             secured
             by
             the
             Act
             of
             Indemnity
             ,
             except
             in
             so
             far
             as
             he
             Intrometted
             ,
             and
             did
             not
             duely
             Count
             ,
             as
             was
             found
             by
             the
             former
             Interloquitor
             in
             this
             Cause
             :
             and
             as
             to
             the
             second
             member
             ,
             It
             was
             answered
             that
             the
             Defender
             being
             only
             Countable
             for
             his
             Fathers
             Intromission
             not
             Counted
             for
             ,
             albeit
             he
             had
             given
             warrand
             to
             others
             ,
             except
             he
             had
             received
             satisfaction
             from
             them
             ,
             it
             is
             not
             his
             own
             Intromission
             .
             2ly
             ,
             Warrand
             or
             Command
             ,
             is
             only
             Probable
             by
             Writ
             or
             Oath
             ,
             and
             no
             way
             by
             Presumption
             ,
             upon
             such
             Circumstances
             ,
             which
             Presumptions
             are
             also
             taken
             off
             by
             others
             more
             pregnant
             ,
             viz.
             That
             these
             Woods
             were
             cutted
             by
             Persones
             in
             Power
             and
             Interest
             in
             the
             Countrey
             ,
             who
             had
             no
             Relation
             or
             Interest
             in
             the
             Defenders
             Father
             ,
             whom
             he
             was
             not
             able
             to
             stop
             or
             hinder
             ,
             and
             most
             part
             thereof
             was
             Clandestinly
             cut
             and
             stolen
             away
             by
             meaner
             Persons
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             he
             being
             Restored
             ,
             Succeeds
             in
             place
             of
             the
             Estates
             ,
             and
             as
             what
             is
             done
             by
             a
             
               negotiorum
               gestor
            
             without
             Warrand
             ,
             is
             profitable
             for
             these
             for
             whom
             he
             negotiats
             ,
             so
             must
             this
             be
             which
             was
             done
             by
             the
             Estates
             .
             As
             to
             the
             Act
             of
             Indemnity
             ,
             the
             meaning
             thereof
             can
             be
             no
             more
             then
             that
             Parties
             who
             Acted
             shall
             be
             in
             no
             worse
             case
             then
             they
             would
             have
             been
             with
             that
             
             Party
             whom
             they
             followed
             ,
             As
             to
             the
             second
             member
             ,
             the
             Pursuer
             answered
             ,
             that
             what
             was
             done
             by
             others
             ,
             by
             the
             Defenders
             Fathers
             Commission
             must
             be
             his
             Intromission
             ,
             seing
             it
             is
             all
             one
             to
             do
             by
             himself
             ,
             or
             by
             another
             ;
             and
             seing
             it
             cannot
             be
             called
             Omission
             ,
             it
             must
             be
             Intromission
             .
             2ly
             ,
             Though
             Command
             or
             Warrand
             is
             ordinarly
             Probable
             by
             Writ
             ,
             or
             Oath
             .
             Yet
             there
             are
             
               casus
               excepti
            
             ,
             as
             whatsoever
             is
             done
             for
             any
             Party
             in
             his
             presence
             ,
             is
             by
             all
             Lawyers
             said
             to
             be
             
               ex
               mandato
               &
               inde
               oritur
               actio
               mandati
               ,
               &
               non
               negotiorum
               gestorum
               ,
            
             so
             that
             the
             presence
             ,
             or
             tollerance
             of
             a
             person
             not
             only
             having
             Power
             ,
             but
             being
             oblidged
             for
             Diligence
             ,
             must
             much
             more
             infer
             his
             Power
             or
             Warrand
             :
             And
             albeit
             he
             was
             not
             alwayes
             present
             ,
             yet
             the
             Deeds
             being
             publick
             ,
             and
             near
             the
             place
             of
             his
             abode
             ,
             it
             is
             equivalent
             :
          
           
             The
             Lords
             inclined
             not
             to
             sustain
             the
             first
             member
             ,
             both
             in
             respect
             of
             the
             Act
             of
             Indemnity
             which
             bears
             in
             it self
             to
             be
             most
             amply
             extended
             ,
             and
             in
             respect
             that
             the
             Pursuer
             had
             no
             Right
             to
             the
             Personal
             Obligation
             ,
             or
             Diligence
             :
             but
             as
             to
             the
             second
             member
             ,
             the
             Lords
             were
             more
             clear
             as
             to
             what
             was
             done
             in
             the
             Defenders
             Fathers
             presence
             ,
             but
             in
             respect
             it
             was
             more
             amply
             proponed
             .
             The
             Lords
             ,
             before
             answer
             ,
             ordained
             Witnesses
             to
             be
             Examined
             by
             the
             Pursuer
             ,
             whether
             or
             not
             the
             Woods
             were
             publickly
             cutted
             ,
             and
             whether
             or
             not
             Lambertoun
             was
             at
             any
             time
             there
             present
             ,
             and
             apply'd
             any
             thereof
             to
             his
             own
             use
             ;
             and
             Witnesses
             also
             for
             the
             Defender
             to
             be
             Examined
             ,
             wheth●r
             a
             part
             was
             cut
             Clandestinly
             ,
             and
             other
             parts
             by
             persons
             having
             no
             relation
             to
             Lambertoun
             ,
             and
             to
             whom
             he
             used
             any
             Interruption
             .
          
        
         
           
             Eodem
             die
             .
          
           
             THis
             day
             there
             being
             a
             Query
             formerly
             given
             by
             the
             Lord
             Thesaurer
             ,
             whether
             or
             not
             there
             should
             be
             a
             Processe
             of
             Forfaulture
             intented
             against
             these
             who
             rose
             in
             the
             late
             Rebellion
             ,
             before
             the
             Justice
             General
             ,
             so
             that
             the
             Justice
             might
             proceed
             against
             them
             ,
             though
             absent
             ,
             by
             putting
             the
             Dittay
             to
             the
             Tryal
             of
             an
             Assyze
             ,
             and
             taking
             Witnesses
             thereupon
             ;
             and
             upon
             Probation
             to
             proceed
             to
             the
             Sentence
             of
             Forfaulture
             ,
             or
             whether
             Probation
             in
             absence
             could
             not
             be
             admitted
             but
             before
             the
             Parliament
             .
             There
             were
             Reasons
             given
             with
             the
             Query
             for
             the
             affirmative
             ,
             viz.
             That
             there
             was
             a
             special
             Statute
             for
             Forfaulture
             of
             Persons
             after
             their
             death
             ,
             in
             which
             case
             they
             were
             absent
             ,
             
               multo
               magis
            
             when
             they
             were
             living
             and
             contumacious
             .
             2ly
             ,
             Because
             by
             the
             Civil
             Law
             ,
             albeit
             Probation
             ,
             especially
             in
             Criminals
             ,
             cannot
             proceed
             unlesse
             the
             Defender
             be
             present
             .
             Yet
             the
             chief
             Criminal
             Doctors
             ,
             except
             the
             case
             of
             lese
             majesty
             ,
             as
             
               Clarus
               Farenatius
            
             and
             
               Bartolus
               .
               3ly
            
             ,
             That
             the
             Parliament
             proceeds
             to
             the
             Forfaulture
             in
             absence
             ,
             not
             by
             their
             Legislative
             Authority
             ,
             but
             as
             a
             Judicature
             ,
             and
             what
             is
             just
             by
             them
             ,
             it
             is
             just
             also
             by
             the
             Justice
             .
          
           
             The
             Lords
             demured
             long
             to
             give
             their
             Answer
             upon
             thir
             Const
             ●erations
             ,
             that
             by
             Act
             of
             Parliament
             it
             is
             Statuted
             that
             Probation
             shall
             be
             only
             led
             in
             presence
             of
             the
             Party
             ,
             and
             that
             there
             had
             never
             been
             such
             a
             Practice
             for
             the
             Justices
             to
             Forefault
             Absents
             ,
             but
             only
             to
             declare
             them
             Fugitives
             ;
             whereupon
             ,
             being
             denunced
             ,
             their
             Escheat
             fell
             ,
             and
             after
             their
             Liferent
             ,
             and
             that
             it
             
             was
             not
             proper
             to
             the
             Lords
             ,
             especially
             in
             cases
             Criminal
             ,
             to
             give
             advice
             in
             that
             which
             might
             predetermine
             the
             Justice
             General
             ,
             and
             the
             Justice
             Clerk
             ,
             and
             Advocat
             who
             had
             been
             desired
             to
             peruse
             the
             Books
             of
             Adjournal
             ,
             and
             they
             reported
             that
             they
             had
             not
             found
             a
             Forfaulture
             by
             the
             Justices
             in
             absence
             ,
             but
             that
             they
             had
             found
             that
             a
             Party
             accused
             for
             Treason
             in
             holding
             out
             a
             house
             against
             the
             King
             ,
             was
             declared
             Fugitive
             ,
             but
             they
             did
             not
             find
             that
             it
             was
             proponed
             to
             the
             Justices
             to
             put
             an
             Absent
             to
             an
             Inquest
             for
             Treason
             ,
             and
             that
             it
             was
             repelled
             .
             The
             matter
             being
             resumed
             ,
             this
             day
             ,
             the
             plurality
             resolved
             for
             the
             affirmative
             ,
             especially
             considering
             that
             of
             old
             Parliaments
             were
             frequent
             in
             Scotland
             ,
             and
             now
             are
             but
             rare
             ;
             and
             that
             the
             Lords
             of
             Council
             and
             Session
             ,
             were
             the
             Kings
             Council
             to
             give
             his
             Majesty
             their
             advice
             in
             general
             Cases
             ,
             what
             might
             Legally
             be
             done
             ,
             whether
             Civilly
             or
             Criminally
          
        
         
           
             Andrew
             Ker
             ,
             contra
             Children
             of
             Wolmet
             .
             Eodem
             Die.
             
          
           
             UMquhil
             Wolmet
             having
             set
             a
             Tack
             of
             his
             Coal
             to
             his
             Children
             for
             their
             Provision
             ,
             and
             Named
             
               Andrew
               Ker
            
             of
             Moristoun
             and
             Tarsonce
             ,
             Overseers
             ;
             the
             said
             Andrew
             Intrometted
             with
             the
             Coal
             for
             some
             years
             ,
             the
             Children
             pursued
             him
             before
             the
             late
             Judges
             for
             Payment
             of
             the
             Profit
             of
             the
             Coal
             .
             In
             which
             pursuit
             he
             did
             alledge
             that
             he
             could
             not
             Count
             ,
             nor
             Pay
             to
             the
             Children
             the
             whole
             Profit
             of
             the
             Coal
             ,
             but
             so
             much
             thereof
             as
             was
             free
             over
             and
             above
             the
             Back-tack
             Duty
             ,
             due
             both
             out
             of
             Land
             and
             Coal
             ,
             by
             vertue
             of
             the
             Wodset
             granted
             to
             
               Iames
               Loch
            
             ,
             who
             stood
             thereupon
             publickly
             Infeft
             ,
             and
             to
             which
             Wodset
             Mr.
             
               Mark
               Ker
            
             his
             own
             Son
             had
             Right
             ,
             to
             whom
             he
             had
             payed
             the
             Back-tack
             Duty
             ,
             and
             obtained
             his
             Discharge
             ;
             this
             being
             found
             relevant
             by
             the
             Judges
             ,
             he
             produced
             Holograph
             Discharges
             granted
             by
             his
             Son
             ;
             the
             Judges
             found
             that
             these
             Holograph
             Discharges
             did
             not
             prove
             Payment
             made
             
               debito
               tempore
            
             ,
             and
             therefore
             decerned
             without
             allowance
             of
             the
             Back-tack
             Duty
             :
             
               Andrew
               Ker
            
             pursues
             a
             Reduction
             of
             this
             Decreet
             as
             unjust
             ,
             in
             so
             far
             as
             the
             Back-tack
             Duty
             was
             not
             allowed
             ,
             as
             not
             payed
             
               debito
               tempore
            
             ,
             whereas
             the
             Back-tack
             being
             a
             real
             Burden
             upon
             the
             whole
             Profits
             
               jure
               hypothecae
            
             ;
             all
             Intrometters
             with
             the
             Profits
             were
             lyable
             to
             the
             Wodsetter
             ;
             and
             so
             
               Andrew
               Ker
            
             as
             Intrometter
             was
             lyable
             to
             the
             Wodsetter
             ,
             and
             was
             not
             obliged
             to
             imploy
             that
             part
             of
             the
             Profit
             for
             Anualrent
             to
             the
             Children
             ,
             although
             he
             were
             obliged
             to
             imploy
             their
             own
             means
             ,
             and
             so
             might
             lawfully
             have
             payed
             the
             Wodsetter
             ,
             or
             keeped
             it
             in
             his
             own
             hand
             for
             his
             own
             relief
             ,
             and
             the
             Wodsetters
             Discharge
             at
             any
             time
             was
             sufficient
             to
             free
             the
             Children
             .
             It
             was
             answered
             that
             there
             was
             no
             iniquity
             committed
             ,
             because
             
               Andrew
               Ker
            
             could
             only
             be
             lyable
             for
             the
             Back-tack
             Duty
             as
             Tutor
             and
             Overseer
             to
             the
             Children
             ,
             and
             even
             in
             that
             case
             he
             ought
             not
             to
             have
             payed
             without
             a
             distresse
             ,
             otherwise
             he
             prejudged
             the
             Children
             of
             their
             relief
             against
             the
             Heir
             ,
             who
             is
             obliged
             to
             relieve
             them
             of
             the
             Back-tack
             Duty
             ,
             and
             when
             ever
             he
             were
             distrest
             ,
             he
             would
             not
             he
             obliged
             to
             pay
             any
             Anualrent
             to
             the
             Wodsetter
             for
             the
             Back-tack
             Duties
             which
             was
             the
             Wodsetters
             own
             Annualrent
             ,
             so
             that
             till
             the
             time
             of
             the
             distresse
             the
             whole
             Annualrent
             should
             have
             been
             put
             out
             to
             the
             use
             of
             the
             Children
             upon
             Annualrent
             ,
             so
             that
             the
             Back-tack
             Duties
             can
             only
             be
             allowed
             from
             this
             time
             ,
             but
             not
             yearly
             as
             they
             were
             
             due
             ,
             otherwise
             the
             Bairns
             lose
             the
             benefit
             of
             the
             Anualrent
             the
             mean
             time
             ,
             but
             there
             being
             no
             distresse
             
               Andrew
               Ker
            
             could
             never
             be
             lyable
             to
             the
             Wodsetter
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             the
             Wodsetter
             being
             his
             own
             Son
             ,
             there
             was
             no
             reason
             to
             put
             him
             to
             any
             Action
             ,
             especially
             seing
             the
             Defenders
             cannot
             alledge
             that
             in
             any
             such
             Action
             they
             had
             a
             competent
             Defense
             ,
             or
             that
             the
             Heir
             has
             any
             Defense
             whereupon
             to
             exclude
             their
             relief
             :
             Neither
             is
             there
             any
             reason
             that
             the
             Children
             should
             have
             Anualrent
             for
             the
             Back-tack
             Duty
             till
             it
             was
             payed
             ,
             because
             it
             was
             not
             theirs
             ,
             nor
             might
             he
             safely
             put
             it
             out
             of
             his
             hands
             ,
             albeit
             the
             Wodsetter
             had
             been
             a
             stranger
             ,
             and
             albeit
             he
             be
             now
             
               functus
               officio
            
             as
             Overseer
             ,
             the
             Title
             that
             made
             him
             lyable
             to
             the
             Wodsetter
             ,
             was
             as
             Intrometter
             which
             is
             a
             perpetual
             obligation
             ,
             the
             Wodsetter
             ,
             as
             all
             Masters
             of
             the
             ground
             ,
             having
             
               jus
               hypothecae
            
             upon
             the
             Profit
             ;
             for
             payment
             of
             Tack
             Duty
             for
             which
             all
             Intrometters
             are
             lyable
             .
          
           
             The
             Lords
             reduced
             that
             part
             of
             the
             Iudges
             Decreet
             ,
             and
             found
             that
             Moristoun
             as
             Intrometter
             was
             lyable
             to
             the
             Wodsetter
             ,
             and
             might
             retain
             so
             much
             of
             the
             Profits
             in
             his
             hands
             as
             would
             pay
             the
             Back-tack
             Duty
             ,
             and
             was
             not
             obliged
             to
             give
             out
             for
             the
             Children
             upon
             Annualrent
             :
             But
             if
             
               de
               facto
            
             he
             had
             given
             it
             out
             in
             his
             own
             name
             for
             Annualrent
             found
             that
             the
             Children
             should
             have
             the
             benefite
             thereof
             .
          
        
         
           
             Lady
             Milntoun
             contra
             Laird
             of
             Milntoun
             .
             Feb.
             25.
             1667.
             
          
           
             THe
             Lady
             Milntoun
             having
             obtained
             Divorce
             against
             
               Iohn
               Maxwel
            
             younger
             of
             Calderwood
             her
             Husband
             ,
             before
             the
             Commissars
             of
             Edinburgh
             ,
             Sir
             
               John
               Whitefoord
            
             of
             Milntoun
             ,
             who
             had
             gotten
             a
             Disposition
             of
             her
             Liferent-right
             from
             her
             Husband
             ,
             pursues
             Reduction
             of
             the
             Decreet
             of
             Divorce
             ,
             on
             these
             Reasons
             that
             the
             Decreet
             was
             in
             absence
             ,
             and
             that
             he
             compeared
             befor
             the
             Commissars
             ,
             and
             craved
             to
             be
             admitted
             for
             his
             entrest
             ,
             and
             was
             refused
             ,
             and
             if
             he
             had
             been
             admitted
             he
             would
             have
             objected
             against
             Paterson
             and
             Clerk
             the
             only
             two
             proving
             Witnesses
             ,
             that
             they
             were
             not
             habile
             Witnesses
             ,
             being
             neither
             men
             of
             Fame
             nor
             Estate
             ,
             and
             Paterson
             by
             common
             Reputation
             of
             very
             evil
             Fame
             ,
             and
             that
             they
             were
             not
             purged
             of
             partial
             counsel
             ,
             but
             suborned
             by
             the
             Lady
             ,
             and
             had
             both
             received
             money
             to
             bear
             Testimony
             ,
             and
             promise
             of
             more
             ,
             and
             were
             prompted
             by
             the
             Pursuer
             how
             to
             Depone
             .
             2ly
             ,
             As
             they
             were
             not
             habile
             ,
             so
             neither
             did
             they
             prove
             the
             Commission
             of
             Adultery
             .
             The
             Lords
             caused
             produce
             the
             Processe
             ,
             and
             Testimonies
             before
             the
             Commissars
             ,
             and
             finding
             that
             the
             Witnesses
             were
             not
             purged
             of
             partial
             counsel
             ,
             they
             ordained
             them
             to
             be
             re-examined
             upon
             such
             Interrogators
             as
             were
             not
             contrair
             to
             their
             former
             Depositions
             ,
             whereupon
             they
             were
             twice
             re-examined
             .
             Paterson
             in
             his
             first
             examination
             before
             the
             Commissars
             ,
             Depones
             that
             he
             knew
             
               John
               Maxwel
            
             and
             his
             Lady
             ,
             and
             that
             he
             saw
             
               John
               Maxwel
            
             in
             naked
             Bed
             with
             
               Margaret
               Davidson
            
             lying
             above
             her
             ,
             and
             that
             he
             upbraided
             
               Iohn
               Maxwel
            
             for
             it
             ,
             who
             answered
             he
             carried
             not
             alwise
             his
             Wife
             about
             with
             him
             .
             Clerk
             Deponed
             that
             in
             another
             Moneth
             ,
             at
             Edinburgh
             he
             saw
             
               John
               Maxwel
            
             in
             naked
             Bed
             with
             
               Margaret
               Davidson
            
             ,
             and
             that
             the
             said
             Iohn
             was
             very
             displeas'd
             at
             his
             coming
             in
             to
             the
             Room
             .
             The
             Goodman
             of
             that
             House
             being
             another
             Witnesse
             ,
             deponed
             that
             
               John
               
               Maxwel
            
             and
             another
             Man
             ,
             and
             two
             Women
             lay
             altogether
             at
             one
             time
             in
             one
             Bed
             in
             his
             House
             ,
             and
             that
             he
             saw
             
               John
               Maxwel
            
             very
             familiar
             with
             one
             of
             the
             Women
             ,
             Embracing
             and
             Kissing
             her
             ,
             and
             keeping
             her
             upon
             his
             knee
             ,
             whereupon
             he
             put
             them
             out
             of
             his
             House
             .
             Another
             Witnesse
             Deponed
             ,
             that
             seeing
             
               Margaret
               Davidson
            
             with
             Child
             ,
             she
             acknowledged
             to
             him
             that
             it
             was
             to
             
               John
               Maxwel
            
             ,
             and
             that
             it
             was
             commonly
             reported
             that
             she
             called
             the
             Child
             Maxwel
             after
             
               John
               Maxwel
               .
               Paterson
            
             and
             Clerk
             being
             re-examined
             by
             the
             Lords
             ,
             did
             purge
             themselves
             of
             partial
             counsel
             ,
             but
             at
             the
             close
             of
             their
             Deposition
             ,
             Paterson
             acknowledged
             that
             the
             Lady
             threw
             down
             a
             Dollar
             and
             a
             half
             upon
             the
             Table
             ,
             which
             he
             took
             up
             before
             his
             first
             Testimony
             ;
             and
             in
             his
             second
             Re-examination
             acknowledgeth
             that
             she
             offered
             him
             five
             hundreth
             Merks
             ,
             and
             to
             be
             a
             Bairn
             of
             the
             House
             .
             And
             both
             acknowledged
             that
             she
             gave
             them
             Tokens
             ,
             to
             make
             appear
             they
             knew
             
               Margaret
               Davidson
            
             by
             her
             Countenance
             and
             Cloaths
             ,
             but
             both
             adhere
             to
             the
             truth
             of
             the
             former
             Deposition
             ,
             and
             being
             asked
             how
             they
             knew
             that
             Woman
             was
             
               Margaret
               Davidson
            
             Deponed
             that
             they
             knew
             her
             not
             ,
             nor
             saw
             her
             ever
             before
             nor
             after
             ,
             but
             that
             
               John
               Maxwels
            
             Servant
             ,
             called
             
               Dougal
               Campbel
            
             being
             in
             the
             utter
             Room
             told
             them
             several
             times
             that
             that
             Womans
             name
             was
             
               Margaret
               Davidson
            
             .
          
           
             The
             Lords
             having
             considered
             the
             Depositions
             first
             and
             last
             ,
             ordained
             the
             Parties
             to
             Debate
             ,
             whether
             Corruption
             or
             Subornation
             of
             the
             Witnesses
             being
             acknowledged
             by
             themselves
             in
             their
             Re-examination
             did
             invalidat
             their
             Testimony
             ,
             and
             whether
             their
             Testimonies
             not
             ag●eeing
             as
             in
             the
             same
             individual
             Act
             ,
             but
             as
             to
             divers
             Facts
             ,
             and
             divers
             Times
             ,
             and
             Places
             ,
             were
             sufficient
             to
             prove
             .
          
           
             IT
             was
             alledged
             for
             the
             Lady
             ,
             that
             whoever
             adduced
             Witnesses
             was
             obliged
             to
             entertain
             them
             ,
             and
             also
             denied
             that
             ever
             she
             gave
             Money
             ,
             or
             promise
             ;
             and
             that
             it
             could
             not
             be
             instructed
             by
             the
             Re-examination
             of
             the
             Witnesses
             ,
             whose
             Post●rior
             Testimony
             could
             never
             invalidat
             the
             first
             ,
             or
             else
             there
             were
             an
             open
             door
             for
             prevarication
             and
             bribing
             of
             Witnesses
             to
             alter
             their
             Testimonies
             ,
             but
             the
             opinion
             of
             all
             Lawyers
             is
             ,
             that
             a
             Witnesse
             may
             correct
             himself
             before
             his
             Testimony
             be
             perfected
             ,
             and
             subscrived
             ,
             not
             after
             .
             But
             the
             only
             way
             was
             to
             protest
             for
             Reprobators
             and
             by
             other
             Witnesses
             to
             prove
             the
             Corruption
             of
             the
             witnesses
             ,
             in
             which
             Case
             it
             behoved
             to
             be
             Proven
             ,
             that
             there
             was
             an
             undertaking
             ,
             or
             at
             least
             endeavour
             ,
             that
             they
             should
             bear
             witnesse
             to
             that
             which
             they
             knew
             not
             to
             be
             true
             .
             As
             to
             the
             second
             point
             ,
             it
             was
             alledged
             ,
             that
             albeit
             the
             common
             rule
             be
             that
             in
             matters
             Criminal
             ,
             the
             witnesses
             must
             be
             Contestes
             ,
             both
             being
             witnesses
             at
             once
             to
             the
             same
             indevidual
             Act
             ,
             yet
             it
             had
             these
             limitations
             .
             1.
             
             That
             though
             this
             hold
             in
             
               Criminals
               specifico
            
             ,
             yet
             not
             in
             
               crimine
               generico
            
             ,
             which
             may
             be
             perpetrat
             by
             reiterable
             Acts
             when
             the
             pursute
             is
             not
             Capital
             ,
             but
             either
             for
             Tortour
             ,
             Canonical
             Purgations
             ,
             or
             to
             any
             Civil
             Effect
             ,
             as
             in
             Adultery
             it
             is
             
               crimen
               genericum
            
             ,
             by
             reiterable
             Acts
             ,
             and
             therefore
             being
             pursued
             
               civiliter
            
             to
             separat
             the
             Marriage
             ,
             or
             to
             restore
             the
             Joynture
             ,
             it
             might
             be
             proven
             by
             two
             witnesses
             ,
             though
             not
             concurring
             in
             the
             same
             individual
             time
             and
             place
             ,
             and
             therefore
             singular
             ,
             albeit
             not
             single
             witnesses
             .
             And
             the
             Lawyers
             do
             generally
             give
             the
             instance
             in
             Adultery
             ,
             which
             is
             a
             secret
             and
             transient
             Fact.
             And
             if
             such
             proof
             were
             not
             sufficient
             it
             would
             be
             impossible
             to
             prove
             it
             ;
             but
             if
             Adultery
             were
             pursued
             Criminally
             in
             these
             Cases
             where
             it
             is
             Capital
             ,
             Probation
             were
             required
             more
             exact
             ,
             and
             agreeing
             in
             time
             and
             place
             .
             Or
             if
             the
             Case
             were
             in
             Murder
             ,
             which
             is
             not
             reiterable
             ,
             witnesses
             not
             agreeing
             in
             time
             and
             place
             could
             not
             prove
             ,
             but
             in
             Adultery
             ,
             
               haeresie
               simonie
            
             ,
             and
             such
             reiterable
             Crimes
             ,
             witnesses
             to
             divers
             Facts
             being
             in
             the
             same
             Crime
             are
             sufficient
             ;
             for
             which
             
               Clarus
               ,
               Farnatius
            
             and
             Covaruvias
             were
             cited
             .
             It
             was
             answered
             ,
             to
             the
             first
             point
             that
             Subornation
             of
             Corruption
             of
             witnesses
             is
             inferred
             by
             
             attempts
             ,
             or
             endeavours
             to
             prompt
             the
             witnesses
             to
             Depone
             that
             they
             know
             not
             ,
             albeit
             they
             did
             it
             not
             ,
             nor
             yet
             undertook
             it
             ;
             and
             that
             taking
             of
             any
             Money
             ,
             not
             only
             inhabilitats
             the
             Witnesses
             ,
             but
             makes
             the
             Takers
             and
             Givers
             falseers
             ,
             is
             the
             opinion
             of
             all
             Lawyers
             ,
             neither
             may
             the
             Witnesses
             take
             the
             Expences
             of
             their
             Travel
             and
             Attendance
             ,
             till
             it
             be
             Decerned
             by
             a
             Judge
             ;
             and
             as
             to
             the
             matter
             of
             Corruption
             the
             Witnesses
             own
             Oath
             is
             sufficient
             ,
             even
             by
             Re-examination
             ,
             because
             the
             Adducer
             can
             never
             quarrel
             the
             Oath
             of
             the
             Witnesses
             adduced
             by
             himself
             ,
             by
             which
             he
             carries
             the
             Cause
             ,
             but
             much
             more
             where
             the
             Witnesses
             acknowledge
             ,
             that
             at
             the
             first
             Examination
             they
             were
             not
             Interrogate
             if
             they
             were
             free
             of
             partial
             Counsel
             ,
             and
             if
             that
             be
             omitted
             ,
             or
             not
             understood
             be
             them
             ,
             they
             may
             be
             Interrogat
             specially
             thereupon
             again
             ,
             as
             was
             done
             in
             this
             Case
             .
             To
             the
             second
             point
             ,
             albeit
             more
             Witnesses
             being
             singular
             ,
             but
             not
             agreeing
             to
             the
             same
             Fact
             ,
             or
             some
             times
             one
             VVitness
             may
             be
             receiveable
             to
             infer
             Tortour
             ,
             or
             that
             the
             several
             VVitnesses
             agree
             not
             as
             to
             all
             the
             same
             points
             ,
             and
             circumstances
             ,
             as
             if
             the
             VVitnesses
             look
             through
             a
             rift
             or
             hole
             ,
             albeit
             they
             cannot
             see
             all
             at
             the
             same
             instant
             ,
             yet
             all
             of
             them
             see
             the
             same
             individual
             Fact
             ,
             or
             if
             one
             VVitness
             Depone
             in
             the
             case
             of
             Murder
             ,
             that
             he
             saw
             the
             Party
             accused
             with
             a
             bended
             Pistol
             ,
             or
             drawn
             Sword
             go
             in
             to
             a
             Room
             ,
             but
             going
             out
             saw
             no
             further
             ,
             and
             another
             hear
             the
             Shot
             and
             the
             Stroaks
             ,
             and
             saw
             the
             accused
             coming
             out
             alone
             ,
             or
             with
             a
             bloody
             Sword
             ,
             and
             a
             third
             saw
             the
             slain
             lying
             Dead
             in
             a
             Room
             ,
             and
             no
             more
             then
             these
             ,
             although
             they
             agree
             not
             as
             to
             the
             same
             points
             and
             minuts
             of
             Time
             ,
             yet
             all
             agree
             in
             one
             Fact
             ,
             but
             the
             VVitnesses
             not
             agreeing
             to
             one
             Fact
             ,
             are
             all
             single
             VVitnesses
             ,
             and
             are
             not
             Contestes
             ,
             and
             so
             cannot
             be
             Confronted
             ,
             Confirm'd
             ,
             or
             Redargued
             each
             by
             other
             ,
             which
             is
             the
             great
             ground
             of
             Faithfulness
             ,
             and
             Trust
             of
             Testimonies
             ;
             but
             if
             one
             person
             alone
             can
             bear
             VVitness
             where
             he
             knowes
             none
             can
             gainsay
             him
             ,
             it
             would
             prompt
             him
             to
             Perjury
             ,
             or
             Mischief
             ,
             and
             here
             the
             two
             VVitnesses
             are
             only
             
               ex
               auditu
            
             ,
             seing
             neither
             of
             them
             knew
             
               Margaret
               Davidson
            
             but
             only
             by
             the
             Report
             of
             Dougal
             ,
             so
             that
             both
             did
             not
             positively
             know
             that
             the
             Person
             with
             whom
             they
             found
             
               Iohn
               Maxwel
            
             was
             not
             his
             Lady
             ,
             seing
             Clerk
             neither
             knew
             the
             Lady
             nor
             
               Margaret
               Davidson
            
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             whatever
             may
             infer
             Subornation
             or
             Corruption
             ,
             it
             cannot
             be
             proven
             by
             the
             Testimonies
             ,
             to
             derogate
             their
             former
             Depositions
             ,
             unless
             it
             were
             proven
             by
             others
             upon
             Reprobators
             ,
             and
             as
             to
             the
             other
             point
             in
             
               facto
               reiterabili
            
             ,
             to
             a
             Civil
             effect
             ,
             VVitnesses
             though
             not
             agreeing
             in
             the
             same
             Fact
             ,
             yet
             agreeing
             in
             divers
             Facts
             of
             the
             same
             Crime
             were
             sufficient
             .
          
           
             The
             Lords
             found
             that
             Subornation
             or
             Corruption
             of
             the
             Witnesses
             could
             be
             instructed
             by
             their
             own
             Posterior
             Testimony
             ,
             and
             found
             the
             Adultery
             sufficiently
             proven
             by
             the
             Testimony
             of
             the
             Witnesses
             ,
             and
             Assoilzied
             from
             the
             Reduction
             ,
             and
             found
             the
             Letters
             orderly
             proceeded
             ,
             used
             against
             Milntoun
             for
             Removing
             .
             But
             Milntoun
             gave
             in
             a
             new
             Bill
             ,
             offering
             him
             to
             prove
             by
             other
             Witnesses
             ,
             the
             Subornation
             and
             Corruption
             of
             the
             Witnesses
             in
             the
             Divorce
             ,
             being
             in
             effect
             a
             Reason
             of
             Reprobator
             ,
             which
             is
             very
             competent
             in
             his
             Reduction
             ,
             and
             yet
             the
             Lords
             refused
             the
             same
             
               in
               hoc
               statu
               Processus
            
             ,
             not
             being
             Libelled
             or
             Insisted
             in
             before
             ,
             but
             superceeded
             Execution
             in
             the
             Removing
             ,
             &
             as
             to
             the
             House
             and
             Mains
             Possest
             be
             Milntoun
             till
             Martimass
             ,
             that
             in
             the
             mean
             time
             he
             might
             Insist
             in
             his
             Reprobators
             ,
             as
             he
             would
             be
             Served
             .
          
        
         
           
           
             Countesse
             of
             Carnwath
             contra
             Earl
             of
             Carnwath
             ,
             February
             22.
             1667.
             
          
           
             THe
             Countess
             of
             Carnwath
             Insists
             in
             her
             Action
             of
             Poinding
             the
             ground
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             the
             Countess
             Seasing
             was
             null
             ,
             not
             being
             Registrate
             conform
             to
             the
             Act
             of
             Parliament
             ;
             It
             was
             answered
             ,
             that
             nullity
             cannot
             be
             proponed
             ,
             either
             be
             the
             Granter
             of
             the
             Infeftment
             ,
             or
             any
             Representing
             him
             ,
             or
             by
             any
             person
             who
             is
             obliged
             to
             acknowledge
             the
             Infeftments
             ;
             but
             the
             Earl
             is
             such
             a
             Person
             ,
             that
             albeit
             he
             Brooks
             by
             a
             Disposition
             from
             his
             Father
             ,
             yet
             his
             Infeftment
             containes
             this
             Express
             Provision
             ,
             that
             his
             Father
             at
             any
             time
             during
             his
             Life
             may
             Dispone
             the
             Lands
             ,
             or
             any
             Part
             thereof
             ,
             and
             grant
             Infeftments
             ,
             Tacks
             ,
             or
             Annualrents
             thereof
             ;
             so
             that
             this
             being
             unquestionably
             an
             Infeftment
             ,
             he
             cannot
             quarrel
             the
             same
             upon
             the
             not
             Registration
             ,
             but
             if
             his
             Father
             had
             granted
             an
             Obliegment
             to
             Infeft
             ,
             the
             Defender
             could
             not
             have
             opposed
             the
             same
             ,
             much
             more
             the
             Infeftment
             being
             Expede
             .
             It
             was
             answered
             ,
             that
             the
             Provision
             did
             not
             contain
             an
             Obligation
             upon
             the
             Defender
             to
             Dispone
             ,
             Ratifie
             ,
             or
             do
             any
             Deed
             ,
             but
             left
             only
             a
             Power
             to
             his
             Father
             to
             Burden
             the
             Lands
             ,
             which
             can
             only
             be
             understood
             ,
             being
             done
             
               legitimo
               modo
            
             ,
             and
             therefore
             the
             Infeftment
             wanting
             the
             solemnity
             of
             Registration
             is
             in
             the
             same
             Case
             ,
             as
             if
             there
             were
             no
             Infeftment
             ,
             and
             so
             is
             null
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             the
             Seasine
             valide
             ,
             as
             to
             the
             Defender
             ,
             in
             respect
             of
             the
             foresaid
             Provision
             in
             his
             Infeftment
             .
          
        
         
           
             Earl
             of
             Southesk
             contra
             Lady
             Earls-hall
             ,
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Southesk
             being
             Infeft
             in
             certain
             Lands
             upon
             the
             Water
             of
             Eden
             ,
             and
             the
             Salmond
             Fishing
             ,
             peruse
             Declarator
             that
             Earls-hall
             hath
             no
             Right
             thereto
             .
             The
             Pursuer
             produces
             an
             Infeftment
             ,
             in
             Anno
             1558.
             in
             which
             after
             the
             Land
             is
             Disponed
             ,
             there
             followes
             a
             Clause
             ,
             
               una
               cum
               Salmonum
               in
               piscationibus
               in
               aquâ
               de
            
             Eden
             ,
             with
             a
             
               novo
               damus
            
             ;
             it
             was
             alleadged
             for
             the
             Defender
             ,
             that
             he
             hath
             the
             ●like
             Declarator
             against
             the
             Pursuer
             ,
             which
             he
             repeats
             by
             way
             of
             Defense
             ,
             and
             produces
             an
             infeftment
             of
             the
             same
             year
             of
             God
             ,
             bearing
             in
             the
             dispositive
             Clause
             ,
             
               una
               cum
               Privilegio
               piscandi
               in
               aqua
               de
            
             Eden
             
               solito
               &
               consuet
            
             ,
             and
             alleadges
             that
             by
             vertue
             thereof
             ,
             he
             hath
             good
             Right
             to
             Fish
             in
             the
             Water
             ,
             and
             that
             he
             had
             been
             in
             Immemorial
             Possession
             by
             vertue
             thereof
             .
             It
             was
             answered
             ,
             First
             ,
             That
             this
             Clause
             cannot
             carry
             Salmond
             Fishing
             ,
             which
             is
             
               inter
               Regalia
            
             ,
             and
             must
             be
             specially
             Disponed
             .
             2ly
             .
             The
             Defenders
             Right
             ,
             though
             in
             the
             same
             year
             of
             God
             ,
             is
             yet
             some
             Moneths
             Posterior
             to
             the
             Pursuers
             ,
             and
             as
             to
             the
             Defenders
             Immemorial
             Possession
             ,
             it
             cannot
             consist
             nor
             give
             Prescription
             ,
             without
             a
             sufficient
             Title
             by
             Infeftment
             ,
             and
             it
             hath
             been
             frequently
             Interrupted
             by
             the
             Pursuer
             .
             It
             was
             answered
             by
             the
             Defender
             ,
             
             that
             he
             and
             the
             Pursuer
             ,
             and
             the
             Laird
             of
             Reiris
             having
             three
             Thirds
             of
             one
             Barony
             ,
             all
             lying
             Rin-ridge
             ,
             the
             Kings
             granting
             the
             Pursuer
             his
             Third
             
               cum
               Salmonum
               piscationibus
            
             ,
             added
             to
             the
             Lands
             as
             a
             Pendicle
             thereof
             ,
             it
             cannot
             be
             understood
             exclusive
             ,
             of
             the
             other
             two
             Third
             Parts
             of
             the
             same
             Barony
             ;
             likeas
             Reiris
             hath
             the
             same
             Clause
             in
             his
             Infeftment
             :
             and
             albeit
             Earls-halls
             Clause
             be
             not
             so
             express
             ,
             yet
             it
             not
             being
             the
             common
             Clause
             in
             the
             
               Tenendas
               cum
               piscationibus
            
             ,
             but
             in
             the
             Dispositive
             Clause
             of
             this
             special
             Tenor
             ,
             it
             must
             needs
             comprehend
             Salmond
             Fishing
             ,
             or
             otherwise
             it
             would
             have
             no
             Effect
             ,
             
               verba
               autem
               interpretanda
               sunt
               cum
               effectu
               ,
            
             and
             albeit
             the
             Clause
             were
             dubious
             ,
             yet
             it
             hath
             been
             in
             long
             possession
             ,
             Immemorial
             ,
             which
             sufficiently
             Instructs
             the
             Accustomed
             Fishing
             to
             have
             been
             before
             the
             same
             .
             2ly
             ,
             As
             to
             the
             Anteriority
             of
             the
             Pursuers
             Infeftment
             ,
             the
             Defenders
             offers
             to
             prove
             that
             his
             Predecessor
             was
             Infeft
             before
             him
             ,
             with
             this
             Clause
             that
             is
             in
             his
             own
             Infeftment
             produced
             .
             3ly
             ,
             Albeit
             the
             Defenders
             Right
             were
             Posterior
             ,
             yet
             it
             is
             sufficient
             to
             give
             him
             a
             Joint
             Right
             to
             the
             Salmond
             Fishing
             ,
             with
             the
             Pursuer
             ,
             because
             he
             offers
             him
             to
             prove
             that
             he
             hath
             fourty
             years
             peaceably
             Possest
             the
             Salmond
             Fishing
             as
             the
             Pursuer
             hath
             ,
             when
             ever
             they
             were
             in
             the
             River
             .
          
           
             The
             Lords
             found
             that
             the
             Clause
             in
             the
             Defenders
             Infeftment
             ,
             albeit
             it
             had
             been
             prior
             to
             the
             Pursuers
             ,
             could
             not
             give
             Right
             to
             the
             Salmond
             Fishing
             in
             prejudice
             of
             the
             Pursuers
             expresse
             Infeftment
             of
             Salmond
             Fishing
             ,
             unlesse
             the
             Defenders
             Infeftment
             had
             been
             clede
             with
             Immemorial
             ,
             and
             fourty
             years
             peaceable
             Possession
             ,
             which
             being
             so
             alleadged
             by
             the
             Defender
             ,
             the
             Pursuer
             offered
             to
             prove
             Interruption
             ,
             and
             therefore
             a
             Term
             was
             granted
             to
             either
             Party
             to
             prove
             .
          
        
         
           
             Mr.
             Iohn
             Elies
             contra
             Wishart
             and
             Keith
             ,
             Eodem
             die
             .
          
           
             MAster
             
               Iohn
               Elies
            
             having
             Inhibit
             
               Elizabeth
               Keith
            
             his
             Debitor
             ,
             she
             did
             thereafter
             acquire
             a
             VVodset
             of
             certain
             Lands
             within
             the
             Shire
             ,
             where
             the
             Inhibition
             was
             published
             ,
             and
             thereafter
             upon
             payment
             of
             part
             of
             the
             Sums
             ,
             the
             VVodset
             Right
             was
             Renunced
             
               pro
               tanto
            
             ,
             and
             the
             rest
             being
             Consigned
             ,
             there
             is
             now
             a
             Process
             of
             Declarator
             of
             Redemption
             ,
             wherein
             Mr.
             
               Iohn
               Elies
            
             Compears
             ,
             and
             produces
             a
             Declarator
             at
             his
             Instance
             for
             declaring
             the
             Sums
             of
             the
             VVodset
             to
             belong
             to
             him
             ,
             and
             alleadges
             no
             Declarator
             of
             Redemption
             till
             the
             whole
             Sums
             contained
             in
             the
             VVodset
             Consigned
             be
             given
             up
             to
             him
             ,
             without
             respect
             of
             the
             payment
             or
             Renunciation
             of
             a
             part
             ,
             because
             it
             being
             done
             after
             his
             Inhibition
             ,
             it
             was
             null
             ,
             and
             so
             is
             craved
             to
             be
             declared
             by
             his
             Declarator
             ;
             It
             was
             answered
             ;
             First
             ,
             That
             Inhibitions
             can
             reach
             no
             further
             then
             to
             the
             Lands
             the
             Person
             Inhibit
             had
             the
             time
             of
             the
             Inhibition
             ,
             but
             not
             unto
             Lands
             he
             should
             happen
             to
             acquire
             after
             the
             Inhibition
             ,
             because
             the
             Inhibition
             bearing
             ,
             that
             the
             person
             Inhibit
             should
             not
             Sell
             or
             Alienat
             to
             the
             prejudice
             of
             the
             User
             of
             the
             Inhibition
             ,
             albeit
             she
             should
             Sell
             what
             thereafter
             he
             acquired
             ,
             the
             User
             of
             the
             Inhibition
             
             were
             in
             no
             other
             case
             ,
             then
             when
             the
             same
             was
             published
             ,
             the
             Land
             being
             both
             gotten
             and
             gone
             thereafter
             ;
             and
             if
             that
             were
             the
             effect
             of
             Inhibitions
             ,
             every
             provident
             person
             would
             Publish
             and
             Registrat
             them
             in
             all
             the
             shires
             of
             the
             Kingdom
             ,
             because
             they
             can
             only
             reach
             Lands
             lying
             in
             the
             shire
             where
             they
             are
             Registrated
             ,
             which
             was
             never
             done
             ,
             neither
             was
             it
             ever
             Decided
             ,
             that
             Inhibitions
             reached
             Lands
             acquired
             thereafter
             .
             2ly
             ,
             Inhibitions
             can
             never
             hinder
             persons
             ,
             having
             Right
             of
             Reversion
             ,
             to
             pay
             the
             Sums
             ,
             and
             the
             Wodsetter
             to
             Renunce
             ,
             because
             Inhibitions
             only
             Restrain
             ,
             Debar
             ,
             and
             Inhibit
             to
             Sell
             ,
             &c.
             
             But
             doth
             not
             hinder
             him
             to
             pay
             his
             Debt
             ;
             or
             upon
             payment
             of
             the
             Wodset
             Sums
             ,
             to
             Discharge
             the
             Sums
             ,
             and
             Renunce
             the
             Lands
             ,
             these
             being
             Deeds
             necessar
             ,
             to
             which
             he
             might
             be
             compelled
             ,
             and
             if
             this
             hold
             ,
             no
             man
             might
             saflie
             pay
             an
             Heretable
             Band
             ,
             having
             Infeftment
             of
             Annualrent
             ,
             without
             searching
             the
             Registes
             ,
             which
             the
             most
             cautious
             man
             never
             did
             ,
             and
             for
             this
             alleadged
             the
             expresse
             Opinion
             of
             Craig
             ,
             that
             Inhibitions
             hinder
             not
             Discharges
             of
             Heretable
             Sums
             ,
             or
             Renunciations
             of
             VVodsets
             .
             It
             was
             answered
             ,
             that
             Inhibitions
             are
             personal
             Prohibitions
             ,
             Restraining
             the
             Person
             Inhibit
             ,
             and
             the
             Leiges
             to
             Alienat
             ,
             Buy
             ,
             or
             Sell
             any
             Lands
             in
             prejudice
             of
             the
             User
             of
             the
             Inhibition
             ,
             and
             until
             he
             be
             satisfied
             of
             the
             Ground
             thereof
             .
             Which
             Prohibition
             respecteth
             the
             Person
             Inhibit
             directly
             ,
             and
             the
             Lands
             ;
             but
             indirectly
             as
             they
             belong
             to
             him
             ,
             so
             that
             there
             is
             no
             difference
             whether
             they
             belonged
             to
             him
             before
             or
             after
             ;
             for
             
               hoc
               ipso
            
             that
             they
             are
             his
             ,
             they
             fall
             under
             the
             restraint
             :
             and
             the
             alienation
             thereof
             ,
             is
             to
             the
             prejudice
             of
             the
             User
             of
             the
             Inhibition
             ,
             because
             if
             they
             were
             not
             Sold
             ,
             they
             might
             Appryze
             the
             same
             ,
             so
             that
             ,
             albeit
             he
             be
             not
             in
             worse
             case
             then
             he
             was
             the
             time
             of
             the
             Inhibition
             ,
             yet
             he
             is
             in
             worse
             case
             then
             he
             would
             be
             ,
             if
             the
             Land
             had
             not
             been
             sold
             :
             And
             albeit
             upon
             uncertainty
             men
             will
             not
             Registrat
             Inhibitions
             through
             all
             the
             Kingdom
             ,
             that
             infers
             not
             but
             they
             might
             ,
             and
             that
             they
             would
             be
             effectual
             to
             Lands
             thereafter
             acquired
             in
             these
             shires
             ,
             neither
             is
             there
             any
             ground
             to
             except
             the
             Renuncing
             of
             Wodsets
             ,
             which
             are
             Alienations
             of
             the
             Wodset
             Lands
             ,
             but
             the
             Redeemer
             ,
             before
             he
             declare
             ,
             or
             deliver
             the
             Money
             ,
             and
             take
             Renunciation
             ,
             he
             ought
             to
             search
             the
             Registers
             ,
             and
             to
             call
             these
             persons
             who
             have
             used
             Inhibitions
             for
             their
             Interests
             .
          
           
             The
             Lords
             found
             that
             Inhibitions
             reached
             to
             Lands
             acquired
             after
             the
             Inhibition
             ,
             but
             were
             not
             clear
             that
             Inhibition
             hindred
             Renunciations
             of
             Wodsets
             ,
             but
             superceeded
             to
             give
             answer
             to
             that
             Point
             till
             the
             first
             of
             June
             .
          
        
         
           
             Laird
             of
             Dury
             contra
             Anna
             Gibson
             ,
             Feb.
             28.
             1667.
             
          
           
             UMquhil
             Sir
             
               Alexander
               Gibson
            
             of
             Dury
             having
             given
             Bond
             to
             his
             three
             Daughters
             ,
             for
             twenty
             thousand
             Merks
             of
             portion
             a
             Piece
             ,
             and
             in
             case
             of
             Decease
             of
             any
             of
             them
             ,
             her
             Portion
             to
             belong
             to
             his
             Heir-male
             ;
             but
             upon
             the
             Margent
             there
             is
             added
             ,
             that
             the
             Portion
             of
             the
             Deceasing
             should
             accresce
             to
             the
             Survivers
             .
             This
             Dury
             ,
             Brother
             and
             Heir-male
             ,
             pursues
             Reduction
             ,
             and
             Improbation
             of
             this
             Bond
             ,
             in
             so
             far
             as
             concerns
             the
             Marginal
             addition
             ,
             upon
             these
             grounds
             ,
             that
             the
             samine
             was
             not
             Subscribed
             before
             the
             Witnesses
             insert
             in
             the
             Bond
             ,
             nor
             insert
             at
             that
             time
             :
             And
             that
             it
             is
             
             written
             by
             another
             Hand
             ,
             then
             his
             that
             wrote
             the
             body
             of
             the
             Bond.
             And
             that
             it
             is
             contrair
             to
             the
             substitution
             of
             the
             body
             of
             the
             Bond.
             And
             that
             albeit
             the
             writer
             of
             the
             body
             be
             insert
             in
             the
             Bond
             ,
             and
             that
             the
             Bond
             bears
             ,
             that
             the
             Date
             and
             Witnesses
             are
             insert
             by
             Dury
             himself
             ,
             yet
             it
             does
             not
             bear
             that
             he
             insert
             the
             Marginal
             addition
             ,
             which
             is
             of
             greater
             importance
             .
             It
             was
             answered
             ,
             that
             Bonds
             being
             Subscribed
             before
             Witness●s
             their
             Testimony
             reaches
             not
             only
             to
             the
             Subscription
             on
             the
             foot
             ,
             but
             to
             the
             Subscription
             of
             joyning
             the
             Sheets
             ,
             and
             whole
             Marginal
             additions
             ,
             which
             are
             as
             valide
             as
             any
             part
             of
             the
             body
             ,
             unless
             it
             were
             positively
             proven
             by
             the
             Witnesses
             that
             they
             remember
             that
             there
             was
             no
             addition
             on
             the
             Margent
             when
             they
             Subscribed
             ;
             and
             albeit
             the
             Marginal
             addition
             be
             of
             another
             Hand
             ,
             it
             is
             offered
             to
             be
             proven
             that
             it
             is
             the
             Hand-writing
             of
             Dury
             himself
             ,
             who
             insert
             the
             Date
             and
             Witnesses
             ,
             which
             is
             more
             Solemn
             then
             any
             other
             writer
             ,
             especially
             seing
             the
             writer
             was
             not
             present
             ,
             or
             witness
             ,
             but
             only
             drew
             the
             draught
             of
             the
             Bond
             ;
             and
             albeit
             he
             mentions
             not
             the
             inserting
             of
             the
             Marginal
             addition
             ,
             but
             only
             the
             inserting
             of
             Date
             and
             VVitnesses
             that
             has
             been
             ,
             because
             of
             the
             ordinar
             Stile
             of
             Bonds
             ,
             whereof
             the
             Date
             and
             VVitnesses
             are
             filled
             in
             by
             another
             Hand
             ,
             not
             being
             ordinar
             for
             these
             to
             write
             Marginal
             additions
             ;
             and
             as
             for
             the
             importance
             ,
             or
             contrariety
             of
             the
             Margent
             to
             the
             Body
             ,
             that
             is
             most
             ordinar
             ,
             especially
             where
             the
             body
             is
             but
             a
             draught
             drawen
             by
             another
             Hand
             ,
             who
             has
             erred
             in
             his
             intention
             in
             the
             Substitution
             ;
             it
             was
             answered
             for
             the
             Pursuer
             ,
             that
             albeit
             the
             Marginal
             addition
             should
             be
             proven
             to
             be
             Holograph
             ,
             yet
             unless
             it
             were
             proven
             to
             have
             been
             truely
             written
             ,
             and
             subscribed
             at
             the
             Date
             of
             the
             Bond.
             It
             cannot
             prove
             that
             it
             is
             of
             the
             same
             Date
             ,
             or
             of
             any
             Date
             before
             the
             Defunct
             was
             on
             Death-bed
             ,
             and
             so
             it
             is
             null
             ,
             and
             cannot
             prejudge
             the
             Pursuer
             as
             Heir
             ,
             especially
             seing
             the
             Defunct
             having
             then
             no
             Sons
             ,
             might
             probably
             adject
             this
             in
             favours
             of
             his
             Daughters
             ,
             contrair
             his
             former
             Intention
             ,
             which
             if
             it
             should
             take
             effect
             ,
             would
             ruine
             the
             Heir-male
             .
          
           
             The
             Lords
             having
             taken
             the
             Deposition
             of
             the
             Witnesses
             insert
             ,
             and
             both
             Deponing
             that
             they
             did
             not
             remember
             whether
             the
             Marginal
             addition
             was
             upon
             the
             Bond
             when
             it
             was
             Subscribed
             or
             no
             ,
             and
             that
             it
             did
             appear
             by
             inspection
             ,
             that
             the
             Marginal
             addition
             was
             by
             another
             Hand
             then
             that
             that
             wrote
             the
             body
             ,
             and
             that
             it
             was
             not
             mentioned
             at
             the
             conclusion
             ,
             where
             the
             Defunct
             exprest
             ,
             that
             he
             himself
             was
             Filler
             up
             of
             the
             Date
             and
             Witnesses
             ,
             and
             nothing
             was
             adduced
             to
             astruct
             that
             it
             was
             of
             a
             true
             Date
             before
             his
             taking
             Bed.
             Vpon
             all
             these
             considerations
             joyntly
             ,
             the
             Lords
             found
             that
             the
             Marginal
             addition
             was
             not
             of
             the
             Date
             of
             the
             Bond
             ,
             and
             that
             having
             no
             Date
             of
             it self
             ,
             it
             was
             not
             instructed
             to
             have
             been
             done
             before
             the
             Defunct
             was
             on
             Death-bed
             ,
             and
             so
             was
             null
             as
             to
             the
             Heir
             :
             but
             the
             Lords
             did
             not
             find
             that
             these
             alleadgeances
             severally
             could
             have
             derogat
             to
             the
             Marginal
             addition
             ,
             but
             only
             that
             all
             joyntly
             was
             sufficient
             ,
             the
             matter
             being
             also
             accorded
             amongst
             the
             Parties
             .
          
        
         
           
           
             Antrobus
             contra
             William
             Anderson
             Provost
             of
             Glasgow
             ,
             Iune
             ,
             13.
             1667.
             
          
           
             
               WIlliam
               Antrobus
            
             having
             Caption
             against
             
               Iohn
               Herbertson
            
             in
             Glasgow
             ,
             the
             Messenger
             having
             therewith
             taken
             Herbertson
             in
             his
             own
             House
             ,
             and
             having
             required
             
               William
               Anderson
            
             present
             Provost
             to
             Concur
             and
             put
             him
             in
             Prison
             ,
             and
             he
             refusing
             ,
             pursues
             now
             the
             Provost
             for
             payment
             of
             the
             Debt
             .
             The
             Defender
             alleadged
             ,
             first
             ,
             that
             the
             Lybel
             was
             not
             relevant
             ,
             because
             it
             did
             not
             subsume
             that
             the
             Rebel
             was
             showen
             to
             the
             Defender
             ;
             2ly
             ,
             The
             Defender
             was
             required
             at
             an
             unlawful
             time
             ,
             being
             betwixt
             eleven
             and
             twelve
             at
             night
             ;
             3ly
             ,
             The
             Defender
             offered
             the
             concourse
             of
             the
             Town
             Officers
             ;
             4ly
             ,
             The
             Army
             being
             come
             to
             Glasgow
             that
             night
             ,
             the
             Provost
             was
             taken
             up
             at
             the
             time
             he
             was
             required
             ,
             with
             the
             ordering
             of
             their
             Quarters
             ,
             which
             being
             a
             publick
             Service
             of
             greater
             Importance
             :
             he
             offering
             of
             the
             Officers
             was
             sufficient
             ;
             5ly
             ,
             This
             subsidiary
             Action
             being
             but
             for
             the
             Pursuers
             damnage
             ,
             he
             can
             pretend
             none
             ,
             because
             the
             Rebel
             was
             Bankrupt
             ,
             and
             insolvent
             long
             before
             ,
             and
             he
             was
             Incarcerat
             within
             some
             few
             dayes
             ,
             where
             he
             remained
             a
             long
             time
             ,
             during
             which
             ,
             the
             Pursuer
             might
             have
             Arrested
             him
             ;
             and
             the
             Defender
             yet
             offers
             to
             put
             him
             in
             Prison
             in
             as
             good
             case
             as
             he
             then
             was
             .
             The
             Pursuer
             answered
             that
             his
             Lybel
             was
             most
             Relevant
             ,
             because
             the
             Letters
             being
             directed
             to
             Provost
             and
             Bailies
             of
             Burghs
             ;
             and
             if
             they
             be
             required
             ,
             albeit
             the
             Rebel
             be
             not
             in
             their
             sight
             ,
             they
             must
             go
             with
             the
             User
             thereof
             ,
             to
             any
             place
             within
             their
             Jurisdiction
             ,
             which
             they
             must
             do
             in
             their
             own
             persons
             ,
             and
             it
             will
             not
             be
             sufficient
             to
             send
             their
             Officers
             ,
             and
             as
             to
             the
             time
             of
             requiring
             ,
             any
             time
             that
             men
             do
             use
             to
             go
             about
             their
             Affairs
             is
             sufficient
             ,
             and
             the
             Defender
             was
             required
             between
             seven
             and
             eight
             at
             night
             ,
             and
             albeit
             it
             had
             been
             later
             ,
             that
             the
             Defender
             might
             be
             excusable
             not
             to
             come
             out
             of
             his
             own
             House
             to
             search
             ,
             yet
             here
             he
             was
             in
             the
             same
             house
             with
             the
             Rebel
             ,
             and
             in
             the
             next
             Room
             to
             him
             ,
             and
             heard
             the
             noise
             of
             these
             that
             deforced
             the
             Messenger
             ,
             which
             was
             done
             by
             the
             Towns
             Officers
             ;
             neither
             can
             any
             pretence
             of
             Ordering
             of
             Quarters
             ,
             stop
             the
             Execution
             of
             the
             Kings
             Letters
             ,
             which
             might
             have
             been
             done
             with
             so
             little
             diversion
             ,
             and
             the
             Quarters
             might
             have
             been
             Ordered
             by
             the
             Baillies
             .
          
           
             The
             Lords
             found
             the
             Libel
             Relevant
             ,
             but
             found
             the
             Defenses
             joyntly
             also
             Relevant
             ,
             viz.
             The
             Ordering
             of
             the
             Quarters
             of
             the
             Army
             ,
             the
             Ordering
             of
             the
             Officers
             ,
             and
             the
             offer
             now
             to
             put
             the
             Rebel
             in
             Prison
             ,
             in
             as
             good
             case
             ,
             and
             the
             time
             of
             night
             .
          
        
         
           
             Harner
             contra
             Haitly
             ,
             Eodem
             die
             .
          
           
             HArner
             pursues
             Haitly
             as
             representing
             her
             Husband
             ,
             for
             proving
             the
             Tenor
             of
             her
             Contract
             of
             Marriage
             ,
             who
             alleadged
             no
             Process
             because
             there
             was
             no
             Adminicle
             produced
             in
             write
             ,
             which
             was
             most
             necessar
             in
             any
             Case
             ,
             but
             especially
             in
             this
             Case
             ,
             where
             the
             Tenor
             of
             the
             Contract
             was
             
             extraordinar
             ,
             Constituting
             the
             one
             half
             of
             the
             Fee
             of
             the
             Husbands
             Estate
             to
             the
             Wifes
             Heirs
             ,
             failzing
             the
             Heirs
             of
             the
             Marriage
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             Adminicles
             in
             Writ
             were
             ordinarly
             required
             ,
             especially
             in
             Writs
             that
             use
             to
             be
             taken
             away
             by
             Redelivery
             ,
             or
             Cancelling
             ;
             as
             Bonds
             ,
             &c.
             
             Yet
             the
             intent
             of
             Adminicles
             ,
             is
             to
             render
             it
             probable
             that
             such
             a
             Writ
             was
             ,
             and
             thereby
             to
             give
             ground
             to
             admit
             Witnesses
             to
             prove
             ,
             
               rei
               gestae
               veritatem
            
             :
             But
             here
             there
             was
             as
             strong
             grounds
             of
             probability
             ,
             there
             being
             a
             Marriage
             of
             a
             Landed
             Man
             ,
             and
             the
             Copy
             of
             the
             Contract
             taken
             of
             the
             Writer
             thereof
             ,
             
               Iohn
               Nicol
            
             ,
             his
             Style
             Book
             ,
             he
             and
             his
             Servants
             being
             Witnesses
             ,
             who
             are
             yet
             alive
             ,
             and
             the
             Tenor
             offered
             to
             be
             proven
             by
             them
             ;
             whereas
             other
             Tenors
             use
             to
             be
             proven
             by
             Witnesses
             that
             saw
             the
             Writ
             though
             they
             were
             not
             the
             Witnesses
             insert
             .
             Likeas
             the
             Husband
             having
             taken
             the
             Right
             of
             an
             Infeftment
             ,
             for
             a
             sum
             ,
             payable
             to
             him
             and
             his
             Wife
             ,
             and
             the
             Heirs
             betwixt
             them
             ;
             which
             failzing
             ,
             to
             his
             Heirs
             ,
             he
             took
             a
             Ratification
             thereof
             ,
             from
             the
             Pursuer
             which
             could
             have
             no
             intent
             ,
             if
             in
             case
             of
             failzie
             of
             Heirs
             of
             the
             Marriage
             ,
             the
             half
             had
             not
             been
             appointed
             to
             return
             to
             her
             Heirs
             .
             Likeas
             ,
             it
             is
             offered
             to
             be
             proven
             by
             Witnesses
             ,
             that
             the
             Husband
             acknowledged
             that
             he
             had
             the
             Contract
             in
             custody
             from
             his
             Wife
             .
             The
             Defender
             answered
             ,
             that
             our
             Law
             had
             rejected
             Probation
             by
             Witnesses
             ,
             in
             matters
             of
             Importance
             ,
             and
             therefore
             Tenors
             are
             only
             Sustained
             ,
             when
             their
             Probation
             is
             partly
             by
             Writ
             ,
             and
             partly
             by
             Witnesses
             ,
             neither
             is
             any
             other
             probability
             sufficient
             :
             and
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Husband
             Infeft
             his
             Wife
             in
             his
             Houses
             ,
             of
             a
             considerable
             value
             ,
             without
             any
             mention
             of
             a
             Contract
             of
             Marriage
             .
          
           
             The
             Lords
             refused
             to
             sustain
             the
             Libel
             without
             Adminicles
             in
             Writ
             ,
             and
             assoilz●ed
             ,
             albeit
             it
             was
             also
             offered
             to
             be
             proven
             ,
             that
             the
             Husbands
             whole
             means
             came
             by
             the
             Wife
             .
          
        
         
           
             Patrick
             Wat
             contra
             William
             Halyburton
             .
             Iune
             14.
             1667.
             
          
           
             
               PAtrick
               Wat
            
             as
             Assigney
             by
             
               Adam
               Wat
            
             his
             Father
             ,
             to
             a
             Disposition
             granted
             by
             umquhil
             Halyburton
             to
             him
             ,
             pursues
             
               William
               Halyburton
            
             ,
             as
             Representing
             him
             ,
             to
             fulfil
             that
             part
             of
             the
             Disposition
             ,
             obliging
             him
             to
             procure
             the
             Pursuers
             Father
             Infeft
             ;
             and
             for
             that
             effect
             ,
             that
             the
             Defender
             should
             Infeft
             himself
             ,
             and
             grant
             Procuratory
             of
             Resignation
             ,
             for
             Infefting
             the
             pursuer
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             he
             was
             not
             obliged
             to
             Infeft
             the
             Pursuer
             ,
             because
             it
             was
             his
             Fathers
             fault
             he
             was
             not
             Infeft
             ,
             seing
             he
             had
             received
             Procuratory
             of
             Resignation
             ,
             and
             Precept
             of
             Seasine
             ,
             with
             which
             he
             might
             have
             Infeft
             himself
             ;
             and
             though
             the
             Granter
             ,
             and
             he
             the
             Receiver
             ,
             lived
             for
             twelve
             or
             fifteen
             years
             thereafter
             ,
             he
             was
             negligent
             .
             2ly
             ,
             Though
             the
             Defender
             were
             obliged
             to
             Enter
             ,
             and
             Denude
             himself
             ;
             yet
             it
             must
             be
             the
             Pursuer
             finding
             Caution
             to
             warrand
             and
             relieve
             him
             of
             the
             hazard
             of
             the
             Ward
             and
             Marriage
             ,
             because
             the
             Lands
             in
             question
             being
             Ward
             through
             the
             Pursuers
             Authors
             fault
             ,
             the
             Defenders
             Marriage
             will
             fall
             .
             3ly
             ,
             The
             Defenders
             Fathers
             Name
             was
             only
             borrowed
             by
             Hallyburton
             of
             Egles-cairn
             ,
             who
             acquired
             the
             Rights
             blank
             ;
             and
             filled
             up
             the
             Defenders
             Fathers
             Name
             therein
             ,
             and
             moved
             him
             to
             Dispone
             .
          
           
             The
             Lords
             Repelled
             these
             Defenses
             ,
             but
             Reserved
             to
             the
             Defender
             to
             pursue
             Damnage
             and
             interest
             ,
             for
             any
             hazard
             occurred
             by
             
               Adam
               Wats
            
             fault
             ,
             as
             being
             more
             proper
             against
             his
             Heir
             ,
             than
             against
             the
             Pursuer
             his
             second
             Son.
             
          
        
         
           
           
             Mr.
             Heugh
             Gray
             contra
             Forbes
             Minister
             of
             Innerkeithing
             ,
             and
             Tennents
             of
             Nether-Horseburgh
             .
             Iune
             15.
             1667.
             
          
           
             THe
             Tennents
             of
             Nether-horseburgh
             having
             Suspended
             these
             two
             Ministers
             upon
             double
             Poynding
             ,
             they
             alleadged
             they
             had
             made
             payment
             ,
             
               bona
               fide
            
             ,
             of
             their
             Rents
             conform
             to
             their
             Tacks
             .
             It
             was
             answered
             ,
             that
             they
             were
             called
             to
             Mr.
             
               Heugh
               Grays
            
             Decreet
             in
             anno
             1656.
             and
             Charged
             thereupon
             thereafter
             the
             same
             year
             ,
             which
             did
             put
             them
             in
             
               mala
               fide
            
             .
             It
             was
             answered
             ,
             that
             there
             having
             nothing
             followed
             upon
             the
             Charge
             ,
             but
             the
             Charger
             being
             silent
             for
             fifteen
             years
             ,
             the
             Tennents
             
               favore
               rusticitatis
            
             ,
             cannot
             be
             thought
             to
             continue
             
               in
               mala
               fide
            
             all
             that
             time
             ,
             to
             infer
             double
             payment
             ,
             else
             it
             might
             continue
             for
             fourty
             years
             .
             It
             was
             answered
             once
             in
             
               mala
               fide
            
             ,
             ay
             in
             
               mala
               fide
            
             ,
             and
             that
             thir
             Tennents
             did
             still
             remember
             and
             suspect
             the
             Pursuers
             Right
             appears
             because
             they
             took
             Discharges
             ,
             bearing
             warrandice
             of
             the
             same
             .
          
           
             The
             Lords
             ordained
             the
             Defenders
             to
             produce
             their
             Discharges
             ,
             that
             the
             warrandice
             might
             appear
             ,
             being
             loth
             to
             decern
             the
             Tennents
             in
             double
             payment
             ,
             if
             the
             Charge
             could
             have
             access
             to
             the
             other
             Minister
             ,
             or
             his
             Representatives
             .
          
           
             It
             was
             alleadged
             for
             the
             present
             Incumbent
             of
             Innerkeithing
             ,
             that
             in
             a
             former
             double
             Poynding
             ,
             raised
             by
             the
             Tennents
             ,
             he
             was
             preferred
             to
             the
             Cropt
             1665.
             and
             in
             time
             coming
             .
             It
             was
             answered
             ,
             that
             the
             said
             Decreet
             was
             in
             absence
             of
             Mr.
             
               Heugh
               Gray
            
             ;
             and
             that
             it
             was
             null
             without
             Probation
             ,
             for
             there
             was
             nothing
             produced
             for
             the
             Minister
             of
             Innerkeithing
             ,
             but
             his
             Presentation
             and
             Collation
             ,
             which
             were
             but
             meerly
             general
             ,
             and
             nothing
             produced
             to
             Instruct
             ,
             that
             their
             Teinds
             were
             of
             his
             Paroch
             ,
             or
             within
             his
             Benefice
             .
             It
             was
             answered
             ,
             that
             he
             was
             secured
             by
             the
             Act
             of
             Parliament
             anent
             Decreets
             of
             double
             Poynding
             .
          
           
             The
             Lords
             found
             that
             what
             the
             Minister
             of
             Innerkeithing
             ,
             had
             uplifted
             ,
             by
             vertue
             of
             that
             preference
             ,
             the
             Act
             of
             Parliament
             would
             secure
             him
             thereanent
             ,
             but
             found
             he
             had
             no
             Right
             as
             to
             the
             future
             .
          
        
         
           
             Iohnstoun
             contra
             Cuninghame
             .
             Iune
             19.
             1667.
             
          
           
             
               JAmes
               Iohnstoun
            
             as
             Assigney
             by
             
               William
               Iohnstoun
            
             ,
             to
             a
             Bond
             granted
             by
             
               Iames
               Cuninghame
            
             ,
             Charges
             him
             thereon
             :
             he
             Suspends
             upon
             this
             Reason
             ,
             that
             the
             Bond
             bears
             the
             sum
             borrowed
             from
             
               William
               Iohnstoun
            
             and
             his
             Spouse
             ,
             and
             payable
             to
             them
             ,
             the
             longest
             liver
             of
             them
             two
             ,
             and
             their
             Heirs
             ,
             there
             being
             no
             Children
             betwixt
             them
             ,
             the
             one
             half
             must
             belong
             to
             the
             Heirs
             of
             the
             Wife
             ,
             to
             whom
             the
             Suspender
             is
             Curator
             ,
             and
             which
             he
             ought
             to
             retain
             for
             their
             use
             :
             and
             albeit
             in
             such
             Clauses
             in
             Rights
             of
             Land
             ,
             or
             Heretage
             ,
             
               potior
               est
               conditio
               masculi
            
             :
             yet
             it
             is
             not
             so
             in
             Rights
             Moveable
             ,
             and
             this
             Bond
             is
             moveable
             ,
             being
             after
             the
             Act
             of
             Parliament
             1641.
             which
             was
             so
             found
             in
             a
             Practique
             produced
             ,
             observed
             by
             Dury
             ,
             where
             the
             Wife
             by
             her
             Contract
             of
             Marriage
             ,
             Disponing
             her
             Goods
             and
             Debts
             to
             her
             Husband
             ,
             her self
             ;
             and
             their
             Heirs
             ,
             the
             same
             was
             found
             to
             divide
             betwixt
             the
             Husbands
             and
             the
             Wifes
             Heirs
             .
             It
             was
             answered
             ,
             that
             here
             the
             Bond
             bore
             Annualrent
             ,
             and
             so
             was
             Heretable
             ,
             
               quod
               fiscum
               &
               relictam
            
             and
             there
             being
             nothing
             to
             evidence
             that
             the
             sum
             was
             the
             Wifes
             own
             Means
             ,
             the
             same
             is
             presumed
             to
             be
             the
             Husbands
             :
             and
             the
             taking
             of
             a
             Bond
             of
             this
             Tenor
             ,
             if
             it
             did
             import
             to
             give
             her
             the
             half
             ,
             is
             a
             Donation
             by
             a
             Husband
             to
             his
             Wife
             Revockable
             ,
             and
             now
             Revocked
             .
          
           
           
             The
             Lords
             found
             that
             the
             Wifes
             Heirs
             had
             no
             interest
             in
             the
             Sum.
             
          
        
         
           
             Iohn
             Watson
             contra
             Feuers
             of
             Dunkennan
             Iune
             21.
             1667.
             
          
           
             
               JOhn
               Watson
            
             being
             Superiour
             of
             a
             number
             of
             Tenements
             and
             Roads
             about
             the
             Town
             of
             Kirkaldie
             ,
             pursues
             a
             Declarator
             against
             the
             Vailals
             ,
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             that
             he
             might
             Rive
             and
             Plough
             the
             Muire
             of
             Dunkennan
             ,
             leaving
             as
             much
             of
             the
             Muire
             as
             would
             be
             sufficient
             ,
             and
             convenient
             for
             the
             use
             of
             the
             Vassals●
             their
             Roads
             and
             Tenements
             ,
             for
             Fail
             and
             Devot
             ,
             Clay
             and
             Stone
             ,
             to
             the
             use
             foresaid
             .
             It
             was
             alleadged
             for
             the
             Feuars
             ,
             that
             they
             had
             raised
             a
             Declarator
             of
             the
             Right
             of
             their
             Servitude
             ,
             through
             the
             bounds
             of
             the
             Muire
             ,
             which
             they
             repeated
             by
             way
             of
             Defense
             ,
             and
             alleadged
             that
             wherever
             a
             Servitude
             was
             Constitute
             it
             affected
             the
             
               praedium
               serviens
            
             wholly
             ,
             and
             every
             part
             thereof
             ,
             capable
             of
             the
             Servitude
             ,
             and
             could
             not
             be
             restricted
             without
             the
             consent
             of
             the
             Parties
             ,
             having
             Right
             of
             the
             Servitude
             ,
             as
             if
             any
             person
             had
             Right
             of
             Pasturage
             ,
             albeit
             limited
             to
             so
             many
             Goods
             ,
             or
             to
             the
             Goods
             of
             such
             Land
             ,
             which
             is
             the
             
               praedium
               dominans
            
             ,
             beyond
             which
             it
             could
             not
             be
             reached
             ;
             a
             Declarator
             of
             this
             Nature
             would
             never
             be
             sustained
             ,
             to
             astrict
             him
             to
             a
             portion
             of
             the
             Muire
             ,
             that
             would
             be
             sufficient
             for
             the
             Goods
             of
             that
             Town
             ,
             or
             of
             that
             number
             ;
             or
             if
             he
             were
             Infeft
             with
             the
             liberty
             of
             Feuel
             ,
             though
             there
             were
             two
             M●●sses
             ,
             that
             could
             not
             be
             exhausted
             within
             the
             bounds
             he
             could
             not
             be
             restricted
             to
             the
             one
             ,
             so
             here
             the
             Vassals
             being
             Infeft
             with
             the
             priviledge
             of
             Fail
             ;
             in
             this
             Muire
             ,
             they
             may
             take
             it
             out
             of
             any
             place
             of
             the
             Muire
             they
             please
             ,
             and
             can
             be
             restricted
             to
             no
             particular
             place
             .
             It
             was
             answered
             that
             this
             Servitude
             being
             limited
             to
             the
             use
             of
             the
             Roads
             ,
             and
             Houses
             ,
             could
             not
             be
             thought
             to
             be
             so
             Constitute
             ,
             as
             to
             make
             useless
             the
             whole
             Property
             of
             the
             Muire
             ,
             the
             Pasturage
             whereof
             is
             worth
             nothing
             ,
             and
             the
             only
             use
             is
             ,
             Lyming
             and
             Labouring
             ,
             that
             it
             was
             hurtful
             to
             the
             common
             utility
             ,
             and
             improvement
             of
             Land
             ,
             so
             to
             extend
             such
             a
             Servitude
             ,
             and
             that
             if
             there
             were
             a
             Servitude
             of
             a
             way
             through
             the
             Constituents
             Ground
             ,
             it
             would
             not
             import
             a
             Liberty
             to
             make
             as
             many
             ways
             as
             could
             be
             made
             through
             the
             Ground
             :
             or
             to
             change
             the
             way
             at
             the
             Dominants
             pleasure
             .
             It
             was
             answered
             ,
             that
             the
             nature
             of
             the
             Servitude
             of
             a
             way
             or
             passage
             ,
             is
             ordinarly
             limited
             by
             Bounds
             ,
             and
             is
             always
             understood
             to
             be
             one
             way
             ,
             as
             is
             most
             convenient
             for
             the
             Dominant
             ,
             which
             having
             chosen
             ,
             he
             cannot
             thereafter
             change
             ;
             but
             it
             is
             not
             so
             in
             the
             Servitudes
             of
             Feuel
             ,
             Fail
             ,
             or
             Devot
             ;
             neither
             can
             the
             consideration
             of
             publick
             Utility
             ,
             or
             that
             the
             Defenders
             have
             no
             detriment
             warrand
             ,
             the
             Lords
             to
             take
             from
             him
             his
             Right
             ,
             or
             to
             limit
             it
             without
             his
             Consent
             ,
             which
             were
             only
             proper
             for
             a
             Parliament
             ,
             having
             not
             only
             the
             Judicative
             ,
             but
             also
             the
             Legislative
             Authority
             ,
             and
             the
             Rights
             and
             Securities
             of
             Parties
             ,
             should
             not
             be
             lyable
             to
             conjecture
             ,
             or
             arbitriment
             upon
             the
             supposition
             of
             conveniency
             ,
             but
             should
             be
             fully
             enjoyed
             according
             to
             Law.
             
          
           
             The
             Lords
             found
             that
             this
             Servitude
             might
             be
             astricted
             to
             a
             part
             of
             the
             Muire
             ,
             which
             might
             be
             beyond
             all
             question
             sufficient
             for
             the
             use
             ,
             and
             with
             this
             quality
             ,
             in
             case
             it
             failzied
             ,
             they
             might
             return
             to
             that
             which
             was
             Laboured
             ,
             which
             behoved
             to
             be
             l●ft
             lye
             ,
             as
             far
             as
             would
             be
             sufficient
             .
          
        
         
           
           
             Hay
             of
             Strowy
             contra
             Feuers
             .
             Iune
             22.
             1667.
             
          
           
             HAy
             of
             Strowy
             being
             Infeft
             in
             the
             Miln
             of
             Strowy
             ,
             and
             having
             lately
             built
             a
             Walk-miln
             ,
             and
             made
             a
             new
             Dam-head
             therefore
             ,
             over
             that
             Burn
             ,
             which
             is
             the
             March
             betwixt
             him
             and
             the
             Feuers
             ,
             thereupon
             the
             Feuers
             demolished
             the
             Miln
             and
             the
             Dam.
             He
             now
             pursues
             the
             Feuers
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             that
             he
             has
             Right
             to
             enjoy
             the
             Walk-miln
             and
             Dam
             ,
             and
             that
             they
             did
             wrong
             at
             their
             own
             ha●d
             ,
             to
             demolish
             the
             same
             .
             It
             was
             alleadged
             for
             the
             Feuers
             ,
             and
             the
             Laird
             or
             Ketr
             ,
             their
             Superiour
             ,
             Absolvitor
             ,
             because
             the
             building
             of
             this
             Miln
             ,
             being
             
               novum
               ●pus
            
             ,
             they
             might
             lawfully
             stop
             the
             same
             ,
             and
             might
             demolish
             the
             Dam
             ,
             the
             end
             thereof
             being
             fixed
             upon
             their
             Ground
             ,
             without
             their
             consent
             .
             The
             Pursuer
             answered
             ;
             First
             Albeit
             the
             Defenders
             might
             have
             impeded
             while
             the
             work
             was
             doing
             ,
             yet
             they●
             could
             not
             after
             the
             Walk-miln
             was
             a
             going
             Miln
             ,
             demolish
             the
             Miln
             ,
             or
             Dam
             thereof
             ,
             
               via
               facti
            
             ,
             albeit
             they
             might
             have
             used
             civil
             Interruption
             ,
             and
             stopped
             it
             ,
             
               via
               jur●
            
             ,
             because
             its
             a
             known
             and
             common
             custom
             ,
             that
             a
             going
             Miln
             cannot
             be
             stopt
             summarly
             ,
             being
             an
             Instrument
             of
             Service
             for
             common
             good
             .
             2ly
             ,
             The
             Defenders
             could
             have
             no
             detriment
             by
             putting
             over
             the
             Dam
             ,
             because
             it
             was
             a
             Precipice
             at
             their
             side
             ,
             to
             which
             the
             Dam
             was
             jo●●n●d
             ,
             so
             that
             they
             had
             no
             detriment
             ,
             either
             as
             to
             the
             Inundation
             of
             their
             Ground
             ,
             or
             Watering
             .
             The
             Defenders
             answered
             ,
             that
             
               cui
               libet
               licet
               uti
               re●uâ
               ad
               libitum
            
             and
             they
             were
             not
             obliged
             to
             Dispute
             ,
             whether
             they
             had
             Damnage
             or
             not
             ,
             but
             might
             cast
             down
             the
             Dam
             built
             on
             their
             Ground
             ,
             unlesse
             their
             consent
             had
             been
             obtained
             ;
             and
             that
             there
             is
             no
             Law
             nor
             Decision
             for
             such
             a
             priviledge
             of
             Milns
             ,
             neither
             was
             it
             ever
             extended
             to
             Walk-milns
             .
          
           
             The
             Lords
             found
             the
             Defenders
             might
             hinder
             the
             Building
             of
             a
             Dam●
             upon
             their
             Ground
             ,
             without
             necessity
             ,
             to
             alleadge
             detriment
             ;
             but
             they
             found
             if
             the
             Walk-miln
             was
             a
             going
             Miln
             fourty
             eight
             hours●
             that
             the
             Defenders
             could
             not
             
               brevi
               manu
            
             ,
             without
             the
             Authority
             of
             a
             Iudge
             demolish
             the
             Dam
             or
             Miln
             .
          
        
         
           
             Mr.
             David
             Deuar
             contra
             Paterson
             .
             Iune
             26.
             1667.
             
          
           
             MR.
             
               David
               Deuar
            
             pursues
             a
             Transferrence
             of
             a
             Compt
             and
             Reckoning
             which
             formerly
             was
             depending
             betwixt
             him
             and
             umquhil
             
               Henry
               Paterson
            
             ,
             and
             craves
             it
             may
             be
             Transferred
             against
             Henry
             the
             Heir
             ,
             and
             proceed
             where
             it
             left
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             absolvitor
             ,
             because
             the
             Citation
             was
             given
             before
             year
             and
             day
             ,
             after
             the
             Defuncts
             death
             ,
             contrary
             to
             the
             Defenders
             priviledge
             of
             his
             
               annus
               delibera●di
            
             ,
             by
             which
             he
             hath
             
               inducias
               legales
            
             ,
             and
             cannot
             be
             forced
             to
             own
             or
             repudiat
             the
             Heretage
             .
             The
             Pursuer
             answered
             ;
             First
             ,
             That
             
               annus
               deliberandi
            
             is
             only
             competent
             ,
             where
             the
             appearand
             Heir
             is
             Charged
             to
             enter
             Heir
             ,
             and
             so
             must
             either
             Enter
             or
             Renunce●
             and
             so
             has
             no
             place
             in
             Reductions
             ,
             or
             Actions
             Declaratory
             ,
             or
             real
             Actions
             ,
             which
             may
             proceed
             against
             the
             appearand
             Heir
             ,
             without
             a
             Charge
             .
             The
             Defender
             answered
             ,
             that
             albeit
             the
             
               annus
               deliberandi
            
             ,
             be
             most
             ordinary
             in
             such
             Cases
             ,
             yet
             it
             is
             not
             limited
             thereto
             ,
             but
             must
             take
             place
             also
             in
             all
             Cases
             ,
             where
             the
             reason
             of
             the
             Law
             holds
             ,
             viz.
             where
             the
             Defender
             must
             be
             either
             absent
             ,
             and
             suffer
             Sentence
             ;
             or
             if
             he
             compear
             ,
             must
             found
             himself
             upon
             the
             Defuncts
             Right
             ,
             and
             so
             behave
             himself
             as
             Heir
             ,
             as
             in
             this
             case
             ,
             the
             Defender
             cannot
             alleadge
             Articles
             of
             Deduction
             or
             Discharge
             ,
             but
             upon
             the
             Defuncts
             Right
             ;
             for
             finding
             out
             
             of
             which
             Right
             ,
             the
             Law
             giveth
             him
             a
             year
             to
             inquire
             ,
             and
             use
             Exhibitions
             ,
             
               ad
               deliberandum
               ne
               incidat
               in
               damnosam
               haereditatem
            
             ;
             and
             therefore
             during
             that
             year
             ,
             he
             cannot
             be
             prest
             
               contestare
               litem
            
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             .
          
           
             It
             was
             further
             alleadged
             by
             the
             Pursuer
             ,
             that
             now
             the
             
               annus
               deliberandi
            
             was
             past
             .
             It
             was
             Duplyed
             for
             the
             Defender
             ,
             that
             albeit
             it
             was
             now
             past
             ,
             the
             Citation
             was
             used
             within
             the
             year
             ,
             so
             that
             that
             Citation
             cannot
             be
             sustained
             .
          
           
             The
             Lords
             refused
             to
             sustain
             the
             Citation
             ,
             and
             found
             no
             Process
             till
             a
             new
             Citation
             ;
             but
             here
             the
             day
             of
             compearance
             filled
             in
             the
             S●mmons
             ,
             was
             also
             within
             the
             year
             ,
             which
             if
             it
             had
             been
             after
             the
             year
             ,
             us
             like
             the
             Summons
             would
             have
             been
             sustained
             ,
             especially
             ,
             seing
             the
             Decision
             of
             this
             case
             extending
             the
             year
             of
             Deliberation
             ,
             to
             Declaratorie
             Actions
             in
             Custom
             had
             not
             occurred
             ,
             nor
             been
             decided
             .
          
        
         
           
             Minister
             of
             Dalrymple
             contra
             Earl
             of
             Cassils
             .
             Iune
             27.
             1667.
             
          
           
             THe
             Minister
             of
             Dalrymple
             having
             Charged
             the
             Earl
             of
             Cassils
             for
             his
             Stipend
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             he
             offered
             payment
             of
             the
             Bolls
             in
             the
             Ministers
             Decreet
             ,
             conform
             to
             Linlithgow
             Measure
             ,
             which
             was
             the
             common
             Measure
             of
             Scotland
             ,
             by
             the
             Act
             of
             Parliament
             ,
             and
             is
             by
             Act
             of
             Parliament
             ,
             the
             measure
             of
             Ministers
             Stipends
             .
             It
             was
             answered
             ,
             that
             the
             Ministers
             Decreet
             of
             Locality
             ,
             was
             indefinit
             ,
             and
             mentioned
             no
             measure
             ,
             the
             meaning
             thereof
             was
             sufficiently
             cleared
             ,
             because
             it
             was
             offered
             to
             be
             proven
             by
             the
             Earls
             Oath
             ,
             that
             he
             payed
             ever
             since
             the
             Decreet
             of
             Locality
             ,
             being
             15
             years
             ,
             conform
             to
             the
             measure
             of
             Air
             ,
             and
             that
             he
             knew
             it
             was
             the
             common
             Custom
             of
             that
             Countrey
             ,
             to
             pay
             all
             Ministers
             with
             that
             measure
             .
             The
             Suspender
             answered
             ,
             that
             his
             use
             of
             payment
             ,
             either
             by
             mistake
             ;
             or
             benevolence
             of
             more
             then
             what
             he
             was
             due
             ,
             could
             not
             oblige
             him
             to
             the
             future
             ,
             especially
             where
             the
             Minister
             did
             not
             found
             upon
             his
             
               decennalis
               &
               triennalis
               possessio
            
             ;
             but
             upon
             a
             Decreet
             of
             Locality
             ,
             wherein
             ,
             though
             the
             measure
             be
             indefinit
             ,
             it
             cannot
             be
             understood
             to
             be
             any
             other
             measure
             ,
             then
             the
             common
             measure
             of
             Scotland
             ,
             seeing
             the
             Act
             of
             Parliament
             anent
             Ministers
             Provisions
             ,
             bears
             expresly
             ,
             that
             they
             shall
             have
             eight
             Chalders
             of
             Victual
             ,
             Linlithgow
             measure
             .
          
           
             The
             Lords
             having
             considered
             the
             Decreet
             of
             Locality
             ,
             and
             that
             it
             did
             not
             extend
             to
             eight
             Chalders
             of
             Victual
             ,
             but
             to
             three
             Chalders
             of
             Victual
             ,
             and
             400
             pounds
             ,
             which
             is
             the
             rate
             of
             four
             Chalders
             of
             Victual
             ,
             at
             100
             pounds
             the
             Chalder
             ,
             as
             is
             ordinarly
             Rated
             by
             the
             Commission
             in
             that
             place
             of
             the
             Countrey
             ,
             they
             found
             the
             use
             of
             payment
             and
             common
             Custom
             of
             the
             Countrey
             ,
             sufficient
             to
             declare
             it
             to
             be
             the
             measure
             of
             Air
             ,
             seing
             by
             that
             measure
             ,
             it
             would
             not
             come
             up
             to
             eight
             Chalders
             of
             Victual
             .
          
        
         
           
             Mr.
             Iames
             Dowglas
             contra
             William
             Leisk
             ,
             Iune
             28.
             1667.
             
          
           
             MR.
             
               Iames
               Dowglas
            
             ,
             as
             Donatar
             to
             the
             Liferent
             Escheat
             of
             
               William
               Leisk
            
             ,
             pursues
             a
             special
             Declarator
             ,
             against
             the
             Tennents
             ,
             for
             Mails
             and
             Duties
             .
             It
             was
             alleadged
             for
             
               William
               Leisk
            
             ,
             that
             the
             Lands
             in
             question
             were
             Appryzed
             from
             
               William
               Leisk
            
             the
             Rebel
             ,
             and
             the
             Superiour
             granter
             of
             this
             Gift
             ,
             Charged
             to
             Infeft
             the
             Appryzer
             long
             before
             the
             Rebellion
             ;
             to
             which
             appryzing
             
               William
               Leisk
            
             has
             Right
             ,
             during
             his
             Life
             ,
             so
             that
             the
             Charge
             being
             equivalent
             to
             an
             Infeftment
             as
             to
             the
             time
             ,
             and
             to
             the
             
             anteriority
             of
             the
             Infeftment
             ,
             and
             by
             drawing
             it
             back
             to
             the
             Charge
             ,
             doth
             prefer
             the
             Appryzer
             from
             the
             time
             of
             the
             Charge
             :
             It
             was
             alleadged
             for
             the
             Donatar
             ,
             that
             albeit
             a
             Charge
             against
             the
             Superiour
             ,
             be
             equivalent
             to
             an
             Infeftment
             in
             some
             cases
             :
             Yet
             in
             other
             things
             it
             is
             not
             equivalent
             ,
             as
             it
             is
             not
             a
             Right
             sufficient
             for
             the
             Appryzer
             to
             Remove
             Tennents
             ;
             and
             therefore
             the
             Vassal
             is
             not
             denuded
             thereby
             ,
             otherwise
             the
             Superiour
             could
             have
             no
             Casuality
             after
             such
             a
             Charge
             ,
             because
             the
             Appryzer
             not
             being
             Infeft
             ,
             his
             Liferent
             could
             not
             fall
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             albeit
             this
             consequence
             should
             follow
             ,
             it
             is
             the
             Superiours
             own
             fault
             ,
             that
             did
             not
             receive
             the
             Appryzer
             .
             It
             was
             answered
             ,
             
               non
               constat
            
             ,
             it
             was
             his
             fault
             ,
             for
             he
             might
             have
             just
             reason
             to
             Suspend
             ;
             and
             albeit
             it
             were
             his
             fault
             ,
             the
             Law
             hath
             not
             determined
             this
             to
             be
             his
             Penalty
             ,
             to
             lose
             his
             Casualities
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             the
             charge
             on
             the
             Appryzing
             did
             not
             denude
             the
             former
             Vassal
             ,
             but
             his
             Liferent
             fell
             ,
             and
             affected
             the
             Ground
             .
          
        
         
           
             Sir
             Alexander
             Hume
             contra
             Creditors
             of
             Kello
             .
             Eodem
             die
             .
          
           
             SIr
             
               Alexander
               Hume
            
             being
             Donator
             to
             the
             Forefaulture
             of
             
               Iohn
               Hume
            
             of
             Kello
             ,
             did
             obtain
             a
             Warrand
             for
             Retouring
             the
             said
             Iohn
             five
             years
             in
             Possession
             of
             certain
             Lands
             ,
             before
             the
             Forefaulture
             ,
             but
             the
             Inquest
             served
             Negative●
             and
             now
             he
             pursues
             a
             Reduction
             of
             the
             Retour
             ,
             on
             this
             Reason
             ,
             that
             it
             is
             contrary
             the
             Testimonies
             of
             the
             Witnesses
             adduced
             .
             It
             was
             alleadged
             no
             Process
             ,
             because
             the
             Reduction
             of
             Retours
             is
             only
             competent
             by
             a
             Summons
             of
             Error
             ,
             in
             Latin
             ,
             under
             the
             quarter
             Seal
             .
             It
             was
             answered
             ,
             that
             is
             only
             in
             the
             Case
             where
             the
             Assizers
             are
             insisted
             against
             for
             their
             Error
             ,
             and
             the
             constant
             Custome
             of
             the
             Lords
             has
             been
             to
             sustain
             a
             Summons
             of
             Reduction
             before
             themselves
             of
             this
             method
             .
          
           
             The
             Lords
             sustained
             the
             Defense
             ,
             and
             refused
             Process
             ,
             albeit
             it
             was
             known
             to
             them
             ,
             that
             the
             Custom
             has
             been
             contrary
             of
             a
             long
             time
             before
             .
          
        
         
           
             Sir
             Iohn
             St.
             clair
             contra
             Iohn
             Cowper
             .
             Iuly
             2.
             1667.
             
          
           
             UMquhil
             Mr.
             
               Iohn
               Rae
            
             having
             two
             sisters
             ,
             and
             Heirs
             portioners
             ,
             the
             one
             married
             to
             
               Robert
               St
               clair
            
             ,
             and
             the
             other
             to
             umquhil
             
               Alexander
               Cowper
            
             ,
             the
             said
             Alexander
             and
             his
             Spouse
             ,
             as
             Heir
             portioner
             ,
             assigns
             to
             
               Robert
               St.
               clair
            
             ,
             a
             number
             of
             her
             Brothers
             Bands
             :
             And
             likewise
             ,
             as
             Heir
             ,
             assigns
             him
             to
             the
             Maills
             and
             Duties
             of
             a
             Tenement
             of
             Mr.
             Iohn's
             for
             such
             Terms
             ,
             and
             in
             time
             coming
             .
             Sir
             
               Iohn
               St.
               clair
            
             ,
             having
             appryzed
             
               Robert
               St.
               clairs
            
             Right
             ,
             pursues
             
               Iohn
               Cowper
            
             as
             Representing
             his
             Father
             ,
             to
             hear
             it
             declared
             ,
             that
             this
             perpetual
             assignation
             to
             the
             Mails
             and
             Duties
             ,
             did
             import
             an
             absolute
             Disposition
             of
             the
             Lands
             ,
             and
             did
             carry
             in
             consequence
             an
             obligment
             ,
             and
             all
             things
             to
             make
             the
             Disposition
             effectual
             ,
             and
             so
             to
             renew
             it
             into
             a
             legal
             Form
             ,
             containing
             a
             Procuratory
             and
             Precept
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             his
             Father
             had
             granted
             no
             Disposition
             ,
             but
             only
             an
             Assignation
             ,
             and
             so
             the
             Defender
             could
             be
             obliged
             to
             do
             no
             further
             .
             The
             Pursuer
             answered
             ,
             that
             this
             assignation
             behoved
             to
             be
             understood
             ,
             
               cum
               effectu
            
             ,
             and
             to
             be
             done
             to
             denude
             the
             Granter
             ,
             and
             to
             settle
             the
             Right
             of
             the
             Duties
             in
             the
             Purchaser
             ,
             and
             therefore
             ,
             whosoever
             gives
             the
             Right
             gives
             all
             necessaries
             in
             his
             power
             to
             accomplish
             it
             ,
             and
             the
             Informality
             of
             a
             Clerk
             ,
             ought
             not
             to
             Evacuat
             the
             Pursuers
             Right
             .
          
           
           
             The
             Lords
             sustained
             the
             Process
             ,
             and
             found
             this
             Right
             to
             import
             a
             perpetual
             Disposition
             .
          
        
         
           
             George
             Allan
             contra
             Fairie
             .
             Eodem
             die
             .
          
           
             
               GEorge
               Allan
            
             pursues
             Reduction
             of
             a
             Disposition
             ,
             granted
             by
             him
             to
             Fairie
             ,
             upon
             the
             Reason
             of
             Circumvention
             ,
             in
             so
             far
             as
             the
             Disposition
             ,
             though
             it
             was
             conceived
             absolute
             ;
             Yet
             it
             was
             expresly
             Communed
             ,
             that
             it
             should
             contain
             a
             Reversion
             ,
             and
             was
             Read
             as
             containing
             a
             Reversion
             at
             the
             Subscribing
             thereof
             ,
             which
             was
             offered
             to
             be
             proven
             by
             the
             Wryter
             and
             VVitnesses
             insert
             .
             The
             Defender
             answered
             ,
             that
             the
             Reason
             was
             only
             probable
             
               Scripto
               vel
               juramento
            
             ,
             and
             so
             solemn
             a
             Writ
             ,
             could
             not
             be
             taken
             away
             by
             Witnesses
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Writer
             and
             Witnesses
             insert
             ,
             were
             most
             competent
             to
             prove
             a
             Point
             
               in
               facto
               ,
               viz.
            
             the
             fraudulent
             Reading
             of
             that
             which
             was
             not
             contained
             ;
             and
             there
             is
             here
             also
             produced
             an
             antecedent
             Adminicle
             in
             Writ
             ,
             to
             grant
             a
             Right
             Redeemable
             .
          
           
             The
             Lords
             before
             answer
             ,
             ordained
             the
             Writer
             and
             Witnesses
             insert
             ,
             to
             be
             examined
             anent
             the
             Terms
             of
             the
             Treaty
             ,
             and
             whether
             the
             Disposition
             was
             Read
             at
             the
             Subscrybing
             ,
             as
             an
             absolute
             or
             redeemable
             Disposition
             .
          
        
         
           
             William
             Litster
             contra
             Aitoun
             and
             Sleich●
             Eodem
             die
             .
          
           
             
               WIlliam
               Litster
            
             having
             Arrested
             his
             Debitors
             Rent
             on
             the
             fifth
             of
             Aprile
             1665
             he
             thereupon
             obtained
             Decreet
             for
             making
             forthcoming
             in
             Iuly
             1666.
             which
             being
             Suspended
             ;
             conpearance
             is
             made
             for
             Sleich
             ,
             who
             had
             Right
             to
             several
             Appryzings
             of
             the
             Lands
             ,
             which
             were
             deduced
             befo●e
             the
             Terms
             of
             payment
             of
             the
             Rent
             ,
             and
             craved
             preference
             to
             the
             Arrester●
             because
             his
             Arrestment
             was
             before
             the
             Term
             ,
             and
             the
             time
             of
             the
             Arrestment
             ,
             there
             was
             nothing
             due
             ,
             and
             also
             before
             the
             Term
             the
             Debitor
             was
             denuded
             by
             an
             Appryzing
             ,
             whereupon
             Infeftment
             followed
             ,
             in
             Decemb.
             thereafter
             ,
             and
             must
             be
             drawn
             back
             ,
             
               ad
               suam
               ●ausam
            
             ,
             to
             the
             Appryzing
             .
             The
             Arrester
             answered
             ,
             that
             his
             Arrestment
             was
             valid
             ,
             being
             laid
             on
             
               c●rrente
               termino
            
             ,
             for
             the
             next
             ensuing
             Term
             ,
             at
             least
             as
             hath
             been
             oft
             times
             decided
             by
             the
             Lords
             ,
             and
             is
             now
             their
             constant
             practice
             :
             And
             as
             for
             the
             Appryzing
             before
             Infeftment
             ,
             albeit
             it
             will
             carry
             the
             Mails
             and
             Duties
             ,
             yet
             it
             is
             an
             incompleat
             Right
             ,
             and
             hath
             only
             the
             effect
             of
             a
             Judicial
             Assignation
             or
             Disposition
             ,
             so
             that
             the
             Competition
             being
             betwixt
             an
             Assigney
             ,
             viz.
             an
             Appryzer
             and
             the
             Arrester
             ,
             the
             Arrestment
             being
             prior
             ,
             is
             preferable
             to
             any
             Assignation
             :
             Neither
             can
             the
             Infeftment
             on
             the
             Appryzing
             ,
             after
             the
             Term
             ,
             give
             any
             Right
             to
             the
             Rent
             ,
             prior
             to
             the
             Infeftment
             ,
             but
             the
             Right
             thereto
             is
             by
             the
             Appryzing
             ,
             which
             is
             but
             an
             naked
             Assignation
             .
          
           
             The
             Lords
             preferred
             the
             Arrester
             .
          
        
         
           
           
             Lord
             Blantyre
             contra
             Wakinshaw
             .
             Eodem
             die
             .
          
           
             THe
             Lord
             Blantire
             pursues
             a
             Reduction
             of
             a
             Bond
             ,
             as
             being
             granted
             in
             his
             Minority
             .
             It
             was
             alleadged
             for
             Wakinshaw
             ,
             assigney
             to
             the
             Bond
             ,
             absolvitor
             ,
             because
             there
             was
             no
             Process
             intented
             against
             him
             
               intra
               annos
               utiles
            
             ,
             till
             the
             Pursuer
             was
             past
             twenty
             five
             years
             .
             It
             was
             answered
             ,
             that
             the
             Defenders
             Cedent
             was
             Cited
             ,
             to
             whom
             the
             Bond
             was
             granted
             ,
             and
             this
             Defenders
             Right
             will
             fall
             in
             consequence
             ,
             and
             there
             was
             no
             necessity
             to
             Cite
             him
             in
             the
             same
             way
             ,
             that
             the
             Service
             of
             an
             heir
             may
             be
             reduced
             ,
             without
             Calling
             of
             his
             Creditors
             ,
             or
             these
             that
             are
             Infeft
             by
             him
             .
          
           
             The
             Defender
             answered
             that
             his
             Assignation
             was
             Intimat
             before
             the
             Citation
             against
             his
             Cedent
             ,
             which
             cannot
             be
             miskenned
             by
             the
             Pursuer
             ,
             to
             whom
             the
             Intimation
             was
             made
             ,
             after
             which
             the
             Cedent
             had
             no
             Right
             ,
             and
             any
             Citation
             against
             him
             was
             of
             no
             moment
             ,
             neither
             is
             the
             Case
             alike
             to
             the
             Reduction
             of
             a
             Retour
             ,
             wherein
             the
             Reducer
             doth
             neither
             know
             nor
             is
             obliged
             to
             know
             the
             Creditors
             Rights
             .
          
           
             The
             Lords
             found
             that
             the
             Assigney
             ,
             after
             the
             Intimation
             ,
             behoved
             to
             be
             Cited
             
               intra
               annos
               utiles
            
             ;
             but
             they
             sustained
             Improvation
             against
             the
             Citation
             ,
             made
             against
             the
             Assigney
             by
             way
             of
             Defense
             .
             In
             this
             case
             it
             was
             not
             urged
             ,
             whether
             the
             Intimation
             was
             personal
             to
             the
             Pursuer
             ,
             or
             only
             at
             his
             dwelling
             House
             ?
             Or
             whether
             it
             was
             Recent
             before
             the
             Citation
             ;
             for
             if
             it
             were
             not
             Personal
             ,
             or
             Recent
             ,
             it
             were
             hard
             to
             oblige
             the
             Pursuer
             to
             remember
             so
             transcient
             an
             Act
             ,
             as
             an
             Intimation
             .
          
           
             It
             was
             furder
             alleadged
             by
             the
             Defender
             ,
             that
             there
             was
             no
             Lesion
             ;
             because
             he
             offered
             him
             to
             prove
             ,
             that
             the
             sum
             was
             delivered
             to
             the
             Minors
             Curators
             ,
             at
             least
             to
             the
             Minor
             and
             his
             Curators
             joyntly
             ,
             who
             being
             persons
             abundantly
             solvendo
             ,
             and
             very
             provident
             ,
             the
             Minor
             could
             have
             no
             Lesion
             ,
             seing
             they
             were
             comptable
             .
             It
             was
             answered
             
               non
               Relevat
            
             ,
             unless
             it
             were
             alleadged
             positive
             ,
             that
             the
             sum
             were
             
               utiliser
               impensum
            
             ,
             for
             the
             Minors
             profit
             ;
             for
             the
             Minor
             has
             his
             option
             ,
             either
             to
             pursue
             the
             Curators
             ,
             as
             intrometting
             ,
             or
             to
             Reduce
             hi●
             Obligation
             ,
             and
             the
             Curators
             not
             being
             in
             this
             Process
             ,
             no
             Probation
             of
             the
             delivery
             of
             Money
             to
             them
             will
             bind
             them
             ,
             but
             there
             were
             necessity
             ,
             that
             they
             were
             both
             Cited
             ,
             and
             it
             instructed
             by
             Writ
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             ,
             but
             severals
             inclined
             not
             to
             sustain
             Processe
             ,
             till
             the
             Cura●ors
             were
             first
             Discust
             :
             And
             whether
             the
             Minor
             was
             laesed
             or
             not
             .
          
        
         
           
             Mr.
             Roger
             Hogg
             ,
             and
             other
             Creditors
             of
             Wauchtoun
             contra
             Countess
             of
             Hume
             .
             Iuly
             3.
             1667.
             
          
           
             IN
             an
             Incident
             pursued
             by
             the
             Creditors
             of
             Wauchtoun
             ,
             against
             the
             Countess
             of
             Hume
             .
             It
             was
             alleadged
             for
             the
             Countess
             ,
             that
             the
             Incident
             as
             to
             several
             of
             the
             Creditors
             ,
             could
             not
             be
             sustained
             ;
             and
             likewise
             could
             not
             be
             sustained
             against
             several
             of
             the
             Havers
             ;
             because
             as
             to
             these
             ,
             the
             Incident
             was
             without
             Warrand
             ,
             their
             Names
             not
             being
             contained
             in
             the
             Bill
             at
             the
             Signet
             .
             It
             was
             answered
             ,
             the
             Bill
             contained
             several
             Names
             and
             a
             blank
             for
             others
             ,
             which
             is
             a
             sufficient
             Warrand
             for
             the
             Raisers
             of
             the
             Incident
             ,
             to
             insert
             whom
             they
             please
             .
             It
             was
             answered
             ,
             that
             Incidents
             being
             odious
             ,
             strict
             form
             should
             be
             observed
             ,
             in
             relation
             to
             them
             ,
             so
             that
             a
             new
             Pursuer
             cannot
             be
             supplyed
             by
             the
             blank
             ,
             who
             did
             not
             supplicat
             by
             the
             Bill
             ,
             and
             alleadged
             a
             Decision
             the
             last
             Session
             ,
             where
             it
             
             was
             so
             found
             in
             an
             Incident
             ,
             at
             the
             Instance
             of
             the
             Feuers
             of
             Coldinghame
             against
             the
             Lord
             Justice
             Clerk.
             
          
           
             The
             Lords
             sustained
             not
             the
             Incident
             as
             to
             any
             of
             the
             Pursuers
             thereof
             ,
             whose
             Names
             were
             not
             in
             the
             Bill
             ,
             but
             sustained
             the
             same
             against
             any
             of
             the
             Havers
             ,
             albeit
             their
             Names
             was
             not
             contained
             in
             the
             Bill
             ,
             it
             being
             ordinar
             to
             get
             Summons
             upon
             Bills
             ,
             upon
             such
             persons
             named
             ,
             and
             others
             wherein
             the
             persons
             Names
             insert
             ,
             are
             alwayes
             sustained
             ;
             but
             it
             is
             not
             so
             in
             the
             Pursuers
             :
             and
             yet
             this
             would
             hardly
             been
             sustained
             in
             another
             Case
             then
             an
             Incident
             ,
             which
             is
             unfavourable
             :
          
        
         
           
             Cumming
             of
             Alter
             contra
             Lumsden
             .
             Iuly
             4.
             1667.
             
          
           
             CVmming
             of
             Alter
             having
             set
             a
             Salmond
             Fishing
             to
             
               Alexander
               Lumsden
            
             ,
             for
             payment
             of
             60
             pounds
             Scots
             of
             Tack-duty
             ;
             he
             pursues
             
               Matthew
               Lumsden
            
             ,
             as
             intrometter
             with
             the
             Fish
             ,
             taken
             for
             the
             Tack
             duty
             ,
             as
             having
             an
             Hypotheck
             upon
             the
             Profits
             for
             the
             Rent
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             Absolvitor
             ,
             because
             he
             intrometted
             with
             these
             Fish
             ,
             as
             Donatar
             to
             
               Alexander
               Lumsden's
            
             Escheat
             ,
             at
             least
             having
             now
             the
             Right
             of
             the
             Escheat
             ,
             he
             was
             not
             lyable
             for
             that
             priviledge
             ,
             preferring
             Masters
             of
             the
             Ground
             ,
             for
             the
             Rent
             cannot
             take
             place
             against
             the
             King
             and
             his
             Donatar
             ,
             who
             is
             more
             priviledged
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             the
             Donatar
             lyable
             for
             the
             Rent
             ,
             in
             so
             far
             as
             ilk
             years
             intromission
             would
             extend
             to
             the
             Rent
             of
             that
             year
             .
          
        
         
           
             George
             Schine
             contra
             Iames
             Christie
             .
             Eodem
             die
             .
          
           
             
               GEorge
               Schine
            
             having
             Adjudged
             an
             Annualrent
             ,
             and
             having
             Charged
             
               Iames
               Christie
            
             his
             Superiour
             ,
             to
             receive
             him
             ;
             He
             Suspends
             and
             alleadges
             he
             had
             Appryzed
             the
             same
             Lands
             before
             ,
             and
             that
             his
             Author
             was
             only
             Infeft
             base
             ,
             never
             cled
             with
             Possession
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             
               hoc
               loco
            
             ,
             and
             ordained
             him
             to
             Infeft
             ,
             Reserving
             his
             own
             Right
             as
             accords
             .
          
        
         
           
             Schaw
             contra
             Tennents
             .
             Eodem
             die
             .
          
           
             SChaw
             pursues
             certain
             Tennents
             for
             their
             Duties
             ,
             who
             produced
             several
             Discharges
             ,
             against
             which
             it
             was
             alleadged
             ,
             that
             the
             Discharges
             were
             null
             ,
             wanting
             Witnesses
             ,
             and
             were
             not
             Written
             with
             the
             Dischargers
             own
             hand
             ,
             and
             so
             were
             null
             by
             the
             Act
             of
             Parliament
             .
             It
             was
             answered
             ,
             that
             Custome
             had
             introduced
             several
             exceptions
             from
             that
             Act
             ,
             as
             Bills
             of
             Exchange
             ,
             of
             the
             greatest
             importance
             ,
             which
             are
             valid
             ,
             being
             Subscribed
             without
             Witnesses
             ,
             albeit
             not
             holograph
             :
             And
             in
             like
             manner
             the
             Discharges
             granted
             to
             Tennents
             ,
             which
             by
             long
             Custom
             ,
             through
             all
             the
             Kingdom
             ,
             use
             only
             to
             be
             subscribed
             by
             the
             Landlords
             ,
             without
             Witnesses
             ,
             and
             writen
             with
             another
             hand
             .
          
           
             The
             Lords
             sustained
             the
             Discharges
             ,
             and
             would
             not
             put
             the
             Tennents
             to
             prove
             ,
             that
             they
             were
             truely
             subscribed
             ,
             unless
             they
             were
             offered
             to
             be
             improven
             ;
             in
             which
             case
             ,
             though
             the
             indirect
             manner
             was
             wanting
             ,
             they
             might
             be
             improven
             ,
             by
             comparison
             of
             Subscriptions
             ,
             and
             other
             Adminicles
             ,
             wherein
             less
             would
             serve
             ,
             then
             in
             other
             Improbations
             .
          
        
         
           
           
             Sir
             Henry
             Hume
             and
             other
             the
             Creditors
             of
             Kello
             contra
             Sir.
             Alexander
             Hume
             .
             Iuly
             6.
             1667.
             
          
           
             SIr
             
               Henry
               Hume
            
             and
             others
             ,
             being
             both
             Creditors
             to
             
               Alexander
               Hume
            
             of
             Kello
             :
             And
             
               Iohn
               Hume
            
             his
             Son
             Appryzed
             the
             Lands
             of
             Kello
             in
             anno
             1649.
             
             And
             in
             anno
             1653.
             
             Charged
             the
             Superior
             in
             
               anno
               1661.
               
               Iohn
               Hume
            
             is
             Forefault
             upon
             the
             Treasonable
             Crimes
             committed
             in
             anno
             1651.
             
             Sir
             
               Alexander
               Hume
            
             is
             Donatar
             to
             the
             Foresaulture
             ;
             the
             case
             of
             
               Alexander
               Humes
            
             Right
             before
             the
             Appryzing
             was
             ,
             that
             by
             Contract
             of
             Marriage
             ,
             
               Alexander
               Hume
            
             had
             Disponed
             several
             Husband
             Lands
             to
             Iohn
             ,
             reserving
             his
             own
             Liferent
             of
             certain
             Husband
             Lands
             .
             The
             Father
             continued
             to
             possesse
             the
             Lands
             Reserved
             ;
             and
             the
             Son
             of
             the
             rest
             .
             The
             Question
             is
             now
             concerning
             the
             Lands
             Reserved
             ,
             whereanent
             the
             Competition
             is
             betwixt
             the
             Creditors
             Appryzers
             and
             the
             Donatar
             .
             It
             was
             alleadged
             for
             the
             Donatar
             ,
             that
             he
             ought
             to
             be
             preferred
             ;
             because
             any
             Right
             the
             Creditors
             had
             ,
             is
             but
             an
             Appryzing
             ,
             and
             a
             Charge
             without
             Infeftment
             ;
             which
             Charge
             ,
             albeit
             it
             be
             equivalent
             to
             an
             Infeftment
             ,
             in
             the
             Competition
             betwixt
             Con-compryzers
             :
             yet
             it
             is
             no
             way
             equivalent
             ,
             as
             to
             the
             King
             ;
             for
             after
             the
             Charge
             ,
             all
             Casualities
             of
             the
             Superiority
             ,
             would
             fall
             to
             the
             Superior
             ,
             and
             so
             must
             the
             Casuality
             of
             Forefaulture
             ,
             fall
             to
             the
             King.
             2ly
             ,
             Though
             the
             Appryzers
             had
             been
             Infeft
             ,
             when
             they
             Charged
             their
             Infeftment
             ,
             would
             have
             been
             long
             after
             the
             committing
             of
             the
             Crime
             ;
             and
             there
             was
             nothing
             before
             the
             Crime
             ,
             but
             the
             naked
             Appryzing
             ,
             which
             was
             no
             real
             Right
             ;
             so
             that
             the
             Forefaulture
             ,
             devolving
             the
             Fee
             to
             the
             King
             ,
             with
             the
             burden
             only
             of
             such
             real
             Rights
             ,
             as
             the
             Superiour
             had
             consented
             to
             before
             the
             Cryme
             ,
             which
             cannot
             extend
             to
             this
             Appryzing
             ,
             which
             is
             no
             real
             Right
             ,
             or
             to
             the
             Charge
             and
             Infeftment
             thereon
             ;
             because
             after
             the
             Crime
             .
             3ly
             ,
             Albeit
             the
             Infeftment
             of
             the
             Son
             ,
             who
             was
             Forefault
             ,
             was
             base
             ,
             holden
             of
             the
             Father
             ;
             yet
             it
             coming
             in
             the
             Person
             of
             the
             King
             ,
             or
             his
             Donatar
             ,
             can
             no
             more
             be
             a
             base
             Right
             ,
             but
             becomes
             publick
             ,
             so
             soon
             as
             it
             is
             devolved
             to
             the
             King
             ,
             which
             was
             at
             the
             committing
             of
             the
             Crime
             ,
             before
             the
             Appryzers
             Infeftment
             ,
             or
             Charge
             .
             It
             was
             answered
             for
             the
             Creditors
             ,
             that
             they
             ought
             to
             be
             preferred
             upon
             their
             legal
             Diligence
             ,
             for
             satisfaction
             of
             the
             lawful
             Debt
             ,
             contracted
             before
             the
             Crime
             ;
             because
             they
             had
             Appryzed
             before
             the
             Crime
             ,
             and
             had
             Charged
             the
             Superiour
             before
             the
             Sentence
             of
             Forefaulture
             :
             Which
             Charge
             is
             equivalent
             to
             an
             Infeftment
             ,
             and
             the
             King
             succeeding
             in
             the
             place
             of
             the
             Forefault
             Person
             
               uti●ur
               jure
               privato
            
             ;
             and
             albeit
             no●
             voluntar
             Deed
             ,
             after
             the
             Committing
             of
             the
             Crime
             ,
             would
             be
             effectual
             against
             the
             King
             ,
             or
             his
             Donatar
             :
             Yet
             an
             Appryzing
             before
             the
             Crime
             ,
             and
             a
             Charge
             before
             the
             Sentence
             ,
             or
             Process
             of
             Forefaulture
             ,
             is
             sufficient
             in
             favours
             of
             the
             Creditors
             ;
             especially
             seing
             the
             Superiority
             being
             unquestionably
             in
             their
             Father
             ,
             they
             might
             Charge
             him
             when
             they
             pleased
             ,
             and
             having
             Charged
             him
             ,
             they
             become
             in
             his
             place
             ,
             and
             cannot
             Charge
             themselves
             as
             Superiours
             of
             the
             Forefault
             Person
             .
          
           
             The
             Lords
             preferred
             the
             Appryzers
             in
             respect
             of
             their
             Appryzing
             before
             the
             Crime
             ,
             and
             the
             Charge
             after
             ,
             before
             the
             Forefaulture
             .
          
           
             It
             was
             further
             alleadged
             for
             the
             Appryzers
             ,
             that
             the
             forefault
             Persons
             Right
             being
             only
             base
             ,
             never
             cled
             with
             Possession
             ,
             their
             Appryzing
             against
             the
             Father
             ,
             who
             was
             not
             forefault
             ,
             was
             preferable
             .
             It
             was
             answered
             for
             the
             Donatar
             ,
             that
             the
             Forefault
             Persons
             Right
             was
             cled
             with
             Possession
             ,
             in
             
             so
             far
             as
             the
             Forefault
             Person
             possest
             a
             great
             part
             of
             the
             Lands
             Disponed
             ▪
             lying
             all
             together
             ,
             and
             of
             the
             rest
             ,
             the
             Fathers
             liferent
             being
             reserved
             the
             Fathers
             Possession
             was
             the
             Sons
             Possession
             .
             It
             was
             answered
             ,
             that
             Possession
             of
             a
             part
             ,
             cannot
             be
             sufficient
             for
             the
             whole
             ,
             where
             there
             is
             an
             express
             Reservation
             ,
             hindering
             the
             Natural
             Possession
             of
             the
             rest
             ;
             and
             where
             the
             rest
             are
             actually
             possest
             by
             another
             Party
             ,
             neither
             can
             the
             Fathers
             Possession
             be
             the
             Sons
             ;
             because
             it
             is
             ordinarly
             found
             ,
             that
             Dispositions
             by
             a
             Father
             to
             his
             eldest
             Son
             ,
             and
             Infeftments
             thereon
             ,
             reserving
             the
             Fathers
             Liferent
             ,
             are
             not
             thereby
             cled
             with
             Possession
             .
             And
             albeit
             in
             Reservations
             in
             favours
             of
             Wives
             ,
             the
             Husbands
             Possession
             be
             the
             Wifes
             Possession
             ;
             yet
             that
             is
             a
             special
             priviledge
             ,
             
               favore
               matrimonij
               &
               dotis
            
             ,
             and
             is
             not
             competent
             to
             any
             other
             .
             It
             was
             answered
             for
             the
             Donatar
             ,
             that
             a
             Reservation
             in
             favours
             of
             a
             Father
             ,
             in
             any
             gratuitous
             ,
             and
             clandestine
             Infeftment
             granted
             to
             the
             Son
             ,
             does
             not
             validate
             the
             same
             :
             yet
             the
             Infeftment
             being
             for
             a
             Cause
             onerous
             ,
             viz.
             a
             Marriage
             ,
             which
             is
             a
             solemn
             and
             publick
             Act
             ,
             the
             Infeftment
             following
             thereupon
             ,
             is
             void
             of
             all
             suspition
             of
             Simulation
             ;
             and
             as
             an
             Infeftment
             to
             a
             Stranger
             ,
             reserving
             the
             Disponers
             Liferent
             ;
             would
             be
             valid
             by
             the
             Disponers
             Possession
             :
             So
             must
             a
             Sons
             upon
             a
             Contract
             of
             Marriage
             ;
             otherwise
             great
             prejudice
             will
             follow
             ,
             Sons
             being
             frequently
             Infeft
             in
             their
             Fathers
             whole
             Estate
             ,
             reserving
             their
             Liferent
             of
             a
             part
             ,
             and
             ordinarly
             ,
             but
             basely
             Infeft
             ,
             to
             secure
             the
             Property
             ,
             being
             more
             desirous
             to
             Enter
             themselves
             as
             Heirs
             to
             their
             Fathers
             ,
             after
             their
             death
             ,
             if
             no
             posterior
             prejudicial
             deeds
             be
             done
             ,
             which
             is
             more
             honourable
             for
             the
             Family
             ,
             all
             the
             Infeftments
             would
             be
             overthrown
             ,
             being
             upon
             Debts
             contracted
             after
             the
             Infeftment
             .
          
           
             The
             Lords
             being
             of
             different
             Iudgements
             in
             this
             Point
             ,
             were
             loath
             to
             decide
             them
             ,
             because
             the
             Case
             was
             decided
             by
             the
             former
             Vote
             .
          
        
         
           
             Stevin
             contra
             Iohn
             Boid
             .
             Iuly
             9.
             1667.
             
          
           
             IN
             a
             Tutor
             Compt
             at
             the
             Instance
             of
             Stevin
             ,
             against
             
               Iohn
               Boid
            
             ,
             these
             Queries
             were
             Reported
             by
             the
             Auditor
             ,
             and
             determined
             by
             the
             Lords
             :
             1.
             
             How
             soon
             a
             Tutor
             was
             obliged
             for
             Annualrent
             of
             the
             Defuncts
             Bonds
             ,
             that
             bare
             no
             Annualrent
             .
          
           
             The
             Lords
             found
             that
             the
             Tutor
             behoved
             to
             have
             a
             competent
             time
             to
             uplift
             and
             Re-imploy
             these
             Sums
             ,
             for
             which
             they
             allowed
             him
             a
             year
             ,
             and
             that
             he
             was
             lyable
             for
             Annualrent
             after
             that
             year
             .
          
           
             2ly
             ,
             How
             soon
             a
             Tutor
             was
             obliged
             to
             do
             Diligence
             to
             uplift
             his
             Pupils
             Means
             ,
             so
             that
             if
             the
             Debitor
             became
             Irresponsable
             ,
             the
             Tutor
             was
             lyable
             .
          
           
             The
             Lords
             found
             that
             if
             the
             Pupils
             Sums
             were
             in
             the
             hands
             of
             Debitors
             ,
             unquestionably
             Solvendo
             ,
             the
             Tutor
             was
             not
             obliged
             to
             lift
             the
             same
             ,
             unlesse
             the
             condition
             of
             some
             of
             the
             Debitors
             ,
             or
             Cautioners
             ,
             became
             worse
             ,
             at
             which
             time
             he
             was
             obliged
             to
             do
             all
             Diligence
             for
             uplifting
             the
             sums
             ,
             unlesse
             the
             Debitors
             became
             to
             be
             known
             ,
             to
             be
             altogether
             broken
             upon
             a
             sudden
             ,
             which
             he
             could
             not
             foresee
             .
          
           
             3ly
             ,
             VVhat
             Diligence
             a
             Tutor
             was
             obliged
             to
             do
             ,
             whether
             Horning
             was
             sufficient
             ,
             or
             if
             Caption●
             Poynding
             and
             Appryzing
             ,
             were
             necessary
             .
          
           
             The
             Lords
             found
             that
             in
             different
             Cases
             ,
             different
             Executions
             were
             requisite
             ,
             viz.
             If
             the
             Debitor
             were
             known
             to
             have
             Lands
             appryzable
             ,
             or
             Goods
             poyndable
             ,
             or
             Sums
             arrestable
             ,
             that
             the
             Tutor
             was
             obliged
             to
             do
             Diligence
             accordingly
             ,
             and
             if
             not
             to
             use
             personal
             Execution
             .
          
           
           
             4ly
             ,
             Whether
             the
             Tutor
             should
             have
             allowance
             of
             such
             Sums
             as
             he
             payed
             without
             Sentence
             .
          
           
             The
             Lords
             found
             such
             sums
             allowable
             ,
             unless
             a
             competent
             Defense
             could
             now
             be
             proponed
             ,
             which
             was
             known
             and
             probable
             to
             the
             Tutor
             ,
             at
             the
             time
             of
             payment
             .
          
        
         
           
             Iohn
             Watson
             contra
             Iames
             Law.
             Iuly
             12.
             1667.
             
          
           
             
               JAmes
               Law
            
             having
             Disponed
             certain
             Lands
             to
             
               Iohn
               Watson
            
             ,
             with
             absolute
             warrandice
             ,
             and
             after
             the
             Disposition
             ,
             there
             being
             a
             Designation
             of
             a
             part
             of
             the
             Land
             for
             Horse
             ,
             and
             Kines
             Grasse
             ,
             to
             the
             Minister
             ,
             conform
             to
             the
             Act
             of
             Parliament
             1661.
             
             Watson
             pursues
             for
             Warrandice
             upon
             that
             distresse
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             distresse
             is
             by
             a
             subsequent
             Law
             ,
             falling
             after
             the
             Disposition
             .
             It
             was
             answered
             :
             first
             ,
             That
             absolute
             Warrandice
             does
             even
             take
             place
             in
             the
             case
             of
             a
             subsequent
             Law
             ,
             at
             least
             in
             so
             far
             as
             the
             Pursuer
             suffers
             detriment
             ;
             because
             if
             the
             Lands
             had
             continued
             ,
             the
             Defenders
             had
             been
             so
             burdened
             ;
             and
             therefore
             is
             lyable
             
               in
               quantum
               lucratus
               est
               .
               2ldy
               ,
            
             This
             is
             no
             supervenient
             Law
             ,
             because
             the
             Act
             of
             Parliament
             1661
             Is
             a
             Reviving
             of
             the
             Parliament
             1649.
             which
             being
             Rescinded
             in
             the
             said
             Parliament
             1661.
             
             By
             a
             posterior
             Act
             thereof
             ,
             concerning
             Manses
             and
             Gleibs
             ,
             is
             declared
             to
             be
             valid
             ,
             as
             if
             it
             had
             been
             made
             in
             the
             year
             1649.
             
             It
             was
             answered
             to
             the
             first
             ,
             that
             nothing
             can
             infer
             Eviction
             ,
             or
             Recourse
             ,
             but
             that
             which
             had
             a
             Cause
             anterior
             to
             the
             Warrandice
             ,
             unlesse
             it
             had
             been
             otherwise
             exprest
             :
             Nor
             is
             it
             any
             ground
             ,
             that
             if
             the
             Disponer
             remained
             Heretor
             ,
             he
             had
             been
             lyable
             ,
             otherwise
             all
             other
             supervenient
             Burdens
             would
             Return
             ,
             not
             only
             upon
             the
             Immediat
             ,
             but
             upon
             all
             the
             Disponers
             ;
             but
             all
             such
             accidental
             Superveniencies
             ,
             are
             upon
             the
             Purchasers
             hazard
             ,
             as
             well
             as
             the
             Advantages
             are
             to
             his
             benefit
             .
             To
             the
             second
             ,
             the
             time
             of
             this
             Disposition
             ,
             the
             Parliament
             1649
             was
             Rescinded
             ,
             and
             the
             new
             Act
             was
             not
             Enacted
             ;
             Neither
             by
             the
             new
             Act
             ,
             is
             it
             declared
             to
             be
             effectual
             from
             the
             year
             1649.
             
             As
             to
             the
             Horse
             and
             Kines
             Grasse
             ,
             but
             only
             as
             to
             the
             Manse
             .
             It
             was
             answered
             ,
             that
             was
             but
             a
             mistake
             of
             the
             Draught
             of
             the
             Act
             of
             Parliament
             ,
             there
             being
             no
             Reason
             wherefore
             it
             should
             be
             drawn
             back
             as
             to
             Manses
             ,
             more
             then
             to
             the
             rest
             ;
             but
             it
             was
             the
             meaning
             of
             the
             Act
             of
             Parliament
             ,
             to
             Revive
             the
             former
             Act
             in
             all
             points
             .
             It
             was
             answered
             that
             the
             meaning
             of
             Acts
             of
             Parliament
             ,
             may
             not
             be
             extended
             contrair
             to
             the
             words
             ,
             neither
             can
             any
             thing
             be
             supplyed
             that
             is
             omitted
             in
             a
             Statutory
             Act.
             
          
           
             The
             Lords
             found
             no
             Recourse
             upon
             the
             Distress
             arysing
             from
             the
             Act
             of
             Parliament
             1661.
             and
             that
             the
             drawing
             back
             thereof
             being
             expresly
             ,
             as
             to
             Manses
             ,
             which
             is
             adjected
             as
             a
             limitation
             ,
             could
             not
             be
             extended
             to
             the
             Ministers
             Grass
             ,
             which
             is
             statute
             in
             a
             different
             way
             in
             this
             ,
             then
             in
             the
             Act
             of
             Parliament
             1649.
             
             From
             this
             the
             Heretors
             are
             only
             to
             pay
             twenty
             pounds
             of
             Money
             :
             and
             in
             the
             former
             ,
             Lands
             were
             only
             to
             be
             designed
             ;
             therefore
             found
             ,
             the
             Distress
             that
             being
             by
             a
             supervenient
             Law
             ,
             that
             the
             Warrandice
             did
             not
             reach
             thereto
             .
          
        
         
           
             Margaret
             Scot
             contra
             Sir
             Laurence
             Scot.
             Iuly
             14.
             1667.
             
          
           
             SIr
             
               William
               Scot
            
             of
             Clerkingtoun
             ,
             having
             granted
             Assignation
             to
             his
             Daughter
             
               Margaret
               Scot
            
             ,
             of
             a
             Sum
             due
             by
             Wauchtoun
             :
             Pursues
             Sir
             Laurence
             his
             Son
             ,
             as
             Haver
             ,
             to
             deliver
             the
             same
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             there
             was
             a
             Clause
             in
             the
             Assignation
             ,
             reserving
             a
             power
             to
             Sir
             William
             ,
             to
             alter
             and
             Dispone
             ,
             during
             his
             Life
             ,
             and
             that
             he
             did
             Assign
             this
             
             Bond
             to
             
               Iohn
               Scot.
            
             It
             was
             answered
             ,
             that
             he
             took
             a
             Back-bond
             from
             
               Iohn
               Scot
            
             ,
             bearing
             ,
             that
             the
             Assignation
             was
             granted
             in
             Trust
             ,
             to
             this
             effect
             only
             ,
             that
             
               Iohn
               Scot
            
             should
             do
             diligence
             thereupon
             .
             It
             was
             answered
             ,
             that
             the
             Back-bond
             bears
             
               Iohn
               Scot
            
             to
             be
             obliged
             to
             denude
             in
             favours
             of
             Sir
             
               William
               Scot
            
             ,
             his
             Heirs
             and
             Assigneys
             ,
             whereby
             the
             Assignation
             is
             altered
             .
             The
             Pursuer
             answered
             ,
             that
             there
             appears
             nothing
             of
             the
             alteration
             of
             the
             Defuncts
             mind
             ,
             more
             then
             if
             he
             had
             appryzed
             in
             his
             own
             name
             ,
             whereby
             the
             Bond
             would
             have
             been
             adjudged
             to
             him
             ,
             his
             Heirs
             and
             Assigneys
             ,
             which
             is
             no
             more
             ,
             then
             if
             an
             Assigney
             should
             use
             the
             name
             of
             the
             Cedent
             ,
             which
             would
             no
             ways
             infer
             ,
             that
             by
             adjudging
             Land
             to
             the
             Cedent
             and
             his
             Heirs
             ,
             they
             pass
             from
             the
             Assignation
             .
          
           
             The
             Lords
             found
             no
             alteration
             in
             the
             Pursuers
             Assignation
             by
             the
             Right
             made
             to
             
               John
               Scot
            
             in
             his
             Back-bond
             ,
             which
             also
             bare
             the
             Right
             to
             
               John
               Scot
            
             ,
             was
             made
             to
             do
             Diligence
             ,
             and
             for
             no
             other
             end
             .
          
        
         
           
             Mr.
             John
             Eleis
             contra
             Elizabeth
             Keith
             Mary
             Steuart
             and
             Keith
             .
             Iuly
             16.
             1667.
             
          
           
             THis
             Cause
             at
             the
             Instance
             of
             Mr.
             
               Iohn
               Eleis
            
             against
             Keiths
             ,
             being
             Dispute
             the
             twenty
             seventh
             of
             February
             last
             .
          
           
             The
             Lords
             found
             Inhibitions
             to
             reach
             Lands
             Acquired
             after
             the
             Inhibition
             ,
             but
             superceeded
             to
             give
             answer
             to
             that
             Point
             ,
             whether
             the
             Inhibitions
             were
             to
             be
             extended
             to
             take
             away
             Renunciations
             of
             Wodset
             Lands
             ,
             which
             being
             now
             Debated
             .
          
           
             It
             was
             alleadged
             that
             an
             Inhibition
             could
             not
             hinder
             the
             Granter
             of
             a
             Wodset
             to
             pay
             his
             Debt
             ,
             and
             accept
             of
             a
             Renunciation
             from
             the
             Person
             Inhibit
             ,
             because
             a
             Renunciation
             is
             but
             a
             Discharge
             ,
             and
             Inhibitions
             were
             never
             found
             to
             take
             away
             Discharges
             of
             Heretable
             Bonds
             ,
             nor
             to
             hinder
             any
             Party
             to
             pay
             their
             Debt
             ;
             but
             on
             the
             contrair
             ,
             It
             was
             an
             universal
             Custom
             over
             all
             the
             Kingdom
             ,
             that
             Debtors
             should
             pay
             their
             Debts
             ,
             and
             did
             accept
             Discharges
             ,
             and
             Renunciations
             ,
             without
             looking
             into
             the
             Registers
             ,
             which
             hath
             been
             most
             frequent
             ,
             not
             only
             in
             Wodsets
             ,
             but
             mainly
             in
             Infeftments
             of
             Annualrent
             upon
             Heretable
             Bonds
             ,
             which
             no
             man
             ever
             doubted
             to
             pay
             ,
             till
             he
             searched
             the
             Registers
             of
             Inhibitions
             ,
             
               et
               communis
               consuetudo
               pro
               lege
               habetur
            
             ;
             It
             was
             answered
             ,
             first
             ,
             That
             the
             Inhibition
             bears
             ,
             expresly
             a
             Prohibition
             to
             grant
             Renunciations
             ,
             but
             no
             Prohibition
             to
             grant
             Discharges
             ,
             and
             as
             to
             the
             Custom
             ,
             it
             cannot
             be
             showen
             that
             persons
             did
             pay
             Wodsets
             ,
             and
             take
             Renunciations
             from
             these
             that
             were
             Inhibit
             ,
             much
             lesse
             that
             the
             Lords
             by
             their
             Decisions
             did
             approve
             the
             same
             ,
             which
             Decisions
             can
             only
             make
             a
             Custom
             equivalent
             to
             Law
             ;
             2dly
             ,
             Albeit
             where
             Wodsets
             were
             before
             the
             Inhibition
             ,
             the
             Debtor
             might
             accept
             Renunciation
             ,
             because
             by
             the
             Reversion
             ,
             the
             Wodsetter
             is
             obliged
             to
             grant
             Renunciation
             upon
             payment
             ,
             so
             that
             the
             granting
             of
             the
             Renunciation
             being
             upon
             an
             obligment
             Anterior
             to
             the
             Inhibition
             ,
             could
             not
             be
             prejudged
             by
             the
             Inhibition
             ,
             as
             is
             found
             in
             all
             cases
             ,
             but
             here
             the
             Wodset
             was
             contracted
             after
             the
             Inhibition
             .
             3dly
             ,
             The
             Renunciation
             here
             granted
             ,
             was
             voluntarly
             accepted
             ,
             and
             payment
             was
             voluntarly
             made
             ,
             because
             there
             was
             a
             Clause
             of
             Premonition
             and
             Requisition
             in
             the
             Wodset
             ,
             which
             was
             not
             used
             .
             It
             was
             answered
             that
             the
             Stile
             of
             Inhibitions
             is
             no
             Rule
             ,
             seing
             it
             prohibits
             the
             Selling
             of
             Goods
             and
             Geir
             ,
             to
             which
             no
             Inhibition
             is
             extended
             ,
             and
             there
             being
             no
             Law
             ,
             nor
             any
             Dicision
             that
             an
             Inhibition
             should
             be
             extended
             against
             a
             Renunciation
             of
             a
             Wodset
             ,
             the
             common
             Opinion
             ,
             and
             common
             Custom
             of
             the
             Nation
             to
             the
             contrair
             is
             sufficient
             ;
             neither
             is
             there
             any
             difference
             
             in
             the
             Custom
             ,
             whether
             the
             Wodset
             be
             contracted
             after
             the
             Inhibition
             ,
             or
             before
             ;
             and
             if
             there
             were
             ,
             there
             is
             much
             more
             reason
             that
             Wodsets
             contracted
             before
             ,
             should
             rather
             be
             subject
             to
             the
             Inhibition
             ,
             then
             Wodsets
             contracted
             after
             ,
             by
             which
             the
             Creditor
             Inhibiter
             is
             in
             no
             worse
             condition
             when
             they
             are
             Renunced
             ,
             then
             he
             was
             the
             time
             of
             his
             Inhibition
             ,
             neither
             was
             the
             payment
             here
             made
             voluntar
             ,
             albeit
             Requisition
             was
             not
             used
             ,
             because
             there
             being
             an
             obligement
             to
             pay
             the
             delay
             upon
             the
             Requisition
             ,
             being
             only
             for
             a
             few
             days
             ,
             no
             prudent
             Man
             would
             suffer
             himself
             to
             be
             charged
             upon
             the
             Requisition
             ,
             and
             it
             is
             no
             more
             voluntar
             ,
             then
             if
             a
             Creditor
             should
             pay
             before
             the
             Registration
             of
             his
             Bond
             ,
             because
             he
             could
             not
             be
             compelled
             before
             it
             were
             Registrat
             ,
             and
             he
             charged
             ;
             but
             seing
             Law
             and
             Custom
             obliged
             not
             Debtors
             to
             inquire
             for
             Inhibitions
             ,
             they
             may
             pay
             what
             way
             they
             please
             ,
             and
             albeit
             there
             had
             been
             a
             Requisition
             ,
             yea
             ,
             and
             a
             Consignation
             ,
             unless
             the
             Debtor
             after
             Inhibition
             ,
             had
             been
             obliged
             to
             call
             the
             Inhibiter
             ,
             it
             could
             operat
             nothing
             as
             to
             the
             Inhibiter
             .
             It
             was
             answered
             that
             there
             would
             be
             a
             great
             Detriment
             to
             Creditors
             ,
             if
             they
             cannot
             affect
             Wodse●s
             by
             Inhibition
             ,
             seing
             these
             cannot
             be
             Arrested
             .
             It
             was
             answered
             they
             might
             be
             Appryzed
             .
             It
             was
             answered
             they
             might
             be
             Renunced
             before
             the
             Term
             of
             payment
             of
             the
             Creditors
             Debt
             ,
             so
             that
             Appryzing
             could
             not
             proceed
             ,
             and
             that
             a
             Debtors
             whole
             Estate
             may
             consist
             in
             a
             Wodset
             .
             It
             was
             answered
             that
             that
             case
             could
             seldom
             occur
             ,
             and
             that
             there
             was
             neither
             Law
             nor
             Custom
             introduced
             upon
             that
             account
             .
          
           
             The
             Lords
             found
             that
             the
             Inhibition
             could
             not
             operat
             against
             the
             Renunciation
             of
             the
             Woose
             ,
             and
             decided
             that
             general
             point
             by
             it self
             ,
             for
             clearing
             the
             I
             ieges
             ,
             and
             ordai●ed
             the
             Parties
             to
             be
             heard
             upon
             some
             other
             Points
             in
             this
             particular
             Case
             ,
             as
             that
             payment
             of
             this
             Wodset
             was
             made
             after
             the
             parties
             was
             in
             
               mala
               fide
            
             ,
             after
             processe
             intented
             against
             him
             ,
             by
             Mr.
             
               John
               Eleis
            
             .
          
        
         
           
             Hamiltoun
             contra
             Symintoun
             ,
             Eodem
             die
             .
          
           
             
               DAvid
               Hamiltoun
            
             as
             Assigney
             by
             
               Robert
               Steel
            
             to
             a
             Bond
             granted
             by
             
               Andrew
               Symintoun
            
             ,
             pursues
             
               Grissel
               Symintoun
            
             as
             representing
             him
             ,
             for
             payment
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             alleadged
             Bond
             is
             manifestly
             null
             ,
             in
             so
             far
             as
             on
             that
             side
             where
             the
             Subscriptions
             is
             ,
             there
             is
             only
             the
             Clause
             of
             Registration
             ,
             and
             all
             the
             rest
             is
             filled
             on
             the
             other
             side
             with
             another
             Hand
             ,
             and
             there
             is
             not
             one
             word
             on
             the
             Subscribed
             side
             of
             the
             Matter
             of
             the
             Bond
             ,
             that
             might
             have
             Connexion
             with
             the
             back-side
             ,
             which
             is
             unsubscribed
             ,
             so
             that
             this
             has
             been
             the
             last
             Sheet
             of
             a
             Writ
             taken
             off
             ,
             and
             filled
             upon
             the
             back
             ,
             upon
             which
             anything
             might
             have
             been
             filled
             up
             ,
             that
             the
             Pursuer
             pleased
             .
             The
             pursuer
             answered
             that
             he
             oponed
             his
             Bond
             subscribed
             by
             VVitnesses
             ,
             which
             he
             byds
             by
             as
             a
             true
             Deed
             ,
             and
             is
             valide
             unless
             it
             were
             improven
             .
          
           
             The
             Lords
             found
             this
             Writ
             null
             ,
             and
             yet
             declared
             ,
             that
             if
             the
             pursuer
             could
             adduce
             VVrits
             ,
             or
             Adminicles
             to
             astruct
             the
             same
             ,
             they
             would
             Examine
             the
             same
             
               ex
               officio
            
             ,
             as
             the
             VVriter
             and
             VVitnesses
             if
             they
             were
             alive
             .
          
           
             The
             said
             pursuer
             did
             also
             insist
             against
             the
             Defender
             for
             her
             own
             Aliment
             ,
             as
             having
             Right
             thereto
             from
             his
             own
             Son
             ,
             who
             had
             Married
             her
             Mother
             .
             It
             was
             alleadged
             for
             the
             Defender
             that
             her
             Mother
             Liferented
             her
             whole
             Estate
             ,
             and
             so
             by
             Act
             of
             parliament
             was
             obliged
             to
             Aliment
             the
             appearand
             Heir
             .
             It
             was
             answered
             the
             Defender
             had
             Renunced
             to
             be
             Heir
             to
             the
             same
             Pursuer
             ,
             and
             so
             could
             not
             crave
             that
             Benefite
             .
             It
             was
             answered
             ,
             that
             as
             Appearand
             Heir
             ,
             She
             had
             Right
             to
             the
             Aliment
             ,
             and
             her
             offering
             
             to
             Renunce
             ,
             was
             but
             to
             save
             her
             from
             personal
             Excution
             ,
             and
             it
             could
             not
             prejudge
             her
             of
             her
             Aliment
             ,
             which
             she
             had
             received
             before
             she
             Renunced
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Lady
             Burgy
             contra
             Her
             Tennants
             ,
             and
             Sir
             John
             Strachan
             ,
             Iuly
             18.
             1667.
             
          
           
             THe
             Lady
             Burgy
             pursues
             the
             Tennants
             of
             her
             Liferent-lands
             to
             Remove
             .
             Compearance
             is
             made
             for
             Sir
             
               Iohn
               Strachan
            
             ,
             who
             alleadges
             that
             he
             stands
             publickly
             Infeft
             in
             this
             Land
             ,
             and
             in
             Possession
             ,
             and
             will
             not
             suffer
             his
             Tennents
             to
             Remove
             .
             It
             was
             replyed
             that
             the
             Pursuers
             Infeftment
             in
             Liferent
             is
             long
             before
             Sir
             Iohns
             ,
             and
             could
             take
             no
             effect
             till
             now
             that
             her
             Husband
             is
             dead
             .
             It
             is
             answered
             that
             the
             Ladies
             Infeftment
             is
             base
             ,
             and
             therefore
             though
             it
             be
             prior
             to
             Sir
             Iohns
             publick
             Infeftment
             ,
             it
             cannot
             be
             preferred
             thereto
             ,
             unless
             it
             were
             alleadged
             it
             was
             cled
             with
             Possession
             before
             the
             publick
             Infeftment
             ,
             either
             by
             the
             Ladies
             own
             possession
             ,
             or
             at
             least
             by
             her
             Husbands
             possession
             ,
             but
             she
             cannot
             alleadge
             either
             ,
             because
             these
             parties
             were
             in
             possession
             from
             the
             Date
             of
             her
             Infeftment
             ,
             till
             the
             Date
             of
             this
             publick
             Infeftment
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             she
             offered
             her
             to
             prove
             ,
             her
             Husband
             was
             in
             possession
             after
             her
             Infeftment
             and
             before
             the
             Defenderes
             Infeftment
             by
             himself
             ,
             or
             at
             least
             by
             these
             who
             derived
             Temporary
             ,
             or
             Redeemable
             Rights
             from
             him
             ,
             or
             his
             Authors
             as
             Liferents
             ,
             Wodsets
             ,
             and
             unexpired
             Comprysings
             .
             It
             was
             answered
             ,
             that
             albeit
             
               favore
               Matrimonij
            
             the
             Husbands
             possession
             ,
             though
             common
             author
             be
             counted
             the
             Wifes
             possession
             ,
             yet
             the
             possession
             of
             a
             Wodsetter
             ,
             or
             Appryzer
             are
             neither
             said
             to
             be
             the
             Wifes
             possession
             ,
             nor
             the
             Husbands
             ,
             because
             they
             possess
             
               prop●io
               jure
            
             ,
             and
             the
             Husband
             had
             only
             a
             Reversion
             .
          
           
             The
             Lords
             found
             the
             alleadgeance
             Relevant
             for
             the
             Lady
             ,
             that
             her
             Husband
             possest
             after
             her
             Infeftment
             ,
             and
             before
             the
             publick
             Infeftment
             ,
             either
             by
             himself
             ,
             or
             by
             any
             deriving
             a
             Temporary
             Right
             from
             him
             ,
             or
             his
             Authors
             .
          
        
         
           
             Executors
             of
             the
             Earl
             of
             Dirletoun
             ,
             contra
             Duke
             Hamiltoun
             ,
             Earl
             of
             Crawford
             ,
             and
             others
             .
             Eodem
             die
             .
          
           
             IN
             August
             1645.
             the
             Earls
             of
             
               Crawford
               ,
               Lanerk
            
             and
             several
             other
             Noblemen
             ,
             and
             Gentlemen
             granted
             Bond
             to
             the
             Earl
             of
             Dirletoun
             ,
             bearing
             an
             Obligement
             therein
             ,
             Conjunctly
             ,
             and
             Severally
             to
             pay
             ten
             Merks
             for
             ilk
             Boll
             of
             6000
             Bolls
             of
             Victual
             ,
             that
             should
             be
             Delivered
             by
             Dirletoun
             to
             
               Iames
               Riddel
            
             ,
             or
             his
             Deputes
             ,
             the
             said
             Earl
             always
             obtaining
             
               Iames
               Riddels
            
             Receipt
             thereupon
             ;
             which
             Delivery
             ,
             and
             Receipt
             were
             to
             be
             betwixt
             and
             a
             blank
             day
             ,
             and
             the
             Receipt
             to
             be
             Delivered
             before
             payment
             ,
             the
             Term
             of
             payment
             of
             the
             price
             was
             Candlemas
             1646.
             
             Whereupon
             Dirletouns
             Executors
             pursues
             the
             Subscribers
             of
             the
             Bond
             ,
             who
             alleadged
             that
             this
             Bond
             was
             clearly
             Conditional
             ,
             that
             the
             Victual
             should
             be
             Delivered
             betwixt
             and
             such
             a
             Time
             ,
             which
             though
             it
             be
             blank
             ,
             yet
             must
             be
             understood
             to
             be
             before
             Candlemas
             ,
             which
             was
             before
             the
             Term
             of
             payment
             of
             the
             pryce
             ,
             and
             upon
             obtaining
             
               Iames
               Riddels
            
             ,
             Receipt
             thereof
             ,
             
               Ita
               est
            
             ,
             there
             is
             nothing
             to
             instruct
             the
             Delivery
             to
             
               Iames
               Riddel
            
             ,
             or
             the
             obtaining
             his
             Receipt
             ,
             
               Debito
               tempore
            
             .
             It
             was
             answered
             that
             the
             Condition
             bears
             Delivery
             to
             
               Iames
               Riddel
            
             ,
             or
             his
             Deputes
             ,
             which
             Terms
             signifies
             only
             persons
             under
             him
             in
             Office
             ,
             and
             therefore
             it
             must
             relate
             to
             
               James
               Riddel
            
             as
             he
             
             was
             then
             a
             publick
             person
             ,
             one
             of
             the
             Commissars
             of
             the
             Army
             under
             
               Humby
               ,
               Ita
               est
            
             there
             is
             produced
             Humbies
             Discharge
             ,
             and
             Receipt
             of
             the
             Victual
             ,
             which
             is
             better
             then
             Riddels
             who
             was
             his
             Depute
             ;
             and
             there
             is
             also
             a
             Declaration
             by
             Riddel
             ,
             that
             the
             Victual
             was
             truely
             Delivered
             .
             It
             was
             answered
             for
             the
             Defenders
             ,
             that
             their
             Obligation
             being
             Conditional
             ,
             must
             be
             performed
             
               in
               forma
               specifica
            
             ,
             so
             that
             it
             being
             in
             Dirletouns
             option
             to
             Deliver
             or
             n●t
             ,
             if
             he
             Delivered
             on
             other
             Terms
             then
             the
             Bond
             bears
             ,
             it
             was
             on
             his
             own
             peril
             ,
             neither
             is
             there
             anything
             to
             show
             that
             this
             Victual
             was
             destinat
             for
             pulick
             use
             ;
             and
             albeit
             it
             had
             been
             the
             purpose
             of
             the
             Defenders
             so
             to
             have
             employed
             the
             Victual
             ,
             yet
             they
             might
             choise
             their
             own
             way
             of
             putting
             it
             in
             the
             hands
             of
             a
             Person
             whom
             they
             did
             Trust
             ,
             who
             without
             their
             Warrand
             could
             have
             given
             it
             out
             to
             none
             ,
             and
             whose
             trust
             they
             only
             followed
             thus
             qualified
             ,
             that
             a
             Receipt
             were
             then
             obtained
             from
             him
             ,
             so
             that
             they
             are
             not
             obliged
             to
             trust
             Humbies
             .
             Receipt
             ,
             nor
             can
             that
             prove
             against
             them
             for
             his
             Oath
             ,
             much
             less
             his
             acknowledgment
             could
             not
             bind
             upon
             them
             his
             Debt
             ,
             neither
             is
             Humbies
             Receipt
             
               Debito
               tempore
            
             ;
             and
             likewise
             Humbies
             Receipt
             relates
             not
             to
             this
             Bond
             ,
             but
             bears
             to
             be
             conform
             to
             a
             Contract
             betwixt
             Dirletoun
             and
             the
             Committee
             of
             Estates
             ;
             neither
             can
             Riddels
             Declaration
             
               ex
               post
               facto
            
             prove
             against
             the
             Defenders
             ,
             or
             burden
             them
             ,
             because
             they
             have
             qualified
             Riddels
             Trust
             ,
             not
             to
             his
             Write
             at
             any
             time
             ,
             yea
             not
             to
             his
             Oath
             ,
             but
             to
             his
             Receipt
             within
             the
             time
             limited
             ,
             and
             there
             is
             no
             reason
             to
             enforce
             the
             Defenders
             Contract
             ,
             to
             the
             Tenor
             of
             their
             Bond
             ,
             to
             trust
             the
             Declaration
             of
             
               Iames
               Riddel
            
             Emitted
             at
             any
             time
             ,
             for
             his
             Condition
             mighht
             change
             ,
             both
             as
             to
             his
             Estate
             ,
             and
             to
             his
             Trustinesse
             ;
             and
             they
             were
             not
             obliged
             ,
             though
             they
             were
             to
             Trust
             his
             Receipt
             within
             such
             a
             time
             ,
             therefore
             to
             trust
             his
             Declaration
             for
             ever
             ;
             and
             albeit
             the
             Victual
             had
             been
             appointed
             for
             publick
             use
             ;
             yet
             the
             Delivery
             ,
             and
             Receipt
             should
             have
             been
             made
             forthcoming
             to
             the
             Defenders
             ,
             that
             they
             might
             have
             obtained
             Releif
             of
             the
             publick
             ,
             but
             never
             having
             been
             delivered
             to
             this
             day
             ,
             the
             Defenders
             cannot
             be
             burdened
             therewith
             .
             It
             was
             answered
             ,
             that
             Dirletoun
             was
             known
             to
             be
             an
             Illiterat
             Person
             ,
             and
             albeit
             he
             takes
             Humbi●es
             Discharge
             relative
             to
             a
             Contract
             of
             the
             Committee
             of
             Estates
             ,
             yet
             this
             same
             Bond
             is
             understood
             for
             the
             name
             of
             Contract
             ,
             may
             well
             comprehend
             a
             Bond
             ,
             and
             the
             Subscrivers
             of
             this
             Bond
             ,
             albeit
             they
             be
             not
             so
             Designed
             in
             the
             Bond
             ,
             yet
             all
             of
             them
             were
             Members
             of
             the
             Committee
             of
             Estates
             ,
             and
             a
             Quorum
             thereof
             ,
             and
             the
             quantity
             of
             Victual
             was
             the
             same
             ,
             and
             the
             Date
             of
             that
             Contract
             is
             ,
             the
             day
             of
             August
             1645.
             which
             showes
             it
             was
             not
             then
             present
             ,
             and
             this
             Bond
             is
             in
             August
             1645.
             and
             it
             cannot
             be
             imagined
             that
             Dirletoun
             would
             have
             engaged
             in
             the
             same
             Moneth
             ,
             for
             6000.
             
             Bolls
             of
             Victual
             twice
             ,
             and
             as
             to
             the
             time
             of
             the
             Receipt
             and
             Declaration
             ,
             there
             is
             no
             Clause
             irritant
             upon
             nor
             obtaining
             it
             at
             such
             a
             time
             ,
             and
             that
             is
             no
             Detriment
             to
             the
             Defenders
             ,
             neither
             can
             it
             be
             presumed
             that
             they
             would
             have
             obtained
             Releif
             ,
             seing
             they
             attained
             no
             Releif
             of
             many
             publick
             Bonds
             ,
             they
             were
             ingaged
             into
             at
             that
             same
             time
             .
          
           
             The
             Lords
             found
             the
             Defense
             founded
             upon
             the
             Conditional
             Clause
             relevant
             ,
             and
             the
             Condition
             was
             not
             fulfilled
             ,
             chiefly
             upon
             this
             consideration
             ,
             that
             Iames
             Riddels
             Receipts
             were
             not
             obtained
             in
             the
             time
             limited
             ,
             after
             which
             the
             Defenders
             were
             not
             obliged
             to
             trust
             any
             Declaration
             of
             Riddels
             ,
             or
             Humbies
             .
          
        
         
           
           
             Iohn
             Ker
             contra
             Iean
             Ker
             ,
             Eodem
             die
             .
          
           
             
               Iohn
               Ker
            
             being
             Executor
             
               dative
               ad
               omissa
               et
               male
               appreciata
               ,
            
             pursues
             
               Iean
               Ker
            
             as
             principal
             Executrix
             for
             payment
             ,
             and
             referred
             the
             particulars
             to
             her
             Oath
             ,
             she
             alleadged
             that
             she
             had
             made
             Faith
             at
             the
             time
             of
             the
             Confirmation
             ,
             that
             nothing
             was
             Omitted
             ,
             or
             wrong
             Prized
             ,
             she
             could
             not
             be
             obliged
             to
             Depone
             again
             .
             It
             was
             answered
             that
             this
             was
             the
             ordinar
             Custome
             ,
             and
             was
             no
             more
             then
             a
             Re-examination
             ,
             and
             that
             it
             would
             not
             infer
             Perjury
             ,
             though
             it
             were
             different
             ,
             because
             if
             she
             had
             any
             thing
             Omitted
             that
             had
             come
             to
             her
             Possession
             ,
             and
             Knowledge
             after
             the
             Inventar
             ,
             or
             if
             she
             had
             then
             possest
             it
             ,
             but
             did
             not
             know
             ,
             or
             remember
             that
             it
             was
             in
             her
             Possession
             ,
             or
             in
             
               bonis
               defuncti
            
             ,
             and
             ordinarly
             the
             Prices
             are
             made
             be
             the
             Commissar
             ,
             and
             but
             upon
             Conjecture
             ,
             and
             may
             by
             much
             better
             known
             thereafter
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             ordained
             the
             Executrix
             to
             Depone
             .
          
        
         
           
             Mr.
             Iames
             Daes
             contra
             Kyle
             ,
             July
             10.
             1667.
             
          
           
             MAster
             
               James
               Daes
            
             being
             Infeft
             by
             the
             Earl
             of
             Hadingtoun
             in
             certain
             Husband
             Lands
             ,
             and
             Aikers
             in
             Earlstoun
             ,
             with
             a
             general
             Clause
             ,
             of
             all
             Lands
             within
             such
             bounds
             ,
             pursues
             
               Robert
               Kyle
            
             to
             remove
             from
             certain
             Aikers
             within
             that
             bounds
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             he
             has
             Tacks
             standing
             from
             the
             Earl
             of
             Hadingtoun
             of
             all
             the
             Lands
             possest
             by
             him
             ,
             and
             produces
             the
             Tack
             ,
             bearing
             ,
             the
             Earl
             to
             have
             Set
             him
             fourteen
             Aikers
             of
             Land
             presently
             possest
             by
             himself
             ,
             and
             declares
             he
             has
             no
             other
             then
             what
             he
             possest
             before
             the
             Tack
             ,
             and
             during
             the
             time
             of
             the
             Tack
             ,
             now
             by
             the
             space
             of
             thirty
             years
             .
             The
             Pursuer
             answered
             that
             his
             Tack
             gave
             him
             only
             Right
             to
             fourteen
             Aikers
             ,
             so
             that
             the
             Pursuer
             ,
             by
             the
             general
             Clause
             ,
             must
             have
             all
             the
             rest
             :
             It
             was
             answered
             that
             the
             Defender
             was
             not
             obliged
             now
             to
             Dispute
             the
             extent
             or
             quantity
             of
             his
             Aikers
             ,
             nor
             to
             restrict
             to
             the
             present
             extent
             of
             Aikers
             ,
             especially
             seing
             that
             which
             he
             did
             possess
             the
             time
             of
             the
             Tack
             ,
             was
             Set
             to
             him
             by
             his
             Tack
             simply
             without
             Reservation
             ;
             and
             albeit
             designed
             fourteen
             Aikers
             ,
             and
             were
             more
             ,
             it
             is
             nothing
             ,
             for
             an
             Erronious
             Designation
             vitiats
             not
             ,
             unless
             it
             did
             appear
             to
             be
             Restrictive
             ,
             or
             Taxative
             ;
             likeas
             the
             Pursuers
             Aikers
             in
             his
             Infeftment
             ,
             will
             be
             as
             large
             proportionally
             as
             the
             Defenders
             .
             The
             Pursuer
             answered
             ,
             that
             whatever
             the
             extent
             of
             his
             Aikers
             were
             ,
             the
             general
             Clause
             gave
             him
             all
             that
             was
             not
             reserved
             to
             the
             Defender
             ,
             and
             he
             offered
             him
             to
             prove
             ;
             that
             there
             were
             six
             aikers
             beside
             the
             fourteen
             aikers
             ,
             severally
             kend
             and
             known
             ,
             and
             possest
             by
             different
             Possessors
             before
             this
             Tack
             .
             The
             Defender
             answered
             ,
             that
             he
             opponed
             his
             Tack
             ,
             bearing
             the
             Lands
             to
             be
             then
             in
             his
             own
             Possession
             ,
             at
             the
             granting
             of
             the
             Tack
             ,
             and
             he
             having
             possest
             thirty
             years
             accordingly
             
               hoc
               judicio
            
             ,
             he
             was
             not
             obliged
             to
             Dispute
             any
             anterior
             Possession
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Hans
             Iurgan
             contra
             Captain
             Logan
             ,
             July
             23.
             1667.
             
          
           
             CAptain
             
               Logan
               a
            
             Privateer
             having
             taken
             
               Hans
               Jurgan
            
             Citizen
             of
             Lubeck
             obtained
             his
             Ship
             and
             Goods
             ,
             adjudged
             Prize
             by
             the
             Admiral
             ,
             upon
             this
             ground
             that
             he
             had
             carried
             in
             Prohibit
             ,
             or
             Counterband
             Goods
             to
             the
             Danes
             ,
             being
             then
             the
             Kings
             Enemies
             ,
             viz.
             Hemp
             and
             Victual
             ,
             and
             that
             he
             was
             taken
             in
             the
             return
             of
             that
             Voyage
             ,
             which
             was
             instructed
             by
             the
             Oaths
             of
             the
             said
             Hans
             and
             Sailers
             ,
             Hans
             raises
             a
             Reduction
             of
             the
             Admirals
             Decreet
             on
             these
             
             Reasons
             ;
             First
             ,
             That
             the
             Victual
             was
             no
             Counterband
             Goods
             ,
             but
             such
             Goods
             as
             the
             King
             allowed
             his
             own
             Subjects
             to
             Export
             out
             of
             England
             ,
             and
             declared
             that
             there
             should
             be
             no
             question
             thereupon
             ,
             nor
             upon
             any
             Goods
             ,
             not
             enumerat
             in
             an
             Act
             of
             Council
             produced
             all
             which
             are
             bellicus
             Instruments
             and
             Furniture
             ,
             and
             hath
             nothing
             of
             Victual
             ;
             and
             albeit
             Hemp
             be
             Prohibit
             by
             that
             Act
             ,
             and
             commonly
             counted
             Counterband
             Goods
             ,
             yet
             the
             quantity
             Deponed
             was
             only
             sixteen
             Stones
             ,
             which
             is
             an
             unconsiderable
             quantity
             ,
             and
             necessar
             for
             Calfing
             the
             Ship
             ,
             and
             Sowing
             the
             Sails
             ,
             2ly
             ,
             The
             Pursuer
             produced
             the
             Duke
             of
             York
             his
             Pass
             ,
             Warranting
             this
             Ship
             to
             come
             from
             Bergen
             ,
             and
             therefore
             she
             could
             not
             have
             been
             taken
             in
             her
             return
             by
             any
             Privateer
             .
             3ly
             ,
             Whatever
             might
             have
             been
             alleadged
             ,
             if
             the
             Ship
             had
             been
             taken
             ,
             having
             unfree
             Goods
             in
             her
             ,
             there
             is
             neither
             Law
             nor
             Custom
             to
             sease
             upon
             the
             Ship
             in
             her
             return
             ,
             when
             these
             Goods
             are
             not
             in
             her
             ,
             for
             the
             Sh●p
             might
             have
             been
             sold
             to
             another
             ,
             then
             he
             that
             did
             the
             wrong
             ;
             and
             it
             cannot
             appear
             whether
             the
             return
             was
             made
             out
             of
             the
             price
             of
             the
             former
             Fraught
             ,
             and
             though
             it
             were
             ,
             it
             might
             be
             of
             a
             hundreth
             times
             more
             value
             .
             And
             albeit
             such
             seasures
             in
             return
             were
             allowable
             ,
             yet
             they
             could
             only
             be
             sustained
             when
             it
             is
             evident
             ,
             at
             the
             time
             of
             the
             Seasure
             at
             Sea
             ,
             that
             the
             Counterband
             Goods
             had
             been
             in
             the
             Ship
             that
             Voyage
             ,
             either
             by
             Bills
             of
             Loading
             ,
             Charter
             parties
             ,
             or
             other
             Writs
             taken
             in
             the
             Ship
             ,
             or
             by
             the
             O●ths
             ,
             or
             acknowledgements
             of
             the
             Company
             ,
             otherwise
             upon
             that
             pretence
             Freedom
             of
             Commerce
             would
             be
             altogether
             stopped
             ,
             seing
             every
             Ship
             might
             be
             brought
             in●
             that
             they
             may
             be
             tryed
             by
             the
             Admiral
             ,
             whether
             or
             not
             ,
             they
             had
             in
             Counterband
             Goods
             that
             Voyage
             .
             4ly
             ,
             These
             Strangers
             could
             not
             be
             in
             culpa
             before
             the
             Indiction
             of
             the
             War
             could
             come
             to
             their
             Ears
             ,
             but
             the
             Indiction
             of
             the
             War
             ,
             was
             by
             the
             Kings
             manifesto
             of
             the
             Date
             the
             ninteen
             of
             September
             ,
             1666.
             and
             this
             Ship
             Loosed
             from
             Lubeck
             the
             24
             of
             September
             ,
             within
             five
             days
             after
             ,
             and
             so
             could
             not
             possibly
             know
             the
             Indiction
             ,
             and
             they
             Trading
             ,
             
               bona
               fide
            
             ,
             as
             they
             were
             formerly
             accustomed
             ,
             cannot
             be
             seased
             as
             injuring
             the
             King
             ,
             in
             assisting
             his
             Enemies
             ,
             and
             they
             did
             ,
             nor
             could
             not
             know
             they
             were
             such
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             he
             had
             walked
             exactly
             according
             to
             his
             Commission
             ,
             bearing
             expresly
             all
             kind
             of
             Grain
             to
             be
             Counterband
             Goods
             ,
             and
             being
             impowered
             to
             sease
             upon
             any
             Ship
             in
             return
             ,
             that
             had
             carried
             in
             Counterband
             Goods
             ,
             and
             that
             it
             was
             in
             the
             Kings
             power
             
               leges
               imponere
               bello
            
             ,
             and
             that
             Victual
             is
             Counterband
             Goods
             it
             is
             evident
             ,
             not
             only
             because
             it
             is
             the
             first
             necessary
             in
             War
             ,
             especially
             for
             Victualling
             of
             Ships
             ,
             Norway
             being
             a
             barren
             Countrey
             that
             hath
             little
             Grain
             of
             its
             own
             ,
             and
             produced
             a
             Treaty
             betwixt
             the
             King
             ,
             and
             the
             Crown
             of
             Sweden
             ,
             wherein
             the
             Swede
             hath
             a
             liberty
             to
             carry
             Counterband
             Goods
             ;
             bearing
             expresly
             in
             the
             Latin
             Ann●na
             ,
             in
             the
             Dutch
             Proviant
             ,
             which
             shows
             ,
             what
             Goods
             are
             accounted
             Counterband
             Goods
             ,
             not
             only
             by
             the
             King
             ,
             but
             other
             Nations
             :
             and
             for
             this
             Seasure
             in
             the
             return
             ,
             it
             is
             not
             only
             warranted
             by
             the
             Commission
             ,
             but
             upon
             evident
             Reason
             ,
             because
             the
             Kings
             Allies
             have
             free
             Trade
             ,
             both
             with
             Him
             ,
             and
             his
             Enemies
             ,
             so
             that
             they
             partake
             not
             with
             his
             Enemies
             against
             Him
             ,
             by
             furnishing
             them
             Instruments
             ,
             or
             Furniture
             of
             War
             ;
             and
             any
             privat
             Party
             transgressing
             the
             same
             ,
             might
             ,
             
               de
               rigore
               juris
            
             ,
             be
             seased
             upon
             as
             an
             Enemie●
             and
             it
             is
             favour
             and
             benignity
             ,
             that
             the
             seasure
             is
             allowed
             only
             in
             that
             very
             Voyage
             ,
             in
             which
             the
             wrong
             is
             done
             .
             As
             to
             the
             Duke
             of
             Yorks
             Passe
             ,
             Scotland
             being
             a
             free
             Kingdom
             ,
             and
             the
             Duke
             not
             Admiral
             of
             Scotland
             ,
             his
             Passe
             ,
             or
             passing
             from
             any
             Delinquents
             ,
             can
             only
             be
             Operative
             in
             England
             ;
             and
             that
             which
             is
             produced
             ,
             is
             only
             an
             Extract
             out
             of
             the
             Admirality
             Court
             ,
             bearing
             that
             such
             a
             Ship
             was
             Cognoseed
             to
             be
             
             a
             Lubeck
             Ship
             ,
             and
             so
             that
             she
             might
             freely
             passe
             ,
             which
             cannot
             import
             the
             Dukes
             knowledge
             ,
             much
             lesse
             his
             passing
             frae
             her
             carrying
             of
             Counterband
             Goods
             ,
             as
             to
             the
             pretence
             of
             Trading
             ,
             
               bona
               fide
            
             ,
             and
             the
             ignorance
             of
             the
             War
             ,
             no
             respect
             ought
             to
             be
             had
             to
             the
             alleadgeance
             ,
             because
             the
             War
             was
             begun
             ,
             and
             flagrant
             long
             before
             the
             Lousing
             of
             the
             Ship
             ,
             and
             there
             is
             no
             necessity
             of
             Manifesto's
             to
             indict
             War
             ,
             but
             Acts
             of
             Hostility
             and
             publick
             fame
             of
             a
             War
             ,
             are
             sufficient
             to
             hinder
             Allies
             of
             either
             Parties
             ,
             or
             Neuters
             to
             assist
             against
             their
             friends
             :
             and
             here
             it
             s
             offered
             to
             be
             proven
             ,
             that
             six
             Moneths
             before
             this
             Ship
             Loused
             ,
             many
             Commissions
             were
             granted
             against
             the
             Danes
             ,
             Prizes
             taken
             ,
             and
             the
             Kings
             Subjects
             taken
             by
             the
             Danes
             ,
             and
             declared
             Pryze
             at
             Bergen
             ,
             upon
             the
             account
             of
             the
             War
             ,
             which
             must
             be
             presumed
             to
             be
             known
             by
             the
             Pursuer
             :
             and
             the
             City
             of
             Lubeck
             being
             a
             Hanse
             Town
             of
             Trade
             ,
             which
             keeps
             Intercourse
             with
             London
             ,
             and
             other
             Towns
             of
             Trade
             :
             and
             as
             to
             the
             Act
             of
             Council
             ,
             permitting
             the
             Kings
             Subjects
             to
             Trade
             ,
             even
             in
             Corn
             with
             his
             Enemies
             ,
             it
             is
             a
             special
             Indulgence
             in
             Favours
             of
             England
             only
             ,
             and
             could
             not
             be
             effectual
             as
             to
             Scotland
             ,
             and
             much
             lesse
             to
             Strangers
             .
             The
             Pursuer
             answered
             ,
             that
             there
             Was
             nothing
             alleadged
             to
             show
             by
             Law
             or
             custom
             ,
             that
             Victual
             is
             Counterband
             Goods
             ,
             unlesse
             it
             were
             carried
             in
             to
             an
             Enemy
             for
             Relieving
             a
             Besieged
             place
             ,
             but
             not
             when
             it
             is
             but
             in
             common
             Commerce
             ,
             and
             if
             the
             Lubeckers
             be
             hindred
             to
             Trade
             in
             Corn
             ,
             or
             the
             like
             ,
             being
             the
             only
             Growth
             of
             their
             Country
             ,
             their
             Trade
             is
             altogether
             marred
             ,
             contrary
             to
             the
             Kings
             Interest
             and
             Intention
             ,
             who
             has
             written
             to
             the
             Emperour
             most
             favourably
             in
             behalf
             of
             the
             Hanse
             Towns
             ,
             for
             the
             freedom
             of
             their
             Trade
             ,
             and
             acknowledges
             them
             his
             good
             Allies
             ,
             and
             not
             meerly
             Neuters
             ,
             which
             Letter
             is
             produced
             ,
             neither
             is
             the
             palpable
             inconvenience
             answered
             ,
             if
             Privatteers
             may
             bring
             in
             all
             the
             Ships
             ,
             whether
             they
             carried
             Counterband
             Goods
             in
             that
             Voyage
             ,
             though
             they
             find
             none
             in
             them
             ,
             neither
             is
             there
             any
             thing
             alleadged
             sufficient
             to
             instruct
             ,
             that
             the
             Pursuers
             knew
             ,
             or
             were
             obliged
             to
             know
             of
             the
             War
             betwixt
             the
             King
             and
             Denmark
             ,
             before
             they
             Loused
             from
             Lubeck
             for
             any
             Acts
             of
             Hostility
             ,
             before
             the
             solemn
             Indiction
             produced
             ,
             were
             such
             Deeds
             as
             the
             Pursuers
             were
             not
             obliged
             to
             notice
             ,
             for
             the
             taking
             and
             declaring
             of
             Prizes
             doth
             not
             include
             Enimity●
             or
             War
             ,
             but
             may
             be
             for
             reparation
             of
             privat
             injuries
             without
             intention
             to
             make
             an
             open
             War
             ,
             although
             a
             Pryze
             of
             the
             King
             of
             Britains
             Subjects
             ,
             had
             been
             declared
             at
             Buirran
             ,
             it
             does
             not
             infer
             ,
             that
             Lubeck
             being
             a
             free
             State
             ,
             at
             so
             far
             distance
             ,
             behoved
             to
             know
             the
             same
             ;
             much
             lesse
             ,
             that
             thereby
             there
             was
             a
             War
             betwixt
             the
             King
             and
             Denmark
             .
          
           
             The
             Lords
             having
             considered
             the
             whole
             Debate
             ,
             were
             of
             different
             opinions
             ,
             whether
             the
             Victual
             could
             be
             called
             Counterband
             Goods
             simply
             ,
             or
             only
             when
             imported
             for
             relieving
             of
             Sieges
             ,
             or
             for
             the
             like
             War-like
             use
             ,
             and
             whethe●
             Ships
             could
             be
             seised
             in
             their
             return
             not
             having
             actually
             Counterband
             Goods
             in
             ,
             but
             especially
             whether
             they
             could
             be
             seised
             without
             evidence
             at
             the
             time
             of
             the
             seisure
             at
             Sea
             ,
             that
             in
             that
             Voyage
             they
             had
             in
             Counterband
             Goods
             ,
             but
             they
             did
             only
             Determine
             the
             first
             Reason
             ,
             and
             found
             it
             relevant
             ,
             to
             infer
             that
             the
             Lubeckers
             was
             in
             
               bona
               fide
            
             to
             continue
             the
             Commerce
             ,
             having
             Loused
             within
             to
             few
             days
             of
             the
             Kings
             Manifesto
             ;
             and
             that
             no
             other
             Act
             of
             Hostility
             before
             ,
             were
             to
             be
             presumed
             to
             have
             come
             to
             the
             knowledge
             of
             Lubeck
             ,
             or
             that
             thereby
             they
             were
             obliged
             to
             know
             ,
             that
             there
             was
             an
             actual
             War
             ,
             unlesse
             these
             Strangers
             :
             knowledge
             were
             instructed
             by
             their
             own
             Oaths
             ,
             or
             that
             it
             was
             the
             common
             Fame
             notour
             at
             Lubeck
             before
             they
             Loused
             ,
             that
             there
             was
             War
             betwixt
             the
             King
             and
             Denmark
             ,
             and
             the
             Defenders
             offering
             to
             prove
             the
             same
             .
          
           
           
             The
             Lords
             granted
             Commission
             to
             the
             Kings
             Resident
             at
             Hamburgh
             to
             receive
             Witnesses
             above
             exception
             ,
             and
             in
             the
             mean
             time
             ,
             ordains
             the
             Strangers
             Ship
             and
             Goods
             to
             be
             Inventared
             ,
             and
             Estimate
             ,
             and
             delivered
             again
             to
             the
             Strangers
             ▪
             upon
             Caution
             to
             make
             the
             same
             or
             price
             forthcoming
             ,
             in
             case
             the
             Defender
             prov'd
             ,
             and
             prevail'd
             ,
             and
             with
             the
             burden
             of
             the
             Strangers
             damnage
             and
             expences
             ,
             if
             they
             betook
             themselves
             to
             this
             manner
             of
             Probation
             ,
             and
             not
             to
             the
             Oaths
             of
             the
             Strangers
             who
             were
             present
             ,
             reserving
             to
             the
             Lords
             the
             remanent
             Points
             to
             be
             Decided
             ,
             if
             the
             Strangers
             knowledge
             of
             the
             War
             were
             known
             .
          
           
             In
             this
             Processe
             the
             Lords
             found
             also
             that
             competent
             ,
             and
             emitted
             before
             the
             Admiral
             ,
             could
             not
             operat
             against
             thir
             Strangers
             ,
             
               qui
               utuntur
               communi
               jure
               gentium
            
             .
          
        
         
           
             Sir
             Harie
             Hume
             contra
             Tenents
             of
             Kello
             ,
             and
             Sir
             Alexander
             Hume
             .
             Iuly
             23.
             1667.
             
          
           
             SIr
             
               Harie
               Hume
            
             having
             Comprized
             the
             Lands
             of
             Kello
             ,
             compearance
             is
             made
             for
             some
             Annualrenters
             ,
             who
             craved
             preference
             ,
             because
             their
             Infeftments
             of
             Annualrent
             was
             before
             the
             Apprizing
             :
             It
             was
             answered
             that
             the
             Infeftment
             of
             Annualrent
             was
             base
             ,
             never
             cled
             with
             Possession
             :
             It
             was
             answered
             for
             the
             Annualrenter
             ,
             that
             he
             produced
             an
             Antaphocha
             ,
             bearing
             the
             Receipt
             of
             a
             Discharge
             granted
             by
             the
             Debtor
             of
             the
             Annualrent
             ,
             which
             did
             instruct
             the
             Annualrenter
             was
             in
             Possession
             before
             the
             Apprizing
             ,
             by
             uplifting
             the
             Annualrent
             from
             the
             Debtor
             :
             It
             was
             answered
             that
             the
             Sum
             was
             of
             fourscore
             Merks
             ,
             which
             was
             far
             within
             an
             Terms
             Annualrent
             ,
             and
             that
             it
             related
             only
             to
             the
             personal
             Bond
             ,
             and
             not
             to
             the
             Infeftment
             ,
             and
             that
             there
             was
             more
             then
             this
             Sum
             due
             of
             Annualrent
             by
             the
             personal
             Bond
             ,
             before
             the
             Date
             of
             the
             Infeftment
             ,
             to
             which
             only
             it
             behoved
             to
             be
             imputed
             :
             It
             was
             answered
             that
             the
             Receipt
             being
             general
             in
             part
             of
             payment
             of
             the
             Annualrent
             ,
             he
             that
             payed
             the
             Sum
             might
             impute
             it
             to
             what
             Term
             he
             pleased
             ,
             and
             so
             would
             impute
             it
             to
             a
             Term
             after
             his
             Infeftment
             :
             It
             was
             answered
             that
             before
             that
             Discharge
             ,
             the
             Pursuers
             Apprizing
             was
             led
             ,
             though
             no
             Infeftment
             thereon
             ,
             after
             which
             so
             small
             a
             part
             of
             the
             Annualrent
             could
             not
             be
             impute
             to
             any
             ,
             but
             the
             first
             Annualrent
             due
             ,
             and
             could
             not
             validat
             the
             base
             Infeftment
             .
          
           
             The
             Lords
             found
             it
             sufficient
             to
             validat
             the
             base
             Infeftment
             ,
             notwithstanding
             of
             what
             was
             alleadged
             on
             the
             contrair
             .
          
        
         
           
             Sir
             George
             Mckenzie
             contra
             Iohn
             Fairholm
             ,
             Iuly
             25.
             1667.
             
          
           
             SIr
             
               George
               Mckenzie
            
             Advocat
             having
             formerly
             pursued
             Reduction
             of
             a
             Bond
             ,
             granted
             to
             Umquhil
             
               Iohn
               Fairholm
            
             ,
             wherein
             he
             was
             Cautioner
             for
             his
             Father
             ,
             and
             Pluscardy
             ,
             upon
             this
             Reason
             ,
             that
             he
             then
             being
             Minor
             ▪
             intertained
             by
             his
             Father
             ,
             as
             in
             his
             Family
             ;
             his
             Father
             was
             his
             Administrator
             ,
             and
             in
             place
             of
             a
             Curator
             ,
             so
             that
             Deeds
             done
             without
             his
             Fathers
             authorizing
             as
             Curator
             ,
             was
             null
             ;
             neither
             could
             his
             Father
             authorize
             him
             to
             his
             Fathers
             own
             behove
             ,
             as
             Cautioner
             for
             his
             Father
             ,
             which
             the
             Lords
             found
             relevant
             to
             annul
             Sir
             George's
             Subscription
             ;
             and
             now
             Sir
             George
             desiring
             the
             Extract
             of
             the
             Interloquitor
             .
             It
             was
             further
             alleadged
             ,
             that
             Sir
             George
             was
             not
             only
             Cautioner
             for
             his
             Father
             ,
             but
             also
             for
             Pluscardy
             ,
             and
             that
             his
             Father
             might
             authorize
             him
             to
             Subscrive
             Cautioner
             for
             Pluscardy
             ,
             and
             therefore
             the
             Bond
             behoved
             to
             stand
             against
             him
             as
             Cautioner
             for
             Pluscardy
             ;
             It
             was
             answered
             that
             albeit
             his
             Father
             might
             authorize
             him
             as
             
             Cautioner
             for
             Pluscardy
             ,
             in
             a
             Bond
             apart
             ,
             wherein
             his
             Father
             was
             not
             concerned
             ;
             yet
             if
             his
             being
             Cautioner
             to
             Pluscardy
             were
             to
             the
             behove
             of
             his
             Father
             ,
             he
             could
             not
             authorize
             him
             therein
             ,
             but
             this
             Bond
             is
             of
             that
             nature
             ,
             for
             Pluscardy
             and
             the
             pursuers
             Father
             being
             bound
             Conjunctly
             ,
             and
             Severally
             ,
             Caution
             adjected
             for
             any
             of
             the
             
               correi
               debendi
            
             ,
             could
             not
             but
             be
             to
             the
             behove
             of
             both
             ,
             because
             in
             so
             far
             the
             Obligation
             was
             strengthned
             ,
             and
             the
             payment
             made
             by
             the
             Cautioner
             would
             liberat
             both
             ,
             and
             if
             Sir
             George
             should
             be
             Decerned
             Cautioner
             for
             Pluscardy
             ,
             it
             would
             Liberat
             his
             Father
             ,
             and
             so
             is
             clearly
             to
             his
             behove
             .
          
           
             In
             respect
             whereof
             ,
             the
             Lords
             repelled
             also
             this
             new
             Defense
             ,
             and
             adhered
             to
             their
             former
             Interlocutor
             ,
             and
             found
             Sir
             George's
             Subscription
             for
             his
             Father
             ,
             and
             for
             Pluscardy
             ,
             to
             be
             to
             his
             Fathers
             behove
             ,
             and
             that
             he
             could
             not
             authorize
             him
             therein
             ,
             neither
             did
             he
             at
             all
             directly
             authorize
             him
             ,
             but
             in
             so
             far
             as
             they
             both
             Subscrived
             as
             Principal
             and
             Cautioner
             in
             one
             Bond.
             
          
        
         
           
             Mr.
             Iohn
             Philip
             contra
             Mr.
             Iohn
             Cheap
             ,
             Iuly
             26.
             1667.
             
          
           
             MAster
             
               Iohn
               Philip
            
             pursues
             his
             Tenents
             upon
             a
             Disposition
             granted
             by
             
               Michael
               Philip
            
             ,
             Compearance
             is
             made
             for
             Mr.
             
               Iames
               Cheap
            
             who
             Apprized
             from
             
               Michael
               Philips
            
             Heir
             ,
             who
             alleadged
             that
             the
             Disposition
             is
             null
             ,
             neither
             being
             Subscribed
             by
             the
             Disponer
             ,
             nor
             by
             two
             Notars
             for
             him
             for
             albeit
             it
             mention
             the
             Subscription
             of
             three
             Notars
             ,
             yet
             two
             of
             them
             Subscribed
             not
             at
             the
             same
             time
             with
             the
             third
             ,
             and
             neither
             of
             these
             two
             bear
             ,
             that
             they
             did
             Subscribe
             at
             command
             ,
             but
             that
             they
             Subscribed
             only
             for
             
               Michael
               Philip
            
             ,
             because
             that
             he
             could
             not
             Subscribe
             himself
             :
             and
             albeit
             the
             Body
             of
             the
             Writ
             mention
             such
             Witnesses
             to
             the
             Command
             given
             to
             these
             Notars
             ,
             yet
             it
             is
             written
             with
             another
             Ink
             ,
             and
             does
             not
             appear
             to
             be
             Written
             at
             the
             time
             of
             the
             Subscriptions
             ,
             being
             the
             Hand-writ
             of
             him
             that
             Wrote
             the
             Body
             ,
             which
             mentions
             to
             be
             Written
             by
             him
             at
             Edinburgh
             ,
             and
             the
             Subscription
             is
             at
             Newburgh
             ,
             and
             because
             the
             Notars
             Subscription
             must
             give
             Faith
             to
             the
             Body
             of
             the
             Writ
             ,
             and
             not
             the
             Body
             to
             it
             .
             It
             was
             answered
             ,
             that
             they
             offer
             to
             prove
             by
             the
             Witnesses
             insert
             ,
             that
             the
             Command
             was
             given
             :
             It
             was
             answered
             that
             the
             Command
             being
             the
             most
             substantial
             point
             of
             the
             Subscription
             ,
             could
             not
             be
             proven
             ,
             or
             supplied
             by
             Witnesses
             ,
             for
             the
             Subscription
             of
             the
             Notar
             ,
             because
             the
             party
             could
             not
             Subscribe
             signifies
             nothing
             without
             the
             Command
             of
             the
             party
             ,
             for
             whom
             they
             subscribe
             ,
             and
             Warrand
             or
             Command
             in
             most
             ordinary
             Matters
             is
             not
             at
             all
             probable
             by
             Witnesses
             .
          
           
             The
             Lords
             found
             the
             Disposition
             null
             ,
             and
             that
             the
             subscription
             of
             these
             two
             Notars
             not
             bearing
             ,
             that
             it
             was
             by
             Command
             ,
             could
             not
             be
             supplied
             by
             the
             Witnesses
             ,
             insert
             ,
             unlesse
             it
             had
             been
             the
             subscription
             of
             an
             Connotar
             Subscribing
             at
             the
             same
             time
             with
             a
             Notar
             ,
             whose
             Subscription
             bore
             Command
             .
             Here
             it
             was
             Debated
             whether
             the
             Subscriptions
             of
             Notars
             at
             divers
             times
             were
             sufficient
             ,
             or
             if
             the
             Subscription
             of
             a
             Notar
             who
             was
             not
             authorized
             by
             the
             English
             ,
             and
             did
             forbear
             to
             Act
             at
             that
             time
             were
             sufficient
             ,
             but
             the
             former
             Vot
             made
             these
             to
             be
             undecided
             ,
             as
             not
             necessar
             ,
             seing
             the
             Writ
             was
             annulled
             by
             the
             former
             Vot
             .
          
        
         
           
             Sir
             George
             Prestoun
             contra
             Sir
             Iohn
             Scot
             ,
             Iuly
             1667.
             
          
           
             SIr
             
               Iohn
               Scot
            
             having
             pursued
             for
             payment
             of
             an
             Annualrent
             of
             500.
             
             Merks
             ,
             out
             of
             Sir
             
               Iohn
               Prestouns
            
             Lands
             ,
             he
             alleadged
             payment
             ,
             thereupon
             Li●●scontislation
             being
             made
             ,
             he
             produces
             three
             Receipts
             ,
             each
             500
             pounds
             ,
             
             bearing
             to
             an
             Accompt
             ;
             and
             alleadged
             that
             the
             odd
             fifty
             Merks
             was
             for
             publick
             Burden
             ,
             which
             compleating
             three
             years
             ,
             must
             Assoilzie
             from
             bygones
             .
             It
             was
             answered
             the
             Discharges
             bore
             to
             be
             but
             granted
             by
             a
             Factor
             ,
             which
             was
             not
             probative
             ,
             and
             that
             they
             wanted
             Witnesses
             ,
             and
             that
             being
             given
             by
             a
             Factor
             ,
             they
             could
             not
             infer
             payment
             of
             all
             proceeding
             :
             It
             was
             answered
             that
             Discharges
             of
             Annualrents
             ,
             or
             Rents
             ,
             are
             sufficient
             without
             Witnesses
             .
          
           
             The
             Lords
             found
             that
             Discharges
             to
             Tenents
             were
             suffi●ient
             without
             Witnesses
             ,
             but
             not
             being
             granted
             by
             an
             Annualrenter
             to
             an
             Heretor
             ,
             and
             found
             that
             the
             Factors
             Discharge
             could
             not
             in●er
             payment
             of
             bygones
             .
          
        
         
           
             The
             Owners
             of
             the
             Ship
             called
             the
             Castle
             of
             Riga
             ,
             contra
             Captain
             Seatoun
             Eodem
             die
             .
          
           
             CAptain
             Seatoun
             a
             Privateer
             having
             taken
             a
             Ship
             at
             Sea
             ,
             she
             was
             declared
             Pryze
             at
             Cromarty
             ;
             the
             Owners
             pursue
             Reduction
             of
             that
             Decreet
             before
             the
             Admiral
             at
             Leith
             ,
             who
             Ass●●●zied
             from
             the
             Reduction
             ,
             and
             adhered
             to
             the
             D●creet●
             the
             Owners
             now
             pursue
             a
             Reduction
             of
             both
             these
             Decreets
             upo●
             this
             Ground
             ,
             that
             by
             the
             Treaty
             betwixt
             the
             King
             ,
             and
             the
             King
             of
             Sweden
             ;
             it
             is
             expresly
             declared
             ,
             that
             if
             any
             Swedish
             Ships
             ,
             having
             a
             Passe
             from
             the
             Kings
             Council
             ,
             or
             Colledge
             of
             Trade
             ,
             or
             Governour
             of
             the
             Province
             where
             frae
             she
             Louseth
             ,
             she
             shall
             not
             be
             questioned
             ,
             nor
             any
             Inquiry
             anent
             the
             Goods
             ,
             or
             Men
             ,
             and
             that
             because
             ,
             by
             the
             said
             Treaty
             it
             is
             Agreed
             that
             the
             said
             Passes
             ,
             shall
             expresly
             contain
             that
             the
             Ship
             and
             whole
             Goods
             ,
             belonging
             to
             the
             Subjects
             of
             Sweden
             ,
             contained
             no
             Counterband
             Goods
             ,
             and
             that
             upon
             Oath
             taken
             at
             the
             obtaining
             of
             the
             Passe
             ,
             
               na
               est
            
             ,
             the
             Governour
             of
             Livinia
             ,
             wherein
             Riga
             lyes
             ,
             hath
             given
             a
             Passe
             ,
             bearing
             that
             the
             Owners
             of
             the
             Ship
             called
             the
             Castle
             of
             Riga
             ,
             being
             Citizens
             of
             Riga
             ,
             did
             make
             Faith
             that
             Ship
             ,
             being
             then
             at
             Amsterdam
             ,
             did
             truely
             belong
             to
             them
             ,
             and
             was
             Loaded
             with
             their
             Goods
             only
             ,
             and
             was
             direct
             to
             France
             for
             a
             Loading
             of
             Salt
             ,
             to
             be
             returned
             to
             Riga
             ,
             and
             that
             there
             is
             produced
             an
             Extract
             out
             of
             the
             Admirality
             of
             ●rance
             ,
             bearing
             Faith
             to
             have
             been
             made
             ,
             that
             the
             Ship
             ,
             nor
             Goods
             ,
             nor
             any
             part
             thereof
             did
             not
             belong
             to
             the
             French
             nor
             Hollanders
             ,
             and
             a
             Certificat
             from
             the
             Swedish
             Resident
             in
             Holland
             ,
             Registrat
             in
             the
             Office
             of
             Admirality
             in
             England
             ,
             bearing
             this
             Ship
             to
             be
             a
             ship
             belonging
             to
             the
             Swedes
             ,
             and
             yet
             she
             was
             declared
             Pryze
             ,
             upon
             this
             ground
             only
             ,
             that
             the
             Sea-men
             did
             acknowledge
             they
             were
             Inhabitants
             in
             ,
             and
             about
             Amsterdam
             ,
             and
             that
             some
             of
             them
             Deponed
             ,
             that
             the
             ship
             was
             a
             Dutch
             bottom
             ;
             and
             one
             of
             them
             Deponed
             ,
             that
             they
             were
             paved
             by
             the
             Skipper
             ,
             who
             received
             the
             Money
             from
             a
             Water
             Bailzie
             in
             Amsterdam
             ,
             without
             proving
             that
             the
             ship
             or
             goods
             belonged
             to
             Hollanders
             ,
             which
             could
             not
             have
             been
             ground
             ,
             seing
             the
             Passe
             ,
             and
             Treaty
             did
             Exeem
             them
             from
             giving
             an
             Accompt
             ,
             or
             Inquiry
             anent
             their
             Mariners
             .
             It
             was
             answered
             for
             the
             Defenders
             ,
             that
             all
             these
             Passes
             and
             Papers
             were
             a
             meer
             Contrivance
             ,
             and
             ●alls
             not
             in
             the
             Case
             of
             the
             Treaty
             ,
             because
             the
             ship
             Loused
             not
             from
             Riga
             ,
             but
             from
             Amsterdam
             ,
             and
             the
             Pass
             did
             not
             contain
             the
             particular
             Goods
             ,
             and
             Quantities
             ,
             according
             to
             the
             Conditions
             of
             the
             Tre●ty
             ,
             and
             that
             the
             Testimonies
             proved
             that
             the
             ship
             had
             on
             a
             Dutch
             Flag
             ,
             that
             she
             came
             hot
             by
             the
             Channel
             ,
             but
             about
             the
             Back
             side
             of
             England
             ,
             and
             that
             the
             Company
             was
             afraid
             to
             meet
             with
             Scotish
             and
             English
             Privateers
             ;
             and
             having
             met
             with
             a
             ship
             in
             their
             Course
             ,
             asked
             for
             the
             Dutch
             Fleet
             ,
             calling
             it
             their
             own
             Fleet
             ,
             all
             which
             were
             strong
             
             Evidences
             that
             the
             ship
             belonged
             to
             Holland
             .
             It
             was
             answered
             that
             albeit
             the
             Pass
             mentioned
             not
             the
             particular
             Goods
             ,
             which
             it
             could
             not
             do
             ,
             the
             ship
             being
             but
             to
             be
             Loaden
             ,
             the
             Certificat
             did
             abundantly
             supply
             that
             ,
             expressing
             the
             Loading
             ,
             as
             for
             the
             presumptions
             they
             are
             of
             no
             force
             ,
             because
             the
             Skipper
             ,
             though
             a
             Dutch-man
             ,
             yet
             was
             sworn
             a
             Citizen
             of
             Riga
             ,
             and
             might
             justly
             be
             more
             afraid
             of
             the
             English
             and
             Scots
             ,
             then
             of
             the
             Dutch
             ,
             and
             they
             might
             call
             the
             Dutch
             Fleet
             ,
             their
             own
             Fleet
             ,
             as
             being
             of
             their
             Nation
             ;
             at
             last
             they
             produced
             a
             Letter
             of
             the
             Kings
             ,
             bearing
             that
             His
             Majesty
             knew
             by
             sufficient
             Information
             ,
             that
             this
             was
             a
             ship
             belonging
             to
             Sweden
             ;
             and
             both
             by
             it
             ,
             and
             by
             a
             former
             Letter
             ,
             did
             peremptorly
             Command
             the
             Delivery
             thereof
             ,
             and
             the
             Goods
             .
             It
             was
             answered
             the
             Kings
             Letter
             was
             impetrat
             upon
             false
             Information
             ;
             and
             if
             His
             Majesty
             had
             known
             the
             true
             state
             of
             the
             Case
             as
             it
             now
             stands
             in
             the
             Evidence
             ,
             He
             would
             not
             have
             so
             Written
             ;
             nor
             doth
             His
             Majesties
             Letter
             ,
             granted
             
               inaudita
               parte
            
             ,
             prejudge
             the
             privat
             Rights
             of
             his
             Subjects
             .
          
           
             The
             Lords
             found
             that
             the
             Testimonies
             of
             the
             Witnesses
             did
             not
             prove
             ,
             that
             the
             ship
             and
             goods
             belonged
             to
             any
             of
             His
             Majesties
             Enemies
             ,
             and
             therefore
             ,
             in
             respect
             of
             the
             Pass
             ,
             Certificat
             ,
             Treaty
             ,
             and
             His
             Majesties
             Letter
             ,
             they
             Reduced
             both
             the
             Decreets
             .
          
        
         
           
             Iuly
             31.
             1667.
             
          
           
             THis
             Cause
             being
             again
             Debated
             ,
             it
             was
             alleadged
             that
             the
             former
             Interlocutor
             having
             proceeded
             mainly
             upon
             His
             Majesties
             Letter
             ,
             there
             was
             no
             ground
             to
             proceed
             thereupon
             ,
             because
             it
             was
             granted
             
               inaudita
               parte
            
             ,
             and
             Acts
             of
             Parliament
             being
             done
             by
             His
             Majesty
             ,
             without
             consent
             of
             of
             Estates
             ,
             prejudge
             no
             party
             as
             to
             their
             privat
             Right
             ,
             but
             such
             as
             are
             called
             ,
             much
             less
             Letters
             thus
             impetrat
             upon
             importunity
             ,
             and
             groundless
             Representation
             ,
             and
             this
             Letter
             is
             Derogat
             by
             a
             posterior
             general
             Letter
             to
             the
             Lords
             ,
             Recorded
             in
             the
             Sederunt
             ,
             warranding
             the
             Lords
             to
             proceed
             .
             And
             as
             to
             the
             Swedish
             Treaty
             ,
             it
             can
             never
             be
             understood
             further
             ,
             then
             as
             to
             Counterband
             Goods
             ,
             which
             are
             the
             Native
             Commodity
             of
             the
             Swedish
             Dominions
             ,
             for
             albeit
             some
             of
             these
             be
             dispensed
             to
             the
             Swedes
             ,
             because
             most
             of
             the
             Growth
             of
             their
             Countrey
             is
             such
             ,
             yet
             it
             cannot
             be
             extended
             to
             this
             Case
             ,
             where
             the
             Swedes
             Loadned
             Counterband
             Goods
             in
             Norway
             ,
             and
             carry
             them
             to
             France
             ,
             both
             being
             His
             Majesties
             Enemies
             ,
             neither
             can
             the
             Pass
             be
             sufficient
             ,
             except
             as
             to
             such
             ships
             as
             are
             within
             Sweden
             ,
             and
             where
             the
             particular
             Goods
             ,
             upon
             Oath
             are
             Attested
             ,
             and
             expressed
             in
             the
             Pass
             ,
             neither
             of
             which
             is
             in
             this
             Case
             .
             It
             was
             answered
             that
             they
             opponed
             the
             former
             Interlocutor
             ,
             and
             that
             a
             solemn
             Treaty
             ,
             with
             so
             considerable
             an
             Allie
             as
             the
             King
             of
             Sweden
             ,
             is
             not
             to
             be
             Retrenched
             ,
             nor
             Limited
             ,
             but
             by
             the
             exceptions
             contained
             in
             it self
             ,
             and
             in
             it
             there
             is
             no
             such
             exception
             ,
             but
             generally
             the
             Pass
             ,
             as
             is
             there
             qualified
             ,
             excludes
             all
             search
             or
             question
             of
             Men
             or
             Goods
             ,
             which
             is
             also
             the
             Kings
             meaning
             ,
             which
             appears
             expresly
             by
             the
             foresaid
             Letter
             ,
             which
             albeit
             it
             could
             not
             Derogat
             from
             a
             privat
             Right
             ,
             yet
             may
             well
             clear
             the
             dubious
             interpretation
             of
             a
             Treaty
             ,
             and
             is
             sufficient
             in
             this
             Case
             ,
             where
             the
             King
             alone
             
               dat
               leges
               bello
            
             .
          
           
             The
             Lords
             upon
             consideration
             of
             the
             last
             Dispute
             ,
             did
             ordain
             the
             President
             to
             state
             the
             Case
             ,
             and
             represent
             it
             by
             the
             Secretary
             to
             the
             King
             ,
             both
             as
             to
             the
             meaning
             of
             the
             Treaty
             and
             the
             Letters
             ,
             and
             specially
             whether
             Counterband
             Goods
             ,
             not
             being
             the
             Growth
             of
             ,
             nor
             Loaden
             in
             Sweden
             ,
             were
             priviledged
             to
             the
             Swedes
             thereby
             .
          
        
         
           
           
             November
             6.
             1667.
             
          
           
             THe
             said
             Cause
             being
             again
             called
             ,
             the
             President
             presented
             the
             Lord
             Secretaries
             Letter
             ,
             bearing
             the
             Kings
             Answer
             ,
             that
             the
             Treaty
             ,
             or
             Letter
             did
             not
             warrand
             the
             Swedes
             to
             carry
             Counterband
             Goods
             to
             the
             Countrey
             of
             his
             Enemies
             ,
             except
             their
             own
             Countrey
             Commodities
             ,
             Loaden
             within
             their
             own
             Dominions
             .
          
           
             Whereupon
             The
             Lords
             sustained
             the
             Admirals
             Decreet
             ,
             as
             to
             that
             Reason
             of
             Reduction
             ,
             but
             gave
             the
             Parties
             a
             time
             to
             be
             further
             hear'd
             before
             Ex●ract
             .
          
        
         
           
             Hend●●son
             contra
             Henderson
             ,
             November
             14.
             1667.
             
          
           
             HEnderson
             insisted
             in
             the
             Cause
             mentioned
             ,
             Ianuary
             31.
             1667.
             which
             was
             again
             fully
             Debated
             above
             ;
             and
             it
             was
             alleadged
             that
             the
             Writ
             in
             question
             was
             a
             Testament
             ,
             or
             at
             least
             
               donatio
               mortis
               causa
            
             ,
             or
             at
             least
             a
             Conditional
             Donation
             ,
             to
             take
             effect
             only
             in
             case
             the
             Disponer
             died
             before
             he
             returned
             ,
             so
             that
             his
             simple
             returning
             ,
             without
             any
             further
             ,
             purified
             the
             Condition
             ,
             and
             made
             it
             null
             .
          
           
             The
             Lords
             having
             considered
             the
             Writ
             ,
             found
             that
             albeit
             it
             was
             not
             formal
             ,
             yet
             it
             had
             the
             Essentials
             of
             a
             Disposition
             ,
             and
             Donation
             ,
             interviros
             ,
             and
             that
             it
             was
             not
             null
             by
             the
             Disponers
             return
             ,
             unlesse
             he
             had
             revocked
             it
             ;
             for
             they
             found
             that
             the
             words
             being
             ,
             that
             he
             Nominat
             ,
             and
             Constitute
             Henderson
             his
             Heir
             ,
             and
             Successor
             ,
             and
             Donatar
             irrevockably
             to
             certain
             Tenements
             in
             particular
             ,
             with
             power
             to
             him
             (
             in
             case
             the
             Disponer
             returned
             not
             )
             to
             enter
             by
             the
             Superior
             ,
             and
             Enter
             to
             Possession
             ,
             and
             transferring
             all
             Right
             he
             had
             in
             that
             case
             ,
             which
             words
             Constituting
             him
             Dona●ar
             ,
             they
             found
             were
             Dispositive
             words
             ,
             and
             Effectual
             ,
             and
             the
             adding
             of
             Heir
             ,
             and
             Successor
             ,
             could
             not
             Evocuat
             the
             same
             ;
             and
             found
             the
             Condition
             of
             his
             not
             returning
             ,
             was
             not
             annext
             to
             the
             Dispositive
             words
             ,
             but
             to
             the
             Executive
             Clause
             of
             Entering
             by
             the
             Superior
             ,
             and
             taking
             Possession
             ,
             which
             was
             cleared
             by
             the
             Posterior
             Reservation
             ,
             to
             recal
             it
             after
             his
             return
             .
          
           
             It
             was
             further
             offered
             to
             be
             proven
             ,
             that
             the
             Disponer
             not
             only
             returned
             ,
             but
             recalled
             the
             Disposition
             ,
             in
             so
             far
             as
             he
             had
             it
             in
             his
             own
             hands
             ,
             and
             power
             after
             his
             return
             .
             It
             was
             answered
             that
             it
             was
             no
             way
             relevant
             ,
             unlesse
             the
             Delivery
             of
             it
             
               hoc
               intuitu
            
             were
             proven
             ,
             for
             he
             might
             have
             had
             it
             in
             his
             hands
             upon
             many
             other
             accounts
             .
             It
             was
             answered
             that
             the
             very
             having
             of
             the
             Writ
             ,
             did
             presume
             that
             it
             was
             Delivered
             ,
             unlesse
             the
             other
             Party
             would
             offer
             them
             to
             prove
             that
             it
             came
             in
             his
             hands
             
               alio
               nomine
            
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
           
             Thereafter
             it
             was
             alleadged
             ,
             that
             as
             the
             Disponers
             having
             of
             it
             ,
             presumed
             Revocation
             ,
             so
             the
             Acquirers
             having
             of
             it
             hereafter
             ,
             presumed
             a
             passing
             from
             that
             Revocation
             ,
             and
             a
             Reviving
             of
             the
             Right
             ,
             and
             now
             it
             is
             in
             the
             Acquirers
             hands
             ;
             as
             to
             this
             point
             the
             Parties
             did
             not
             Debate
             ,
             but
             it
             occurred
             to
             the
             Lords
             that
             the
             Disponers
             having
             ,
             might
             be
             sufficient
             to
             infer
             Delivery
             ,
             but
             would
             not
             infer
             that
             the
             Acquirers
             having
             thereafter
             ,
             would
             presume
             passing
             from
             the
             Revocation
             ,
             because
             the
             Clause
             reserving
             to
             the
             Disponer
             a
             power
             to
             Recal
             ,
             made
             the
             naked
             Recovery
             of
             the
             Writ
             sufficient
             to
             him
             ,
             and
             did
             annul
             it
             ,
             but
             it
             was
             more
             dubious
             ,
             what
             was
             requisit
             to
             revive
             it
             ,
             whether
             naked
             Having
             ,
             or
             expresse
             Delivery
             ,
             
               hoc
               intuitu
            
             ,
             
             or
             if
             something
             were
             not
             requisite
             in
             Writ
             ,
             and
             therefore
             before
             answer
             to
             that
             point
             .
          
           
             The
             Lords
             ordained
             the
             Pursuers
             who
             now
             had
             the
             Writ
             to
             condescend
             ,
             and
             prove
             how
             they
             got
             it
             .
          
        
         
           
             Iames
             Maxwel
             contra
             Adam
             Maxwel
             ,
             November
             15.
             1667.
             
          
           
             
               JAmes
               Maxwel
            
             ,
             and
             the
             Umquhil
             Lady
             Hiltoun
             his
             Spouse
             ,
             having
             Disponed
             their
             Land
             to
             
               Adam
               Maxwel
               ,
               Iames
            
             now
             pursues
             a
             Declarator
             of
             Trust
             ,
             whereupon
             the
             Lords
             formerly
             ordained
             Compt
             and
             Reckoning
             ,
             that
             it
             might
             appear
             what
             Adam
             had
             Expended
             upon
             the
             accompt
             of
             the
             Trust.
             In
             which
             Accompt
             Adam
             gives
             up
             certain
             Bonds
             by
             Iames
             ,
             whereunto
             he
             had
             taken
             Assignation
             ,
             against
             which
             ,
             he
             could
             alleadge
             no
             more
             then
             what
             he
             truely
             payed
             out
             ,
             in
             respect
             the
             time
             of
             the
             Assignation
             he
             was
             intrusted
             by
             the
             Pursuer
             .
             The
             Defender
             alleadged
             
               non
               relevant
            
             ,
             unlesse
             it
             were
             alleadged
             he
             was
             intrusted
             to
             Compone
             for
             the
             Pursuers
             Debts
             ;
             but
             if
             it
             was
             only
             a
             Trust
             of
             his
             Land
             ,
             and
             not
             a
             general
             Trust
             of
             all
             his
             Affairs
             ,
             it
             could
             not
             reach
             their
             Bonds
             ,
             and
             albeit
             upon
             the
             account
             of
             Friendship
             ,
             or
             Charity
             ,
             the
             Defender
             might
             be
             desired
             to
             take
             no
             more
             then
             he
             gave
             ,
             there
             lyes
             no
             Obligation
             in
             Law
             ,
             or
             Equity
             upon
             him
             so
             to
             do
             ;
             but
             he
             may
             demand
             what
             the
             Creditors
             ,
             his
             Cedents
             ,
             or
             any
             other
             Assigney
             might
             demand
             .
             The
             Pursuer
             answered
             that
             the
             intent
             of
             his
             Trust
             in
             his
             Lands
             ,
             being
             to
             preserve
             him
             from
             the
             rigour
             of
             his
             Creditors
             ,
             it
             was
             against
             that
             Trust
             ,
             to
             the
             Trusty
             to
             use
             the
             same
             rigour
             himself
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             and
             ordained
             Adam
             only
             to
             get
             allowance
             of
             what
             he
             payed
             out
             .
          
        
         
           
             Laird
             of
             Culteraes
             contra
             Silvester
             Chapman
             ,
             November
             16.
             1667.
             
          
           
             CVlteraes
             having
             pursued
             
               Silvester
               Chapman
            
             for
             payment
             of
             a
             Bond
             of
             two
             hundreth
             Merks
             ,
             subscribed
             by
             the
             initial
             Letters
             of
             the
             Defenders
             Name
             .
          
           
             The
             Lords
             sustained
             the
             pursute
             ,
             the
             Defender
             being
             in
             use
             thus
             to
             subscribe
             ,
             and
             that
             he
             did
             subscribe
             this
             Bond
             ,
             the
             Notar
             and
             three
             Witnesses
             insert
             being
             Examined
             ,
             they
             proved
             the
             Defenders
             custom
             so
             to
             subscribe
             ,
             but
             as
             to
             the
             Actual
             subscribing
             of
             this
             Bond
             ,
             two
             were
             affirmative
             ,
             and
             two
             were
             negative
             ,
             denying
             their
             subscription
             ,
             Deponing
             that
             they
             remembred
             not
             they
             saw
             the
             Defender
             subscribe
             .
             The
             Pursuers
             own
             Oath
             was
             also
             taken
             
               ex
               officio
            
             ,
             who
             affirmed
             the
             truth
             of
             the
             subscription
             ,
             and
             that
             the
             Witnesses
             insert
             were
             present
             ,
             the
             question
             arose
             whether
             the
             verity
             of
             the
             subscription
             were
             proven
             .
          
           
             The
             Lords
             found
             that
             it
             was
             sufficiently
             proven
             ,
             the
             Pursuer
             being
             a
             man
             above
             all
             suspition
             ,
             and
             no
             improbation
             proponed
             .
          
        
         
           
             Chalmers
             and
             Gardner
             contra
             Colvils
             ,
             Eodem
             die
             .
          
           
             CHalmers
             and
             her
             Children
             pursues
             
               Hugh
               Colvil
            
             and
             others
             ,
             for
             Ejecting
             them
             out
             of
             their
             House
             and
             Lands
             of
             
               Lady
               kirk
            
             ,
             and
             spuilzy
             of
             their
             Goods
             therein
             ;
             the
             Lybel
             being
             admitted
             to
             Probation
             ,
             not
             only
             a
             Witnesse
             Deponed
             ,
             that
             he
             saw
             the
             Defender
             open
             the
             Pursuers
             Doors
             ,
             they
             ,
             being
             absent
             in
             Edinburgh
             ,
             and
             the
             Keys
             with
             them
             ,
             and
             cast
             out
             their
             Goods
             
             and
             enter
             in
             Possession
             ,
             who
             was
             admitted
             ,
             
               cum
               nota
            
             ,
             as
             being
             Interessed
             as
             Tennant
             ,
             and
             concurring
             with
             these
             Pursuers
             ,
             in
             a
             pursute
             with
             the
             same
             Defenders
             before
             the
             Council
             ,
             upon
             the
             same
             Ground
             ,
             the
             rest
             of
             the
             Witnesses
             proved
             ,
             that
             the
             Pursuers
             were
             in
             possession
             at
             ,
             or
             about
             the
             time
             Lybelled
             ,
             and
             that
             they
             went
             to
             Edinburgh
             ,
             and
             Locked
             their
             Doors
             ,
             and
             took
             away
             the
             Keys
             ;
             and
             some
             of
             them
             Deponed
             ,
             that
             the
             night
             before
             the
             Defenders
             Entry
             ,
             they
             saw
             the
             Doors
             Locked
             ,
             and
             that
             the
             next
             day
             after
             they
             saw
             
               Hugh
               Colvil
            
             ,
             and
             several
             others
             in
             the
             House
             ,
             and
             several
             Goods
             that
             were
             in
             the
             House
             cast
             out
             of
             the
             Door
             ,
             and
             that
             Hugh
             continued
             in
             Possession
             ,
             and
             took
             in
             the
             Goods
             again
             .
          
           
             Which
             the
             Lords
             found
             sufficient
             to
             prove
             the
             Ejection
             and
             Spuilzie
             ,
             seing
             the
             Defender
             did
             not
             instruct
             that
             he
             entered
             by
             Authority
             of
             Law.
             
          
           
             The
             Defender
             alleadged
             at
             Advising
             the
             Cause
             ,
             that
             the
             Pursuer
             had
             a
             Husband
             ,
             who
             within
             this
             Moneth
             ,
             was
             seen
             at
             Air
             ,
             and
             offered
             to
             prove
             by
             his
             Oath
             ,
             that
             he
             had
             Ceded
             the
             Possession
             ,
             being
             Warned
             ,
             and
             gave
             Warrand
             to
             the
             Defender
             to
             Enter
             ,
             and
             therefore
             ,
             he
             being
             
               Dominus
               bonorum
            
             ,
             his
             Wife
             and
             Bairns
             had
             no
             Interest
             to
             pursue
             ,
             and
             though
             they
             had
             ,
             his
             Oath
             was
             sufficient
             to
             instruct
             the
             Lawfulness
             of
             the
             Defenders
             Possession
             ,
             and
             that
             the
             Wifes
             Oath
             in
             litem
             could
             not
             be
             taken
             ,
             to
             Esteem
             her
             Husbands
             Goods
             .
             It
             was
             answered
             ,
             that
             it
             was
             notourly
             known
             ,
             that
             the
             Husband
             had
             been
             two
             years
             out
             of
             the
             Countrey
             ,
             and
             having
             gone
             to
             Sea
             ,
             was
             commonly
             repute
             dead
             ,
             and
             therefore
             the
             Wife
             being
             in
             Natural
             Possession
             ,
             might
             lawfully
             pursue
             this
             Action
             ,
             neither
             was
             it
             relevant
             that
             the
             Husband
             promised
             to
             quite
             the
             Possession
             ,
             which
             being
             but
             an
             obligation
             ,
             could
             not
             warrand
             the
             Defender
             ,
             
               brevi
               manu
            
             ,
             to
             cast
             them
             out
             ,
             unless
             he
             had
             been
             present
             ,
             or
             consented
             to
             the
             Entry
             ,
             or
             had
             given
             a
             Renunciation
             of
             his
             Possession
             ,
             with
             a
             Warrand
             to
             Enter
             
               brevi
               manu
            
             .
          
           
             The
             Lords
             ,
             in
             respect
             both
             Parties
             acknowledged
             ,
             that
             the
             Husband
             had
             been
             a
             great
             while
             absent
             ,
             found
             the
             Action
             competent
             to
             the
             Wife
             :
             and
             found
             that
             the
             Husbands
             Ceding
             the
             Possession
             ,
             as
             was
             alleadged
             was
             not
             relevant
             ,
             and
             ordained
             the
             Wifes
             Oath
             ,
             as
             to
             the
             quantity
             and
             value
             of
             the
             Goods
             Spuilzied
             ,
             to
             be
             taken
             ,
             and
             granted
             diligence
             to
             the
             Defender
             to
             Cite
             the
             Husband
             ,
             if
             they
             could
             find
             him
             ,
             to
             the
             same
             Dyet
             to
             give
             his
             Oath
             ,
             reserving
             to
             the
             Lords
             what
             the
             Wifes
             Oath
             could
             work
             ,
             as
             to
             the
             estimation
             of
             the
             Goods
             ,
             without
             the
             Husbands
             Oath
             .
          
        
         
           
             White-head
             of
             Park
             contra
             Iohn
             Stratoun
             ,
             Eodem
             die
             .
          
           
             WHite-head
             of
             Park
             pursues
             
               Iohn
               Stratoun
            
             for
             restitution
             of
             an
             Horse
             ,
             which
             he
             delivered
             to
             his
             servant
             ,
             to
             be
             put
             in
             the
             Park
             of
             Holy-roadhouse
             to
             the
             Grass
             ,
             and
             which
             now
             cannot
             be
             found
             .
             The
             Defender
             alleadged
             that
             he
             was
             lyable
             for
             no
             Loss
             or
             Hazard
             ,
             because
             at
             that
             time
             ,
             and
             long
             before
             ,
             there
             was
             a
             placad
             fixed
             upon
             the
             Port
             of
             the
             Park
             ,
             that
             he
             would
             be
             answerable
             for
             no
             Hazard
             or
             Loss
             of
             any
             Horse
             put
             in
             there
             ,
             by
             Stealling
             or
             otherwise
             ,
             which
             was
             commonly
             known
             at
             ,
             and
             long
             before
             that
             time
             .
             It
             was
             answered
             ,
             that
             this
             Action
             being
             founded
             upon
             the
             common
             ground
             of
             Law
             ,
             
               nautae
               caupones
               stabularij
               ,
               ut
               quae
               receperint
               restituunt
               ,
            
             the
             same
             cannot
             be
             taken
             away
             but
             by
             paction
             ;
             and
             the
             putting
             up
             of
             a
             placad
             is
             no
             wayes
             sufficient
             ,
             nor
             was
             it
             ever
             shown
             to
             the
             pursuer
             .
             The
             Defender
             answered
             ,
             that
             the
             Pursuer
             having
             only
             delivered
             his
             Horse
             to
             his
             Servant
             to
             be
             put
             in
             the
             Park
             ,
             without
             any
             express
             communing
             
             or
             conditions
             ,
             it
             behoved
             to
             be
             understood
             on
             such
             Terms
             as
             was
             usual
             with
             others
             ,
             which
             were
             the
             Terms
             exprest
             in
             the
             placad
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             unlesse
             there
             had
             been
             a
             special
             agreement
             ,
             in
             which
             case
             they
             found
             the
             Defender
             ,
             or
             his
             Servant
             ,
             should
             have
             showen
             what
             was
             in
             the
             placad
             .
          
        
         
           
             Executors
             of
             Isobel
             Trotter
             contra
             Trotter
             ,
             November
             20.
             1667.
             
          
           
             
               GEorge
               Trotter
            
             and
             
               Iames
               Lundy
            
             his
             Cautioner
             ,
             having
             granted
             a
             Bond
             of
             636.
             pounds
             to
             
               Iohn
               Trotter
            
             ,
             and
             the
             same
             being
             Assigned
             to
             
               Isobel
               Trotter
            
             ,
             and
             Confirmed
             by
             her
             Executors
             ,
             they
             pursue
             Lundy
             ,
             who
             alleadged
             Absovitor
             ,
             because
             he
             offered
             him
             to
             prove
             ,
             that
             the
             Bond
             was
             granted
             blank
             in
             the
             Creditors
             Name
             to
             
               Iames
               Trotter
            
             ,
             Father
             to
             the
             said
             Isobel
             ,
             who
             filled
             up
             the
             Name
             of
             
               Iohn
               Trotter
            
             (
             his
             Brother
             )
             therein
             ,
             and
             took
             an
             Assignation
             thereto
             ,
             in
             Favours
             of
             Isobel
             ,
             who
             was
             then
             in
             his
             Family
             ,
             having
             no
             Means
             of
             her
             own
             ,
             and
             therefore
             it
             is
             in
             the
             same
             case
             ,
             as
             if
             it
             were
             a
             Bond
             of
             provision
             ,
             granted
             by
             the
             Father
             to
             the
             Daughter
             ,
             or
             taken
             in
             her
             Name
             ,
             which
             may
             alwayes
             be
             discharged
             by
             the
             Father
             ,
             or
             altered
             by
             the
             Father
             at
             his
             pleasure
             ;
             and
             true
             it
             is
             that
             the
             Father
             Submitted
             the
             same
             ,
             and
             was
             Decerned
             to
             Discharge
             the
             same
             ,
             which
             is
             equivalent
             to
             a
             Discharge
             .
             It
             was
             replyed
             ,
             albeit
             Bonds
             of
             provision
             to
             Children
             be
             alterable
             by
             their
             Fathers
             before
             any
             thing
             follow
             ,
             yet
             if
             they
             be
             delivered
             to
             the
             Children
             ,
             or
             which
             is
             more
             ,
             if
             they
             be
             Registrate
             ,
             they
             become
             the
             Childrens
             proper
             Right
             ,
             and
             cannot
             be
             recalled
             ,
             
               Ita
               est
            
             ,
             this
             Bond
             though
             it
             had
             been
             blank
             ,
             
               ab
               origine
            
             ,
             it
             was
             filled
             up
             in
             
               Iohn
               Trotters
            
             Name
             ,
             and
             filled
             up
             before
             the
             Submission
             ;
             yea
             Isobel
             was
             dead
             ,
             and
             the
             Sum
             confirmed
             in
             her
             Testament
             ,
             so
             that
             her
             Father
             could
             not
             Discharge
             it
             
               proprio
               nomine
            
             ,
             or
             as
             his
             Administrator
             .
             It
             occurred
             further
             to
             the
             Lords
             ,
             that
             albeit
             the
             Bond
             was
             Registrat
             ,
             the
             Assignation
             granted
             to
             the
             Daughter
             was
             not
             Registrat
             ,
             so
             that
             if
             that
             Assignation
             remained
             still
             in
             the
             Fathers
             power
             ,
             the
             case
             would
             be
             alike
             ,
             as
             if
             it
             were
             a
             Bond
             of
             provision
             ,
             taken
             originally
             in
             the
             Daughters
             Name
             ,
             yet
             this
             not
             being
             pleaded
             by
             the
             Parties
             ;
             And
             that
             the
             Asignation
             was
             Intimat
             that
             it
             was
             not
             constant
             ,
             that
             the
             Assignation
             remained
             in
             the
             Fathers
             hands
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             in
             respect
             of
             the
             reply
             .
          
        
         
           
             Colonel
             Seatoun
             contra
             the
             Laird
             of
             Balwhilly
             ,
             November
             22.
             1667.
             
          
           
             THe
             Laird
             of
             Balwhilly
             having
             seased
             upon
             a
             Ship
             belonging
             to
             the
             Dutch
             ,
             during
             the
             War
             ,
             Colonel
             Seatoun
             ,
             Governour
             of
             the
             Fort
             at
             
               Brassie
               sound
            
             ,
             medled
             with
             the
             Ship
             and
             Loadning
             ,
             
               brevi
               manu
            
             ,
             for
             the
             use
             of
             the
             Garison
             ;
             Balwhilly
             pursues
             a
             Spuilzie
             before
             the
             Admiral
             :
             Colonel
             Seatoun
             gives
             in
             a
             Bill
             of
             Advocation
             on
             this
             Reason
             ,
             that
             Balwhilly
             having
             no
             Commission
             ,
             albeit
             he
             did
             sease
             upon
             the
             Ship
             ,
             yet
             it
             belongs
             to
             the
             King
             ,
             and
             the
             Colonel
             had
             a
             Warrand
             from
             the
             Lord
             Commissioner
             to
             Intromet
             therewith
             ,
             for
             the
             Garisons
             use
             ,
             and
             therefore
             in
             the
             Cause
             concerning
             the
             King
             ,
             His
             Majesties
             Advocat
             and
             Officers
             were
             not
             obliged
             to
             answer
             before
             the
             Admiral
             ,
             nor
             could
             they
             attend
             there
             ,
             and
             therefore
             the
             Advocation
             ought
             to
             be
             past
             .
             It
             was
             answered
             ,
             that
             the
             Reason
             was
             in
             causa
             ,
             and
             not
             relevant
             ,
             for
             the
             Advocat
             ought
             to
             have
             a
             Depute
             before
             the
             Admiral
             ,
             which
             is
             a
             Supream
             Court
             ,
             and
             Process
             maritime
             in
             the
             first
             instance
             ought
             not
             to
             be
             Sustained
             before
             the
             Lords
             ,
             and
             that
             whatever
             they
             pretended
             
             in
             the
             poynt
             of
             right
             ,
             
               Spoliatus
               est
               ante
               omnia
               restituendus
            
             .
          
           
             The
             Lords
             having
             heard
             the
             Parties
             upon
             the
             Bill
             in
             presentia
             ,
             ordained
             the
             same
             to
             be
             past
             .
          
           
             It
             was
             then
             desired
             ,
             that
             as
             before
             the
             Admiral
             ,
             the
             Colonel
             behoved
             to
             find
             caution
             ,
             not
             only
             
               judicio
               sisti
            
             ,
             but
             also
             
               judicatum
               solvi
            
             ,
             that
             he
             may
             be
             ordained
             to
             do
             the
             same
             before
             the
             Lords
             .
          
           
             Which
             the
             Lords
             refused
             ,
             but
             granted
             the
             Advocation
             in
             common
             form
             .
          
        
         
           
             Sir
             Robert
             Montgomery
             contra
             Alexander
             Rankein
             ,
             November
             23.
             1667.
             
          
           
             SIr
             
               Robert
               Montgomery
            
             having
             obtained
             Decreet
             against
             
               Antonia
               Brown
            
             ,
             as
             representing
             Sir
             
               Iohn
               Brown
            
             her
             Father
             for
             two
             thousand
             Merks
             ,
             Arrests
             the
             price
             of
             a
             chain
             due
             to
             Antonia
             ,
             in
             the
             hands
             of
             the
             Lord
             Melvil
             ,
             and
             pursues
             to
             make
             forthcoming
             ;
             Compears
             
               Alexander
               Rankein
            
             and
             produces
             a
             Decreet
             obtained
             against
             Antonia
             ,
             and
             thereupon
             an
             Arrestment
             by
             the
             Sheriff
             of
             Fifes
             Precept
             ,
             and
             a
             Decreet
             of
             the
             Sheriff
             thereupon
             ,
             in
             July
             last
             ,
             the
             Arrestment
             being
             in
             the
             same
             Moneth
             ,
             and
             craves
             preference
             ,
             because
             he
             had
             the
             first
             compleat
             Diligence
             .
             It
             was
             answered
             ,
             that
             Sir
             Robert
             having
             first
             Arrested
             in
             March
             last
             ,
             and
             first
             intented
             Processe
             thereupon
             before
             the
             Lords
             ,
             and
             having
             insisted
             therein
             the
             last
             Session
             ,
             was
             kept
             off
             by
             the
             compearance
             of
             the
             Lady
             Cullerny
             ,
             who
             also
             pretended
             Right
             to
             the
             Chain
             and
             has
             failed
             in
             no
             Diligence
             ,
             and
             therefore
             ought
             to
             be
             preferred
             to
             a
             posterior
             Arrestment
             ,
             albeit
             it
             have
             the
             first
             Decreet
             of
             an
             inferiour
             Court
             ,
             both
             Arrestment
             and
             Citation
             being
             after
             his
             ,
             for
             he
             having
             affected
             the
             Sum
             by
             an
             Arrestment
             ,
             the
             matter
             became
             litigious
             ,
             and
             no
             posterior
             Diligence
             ,
             nor
             Sentence
             of
             an
             inferiour
             Court
             could
             exclude
             him
             ,
             he
             using
             all
             Diligence
             before
             the
             Supream
             Court
             ,
             and
             not
             living
             within
             the
             Sheriffs
             Jurisdiction
             ,
             and
             the
             Sheriffs
             Decreet
             being
             only
             in
             absence
             ,
             otherwise
             no
             Process
             upon
             ,
             any
             Arrestment
             before
             the
             Lords
             can
             be
             secure
             ,
             but
             others
             may
             anticipat
             them
             ,
             by
             obtaining
             Decreets
             before
             inferiour
             Courts
             ,
             which
             are
             far
             sooner
             obtained
             .
             It
             was
             answered
             ,
             that
             it
             was
             not
             the
             Arrestment
             ,
             but
             the
             Sentence
             to
             make
             forthcoming
             ,
             that
             transmitted
             the
             Right
             ,
             as
             being
             a
             Judicial
             Assignation
             ,
             and
             therefore
             the
             first
             Decreet
             is
             preferable
             ,
             for
             as
             Poinding
             might
             have
             been
             used
             upon
             the
             Sheriffs
             Precept
             ,
             notwithstanding
             of
             a
             prior
             Arrestment
             ,
             and
             Dependance
             before
             the
             Lords
             ,
             so
             must
             the
             Sheriffs
             Decreet
             which
             is
             equivalent
             ,
             have
             the
             same
             effect
             ,
             and
             Sir
             Robert
             ought
             to
             impute
             it
             to
             himself
             ,
             that
             took
             not
             the
             shortest
             way
             in
             pursuing
             before
             the
             Sheriff
             .
          
           
             The
             Lords
             found
             the
             first
             Arrestment
             ,
             pursued
             before
             themselves
             
               sine
               mora
            
             ,
             and
             the
             first
             Citation
             preferable
             to
             a
             posterior
             Citation
             ,
             and
             Arrestment
             ,
             though
             obtaining
             the
             first
             Decreet
             ,
             and
             therefore
             preferred
             Sir
             
               Robert
               Montgomery
            
             ,
             and
             would
             not
             bring
             in
             the
             Parties
             
               pari
               passu
            
             ,
             the
             first
             Arrestment
             and
             Citation
             being
             several
             Moneths
             before
             the
             other
             .
          
        
         
           
             Lord
             Iustice
             Clerk
             contra
             the
             Laird
             of
             Lambertoun
             ,
             Eodem
             die
             .
          
           
             THe
             Lord
             Rentoun
             Justice
             Clerk
             having
             pursued
             Lambertoun
             for
             the
             Spoiling
             of
             his
             Woods
             ,
             and
             Planting
             in
             the
             beginning
             of
             the
             Troubles
             ,
             the
             Parties
             did
             agree
             ,
             that
             what
             Detriment
             of
             the
             Wood
             should
             be
             proven
             by
             Witnesses
             to
             be
             Adduced
             
               hinc
               inde
            
             ,
             the
             one
             half
             thereof
             should
             be
             payed
             by
             Lambertoun
             .
          
           
           
             The
             Lords
             granted
             Commission
             to
             five
             of
             their
             Number
             ,
             who
             Examined
             Witnesses
             upon
             the
             place
             :
             three
             of
             the
             Pursuers
             Witnesses
             proved
             the
             half
             of
             the
             Damnage
             ,
             to
             be
             eleven
             thousand
             Merks
             ,
             and
             gave
             clear
             Reasons
             of
             their
             knowledge
             ,
             two
             of
             them
             were
             used
             by
             the
             Defender
             also
             ,
             and
             two
             or
             three
             of
             the
             Defenders
             ,
             other
             Witnesses
             Deponed
             that
             the
             whole
             Damnage
             was
             about
             two
             thousand
             Merks
             ,
             and
             a
             third
             
               ex
               auditu
            
             agreed
             in
             some
             points
             .
             At
             the
             Advising
             of
             the
             Cause
             ,
             the
             question
             arose
             whether
             the
             Lords
             might
             modifie
             betwixt
             the
             two
             Extreams
             ,
             or
             if
             they
             ought
             to
             Judge
             according
             to
             any
             two
             of
             the
             highest
             Testimonies
             ,
             or
             according
             to
             the
             most
             pregnant
             Testimonies
             ,
             giving
             the
             clearest
             ground
             of
             their
             Knowledge
             .
          
           
             The
             Lords
             found
             the
             most
             pregnant
             Testimonies
             to
             be
             the
             Rule
             and
             Decerned
             ,
             according
             to
             the
             least
             ,
             that
             the
             Pursuers
             Witnesses
             did
             prove
             ,
             as
             being
             that
             wherein
             all
             did
             agree
             ,
             and
             not
             according
             to
             the
             most
             quantities
             that
             some
             proved
             .
          
        
         
           
             Mr.
             Iohn
             Hay
             of
             Haystoun
             contra
             Mr.
             Iohn
             Drummond
             ,
             and
             Patrick
             Hepburn
             ,
             November
             26.
             1667.
             
          
           
             MAster
             
               Iohn
               Hay
            
             having
             pursued
             a
             Reduction
             of
             the
             Rights
             of
             some
             Lands
             against
             Mr.
             
               Iohn
               Drummond
            
             ,
             and
             called
             for
             the
             Rights
             made
             to
             him
             by
             Umquhil
             
               Patrick
               Hepburn
            
             ,
             Mr.
             
               Iohn
               Drummond
            
             got
             three
             Terms
             to
             produce
             ,
             reserving
             his
             Defenses
             ,
             and
             at
             the
             last
             Term
             ,
             alleadged
             no
             Certification
             against
             the
             Rights
             granted
             by
             
               Patrick
               Hepburn
            
             ,
             because
             none
             to
             Represent
             
               Patrick
               Hepburn
            
             were
             called
             ,
             a
             Diligence
             was
             granted
             Incidenter
             to
             the
             Pursuer
             to
             call
             the
             Representatives
             of
             
               Patrick
               Hepburn
            
             ,
             whereupon
             he
             Cited
             
               Patrick
               Hepburn
            
             his
             eldest
             Son
             ,
             and
             appearand
             Heir
             ,
             who
             having
             gotten
             one
             very
             short
             Term
             ,
             and
             that
             circumduced
             against
             him
             .
             It
             was
             now
             alleadged
             ,
             that
             all
             the
             Terms
             ought
             to
             be
             granted
             to
             
               Patrick
               Hepburn
            
             ,
             seing
             he
             was
             a
             Party
             necessar
             ,
             to
             be
             called
             ,
             and
             his
             Rights
             were
             to
             be
             Reduced
             .
             The
             Pursuer
             answered
             ,
             that
             this
             being
             a
             single
             Reduction
             
               de
               jure
            
             ,
             there
             was
             no
             more
             due
             but
             one
             Term.
             2dly
             ,
             Albeit
             more
             were
             due
             ,
             yet
             Mr.
             
               Iohn
               Drummond
            
             having
             run
             three
             Terms
             already
             ,
             he
             can
             crave
             no
             more
             but
             one
             ,
             upon
             the
             account
             of
             
               Patrick
               Hepburn
            
             his
             Author
             .
          
           
             The
             Lords
             in
             respect
             ,
             the
             Term
             Assigned
             to
             
               Patrick
               Hepburn
            
             ,
             was
             but
             on
             six
             dayes
             ,
             allowed
             him
             a
             second
             Term
             ,
             and
             ordained
             it
             to
             be
             Intimat
             by
             the
             Ordinar
             to
             the
             Advocats
             ,
             that
             in
             single
             Reductions
             of
             Rights
             of
             Lands
             ,
             they
             would
             grant
             two
             Terms
             for
             production
             ,
             and
             in
             Reductions
             ,
             and
             Improbations
             three
             only
             .
          
        
         
           
             Captain
             Bood
             contra
             George
             Strachan
             ,
             November
             28.
             1667.
             
          
           
             CAptain
             Bood
             ,
             Captain
             of
             one
             of
             His
             Majesties
             Friggats
             ,
             pursues
             
               George
               Strachan
            
             ,
             who
             had
             Commanded
             that
             Friggat
             for
             a
             time
             ,
             and
             was
             sent
             a
             Voyage
             therewith
             ,
             from
             Brassie-found
             to
             London
             ,
             to
             restore
             a
             part
             of
             the
             Out-reick
             of
             the
             Ship
             ,
             which
             he
             had
             not
             Delivered
             ,
             but
             had
             excepted
             in
             his
             Discharge
             as
             being
             worn
             ,
             stollen
             or
             lost
             ;
             and
             now
             it
             was
             offered
             to
             be
             proven
             ,
             that
             he
             Sold
             and
             Disponed
             upon
             the
             same
             particulars
             he
             so
             reserved
             .
             The
             Defender
             alleadged
             Absolvitor
             from
             such
             particulars
             as
             he
             condescended
             upon
             ,
             because
             he
             did
             waire
             out
             a
             considerable
             Sum
             of
             Money
             ,
             fot
             Repairing
             the
             Out-rige
             ,
             and
             necessars
             to
             the
             Ship
             during
             the
             Voyage
             ,
             for
             which
             ,
             in
             case
             of
             necessity
             ,
             he
             might
             have
             Sold
             a
             part
             of
             the
             Out-rige
             .
             2dly
             ,
             Albeit
             he
             might
             not
             have
             Sold
             the
             same
             ,
             yet
             he
             may
             retain
             ,
             or
             compence
             the
             price
             thereof
             ,
             with
             what
             he
             waired
             out
             necessarly
             ,
             and
             profitably
             for
             the
             Out-rige
             of
             the
             Ship.
             3dly
             He
             offered
             him
             to
             
             prove
             ,
             that
             such
             parts
             of
             the
             Out-rige
             in
             question●
             as
             he
             should
             condescend
             upon
             ,
             were
             worne
             and
             stollen
             ,
             which
             being
             his
             Defense
             ,
             he
             ought
             to
             be
             preferred
             in
             the
             Probation
             ,
             unto
             the
             Pursuer
             ,
             who
             ought
             to
             have
             no
             other
             Probation
             against
             him
             ,
             being
             a
             Person
             Intrusted
             but
             his
             own
             Oath
             ,
             much
             less
             a
             contrair
             probation
             by
             Witnesses
             ,
             that
             they
             were
             not
             Lost
             ,
             but
             Disposed
             upon
             by
             the
             Defender
             .
          
           
             The
             Lords
             Repelled
             the
             first
             and
             second
             Defenses
             ,
             and
             found
             that
             albeit
             the
             Captain
             might
             have
             Hypothecat
             his
             Ship
             ,
             or
             Out-rige
             for
             the
             necessar
             Expences
             waired
             upon
             her
             ,
             yet
             that
             he
             could
             not
             Sell
             the
             same
             ,
             and
             that
             
               de
               facto
            
             he
             did
             not
             Sell
             the
             same
             ,
             because
             the
             Pursuer
             offered
             to
             prove
             he
             Sold
             them
             at
             Lieth
             after
             his
             Return
             ,
             and
             found
             the
             same
             probable
             by
             Witnesses
             ,
             and
             preferred
             the
             Pursuer
             in
             probation
             thereof
             ,
             and
             in
             respect
             of
             so
             unwarrantable
             a
             way
             of
             Disposing
             ,
             they
             would
             neither
             allow
             Retention
             ,
             nor
             Compensation
             ,
             but
             left
             the
             Defender
             to
             make
             his
             Application
             to
             the
             Exchequher
             for
             his
             payment
             .
          
        
         
           
             Margaret
             Pringle
             and
             her
             Spouse
             ,
             contra
             Robert
             Pringle
             of
             Stichel
             ,
             November
             29.
             1667.
             
          
           
             
               MArgaret
               Pringle
            
             pursues
             an
             Exhibition
             of
             all
             Writs
             granted
             by
             ,
             or
             to
             her
             Umquhil
             Brother
             ,
             
               ad
               deliberandum
            
             .
             It
             was
             alleadged
             no
             Process
             ,
             for
             Writs
             granted
             by
             him
             to
             Strangers
             ,
             except
             such
             as
             were
             in
             his
             Family
             conform
             to
             the
             late
             Decision
             ,
             Schaw
             of
             Sornbeg
             contra
             Tailzifare
             ,
             which
             they
             declared
             they
             would
             follow
             as
             a
             Rule
             .
             The
             Pursuer
             answered
             ,
             that
             he
             Insisted
             for
             Exhibition
             of
             such
             Writs
             as
             were
             granted
             by
             the
             Defunct
             to
             any
             person
             which
             were
             in
             his
             possession
             ,
             or
             Charter
             Chist
             the
             time
             of
             his
             Death
             .
          
           
             Which
             the
             Lords
             Sustained
             .
          
        
         
           
             Duke
             Hamiltoun
             contra
             the
             Laird
             of
             Allardine
             ,
             December
             6.
             1667.
             
          
           
             THe
             Duke
             of
             Hamiltoun
             having
             Charged
             the
             Laird
             of
             Allardine
             for
             the
             six
             Terms
             Taxation
             ,
             Imposed
             anno
             1633.
             
             He
             Suspends
             on
             this
             Reason
             ,
             that
             four
             Terms
             were
             payed
             by
             the
             Earl
             of
             Marishal
             Sheriff
             ,
             which
             must
             Exoner
             him
             ,
             and
             all
             other
             persons
             of
             the
             Shire
             ,
             and
             is
             instructed
             by
             the
             Books
             of
             the
             Clerk
             to
             the
             Taxations
             .
             It
             was
             answered
             ,
             that
             the
             Reason
             is
             not
             relevant
             ,
             because
             the
             Sheriffs
             did
             ordinarly
             Lift
             a
             part
             of
             all
             the
             six
             Terms
             ,
             and
             albeit
             the
             Sheriff
             compleated
             the
             first
             four
             ,
             yet
             he
             might
             have
             done
             it
             out
             of
             his
             own
             Money
             ,
             or
             out
             of
             the
             other
             two
             ;
             and
             so
             when
             the
             King
             Charges
             for
             the
             other
             two
             ,
             the
             Sheriffs
             Discharges
             will
             Exclude
             him
             ,
             so
             that
             he
             shall
             not
             want
             the
             first
             four
             ,
             but
             so
             much
             of
             the
             other
             two
             ,
             and
             therefore
             unless
             the
             Suspender
             can
             produce
             a
             Discharge
             of
             the
             first
             four
             ,
             the
             general
             Discharge
             granted
             to
             the
             Sheriff
             cannot
             Liberat
             him
             .
             It
             was
             answered
             ,
             that
             when
             the
             King
             or
             his
             Collector
             Charges
             ,
             the
             Collectors
             general
             Discharges
             cannot
             but
             meet
             himself
             ,
             and
             whether
             the
             Suspender
             had
             payed
             or
             not
             ,
             the
             general
             Collector
             cannot
             seek
             these
             Terms
             twice
             .
             It
             is
             true
             ,
             ●f
             the
             Sheriff
             were
             Charged
             ,
             the
             Suspender
             behoved
             to
             show
             to
             him
             his
             Discharge
             ,
             but
             the
             Earl
             of
             Marishal
             Sheriff
             ,
             could
             not
             Charge
             the
             Suspender
             for
             the
             Taxation
             of
             these
             Lands
             ,
             because
             the
             Earl
             of
             Marishal
             was
             both
             Sheriff
             ,
             and
             Heretor
             at
             that
             time
             ,
             and
             Sold
             the
             Lands
             to
             the
             Suspender
             with
             Warrandice
             .
          
           
             The
             Lords
             found
             the
             general
             Discharge
             sufficient
             to
             the
             Suspender
             ,
             against
             the
             general
             Collector
             ,
             or
             any
             authorised
             by
             him
             .
          
        
         
           
           
             Earl
             of
             Lauderdale
             and
             Iohn
             Wachop
             contra
             Major
             Biggar
             ,
             December
             7.
             1661.
             
          
           
             THe
             Earl
             of
             Lauderdale
             ,
             and
             
               Iohn
               Wachop
            
             Macer
             ,
             pursue
             a
             Reduction
             and
             Improbation
             of
             the
             Rights
             of
             the
             Lands
             of
             Hill
             ,
             against
             Major
             Biggar
             ,
             and
             craved
             Certification
             ,
             
               contra
               non
               producta
            
             .
             The
             Defender
             alleadged
             no
             Certification
             ,
             because
             he
             had
             produced
             sufficient
             Rights
             to
             exclude
             the
             Pursuers
             Title
             ,
             viz.
             Infeftments
             long
             prior
             to
             the
             Pursuers
             Right
             .
             It
             was
             answered
             ,
             that
             this
             could
             not
             stop
             the
             Certification
             ,
             unless
             the
             Defender
             would
             declare
             he
             would
             make
             use
             of
             no
             other
             Rights
             in
             this
             Instance
             ,
             otherwise
             the
             Pursuers
             behoved
             to
             Dispute
             with
             him
             upon
             every
             single
             Writ
             he
             produced
             ,
             and
             behoved
             to
             Dispute
             the
             Reasons
             of
             Reduction
             with
             him
             before
             the
             Production
             were
             closed
             .
             The
             Pursuer
             answered
             that
             his
             alleadgeance
             ,
             as
             it
             is
             proponed
             ,
             was
             alwise
             Sustained
             without
             declaring
             that
             he
             wo●ld
             make
             use
             of
             no
             more
             .
          
           
             The
             Lords
             found
             the
             Defenses
             (
             as
             proponed
             )
             relevant
             ,
             and
             ordained
             the
             ordinar
             to
             hear
             the
             Parties
             Debate
             upon
             the
             Rights
             produced
             ,
             and
             if
             these
             should
             not
             prove
             sufficient
             ,
             the
             Lords
             thought
             that
             the
             Defender
             might
             be
             forced
             at
             the
             next
             time
             to
             produce
             all
             he
             would
             make
             use
             of
             in
             this
             Cause
             ,
             that
             so
             the
             Pursuers
             were
             not
             delayed
             upon
             Disputing
             upon
             every
             single
             Writ
             .
          
        
         
           
             Earl
             of
             Cassils
             contra
             Sheriff
             of
             Galloway
             ,
             December
             10.
             1667.
             
          
           
             THe
             Earl
             of
             Cassils
             pursues
             ,
             the
             Sheriff
             of
             Galloway
             ,
             and
             the
             Tennents
             of
             Achnotor●ch
             for
             abstracted
             Multures
             ,
             and
             Insists
             on
             this
             ground
             against
             the
             Sheriff
             ,
             that
             he
             being
             Heretor
             of
             the
             Lands
             ,
             and
             Vassal
             to
             the
             Pursuer
             ,
             did
             command
             them
             to
             leave
             the
             Pursuers
             Miln
             ,
             and
             come
             to
             his
             own
             Miln
             ,
             and
             so
             was
             Liable
             .
             The
             Defender
             alleadged
             ,
             that
             this
             Member
             of
             the
             Summons
             is
             not
             relevant
             ,
             because
             any
             man
             may
             desire
             any
             persons
             he
             pleases
             ,
             to
             come
             to
             his
             Miln
             ,
             and
             there
             was
             never
             a
             pursute
             Sustained
             against
             any
             others
             then
             the
             Abstracters
             and
             not
             against
             these
             to
             whose
             Miln
             they
             came
             .
             2dly
             ,
             It
             is
             not
             Libelled
             that
             the
             Defender
             got
             a
             greater
             Duty
             upon
             the
             Tennents
             coming
             to
             his
             Miln
             ,
             and
             although
             he
             had
             ,
             it
             were
             not
             relevant
             .
             3dly
             ,
             By
             the
             Defenders
             Rights
             he
             is
             Liberat
             of
             all
             Multures
             ,
             except
             Knavship
             and
             Bannock
             ,
             which
             is
             only
             the
             Hire
             due
             to
             the
             Millers
             for
             their
             Service
             ,
             and
             there
             is
             no
             obligement
             upon
             him
             to
             cause
             his
             Tennents
             come
             to
             the
             Miln
             .
             It
             was
             answered
             ,
             the
             Pursuer
             offered
             to
             prove
             the
             Defender
             had
             gotten
             a
             greater
             Duty
             upon
             the
             Tennents
             coming
             to
             his
             miln
             ;
             and
             albeit
             the
             Astriction
             be
             only
             of
             Knavship
             and
             Bannock
             ,
             that
             is
             not
             alone
             due
             for
             the
             Millers
             service
             ,
             but
             there
             is
             a
             profit
             thence
             arising
             to
             the
             Master
             ,
             that
             the
             Sheriff
             being
             Heretor
             and
             Vassal
             ,
             albeit
             he
             be
             not
             personally
             obliged
             to
             cause
             the
             Tennents
             come
             to
             his
             Miln
             ,
             yet
             the
             Lands
             being
             Astricted
             by
             his
             Infeftment
             ,
             it
             was
             his
             fault
             to
             remove
             them
             .
          
           
             The
             Lords
             Assoilzied
             from
             that
             Member
             of
             the
             Lybel
             ,
             and
             found
             it
             not
             relevant
             against
             the
             Heretor
             ,
             but
             only
             against
             the
             Tennents
             .
          
        
         
           
             Mr.
             Rodger
             Hog
             contra
             the
             Countess
             of
             Home
             ,
             Eodem
             die
             .
          
           
             MAster
             
               Rodger
               Hog
            
             having
             Appryzed
             certain
             Lands
             from
             the
             Laird
             of
             Wauchtoun
             in
             Alcambus
             ,
             which
             were
             Sold
             to
             Wauchtoun
             by
             the
             Earl
             of
             Home
             ,
             with
             absolute
             Warrandice
             :
             Upon
             which
             Warrandice
             there
             was
             
             Inhibition
             used
             ,
             whereupon
             Mr.
             Rodger
             pursues
             Reduction
             ,
             of
             an
             Infeftment
             of
             Warrandice
             of
             these
             Lands
             ,
             granted
             by
             the
             Earl
             of
             Home
             to
             my
             Lady
             ,
             in
             Warrandice
             of
             the
             Lands
             of
             Hirsil
             ,
             and
             that
             because
             the
             said
             Infeftment
             of
             Warrandice
             is
             posterior
             to
             the
             Inhibition
             .
             The
             Defender
             alleadged
             ,
             that
             there
             could
             be
             no
             Reduction
             upon
             the
             Inhibition
             ,
             because
             therewas
             yet
             no
             Distress
             ,
             which
             with
             a
             Decreet
             of
             the
             Liquidation
             of
             the
             Distress
             ,
             behoved
             to
             preceed
             any
             Reduction
             ;
             and
             albeit
             there
             might
             be
             a
             Declarator
             ,
             that
             my
             Ladies
             Infeftment
             should
             not
             be
             prejudicial
             to
             the
             Clause
             of
             Warrandice
             ,
             or
             any
             Distress
             following
             thereupon
             ,
             yet
             there
             could
             be
             no
             Reduction
             till
             the
             Distress
             were
             Existent
             and
             Liquidat
             .
             The
             Pursuer
             answered
             ,
             that
             a
             Reduction
             upon
             an
             Inhibition
             ,
             was
             in
             effect
             a
             Declarator
             ,
             that
             the
             posterior
             Rights
             should
             not
             prejudge
             the
             Ground
             of
             the
             Inhibition
             ,
             for
             no
             Reduction
             is
             absolute
             ,
             but
             only
             in
             so
             far
             as
             the
             Rights
             Reduced
             ,
             may
             be
             prejudicial
             to
             the
             Rights
             ,
             whereupon
             the
             Reduction
             proceeds
             .
          
           
             The
             Lords
             Sustained
             the
             Reduction
             to
             take
             effect
             ,
             so
             soon
             as
             any
             Distresse
             should
             occur
             .
          
        
         
           
             Mr.
             Iames
             Straiton
             contra
             the
             Countess
             of
             Home
             ,
             Eodem
             die
             .
          
           
             MAster
             
               Iames
               Straiton
            
             Minister
             of
             Gordoun
             ,
             having
             obtained
             Decreet
             conform
             ,
             upon
             an
             old
             Locality
             ,
             Charges
             my
             Lady
             Home
             for
             payment
             ,
             who
             Suspends
             ,
             and
             alleadges
             that
             she
             must
             be
             liberat
             of
             a
             Chalder
             of
             Victual
             contained
             in
             the
             Decreet
             of
             Locality
             ,
             because
             after
             the
             said
             Decreet
             ,
             a
             part
             of
             the
             Paroch
             of
             Gordoun
             was
             dismembred
             ,
             and
             Erected
             in
             a
             new
             Paroch
             ,
             and
             the
             Earl
             of
             Home
             burdened
             with
             a
             new
             Stipend
             ,
             and
             the
             Minister
             of
             Gordoun
             Liberat
             of
             a
             great
             part
             of
             his
             Charge
             ;
             in
             consideration
             whereof
             ,
             the
             Minister
             then
             incumbent
             quite
             a
             Chalder
             of
             his
             Decreet
             of
             Locality
             ,
             and
             aquiesced
             in
             the
             rest
             without
             ever
             Demanding
             any
             more
             ,
             and
             so
             did
             his
             Successors
             ,
             now
             by
             the
             space
             of
             sixteen
             or
             twenty
             years
             .
             The
             Charger
             answered
             ,
             that
             his
             Predecessors
             forbearance
             to
             Lift
             that
             Chalder
             ,
             cannot
             instruct
             his
             Consent
             ,
             and
             though
             he
             had
             expresly
             Consented
             ,
             he
             could
             not
             prejudge
             his
             Successor
             ,
             unless
             that
             Chalder
             had
             been
             applyed
             to
             the
             new
             Kirk
             by
             Sentence
             of
             a
             Judge
             .
          
           
             The
             Lords
             found
             the
             foresaid
             Reason
             relevant
             against
             the
             Pursuer
             in
             possessorio●
             ay
             and
             while
             he
             declare
             his
             Right
             ,
             here
             it
             was
             represented
             ,
             that
             the
             Minister
             had
             a
             sufficient
             Stipend
             beside
             the
             Chalder
             in
             question
             .
          
        
         
           
             Mr.
             Rodger
             Hog
             contra
             the
             Countess
             of
             Home
             ,
             December
             ▪
             11.
             1667.
             
          
           
             MAster
             
               Rodger
               Hog
            
             Insisting
             in
             his
             Reduction
             mentioned
             yesterday
             ,
             upon
             his
             Inhibition
             the
             Countess
             of
             Home
             alleadged
             ,
             that
             she
             had
             Right
             from
             Appryzers
             ,
             who
             would
             exclude
             the
             Pursuers
             Right
             and
             Inhibition
             ,
             and
             would
             Defend
             her self
             thereupon
             ,
             and
             not
             suffer
             her
             Right
             to
             be
             Reduced
             
               ex
               capite
               Inhibitionis
            
             ,
             and
             might
             thereby
             exclude
             the
             Pursuer
             from
             any
             Interest
             .
             It
             was
             answered
             ,
             that
             the
             Reduction
             being
             only
             upon
             an
             Inhibition
             ,
             there
             are
             no
             Rights
             called
             for
             ,
             but
             Rights
             posterior
             thereto
             ,
             and
             it
             cannot
             prejudge
             any
             prior
             Right
             ,
             which
             the
             Pursuer
             is
             content
             shall
             be
             reserved
             .
          
           
             Yet
             the
             Lords
             Admitted
             the
             Defender
             to
             Defend
             upon
             any
             prior
             Right
             ,
             that
             might
             exclude
             the
             Pursuers
             Right
             .
          
        
         
           
           
             Hunter
             contra
             Wilsons
             ,
             December
             13.
             1667.
             
          
           
             HVnter
             having
             Charged
             Wi●sons
             for
             payment
             of
             500
             Merks
             ,
             contained
             in
             their
             Bond
             ,
             they
             Suspended
             on
             this
             Reason
             ,
             the
             Bonds
             bears
             expresly
             ,
             that
             the
             same
             should
             not
             be
             payed
             ,
             till
             the
             Suspender
             be
             put
             in
             Possession
             of
             a
             Tenement
             of
             Land
             in
             Glasgow
             ,
             for
             a
             part
             of
             the
             price
             whereof
             the
             Bond
             was
             granted
             ,
             
               Ita
               est
            
             ,
             they
             neither
             were
             ,
             nor
             can
             be
             put
             in
             Possession
             ,
             because
             the
             House
             was
             burnt
             in
             the
             Conflagration
             in
             Glasgow
             .
             It
             was
             answered
             
               non
               relevat
            
             ,
             because
             after
             perfecting
             the
             vendition
             
               peculium
               est
               emptoris
            
             ,
             and
             therefore
             this
             being
             an
             accidental
             Fire
             ,
             wherein
             the
             Seller
             was
             no
             wayes
             in
             culpa
             ,
             nor
             in
             mora
             ,
             in
             respect
             ,
             that
             at
             that
             time
             there
             was
             a
             Liferenter
             living
             ,
             whose
             Liferent
             was
             reserved
             in
             the
             Disposition
             .
             It
             was
             answered
             ,
             that
             albeit
             in
             some
             cases
             the
             peril
             be
             the
             Buyers
             ,
             yet
             where
             there
             is
             an
             expresse
             obligement
             ,
             that
             no
             payment
             shall
             be
             until
             Possession
             ,
             by
             that
             expresse
             Paction
             ,
             payment
             cannot
             be
             sought
             .
             It
             was
             answered
             ,
             that
             the
             Buyers
             had
             taken
             Possession
             after
             the
             burning
             ,
             and
             had
             built
             the
             House
             .
             It
             was
             answered
             ,
             that
             the
             Possession
             of
             the
             Ground
             ,
             cannot
             be
             said
             the
             Possession
             of
             the
             House
             ,
             
               Terra
               non
               est
               Domus
            
             ,
             and
             therefore
             this
             being
             but
             a
             small
             part
             of
             the
             price
             ,
             in
             such
             a
             calamitous
             Case
             ,
             the
             Suspenders
             ought
             to
             be
             Liberat
             thereof
             .
          
           
             Notwithstanding
             of
             all
             these
             Alleadgeances
             ,
             the
             Lords
             found
             the
             Letters
             orderly
             proceeded
             ;
             here
             the
             Buyer
             was
             Infeft
             before
             the
             burning
             ,
             and
             did
             voluntarly
             take
             Possession
             after
             the
             burning
             .
          
        
         
           
             Robert
             Hamiltoun
             Clerk
             ,
             contra
             Lord
             Balhaven
             ,
             December
             14.
             1667.
             
          
           
             THe
             Lord
             Balhaven
             having
             Disponed
             the
             Barony
             of
             Beill
             to
             
               Iohn
               Hamiltoun
            
             ,
             Son
             to
             
               Robert
               Hamiltoun
            
             Clerk
             ,
             reserving
             Roberts
             Liferent
             ,
             with
             power
             to
             dispose
             of
             fou●ty
             Chalders
             of
             Victual
             at
             his
             pleasure
             ,
             and
             to
             set
             Tacks
             ,
             for
             what
             time
             and
             Duty
             he
             pleases
             ,
             and
             containing
             an
             express
             Provision
             ,
             that
             it
             shall
             be
             leisum
             to
             Robert
             to
             do
             any
             Deed
             in
             Favour
             of
             my
             Lord
             Balhaven
             ,
             and
             that
             the
             Fee
             shall
             be
             burdened
             therewith
             ,
             and
             it
             is
             Provided
             ,
             that
             all
             Rights
             Robert
             shall
             Acquire
             ,
             shall
             accresce
             to
             his
             Son
             ,
             who
             is
             to
             Marry
             Balhavens
             Oye
             ,
             and
             failzying
             of
             the
             Sons
             Heirs
             ,
             mentioned
             in
             the
             Disposition
             ,
             Robert
             and
             his
             Heirs
             are
             in
             the
             last
             Termination
             .
             Thereafter
             ,
             Robert
             enters
             in
             a
             Minut
             with
             my
             Lord
             Balhaven
             ,
             by
             which
             he
             is
             obliged
             to
             Accept
             an
             hundreth
             twenty
             nine
             thousand
             Merks
             ,
             and
             therefore
             obliges
             himself
             ,
             and
             as
             taking
             burden
             for
             his
             Son
             ,
             and
             as
             Tutor
             ,
             and
             Administrator
             to
             him
             ,
             validly
             ,
             and
             sufficiently
             to
             Denude
             himself
             and
             his
             Son
             of
             their
             Rights
             ,
             to
             any
             that
             he
             should
             Nominat
             :
             but
             here
             is
             a
             Clause
             irritant
             ,
             that
             if
             Money
             ,
             or
             sufficient
             Persons
             to
             grant
             Bond
             to
             Robert
             ,
             be
             not
             delivered
             to
             Robert
             at
             Lambmass
             last
             ,
             and
             Payment
             made
             of
             the
             Money
             at
             Martinmass
             last
             ,
             that
             the
             Right
             by
             the
             Minute
             should
             expire
             
               ipso
               facto
            
             ,
             without
             Declarator
             .
             The
             Minute
             was
             put
             in
             the
             Duke
             of
             Hamiltouns
             Hand
             ,
             that
             if
             these
             Terms
             were
             not
             performed
             ,
             he
             should
             Cancel
             it
             .
             
               Robert
               Hamiltoun
            
             Pursues
             now
             a
             Declarator
             against
             Balhaven
             ,
             concluding
             that
             he
             hath
             an
             absolute
             and
             irredeemable
             Right
             to
             the
             Land
             ,
             by
             his
             first
             Disposition
             ,
             and
             Infeftment
             granted
             to
             him
             and
             his
             Son
             ,
             and
             that
             the
             Clause
             irritant
             is
             Committed
             ,
             and
             that
             thereby
             the
             Minute
             is
             null
             ,
             and
             concludes
             against
             the
             Duke
             ,
             that
             the
             Minut
             was
             put
             in
             his
             Hands
             upon
             the
             Terms
             foresaid
             ,
             and
             that
             he
             ought
             to
             Cancel
             ,
             or
             Deliver
             the
             same
             ;
             the
             Dukes
             Advocats
             suffered
             him
             to
             be
             holden
             as
             Confest
             ,
             but
             did
             not
             produce
             the
             Minute
             .
             It
             was
             alleadged
             
             for
             Balhaven
             ,
             no
             Process
             till
             the
             Minute
             were
             produced
             ,
             for
             it
             could
             not
             be
             declared
             null
             till
             it
             were
             seen
             .
             It
             was
             answered
             ,
             that
             the
             Copy
             of
             it
             was
             produced
             ,
             and
             verbatim
             insert
             in
             the
             Lybel
             ,
             and
             the
             Pursuer
             craved
             the
             Minute
             in
             the
             Terms
             Lybelled
             to
             be
             declared
             null
             ,
             without
             prejudice
             to
             any
             other
             Minute
             ,
             if
             they
             could
             pretend
             it
             .
          
           
             The
             Lords
             ordained
             Processe
             ,
             but
             ordained
             the
             Pursuer
             before
             Extract
             ,
             to
             produce
             the
             principal
             Minute
             .
          
           
             It
             was
             further
             alleadged
             for
             Balhaven
             Absolvitor
             ,
             because
             the
             Minute
             being
             mutual
             ,
             there
             could
             be
             no
             failzie
             in
             the
             Defender
             ,
             because
             the
             Pursuer
             neither
             was
             ,
             nor
             is
             able
             to
             perform
             his
             part
             of
             the
             Minute
             ,
             in
             respect
             the
             Fee
             of
             the
             Estate
             is
             in
             the
             Person
             of
             the
             Son
             ,
             who
             cannot
             be
             Denuded
             by
             any
             Deed
             of
             the
             Father
             ,
             for
             as
             Legal
             Administrator
             ,
             he
             hath
             no
             power
             ,
             neither
             can
             any
             Father
             ,
             or
             Tutor
             Denude
             a
             Pupil
             of
             their
             Fee
             ,
             but
             there
             must
             be
             interposed
             the
             Authority
             of
             the
             Lords
             in
             a
             special
             Process
             ,
             instructing
             a
             necessar
             Cause
             for
             the
             Minors
             Utility
             ,
             which
             cannot
             be
             in
             this
             Case
             ;
             and
             though
             the
             Father
             could
             Denude
             the
             Son
             ,
             as
             he
             cannot
             ,
             yet
             he
             is
             Minor
             ,
             and
             may
             Revock
             ,
             and
             yet
             it
             was
             offered
             to
             fulfil
             the
             Minut
             ,
             if
             the
             Pursuer
             would
             Secure
             the
             Defender
             against
             the
             Minors
             ,
             by
             real
             Security
             ,
             or
             good
             Caution
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defense
             ought
             to
             be
             Repelled
             ,
             because
             the
             Defender
             ,
             the
             time
             of
             the
             Minut
             ,
             knew
             his
             Right
             and
             his
             Sons
             ,
             and
             cannot
             pretend
             an
             impossibility
             to
             have
             made
             any
             such
             Minut
             upon
             a
             ground
             then
             palpable
             and
             known
             ,
             and
             yet
             contend
             to
             keep
             the
             Minut
             above
             the
             Pursuers
             head
             ,
             but
             he
             must
             either
             take
             it
             as
             it
             stands
             ,
             or
             suffer
             it
             to
             be
             declared
             void
             .
             2dly
             ,
             The
             Pursuer
             is
             in
             sufficient
             Capacity
             to
             Denude
             his
             Son
             ,
             by
             the
             foresaids
             Reservations
             contained
             in
             the
             first
             Disposition
             ,
             whereby
             he
             has
             full
             power
             to
             Dispose
             of
             fourty
             Chalders
             of
             Victual
             ,
             and
             also
             power
             to
             do
             any
             Deed
             he
             pleased
             in
             favours
             of
             Balhaven
             ,
             and
             there
             could
             be
             no
             Deed
             more
             rational
             ,
             then
             to
             give
             a
             Reversion
             of
             his
             own
             Estate
             upon
             payment
             ,
             of
             all
             that
             the
             Pursuer
             had
             payed
             to
             him
             ,
             or
             for
             him
             .
             The
             Defender
             answered
             ,
             that
             this
             general
             Clause
             cannot
             be
             understood
             to
             be
             prejudicial
             to
             the
             substance
             of
             the
             Disposition
             ,
             and
             special
             Clauses
             in
             favours
             of
             his
             Son
             ,
             and
             the
             Defenders
             Oye
             and
             their
             Successors
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             declared
             ,
             but
             of
             consent
             of
             the
             Pursuer
             ,
             superceded
             to
             Extract
             for
             a
             time
             ,
             and
             appointed
             two
             of
             their
             Number
             ,
             by
             whose
             sight
             the
             ●ursuer
             and
             his
             Son
             should
             be
             Denuded
             ,
             and
             the
             Defender
             Secured
             ,
             so
             that
             it
             came
             to
             no
             Debate
             ,
             whether
             such
             a
             Clause
             irritant
             ,
             as
             this
             in
             a
             Reversion
             of
             that
             which
             was
             truely
             Bought
             and
             Sold
             irredeemably
             before
             ,
             and
             no
             Wodset
             could
             be
             purged
             .
          
        
         
           
             Iohn
             Campbel
             contra
             Constantine
             Dougal
             ,
             Eodem
             die
             .
          
           
             
               COnstantine
               Dougal
            
             having
             granted
             a
             Bond
             to
             
               Iohn
               Houstoun
            
             ,
             bearing
             that
             Iohn
             for
             himself
             ,
             and
             as
             Administrator
             for
             his
             Son
             ,
             
               Constantine
               Campbel
            
             had
             Lent
             the
             sum
             ,
             and
             that
             the
             same
             should
             be
             payable
             to
             the
             Father
             ,
             he
             being
             on
             Life
             ,
             and
             failzieing
             him
             by
             Decease
             ,
             to
             be
             payable
             to
             Constantine
             his
             Son
             ,
             as
             being
             his
             own
             proper
             Moneys
             ,
             and
             to
             his
             Heirs
             or
             Assigneys
             .
             Constantine
             Assigns
             this
             Bond
             to
             
               Iohn
               Campbel
            
             ,
             who
             having
             pursued
             Exhibition
             thereof
             ,
             and
             it
             being
             produced
             ,
             insists
             for
             Delivery
             .
             It
             was
             alleadged
             for
             the
             Producer
             ,
             that
             it
             ought
             to
             be
             Delivered
             back
             to
             him
             ,
             because
             he
             had
             right
             thereto
             by
             Assignation
             from
             
               Iohn
               Houstoun
            
             ,
             who
             in
             effect
             was
             Feear
             of
             the
             Sum
             ,
             it
             being
             Lent
             to
             him
             ,
             and
             payable
             to
             him
             during
             his
             Life
             ,
             and
             Constantine
             his
             Son
             was
             only
             Heir
             substitute
             ,
             as
             is
             ordinarly
             interpret
             
             by
             the
             Lords
             ,
             in
             such
             Bonds
             or
             Sums
             Lent
             by
             Fathers
             to
             be
             payable
             to
             themselves
             ,
             and
             after
             their
             Decease
             to
             such
             Bairns
             .
             2dly
             ,
             The
             Father
             a●
             lawful
             Administrator
             to
             his
             Son
             ,
             might
             have
             Lifted
             the
             Sum
             in
             his
             Sons
             Minority
             ,
             and
             therefore
             he
             might
             Assign
             the
             same
             .
             The
             pursuer
             answered
             to
             the
             first
             ,
             that
             albeit
             Bonds
             for
             Money
             Lent
             by
             Parents
             ,
             payab●e
             to
             themselves
             ,
             and
             such
             Children
             after
             their
             Death
             ,
             be
             so
             interpret
             ,
             that
             the
             Fathers
             are
             Feears
             ,
             yet
             that
             is
             only
             where
             the
             Sums
             are
             the
             Parents
             own
             ,
             but
             this
             Sum
             is
             acknowledged
             to
             be
             the
             Sons
             own
             Money
             b●
             the
             Bond
             it self
             .
             2dly
             ,
             Albeit
             the
             Father
             as
             lawful
             Administrator
             might
             have
             Lifted
             the
             Sum
             ,
             yet
             cannot
             Assign
             ,
             because
             that
             is
             no
             proper
             Act
             of
             Administration
             com●●tent
             to
             Tutors
             ,
             or
             Administrators
             ,
             and
             Executors
             may
             uplift
             Sums
             ,
             and
             yet
             cannot
             Assign
             .
             The
             Defender
             answered
             to
             the
             first
             ,
             that
             the
             Money
             is
             Lent
             by
             the
             Father
             ,
             not
             only
             as
             Administrator
             ,
             but
             bears
             expresly
             for
             himself
             ,
             and
             that
             these
             words
             as
             being
             his
             own
             Money
             did
             not
             sufficiently
             prove
             that
             it
             came
             not
             from
             the
             Father
             ,
             but
             that
             after
             the
             ●athers
             Decease
             ,
             it
             would
             be
             the
             Sons
             Money
             .
             To
             the
             second
             ,
             that
             the
             conception
             of
             the
             Bond
             being
             ,
             expresly
             to
             pay
             to
             the
             Father
             ,
             warranted
             him
             to
             Assign
             ,
             and
             the
             Assign●y
             being
             his
             Procurator
             ,
             might
             Lift
             as
             well
             as
             he
             ,
             the
             same
             way
             as
             Assigneies
             can
             Lift
             during
             the
             Executors
             Life
             .
          
           
             The
             Lords
             found
             the
             conception
             of
             the
             Bond
             to
             constitute
             the
             Son
             to
             be
             Feear
             ,
             and
             that
             at
             le●st
             the
             words
             as
             being
             the
             Sons
             own
             Moneys
             ,
             presumed
             the
             same
             to
             have
             been
             so
             
               ab
               initio
            
             ,
             unless
             it
             were
             positively
             proven
             ,
             that
             the
             Money
             when
             Lent
             was
             the
             Fathers
             ,
             and
             found
             that
             the
             Fathers
             Assignation
             as
             lawful
             Administrator
             ,
             could
             not
             exclude
             the
             Son
             ,
             but
             that
             point
             whether
             the
             De●tors
             paying
             to
             the
             Fathers
             Assigney
             ,
             during
             the
             Sons
             Pupillarity
             or
             Minority
             ,
             was
             neither
             positively
             alleadged
             by
             the
             Parties
             ,
             nor
             considered
             by
             the
             Lords
             .
          
        
         
           
             Iames
             Paterson
             contra
             Homes
             ,
             December
             17.
             1667.
             
          
           
             
               JAmes
               Paterson
            
             having
             Charged
             the
             Earl
             of
             Home
             ,
             in
             anno
             1662.
             for
             payment
             of
             a
             Sum
             due
             by
             his
             Bond.
             The
             Earl
             suspended
             ,
             and
             found
             one
             Brunt-field
             Cautioner
             ,
             and
             at
             the
             foot
             of
             the
             Bond
             of
             Caution
             ,
             Home
             of
             White-●ig
             Attested
             the
             Cautioner
             ,
             in
             these
             Terms
             viz
             ,
             I
             Attest
             the
             Cautioner
             to
             be
             sufficient
             ,
             and
             subscribes
             the
             same
             ,
             which
             is
             Registrat
             with
             the
             Bond
             it self
             ,
             and
             the
             Extract
             produced
             bearing
             the
             same
             ,
             The
             Suspension
             being
             Discust
             against
             the
             Earl
             of
             Home
             ,
             and
             the
             Cautioner
             Charged
             with
             Horning
             ;
             Paterson
             pursues
             the
             Attester
             subsidiary
             for
             payment
             of
             the
             Debt
             .
             It
             was
             alleadged
             for
             the
             Defender
             Absolvitor
             ,
             because
             he
             having
             but
             Attested
             the
             Sufficiency
             of
             the
             Cautioner
             ;
             can
             be
             holden
             no
             further
             then
             a
             Witnesse
             ,
             and
             so
             can
             only
             be
             found
             lyable
             if
             his
             Testimony
             were
             found
             false
             ,
             or
             that
             
               ex
               dolo
            
             ,
             he
             had
             Attested
             a
             person
             to
             be
             sufficient
             ,
             not
             according
             to
             his
             Judgement
             ,
             but
             either
             contrair
             to
             his
             knowledge
             ,
             or
             without
             knowledge
             of
             his
             Condition
             ,
             at
             least
             his
             Attesting
             can
             only
             oblige
             him
             to
             prove
             that
             the
             Cautioner
             (
             when
             he
             Attested
             him
             )
             was
             holden
             ,
             and
             repute
             a
             person
             sufficient
             for
             the
             Sum
             ,
             and
             that
             he
             had
             a
             visible
             E●●a●e
             in
             Land
             ,
             Bond
             ,
             or
             Moveables
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Attester
             behoved
             to
             be
             lyable
             to
             him
             ,
             because
             
               ejus
               facto
            
             by
             the
             Attestation
             ,
             the
             Suspension
             was
             obtained
             ,
             and
             the
             Principal
             being
             dead
             without
             any
             to
             represent
             him
             ,
             and
             the
             Cautioner
             insolvendo
             ,
             the
             At●ester
             is
             obliged
             ,
             
               de
               jure
            
             ,
             to
             make
             up
             the
             Damnage
             falling
             out
             by
             his
             Deed.
             
          
           
             The
             Lords
             found
             the
             Alleadgeance
             for
             the
             Attester
             relevant
             ,
             viz.
             that
             the
             Cautioner
             was
             holden
             ,
             and
             repute
             sufficient
             for
             such
             a
             〈◊〉
             ,
             at
             the
             time
             of
             the
             Attest
             to
             be
             proven
             ,
             
               prout
               de
               jure
            
             .
          
        
         
           
           
             Lord
             Abercromby
             contra
             Lord
             New-wark
             ,
             Eodem
             die
             .
          
           
             THe
             Lord
             Abercromby
             having
             Sold
             to
             the
             Lord
             New-wark
             ,
             the
             Barony
             of
             St.
             Ninians
             ;
             there
             was
             a
             fitted
             Accompt
             subscribed
             by
             them
             both
             ,
             in
             anno
             1647.
             
             Containing
             the
             Sums
             payed
             by
             New-wark
             ,
             and
             at
             the
             foot
             thereof
             ,
             concluding
             thirty
             seven
             thousand
             Merks
             to
             be
             Due
             ;
             but
             there
             is
             no
             mention
             made
             of
             the
             Instructions
             in
             the
             Accompt
             ;
             the
             second
             Article
             whereof
             ,
             bears
             payed
             to
             Abercrombies
             Creditor
             30.
             thousand
             Merks
             ,
             where●
             upon
             Abercromby
             alleadges
             ,
             that
             seing
             the
             Accompt
             bears
             not
             the
             Delivery
             of
             the
             Instructions
             ,
             that
             New-wark
             at
             least
             must
             produce
             the
             Instructions
             of
             this
             Article
             which
             is
             general
             ,
             for
             the
             Bonds
             of
             these
             Creditors
             are
             yet
             above
             Abercrombies
             Head
             ,
             and
             New-wark
             makes
             use
             of
             some
             of
             them
             to
             exhaust
             the
             thirty
             seven
             thousand
             Merks
             Bond
             at
             the
             foot
             of
             the
             Accomp●●●
             It
             was
             answered
             for
             New-wark
             ,
             that
             after
             18.
             years
             time
             ,
             that
             he
             was
             not
             obliged
             to
             Compt
             again
             ;
             but
             the
             foot
             of
             the
             Accompt
             being
             subscribed
             by
             the
             Pursuer
             ,
             bea●ing
             37.
             thousand
             Merks
             to
             be
             only
             Resting
             ,
             was
             sufficient
             to
             Exoner
             him
             ,
             and
             the
             not
             mentioning
             of
             Instructions
             Delivered
             ,
             cannot
             presume
             ,
             or
             prove
             against
             him
             ,
             that
             they
             are
             in
             his
             hand
             ,
             else
             the
             Accompt
             signifies
             nothing
             ,
             and
             he
             must
             not
             only
             Instruct
             this
             Article
             ,
             but
             all
             the
             rest
             ;
             neither
             did
             he
             make
             use
             of
             any
             Bonds
             to
             exhaust
             the
             foot
             of
             the
             Accompt
             ,
             but
             such
             only
             ,
             for
             which
             Precepts
             were
             direct
             to
             him
             ,
             after
             the
             Accompt
             .
          
           
             The
             Lords
             found
             the
             Defender
             not
             lyable
             to
             Compt
             ,
             or
             produce
             the
             Instructions
             of
             any
             of
             the
             Articles
             ,
             unless
             it
             were
             proven
             by
             his
             Oath
             ,
             or
             Writ
             ,
             that
             the
             Instructions
             were
             retained
             in
             his
             hand
             .
          
        
         
           
             Iohn
             Auchinleck
             contra
             Mary
             Williamson
             and
             Patrick
             Gillespy
             ,
             December
             18.
             1667.
             
          
           
             
               MAry
               Williamson
            
             ,
             Lady
             Cumlidge
             ,
             having
             taken
             Assignation
             to
             several
             Debts
             of
             her
             Husbands
             ,
             Appryzed
             the
             Estate
             from
             her
             Son
             ;
             and
             in
             September
             ,
             1662.
             
             Dispones
             the
             Estate
             to
             her
             Eldest
             Son
             ,
             reserving
             her
             own
             Liferent
             of
             the
             Maines
             ,
             and
             Miln
             ,
             and
             with
             the
             burden
             of
             five
             thousand
             Merks
             ,
             for
             
               Iohn
               Auchinleck
            
             her
             second
             Son
             ;
             at
             the
             same
             time
             her
             eldest
             Son
             grants
             a
             Tack
             to
             
               Patrick
               Gillespy
            
             ,
             bearing
             expresly
             ,
             that
             because
             he
             was
             to
             Marry
             his
             Mother
             ,
             and
             to
             possesse
             the
             Mains
             at
             the
             next
             Term
             ,
             therefore
             he
             Sets
             the
             Land
             for
             an
             inconsiderable
             Duty
             ,
             for
             a
             year
             after
             his
             Mothers
             Death
             :
             there
             was
             no
             Contract
             of
             Marriage
             betwixt
             the
             said
             Mary
             ,
             and
             the
             said
             Patrick
             ,
             but
             they
             were
             Married
             in
             December
             thereafter
             ,
             and
             he
             possessed
             it
             till
             this
             time
             ,
             and
             now
             
               Iohn
               Auchinleck
            
             pursues
             for
             Mails
             and
             Duties
             bygone
             ,
             and
             in
             time
             coming
             ,
             as
             having
             Assignation
             ,
             to
             the
             Reservation
             granted
             by
             his
             Mother
             .
             It
             was
             alleadged
             for
             Patrick
             ,
             that
             as
             for
             bygones
             Absolvitor
             ,
             because
             he
             was
             
               bonae
               fidei
            
             Possessor
             ,
             by
             vertue
             of
             the
             Reservation
             in
             favours
             of
             his
             Wife
             ,
             belonging
             to
             him
             
               jure
               mariti
               .
               2dly
            
             ,
             The
             Assignation
             made
             to
             the
             Pursuer
             was
             most
             fraudulent
             ,
             being
             granted
             at
             the
             time
             of
             the
             Agreement
             of
             Marriage
             ,
             betwixt
             the
             said
             Patrick
             and
             his
             Wife
             ,
             and
             there
             being
             a
             Provision
             granted
             to
             the
             Pursuer
             of
             five
             thousand
             Merks
             ,
             the
             said
             Mary
             did
             most
             fraudfully
             at
             that
             same
             time
             Assigne
             the
             Reservation
             ,
             and
             so
             left
             nothing
             to
             her
             Husband
             ,
             but
             a
             woman
             past
             sixty
             years
             .
             It
             was
             answered
             ,
             that
             where
             there
             is
             a
             solemn
             Contract
             of
             Marriage
             ,
             and
             Proclamation
             ,
             Deeds
             done
             thereafter
             cannot
             
             prejudge
             the
             Husband
             ,
             but
             here
             there
             is
             neither
             Contract
             ,
             nor
             Proclamation
             alleadged
             :
             and
             albeit
             there
             had
             been
             fraud
             in
             the
             Mother
             ,
             the
             Son
             (
             being
             a
             Boy
             ,
             and
             absent
             )
             was
             no
             way
             partaker
             thereof
             ,
             and
             cannot
             be
             prejudged
             thereby
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             he
             hath
             a
             Reduction
             depending
             of
             this
             
               ex
               capite
               fraudis
            
             ,
             and
             if
             the
             Wife
             could
             do
             no
             fraudful
             Deed
             after
             the
             Agreement
             of
             Marriage
             ,
             it
             will
             thereby
             be
             null
             ,
             whether
             the
             Son
             was
             partaker
             or
             not
             ,
             unless
             he
             had
             been
             an
             Acquirer
             for
             an
             Onerous
             Cause
             ,
             and
             albeit
             there
             was
             no
             Contract
             of
             Marriage
             in
             Writ
             ,
             yet
             the
             foresaid
             Tack
             evidences
             an
             Agreement
             of
             Marriage
             .
          
           
             At
             Advising
             of
             the
             Cause
             ,
             the
             Lords
             thought
             this
             conveyance
             a
             very
             Cheat
             ,
             and
             it
             occurred
             to
             them
             that
             the
             Marriage
             ,
             and
             
               jus
               Mariti
            
             is
             a
             legal
             Assignation
             ,
             and
             there
             having
             been
             nothing
             done
             by
             the
             Son
             to
             intimat
             this
             Assignation
             ,
             or
             to
             attain
             Possession
             thereby
             before
             the
             Marriage
             ,
             the
             Husband
             by
             the
             Marriage
             had
             the
             first
             compleat
             Right
             ,
             and
             was
             therefore
             preferable
             ,
             and
             likewise
             they
             found
             the
             Husband
             free
             of
             bygones
             ,
             as
             
               bonae
               fidei
            
             Possessor
             ,
             any
             found
             that
             the
             Reason
             of
             Reduction
             upon
             fraud
             ,
             after
             the
             Agreement
             of
             the
             Marriage
             evidenced
             by
             the
             Tack
             ,
             bearing
             the
             Narrative
             of
             the
             intended
             Marriage
             of
             the
             same
             date
             ,
             with
             the
             Pursuers
             Right
             ,
             and
             the
             Disposition
             to
             the
             eldest
             Son
             relevant
             to
             Reduce
             the
             Pursuers
             Assignation
             ,
             in
             so
             far
             as
             might
             be
             prejudicial
             to
             the
             Husband
             .
          
        
         
           
             Sir
             Thomas
             Nicolson
             contra
             the
             Laird
             of
             Philorth
             ,
             Eodem
             die
             .
          
           
             UMquhil
             Sir
             
               Thomas
               Nicolson
            
             having
             pursued
             the
             Laird
             of
             Philorth
             before
             the
             late
             Judges
             ,
             as
             representing
             his
             Grand-father
             ,
             who
             was
             Cautioner
             in
             a
             Bond
             for
             the
             Earl
             Marishal
             ,
             there
             being
             an
             Interlocutor
             in
             the
             Process
             ,
             Sir
             Thomas
             dying
             ,
             his
             Son
             transfers
             the
             Process
             and
             insists
             .
             The
             Defender
             alleadged
             ,
             that
             the
             Bond
             was
             prescribed
             ,
             as
             to
             his
             Grand-father
             ,
             by
             the
             Act
             of
             Parliament
             King
             Iames
             the
             sixth
             ,
             anent
             prescription
             of
             Obligations
             ,
             bearing
             that
             if
             no
             pursute
             were
             moved
             ,
             nor
             document
             taken
             within
             40
             years
             ,
             that
             these
             Bonds
             should
             prescribe
             ;
             
               Ita
               est
            
             ,
             there
             was
             no
             pursute
             ,
             nor
             document
             against
             the
             Defenders
             Grand-father
             by
             the
             space
             of
             40.
             years
             ,
             and
             therefore
             as
             to
             him
             it
             was
             prescribed
             .
             The
             Pursuer
             answered
             ,
             that
             he
             opponed
             the
             Act
             of
             Parliament
             ,
             and
             Interloc●tor
             of
             the
             Judges
             in
             his
             favours
             ,
             and
             offered
             him
             to
             prove
             that
             the
             Annualrent
             was
             payed
             by
             the
             Principal
             Debtor
             ,
             within
             these
             40.
             years
             ,
             and
             his
             Discharge
             granted
             thereupon
             ,
             which
             was
             sufficient
             document
             ,
             and
             the
             Pursuer
             not
             having
             been
             negligent
             ,
             nor
             at
             all
             bound
             to
             pursue
             ,
             or
             seek
             the
             Cautioners
             ,
             when
             he
             got
             Annualrent
             from
             the
             Principal
             ,
             the
             Obligation
             of
             both
             stands
             entire
             .
             The
             Defender
             answered
             ,
             that
             the
             Principal
             and
             Cautioners
             being
             bound
             conjunctly
             and
             severally
             ,
             albeit
             in
             one
             Writ
             ,
             yet
             the
             Obligations
             of
             each
             of
             them
             was
             a
             distinct
             Obligation
             ,
             and
             as
             the
             Cautioner
             might
             be
             Discharged
             ,
             and
             yet
             the
             principal
             Obligation
             stand
             ,
             so
             the
             prescription
             is
             a
             legall
             Discharge
             ,
             presuming
             the
             Creditor
             past
             from
             the
             Cautioner
             ,
             seing
             he
             never
             owned
             him
             for
             40.
             years
             ,
             which
             is
             most
             favourable
             on
             the
             part
             of
             Cautioners
             ,
             who
             otherwise
             may
             remain
             under
             unknown
             Obligations
             for
             an
             hundreth
             years
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             there
             might
             have
             been
             some
             appearance
             of
             reason
             ,
             if
             the
             Persons
             obliged
             had
             been
             all
             Co-principals
             ,
             or
             bound
             by
             distinct
             Writs
             ,
             yet
             whether
             Writ
             and
             Obligation
             is
             one
             ,
             and
             the
             Cautioners
             Obligation
             thereby
             but
             accessory
             ,
             and
             the
             Creditor
             no
             way
             negligent
             ,
             there
             is
             no
             ground
             of
             such
             a
             presumption
             ,
             that
             the
             Creditor
             past
             from
             any
             Party
             obliged
             ,
             and
             the
             Obligations
             
             mentioned
             in
             the
             Act
             of
             Parliament
             ,
             is
             not
             to
             be
             meaned
             according
             to
             the
             subtility
             of
             distinction
             of
             different
             notions
             of
             Obligations
             ,
             but
             according
             to
             the
             common
             Style
             ,
             and
             meaning
             of
             Obligations
             ,
             whereby
             one
             Writ
             obliging
             Principal
             ,
             and
             Cautioners
             ,
             is
             always
             accompted
             an
             Obligation
             ,
             which
             is
             sufficiently
             preserved
             ,
             by
             payment
             obtained
             from
             the
             Principal
             .
          
           
             The
             Lords
             adhered
             to
             the
             former
             Interlocutor
             ,
             and
             repelled
             the
             Defense
             of
             prescription
             ,
             in
             respect
             of
             the
             Reply
             ,
             of
             payment
             made
             of
             the
             Annualrents
             ,
             made
             by
             the
             Principal
             .
          
        
         
           
             Robert
             D●by
             contra
             the
             Lady
             of
             Stonyhil
             ,
             Eodem
             die
             .
          
           
             THe
             Lady
             Stonyhil
             being
             Provided
             in
             Liferent
             ,
             to
             an
             Annualrent
             of
             2800.
             
             Merks
             ,
             her
             Son
             pursues
             her
             for
             an
             Aliment
             ,
             both
             upon
             the
             Act
             of
             Parliament
             ,
             in
             respect
             that
             the
             Defuncts
             Debt
             was
             equivalent
             to
             all
             the
             rest
             of
             the
             Estate
             ,
             beside
             her
             Liferent
             ,
             and
             also
             
               super
               jure
               naturae
            
             ,
             as
             being
             obliged
             to
             Aliment
             her
             Son
             ,
             he
             having
             no
             Mea●●
             ,
             and
             she
             having
             a
             plentiful
             Provision
             .
          
           
             The
             Lords
             in
             consideration
             of
             the
             newnesse
             of
             the
             Case
             ,
             and
             that
             the
             Debts
             that
             might
             exhaust
             the
             Estate
             ,
             were
             most
             part
             personal
             ,
             and
             no
             Infeftment
             thereon
             ,
             before
             or
             after
             the
             Defuncts
             death
             ,
             recommended
             to
             one
             of
             their
             Number
             to
             endeavour
             to
             agree
             the
             Parties
             .
          
        
         
           
             Adam
             Gairns
             contra
             Elizabeth
             Arthur
             ,
             December
             19.
             1667.
             
          
           
             
               ADam
               Gairns
            
             as
             Assigney
             ,
             Constitute
             by
             
               Patrick
               Hepburn
            
             ,
             pursues
             
               Elizabeth
               Arthur
            
             for
             the
             Drogs
             furnished
             to
             her
             ,
             and
             her
             Children
             at
             her
             desire
             ;
             It
             was
             alleadged
             Absolvitor
             ,
             because
             she
             was
             ,
             and
             is
             cled
             with
             a
             Husband
             ,
             and
             the
             Furniture
             could
             only
             oblige
             him
             ,
             but
             not
             her
             .
             It
             was
             Replyed
             ,
             that
             she
             had
             a
             peculiar
             Estate
             left
             by
             her
             Father
             ,
             wherefrom
             her
             Husband
             was
             secluded
             ,
             and
             which
             was
             appointed
             for
             her
             Entertainment
             ,
             that
             her
             Husband
             was
             at
             that
             time
             ,
             and
             yet
             out
             of
             the
             Countrey
             ,
             and
             hath
             no
             Means
             .
          
           
             The
             Lords
             found
             the
             Reply
             R●levant
          
        
         
           
             Arc●ibald
             Wils●n
             contra
             the
             Magistrats
             of
             Queens-ferry
             ,
             Ianuary
             2.
             1668.
             
          
           
             
               ARchibald
               Wilson
            
             being
             Elected
             on
             of
             the
             Baillies
             of
             the
             South
             Queens-ferry
             ,
             and
             being
             Charged
             to
             Accept
             ,
             and
             Exerce
             the
             Office
             ,
             Suspends
             on
             this
             Reason
             ,
             that
             by
             the
             29.
             
             Act
             ,
             Parliament
             5.
             
             King
             Iames
             the
             3.
             
             No
             Magistrate
             of
             Burgh
             is
             to
             be
             continued
             in
             Office
             longer
             then
             one
             year
             ,
             and
             by
             a
             particular
             Act
             of
             that
             Burgh
             ,
             no
             Magistrat
             is
             to
             continue
             above
             two
             years
             ;
             and
             true
             it
             is
             that
             the
             Suspender
             hath
             served
             as
             Baillie
             two
             years
             already
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Parliament
             is
             long
             since
             in
             desuetude
             ;
             and
             as
             to
             the
             Act
             of
             the
             Burgh
             ,
             the
             Election
             of
             the
             Suspender
             being
             done
             by
             them
             ,
             who
             have
             power
             to
             make
             that
             Act
             ,
             is
             in
             effect
             an
             alterationt
             hereof
             ,
             and
             this
             Burgh
             being
             poor
             ,
             and
             penury
             of
             persons
             to
             Serve
             ,
             it
             will
             dissolve
             the
             same
             ,
             and
             discourage
             all
             others
             to
             Serve
             ,
             if
             the
             Suspender
             be
             Liberat.
             
          
           
             The
             Lords
             found
             the
             Reasons
             of
             Suspension
             relevant●●
             and
             found
             that
             the
             Suspender
             could
             not
             be
             compelled
             to
             serve
             longer
             then
             one
             year
             at
             once
             in
             the
             same
             Office.
             
          
        
         
           
           
             Dow
             of
             Arnho
             contra●
             Campbel
             of
             Calder
             ,
             Ianuary
             4.
             1668.
             
          
           
             DOw
             of
             Aricho
             having
             pursued
             Campbel
             of
             Calder
             ,
             as
             Heir
             to
             his
             Father
             ,
             for
             payment
             of
             a
             Bond
             ,
             wherein
             his
             Father
             was
             Cautioner
             ,
             for
             the
             Marquess
             of
             Argyl
             ,
             the
             Bond
             bore
             but
             one
             Witnesse
             to
             Calders
             subscription
             ;
             and
             
               George
               Campbel
            
             one
             of
             the
             Witnesses
             being
             Examined
             if
             he
             saw
             him
             subscribe
             ,
             Deponed
             negative
             ,
             but
             that
             it
             was
             Calders
             hand
             Writ
             to
             the
             best
             of
             his
             knowledge
             ;
             there
             was
             also
             other
             writs
             produced
             ,
             subscribed
             by
             Calder
             ,
             to
             compare
             the
             subscriptions
             .
          
           
             The
             Lords
             would
             not
             sustain
             the
             Bond
             ,
             having
             but
             one
             Witnesse
             insert
             to
             Calders
             subscrsption
             ,
             upon
             the
             foresaid
             Testimony
             ,
             and
             Adminicles
             .
          
        
         
           
             Mr.
             Iohn
             Forbes
             contra
             Innis
             ,
             Ianuary
             1.
             1668
             :
          
           
             MAster
             
               John
               Forbes
            
             as
             Assigney
             to
             
               Margaret
               Allerdes
            
             ,
             having
             obtained
             Decreet
             of
             Removing
             against
             
               Margaret
               Innis
            
             ,
             for
             Removing
             from
             the
             Lands
             of
             Savet
             ,
             wherein
             the
             said
             
               Margaret
               Allardes
            
             is
             Infeft
             in
             Liferent
             ,
             which
             being
             suspended
             .
             It
             was
             alleadged
             ,
             first
             ,
             That
             this
             pursu●e
             is
             to
             the
             behove
             of
             
               Margaret
               Allerdes
            
             ,
             who
             could
             not
             obtain
             a
             Removing
             against
             the
             Defender
             ,
             because
             the
             Defenders
             Husband
             being
             Infeft
             ,
             by
             the
             said
             
               Margaret
               Allardes
            
             Husband
             ,
             and
             Author
             of
             the
             Lands
             of
             Savet
             principally
             ,
             and
             of
             the
             Lands
             of
             Govan
             ,
             and
             others
             in
             Warrandice
             .
             The
             said
             
               Margaret
               Allardes
            
             did
             consent
             to
             the
             Disposition
             of
             the
             Warrandice-lands
             ,
             by
             which
             she
             obliged
             her self
             to
             do
             no
             Deed
             in
             the
             contrair
             of
             that
             Right
             ,
             and
             is
             also
             bound
             in
             Warrandice
             with
             her
             Husband
             ,
             
               ita
               est
            
             her
             pursuing
             this
             Action
             is
             a
             Deed
             in
             prejudice
             of
             the
             Right
             of
             Warrandice-lands
             ,
             in
             so
             far
             as
             thereby
             the
             Person
             having
             Right
             to
             the
             principal
             Lands
             ,
             upon
             Eviction
             recurrs
             upon
             the
             Warrandice-lands
             ,
             and
             so
             the
             Consenters
             own
             Deed
             prejudges
             the
             same
             .
             It
             was
             answered
             ,
             that
             by
             Deeds
             contrair
             to
             Warrandice
             ,
             were
             only
             understood
             ,
             some
             Right
             granted
             by
             the
             Disponer
             ,
             or
             Consenter
             ,
             in
             prejudice
             of
             the
             Right
             consented
             to
             ,
             but
             no
             wayes
             a
             pursute
             upon
             any
             other
             Right
             of
             the
             Consenter
             ,
             for
             it
             were
             against
             Reason
             and
             Justice
             ,
             that
             a
             Purchaser
             ,
             to
             make
             himself
             secure
             ,
             requiring
             a
             Wifes
             consent
             to
             Lands
             to
             which
             she
             had
             no
             Right
             ,
             either
             Principal
             ,
             or
             in
             Warrandice
             of
             other
             Lands
             ,
             that
             her
             Consent
             should
             prejudge
             her
             ,
             as
             to
             her
             Liferent
             lands
             ,
             of
             which
             there
             was
             no
             mention
             ;
             and
             as
             to
             her
             Personal
             Obligement
             to
             Warrand
             the
             Lands
             wherein
             she
             was
             never
             Infeft
             ,
             it
             is
             null
             ,
             and
             can
             never
             oblige
             her
             ,
             being
             a
             Wife
             .
          
           
             The
             Lords
             found
             that
             this
             Warrandice
             did
             not
             oblige
             the
             Wife
             ,
             and
             that
             her
             Consent
             did
             not
             hinder
             her
             to
             pursue
             upon
             her
             own
             Liferent
             ,
             albeit
             
               ex
               consequente
            
             ,
             her
             pursute
             excluded
             one
             having
             a
             posterior
             Right
             to
             her
             Liferent-lands
             ,
             who
             thereupon
             had
             recourse
             to
             the
             Warrandice-lands
             ,
             to
             which
             she
             Consented
             ,
             seing
             she
             had
             granted
             no
             Right
             prejudicial
             to
             the
             Right
             Consented
             to
             .
          
           
             It
             was
             further
             alleadged
             ,
             that
             the
             said
             
               Margaret
               Allardes
            
             agreed
             with
             the
             Person
             having
             Right
             to
             her
             Liferent-lands
             ,
             principally
             that
             she
             should
             accept
             the
             Warrandice-lands
             ,
             in
             stead
             of
             her
             Liferent-lands
             ,
             which
             excambion
             putting
             the
             Right
             of
             the
             Warrandice-lands
             now
             in
             her
             Person
             ,
             she
             who
             consented
             to
             the
             Right
             thereof
             ,
             can
             never
             come
             in
             the
             contrair
             of
             her
             own
             Consent
             to
             prejudge
             the
             same
             .
             It
             was
             answered
             ,
             that
             a
             Cons●nt
             cannot
             
             exclude
             any
             supervenient
             Right
             of
             the
             Consenter
             ,
             but
             only
             such
             Rights
             as
             the
             Consenter
             had
             the
             time
             of
             the
             Consent
             ,
             it
             is
             true
             ,
             that
             a
             Disponer
             with
             absolute
             Warrandice
             ,
             if
             he
             acquire
             a
             Right
             ,
             it
             accresces
             to
             his
             Successor
             ,
             but
             it
             is
             not
             so
             in
             a
             Consenter
             ,
             whose
             warrandice
             is
             not
             found
             to
             be
             Obligator
             ,
             further
             then
             as
             to
             the
             Rights
             in
             the
             Consenters
             Person
             at
             that
             time
             .
          
           
             Which
             the
             Lords
             Sustained
             .
          
           
             It
             was
             further
             alleadged
             ,
             that
             the
             Pursute
             as
             to
             the
             behove
             of
             the
             Heir
             of
             the
             Disponer
             ,
             of
             the
             Lands
             in
             question
             ,
             whose
             Predecessor
             being
             bound
             in
             absolute
             Warrandice
             ,
             he
             can
             make
             no
             use
             of
             no
             Right
             prejudicial
             to
             his
             Warrandice
             .
             2dly
             ,
             Albeit
             he
             be
             not
             Heir
             ,
             yet
             he
             hath
             behaved
             himself
             as
             Heir
             ,
             and
             thereby
             is
             lyable
             to
             fulfil
             the
             Defuncts
             Warrandice
             ,
             and
             so
             cannot
             come
             against
             it
             .
             It
             was
             answered
             ,
             that
             behaving
             as
             Heir
             ,
             being
             a
             vitious
             passive
             Title
             ,
             is
             not
             sustainable
             by
             way
             of
             exception
             in
             this
             case
             .
          
           
             The
             Lords
             Sustained
             the
             same
             ,
             and
             found
             both
             members
             of
             the
             alleadgeance
             relevant
             .
          
        
         
           
             Margaret
             Forbes
             contra
             〈…〉
             Eodem
             die
             .
          
           
             
               MArgaret
               Forbes
            
             having
             granted
             a
             Tack
             of
             her
             Liferent-lands
             to
             〈…〉
             bearing
             expresly
             for
             payment
             of
             such
             a
             Sum
             of
             Money
             ,
             and
             bearing
             to
             endure
             for
             19.
             years
             ;
             she
             did
             receive
             a
             Back-bond
             of
             that
             same
             Date
             ,
             bearing
             ,
             that
             so
             soon
             as
             the
             Sum
             was
             payed
             ,
             the
             Tack
             should
             become
             void
             ;
             the
             Tack
             coming
             to
             a
             singular
             Successor
             ,
             she
             pursues
             him
             for
             Compt
             and
             Reckoning
             ,
             and
             Removing
             ,
             and
             insists
             upon
             the
             Tenor
             of
             the
             Tack
             ,
             and
             Back-bond
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             the
             Back-bond
             did
             not
             militat
             against
             him
             ,
             being
             a
             singular
             Successor
             ,
             neither
             being
             Registrat
             ,
             nor
             Intimat
             to
             him
             before
             his
             Right
             ,
             in
             respect
             the
             Tack
             is
             a
             real
             Right
             ,
             and
             no
             Obligement
             or
             Provision
             of
             the
             Tacks-man
             can
             prejudge
             a
             singular
             Successor
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             Sustained
             Processe
             against
             the
             Defender
             ,
             in
             respect
             of
             the
             Tack
             ,
             and
             Back-bond
             .
          
        
         
           
             The
             old
             Lady
             Clerkingtoun
             contra
             Clerkingtoun
             ,
             and
             the
             young
             Lady
             ,
             Ianuary
             9.
             1668.
             
          
           
             THe
             old
             Lady
             Clerkingtoun
             being
             Infeft
             in
             an
             Annualrent
             of
             seven
             Chalders
             of
             Victual
             ,
             out
             of
             the
             Mains
             of
             Clerkingtoun
             ,
             for
             thirty
             six
             years
             bygone
             ;
             she
             pursues
             a
             Poinding
             of
             the
             ground
             .
             It
             was
             answered
             for
             the
             Laird
             and
             his
             Mother
             ,
             that
             the
             Pursuer
             having
             been
             so
             long
             out
             of
             Possession
             ,
             cannot
             make
             use
             of
             a
             Possessory
             Judgement
             ,
             but
             must
             first
             declare
             her
             Right
             .
             2dly
             ,
             The
             young
             Lady
             is
             also
             Infeft
             in
             an
             Annualrent
             ,
             and
             hath
             been
             (
             by
             vertue
             thereof
             )
             more
             then
             seven
             years
             in
             Possession
             ,
             and
             so
             hath
             the
             benefit
             of
             a
             Possessory
             Judgement
             ,
             till
             her
             Right
             be
             reduced
             ,
             and
             cannot
             be
             Dispossest
             by
             the
             old
             Ladies
             posterior
             Infeftment
             .
          
           
             The
             Lords
             Repelled
             both
             the
             Defenses
             ,
             and
             found
             that
             an
             Annualrent
             is
             
               debitum
               fundi
            
             ,
             and
             is
             not
             excluded
             by
             Possession
             of
             a
             posterior
             Right
             ,
             and
             needs
             no
             Declarator
             ,
             and
             that
             an
             Annualrent
             hath
             not
             the
             benefit
             of
             a
             possessory
             Judgement
             ,
             against
             a
             prior
             Annualrent
             .
          
        
         
           
           
             The
             Laird
             of
             Glencorsse
             younger
             ,
             contra
             his
             Brethren
             and
             Sisters
             ,
             Ianuary
             10.
             1668.
             
          
           
             THe
             Laird
             of
             Glencorsse
             having
             Married
             his
             eldest
             Son
             ,
             and
             having
             Disponed
             to
             him
             his
             whole
             Estate
             ,
             with
             Warrandice
             after
             the
             Disposition
             ,
             he
             did
             Deliver
             certain
             Bonds
             of
             Provision
             in
             favours
             of
             his
             other
             Children
             ,
             unto
             these
             Children
             ,
             whereupon
             they
             Appryze
             the
             Lands
             Disponed
             to
             his
             Son
             :
             in
             this
             Contract
             there
             was
             a
             Liferent
             reserved
             to
             the
             Father
             ,
             and
             nine
             thousand
             Merks
             of
             Tocher
             payed
             to
             the
             Father
             .
             The
             Son
             pursues
             a
             Reduction
             of
             the
             Bairns
             Infeftment
             ,
             and
             Bonds
             ,
             in
             so
             far
             as
             might
             be
             prejudicial
             to
             the
             Disposition
             granted
             to
             him
             ,
             upon
             this
             Reason
             ,
             that
             the
             Bonds
             were
             no
             delivered
             Evidents
             before
             his
             Disposition
             .
             It
             was
             answered
             ,
             that
             they
             were
             valide
             ,
             though
             not
             Delivered
             ,
             because
             the
             Fathers
             Custody
             was
             the
             Childrens
             Custody
             ,
             especially
             they
             being
             in
             his
             Family
             ,
             both
             at
             the
             time
             of
             the
             Subscribing
             of
             the
             Bonds
             ,
             and
             of
             the
             making
             of
             this
             Disposition
             ;
             and
             it
             was
             ●ever
             contraverted
             ,
             but
             that
             Bonds
             granted
             by
             a
             Father
             to
             his
             Children
             ,
             though
             never
             Delivered
             during
             his
             Life
             ,
             but
             found
             amongst
             his
             Writs
             after
             his
             Death
             ,
             were
             valide
             both
             to
             affect
             his
             Heirs
             ,
             and
             Executors
             .
             The
             Pursuer
             answered
             ,
             that
             his
             Reason
             of
             Reduction
             stands
             yet
             relevant
             ,
             notwithstanding
             the
             answer
             ,
             because
             ,
             albeit
             it
             be
             true
             ,
             that
             Bonds
             ,
             Dispositions
             ,
             and
             Provisions
             in
             favours
             of
             Children
             are
             valide
             when
             they
             are
             Delivered
             by
             the
             Parents
             in
             their
             Life
             ,
             or
             if
             they
             have
             remained
             uncancelled
             in
             their
             Hands
             till
             their
             Death
             ,
             yet
             till
             Delivery
             ,
             or
             Death
             ,
             they
             are
             still
             pendent
             Ambulatory
             Rights
             ,
             and
             may
             always
             be
             recalled
             at
             the
             pleasure
             of
             the
             Granter
             ,
             and
             any
             Deed
             done
             by
             him
             ,
             expresly
             recalling
             them
             ,
             or
             clearly
             inferring
             his
             mind
             to
             recall
             them
             ,
             doth
             annul
             them
             before
             Delivery
             ,
             
               ita
               est
            
             ,
             the
             Pursuers
             Disposition
             bearing
             expresse
             Warrandice
             against
             all
             Deeds
             done
             ,
             or
             to
             be
             done
             by
             the
             Father
             ,
             granter
             of
             these
             Bonds
             ,
             doth
             evidently
             declare
             his
             mind
             ,
             that
             his
             purpose
             was
             not
             ,
             that
             these
             Bonds
             should
             affect
             these
             Lands
             ,
             otherwise
             he
             would
             either
             reserve
             the
             Bonds
             ,
             or
             a
             power
             to
             burden
             the
             Lands
             ,
             and
             if
             this
             were
             Sustained
             ,
             no
             Contract
             of
             Marriage
             ,
             Disponing
             the
             Fee
             to
             a
             Son
             ,
             could
             be
             secure
             ,
             it
             being
             easie
             to
             grant
             such
             Bonds
             ,
             and
             to
             keep
             them
             up
             above
             the
             Sons
             Head
             ,
             and
             therewith
             to
             affect
             the
             Fee
             ;
             yea
             ,
             it
             would
             be
             sufficient
             against
             any
             Stranger
             ,
             unlesse
             it
             were
             for
             an
             Onerous
             Cause
             .
             2kly
             ,
             There
             is
             not
             only
             a
             Revocation
             ,
             but
             these
             Provisions
             were
             no
             Debt
             of
             the
             Fathers
             ,
             prior
             to
             the
             Sons
             Disposition
             ,
             or
             Delivery
             ,
             for
             albeit
             the
             date
             be
             prior
             ,
             yet
             the
             time
             of
             their
             becoming
             a
             Debt
             ,
             is
             only
             Death
             ,
             or
             Delivery
             ,
             and
             therefore
             ,
             all
             Debt
             contracted
             ,
             or
             Deeds
             done
             by
             the
             Father
             before
             his
             Death
             ,
             or
             Delivery
             of
             the
             Bonds
             ,
             are
             prior
             as
             to
             the
             Obligation
             thereof
             ,
             to
             the
             Bonds
             ,
             so
             that
             the
             Sons
             Disposition
             is
             truly
             prior
             as
             to
             its
             Obligations
             ,
             to
             these
             Bonds
             .
             The
             Defender
             answered
             to
             the
             first
             ,
             that
             albeit
             such
             Bonds
             be
             Revocable
             before
             Delivery
             ,
             yet
             here
             there
             is
             no
             expresse
             Revocation
             ,
             but
             only
             presumption
             inserred
             ,
             from
             the
             Fathers
             giving
             a
             posterior
             Disposition
             ,
             which
             is
             no
             sufficient
             ground
             ,
             either
             ●rom
             the
             Disposition
             ,
             or
             the
             Warrandice
             ,
             for
             the
             Fathers
             mind
             might
             have
             been
             ,
             that
             he
             would
             endeavour
             (
             out
             of
             his
             Li●erent
             ,
             or
             Moveables
             )
             to
             Portion
             his
             Children
             ,
             and
             so
             would
             not
             absolutely
             Burden
             the
             Fee
             ;
             but
             yet
             in
             case
             he
             should
             Die
             ,
             or
             not
             be
             able
             to
             do
             it
             ,
             he
             would
             not
             Revock
             the
             Bonds
             ,
             even
             as
             to
             that
             Right
             ,
             which
             is
             much
             rather
             to
             be
             presumed
             ,
             as
             being
             much
             more
             rational
             ,
             and
             probable
             ,
             seing
             there
             is
             not
             any
             Provision
             ,
             or
             power
             of
             Provision
             reserved
             in
             the
             Contract
             ,
             neither
             is
             there
             any
             competent
             
             way
             alleadged
             for
             providing
             of
             three
             Children
             ,
             but
             if
             this
             Sole
             presumption
             be
             sufficient
             ,
             though
             a
             Father
             should
             Dispone
             his
             whole
             Estate
             ,
             without
             any
             Reservation
             of
             Children
             ,
             or
             to
             be
             so
             inconsiderat
             ,
             as
             not
             to
             except
             his
             Aliment
             ,
             all
             prior
             Provisions
             for
             his
             Life-rent
             (
             undelivered
             )
             should
             cease
             ,
             and
             become
             ineffectual
             ,
             contrair
             to
             that
             Natural
             obligation
             of
             Parents
             to
             provide
             their
             Children
             ,
             against
             which
             ,
             no
             presumption
             can
             be
             prevalent
             .
             As
             to
             the
             other
             ground
             ,
             Provisions
             ,
             though
             not
             Delivered
             ,
             can
             be
             in
             no
             worse
             case
             then
             Bonds
             delivered
             with
             a
             Condition
             ,
             that
             the
             Father
             might
             recall
             the
             same
             ,
             which
             would
             be
             valid
             from
             their
             Date
             ,
             if
             they
             were
             never
             actually
             recalled
             ,
             and
             so
             must
             Bonds
             of
             Provision
             be
             ,
             at
             least
             as
             to
             gratuitous
             Deeds
             after
             their
             Date
             ,
             though
             before
             Delivery
             ,
             as
             if
             a
             Father
             should
             grant
             Bonds
             of
             Provision
             to
             many
             Children
             at
             once
             ,
             and
             should
             Deliver
             some
             of
             them
             before
             the
             rest
             ,
             if
             he
             had
             not
             Means
             sufficient
             to
             pay
             all
             ,
             the
             Bonds
             first
             Delivered
             ,
             could
             not
             be
             thought
             to
             exhaust
             his
             whole
             Means
             ,
             and
             exclude
             the
             other
             Bonds
             of
             Provision
             ,
             but
             all
             would
             come
             in
             
               pari
               passu
            
             ,
             according
             to
             their
             Dates
             ,
             except
             their
             Diligence
             alter
             the
             Case
             .
          
           
             The
             Lords
             (
             notwithstanding
             of
             what
             was
             alleadged
             )
             found
             the
             Reason
             of
             Reduction
             relevant
             ,
             and
             that
             the
             undelivered
             Bonds
             of
             Provision
             ,
             though
             prior
             in
             Date
             ,
             yet
             posterior
             in
             Delivery
             ,
             could
             not
             affect
             the
             Fee
             interveening
             .
          
           
             Here
             there
             was
             much
             alleadged
             upon
             the
             Onerosity
             of
             the
             Pursuers
             Disposition
             ,
             which
             came
             not
             to
             be
             considered
             in
             the
             Decision
             .
          
        
         
           
             Grant
             contra
             Grant
             ,
             Ianuary
             11.
             1668.
             
          
           
             
               WIlliam
               Grant
            
             of
             Markinsh
             pursues
             a
             Tutor
             Compt
             ,
             against
             
               Iohn
               Grant
            
             of
             Ballandallock
             his
             Tutor
             ,
             in
             which
             these
             points
             being
             reported
             to
             the
             Lords
             ,
             whether
             the
             Tutor
             were
             lyable
             for
             the
             value
             of
             Services
             of
             the
             Pupils
             Tennents
             ,
             by
             Harrowing
             ,
             Plowing
             ,
             and
             Shearing
             ,
             &c.
             
             And
             for
             which
             the
             Tutor
             received
             no
             Money
             ,
             but
             the
             Services
             in
             kind
             .
          
           
             The
             Lords
             found
             the
             Tutor
             not
             Comptable
             therefore
             ,
             because
             he
             could
             not
             force
             the
             Tennents
             to
             pay
             any
             price
             for
             the
             same
             .
             And
             as
             to
             that
             point
             ,
             the
             Tutor
             being
             super-expended
             ,
             the
             Pupil
             might
             be
             Decerned
             upon
             the
             Pupils
             own
             Process
             ,
             against
             the
             Tutor
             ,
             without
             a
             distinct
             Process
             at
             the
             Tutor
             instance
             .
          
           
             The
             Lords
             found
             he
             might
             .
          
        
         
           
             Parkman
             contra
             Captain
             Allan
             ,
             Ianuary
             14.
             1668.
             
          
           
             CAptain
             Allan
             having
             obtained
             a
             Decreet
             against
             
               Parkman
               a
               Swede
            
             ,
             Adjudging
             his
             Ship
             Pryze
             upon
             these
             Grounds
             ,
             that
             she
             was
             Sailed
             with
             three
             persons
             of
             her
             Company
             being
             Hollanders
             ,
             and
             Danes
             ,
             being
             then
             the
             Kings
             Enemies
             ,
             and
             because
             she
             had
             carried
             of
             the
             Enemies
             Goods
             from
             Bergen
             in
             Norway
             ,
             to
             Amsterdam
             ,
             from
             whence
             ,
             having
             gone
             to
             France
             with
             Ballast
             ,
             and
             being
             Loaden
             there
             with
             Salt
             ,
             she
             did
             also
             carry
             in
             to
             France
             six
             Barrels
             of
             Tar
             ,
             which
             was
             sold
             in
             France
             ,
             as
             appears
             by
             an
             Accompt
             betwixt
             the
             ●kipper
             and
             his
             Factor
             in
             France
             ,
             bearing
             so
             much
             to
             be
             payed
             of
             the
             Kings
             and
             Towns
             Custom
             of
             the
             Tar
             ,
             which
             necessarly
             Imports
             that
             it
             was
             sold
             there
             ;
             likewise
             she
             carried
             in
             Stock-fish
             ,
             being
             Commeatus
             ,
             and
             Counterband
             Goods
             ,
             so
             that
             having
             sold
             several
             Lasts
             of
             Tar
             
             in
             Holland
             ,
             and
             these
             Barrals
             ,
             and
             Stock-fish
             in
             France
             ,
             which
             are
             clearly
             Counterband
             Goods
             ,
             and
             being
             taken
             in
             her
             return
             from
             France
             ,
             having
             in
             her
             the
             product
             of
             these
             Counterband
             Goods
             ,
             whereupon
             she
             was
             j●●tly
             declared
             Prize
             ,
             conform
             to
             the
             Lord
             Admirals
             Commission
             ,
             ordaining
             Ships
             of
             Allies
             to
             be
             taken
             ,
             having
             in
             Enemies
             Goods
             ,
             or
             Counterband
             Goods
             ,
             or
             the
             return
             of
             Counterband
             Goods
             .
             Parkman
             raised
             a
             Reduction
             of
             this
             Decreet
             ,
             on
             these
             Reasons
             ;
             first
             ,
             That
             the
             Crown
             of
             Sweden
             ,
             not
             only
             being
             an
             Allie
             to
             the
             King
             ,
             but
             having
             a
             Solemn
             Treaty
             with
             him
             ;
             in
             the
             second
             Article
             whereof
             it
             is
             specially
             agreed
             ,
             that
             the
             Subjects
             of
             Sweden
             having
             Passes
             from
             the
             Governour
             of
             the
             City
             ,
             or
             Province
             where
             they
             Louse
             ,
             or
             from
             the
             Colledge
             of
             Trade
             ,
             bearing
             that
             Faith
             had
             been
             made
             ,
             that
             the
             Ship
             ,
             men
             and
             Goods
             did
             belong
             to
             the
             Swede
             ,
             and
             none
             other
             ;
             and
             that
             they
             had
             therein
             no
             prohibit
             Goods
             ,
             that
             such
             a
             Passe
             being
             shown
             in
             any
             Ship
             ,
             there
             should
             be
             no
             further
             search
             ,
             or
             inquiry
             in
             the
             Men
             or
             Goods
             ,
             the
             like
             whereof
             is
             granted
             to
             the
             Kings
             Subjects
             ,
             either
             King
             trusting
             the
             Governours
             of
             the
             other
             in
             that
             matter
             ;
             by
             which
             Treaty
             also
             ,
             Counterband
             Goods
             are
             determined
             ,
             amongst
             which
             ,
             Tar
             or
             Stock-fish
             are
             no
             particulars
             ,
             
               ita
               est
               ,
               Parkman
            
             had
             a
             Passe
             when
             he
             Loused
             from
             Sweden
             ,
             conform
             to
             the
             Treaty
             ,
             likeas
             there
             is
             a
             second
             Passe
             sent
             over-land
             to
             him
             ,
             when
             he
             Loused
             from
             Amsterdam
             to
             France
             ,
             which
             being
             shown
             to
             Captain
             Allan
             at
             the
             seasure
             ,
             he
             ought
             not
             to
             have
             taken
             him
             ,
             or
             enquired
             any
             further
             ,
             nor
             can
             he
             now
             make
             it
             appear
             that
             Parkman
             hath
             transgrest
             the
             Treaty
             ,
             and
             as
             to
             the
             three
             Men
             of
             his
             Company
             ,
             one
             was
             hired
             in
             Denmark
             ,
             and
             two
             in
             Holland
             upon
             necessity
             ,
             so
             many
             being
             wanting
             of
             his
             necessary
             Company
             by
             Death
             ,
             or
             Absence
             there
             ,
             so
             that
             what
             he
             did
             of
             necessity
             ,
             and
             not
             to
             advance
             the
             Interest
             of
             the
             Kings
             Enemies
             ,
             can
             be
             no
             Delinquence
             .
             3dly
             ,
             Whatever
             might
             have
             been
             alleadged
             against
             him
             ,
             if
             he
             had
             been
             taken
             with
             Enemies
             Goods
             Aboard
             ,
             or
             with
             Counterband
             Goods
             ,
             which
             are
             such
             by
             the
             Swedish
             Treaty
             ,
             yet
             he
             was
             seased
             ,
             having
             none
             of
             the
             Goods
             Aboard
             ,
             nor
             the
             product
             thereof
             ,
             but
             of
             his
             Fraught
             ,
             and
             upon
             the
             accompt
             of
             his
             Owners
             in
             Sweden
             he
             could
             not
             be
             Pryze
             ,
             because
             there
             is
             nothing
             in
             the
             Treaty
             ,
             bearing
             that
             Ships
             should
             be
             Pryze
             ,
             not
             having
             actually
             in
             them
             Enemies
             Goods
             ,
             nor
             Counterband
             Goods
             ,
             but
             the
             product
             ,
             or
             return
             thereof
             ;
             neither
             doth
             it
             appear
             that
             he
             sold
             any
             Tar
             in
             France
             ,
             for
             the
             Entering
             of
             the
             Tar
             ,
             or
             paying
             Custom
             ,
             will
             not
             necessarly
             Import
             it
             was
             sold
             ,
             but
             his
             Factor
             might
             have
             unwarrantably
             put
             up
             that
             Article
             ,
             which
             being
             wholly
             inconsiderable
             he
             did
             not
             contravert
             ,
             and
             by
             the
             same
             papers
             taken
             Aboard
             ,
             it
             did
             appear
             ,
             that
             at
             his
             Lousing
             from
             France
             ,
             he
             had
             the
             same
             quantity
             of
             Tar
             ,
             which
             was
             inconsiderable
             ,
             and
             necessar
             for
             the
             use
             of
             his
             Ship
             ,
             being
             an
             old
             Ship
             ,
             and
             two
             Barrels
             was
             found
             Aboard
             when
             she
             was
             taken
             ,
             and
             some
             part
             behoved
             to
             be
             allowed
             for
             the
             use
             of
             the
             Ship
             ,
             so
             that
             at
             most
             there
             could
             be
             but
             one
             or
             two
             small
             Barrals
             of
             Tar
             sold
             ,
             which
             is
             inconsiderable
             ,
             and
             could
             be
             no
             ground
             for
             declaring
             an
             Allie
             Pryze
             ,
             
               nam
               de
               minimis
               non
               curat
               lex
               ,
            
             and
             as
             to
             the
             Stock-fish
             ,
             or
             any
             Commeatus
             ,
             or
             Provision
             ,
             
               quae
               habent
               promiscuum
               usum
               in
               bello
               &
               pace
               ,
            
             they
             are
             only
             Counterband
             ,
             when
             they
             are
             carried
             in
             to
             relieve
             a
             beseiged
             place
             ,
             or
             to
             these
             that
             could
             not
             subsist
             without
             them
             ,
             according
             to
             the
             Reason
             and
             Opinion
             of
             
               Grot●us
               de
               jure
               belli
               ,
               lib.
               2.
               cap.
               de
               his
               quae
               in
               bello
               licent
               .
            
          
           
             It
             was
             answered
             for
             Captain
             Allan
             ,
             that
             the
             Reasons
             of
             Reduction
             ought
             to
             be
             Repelled
             ,
             because
             albeit
             Parkman
             got
             a
             Passe
             from
             Sweder
             ,
             conform
             to
             the
             Treaty
             ,
             and
             according
             thereto
             came
             from
             Sweden
             to
             Denmark
             ,
             in
             which
             Passage
             he
             was
             not
             challenged
             ,
             but
             having
             engadged
             in
             Denmark
             to
             serve
             
             the
             Danes
             ,
             then
             the
             Kings
             Enemies
             ,
             he
             did
             unquestionably
             carry
             
               merces
               hostium
            
             ,
             from
             Denmark
             to
             Holland
             ,
             and
             eight
             or
             nine
             Last
             of
             Tar
             ,
             which
             is
             Counterband
             ,
             beside
             the
             six
             Barrels
             of
             Tar
             carried
             from
             Holland
             to
             France
             ,
             and
             Entered
             ,
             and
             sold
             there
             ,
             and
             the
             Stock-fish
             ,
             and
             albeit
             Tar
             be
             not
             enumerat
             as
             Counterband
             in
             the
             Swedish
             Treaty
             ,
             yet
             it
             is
             comprehended
             in
             the
             general
             Clause
             of
             
               alia
               instrumenta
               bellica
            
             ,
             for
             there
             is
             no
             more
             eminent
             Instrument
             of
             War
             ,
             not
             only
             for
             shipping
             ,
             but
             for
             all
             Engines
             of
             War
             ,
             and
             suppose
             that
             (
             by
             the
             Swedish
             Treaty
             )
             Tar
             were
             not
             Counterband
             ,
             yet
             that
             Treaty
             can
             be
             only
             extended
             to
             the
             Subjects
             of
             Sweden
             ;
             Trading
             to
             and
             from
             Sweden
             ,
             but
             not
             to
             Warrand
             them
             to
             carry
             these
             things
             (
             which
             
               de
               jure
               communi
            
             ,
             are
             Counterband
             )
             from
             any
             other
             Countrey
             then
             their
             own
             ,
             to
             the
             Kings
             Enemies
             ,
             so
             to
             partake
             with
             the
             Kings
             Enemies
             to
             his
             Detriment
             .
             And
             as
             to
             the
             second
             Passe
             send
             to
             Holland
             ,
             it
             is
             no
             ways
             conform
             to
             the
             Treaty
             ,
             but
             is
             most
             grosse
             and
             inconsistent
             ,
             bearing
             not
             only
             the
             Ship
             to
             belong
             to
             the
             Swedes
             ,
             but
             also
             all
             the
             Goods
             input
             ,
             or
             to
             be
             input
             in
             her
             to
             belong
             to
             them
             ,
             and
             to
             be
             free
             Goods
             ,
             without
             expressing
             any
             particular
             :
             as
             to
             the
             return
             of
             Enemies
             Goods
             ,
             or
             Counterband
             Goods
             ,
             that
             it
             is
             a
             ground
             of
             seasure
             ,
             being
             the
             immediat
             return
             ,
             and
             the
             Captains
             Commission
             granted
             by
             the
             Admiral
             ,
             bearing
             so
             much
             expresly
             ,
             and
             the
             Instructions
             given
             by
             the
             Council
             in
             a
             former
             War
             ,
             anno
             1624.
             which
             were
             sufficient
             Warrand
             for
             the
             Captain
             to
             sease
             ,
             and
             are
             founded
             upon
             evident
             Reason
             ,
             viz.
             That
             the
             Kings
             Allies
             are
             Neuters
             ,
             having
             assist
             his
             Enemies
             with
             Counterband
             Goods
             ,
             it
             is
             a
             Delinquence
             deserving
             that
             the
             Delinquent
             should
             be
             seased
             as
             an
             Enemie
             at
             any
             time
             ,
             and
             yet
             the
             Kings
             Commission
             hath
             mitigat
             it
             ,
             only
             to
             be
             in
             the
             return
             of
             that
             same
             Voyage
             ,
             wherein
             the
             Counterband
             Goods
             were
             carried
             ,
             for
             if
             an
             Allies
             Ship
             having
             Counterband
             Aboard
             ,
             were
             taken
             in
             her
             Voyage
             to
             an
             Enemies
             Port
             ,
             she
             might
             more
             reasonably
             pretend
             that
             intention
             was
             alterable
             ,
             and
             no
             Crime
             until
             actually
             she
             had
             Disloaded
             in
             the
             Enemies
             Port
             ,
             but
             could
             have
             no
             pretence
             if
             she
             were
             waited
             till
             immediatly
             after
             she
             came
             out
             of
             the
             Port
             ,
             although
             then
             the
             Enemies
             Goods
             ,
             or
             Counterband
             Goods
             were
             not
             Aboard
             .
          
           
             The
             Lords
             upon
             a
             part
             of
             this
             Debate
             ,
             having
             formerly
             written
             to
             my
             Lord
             Secretary
             ,
             to
             know
             the
             Kings
             mind
             whether
             the
             Swedes
             ,
             by
             their
             Treaty
             ,
             might
             carry
             from
             other
             Countreys
             ,
             that
             which
             was
             
               de
               jure
               communi
            
             Counterband
             ,
             albeit
             not
             Counterband
             by
             their
             Treaty
             ,
             his
             Majesties
             answer
             was
             negative
             ,
             whereupon
             the
             Lords
             proceeded
             to
             consider
             whether
             Tar
             was
             Counterband
             ,
             
               de
               jure
               communi
            
             ,
             they
             found
             it
             was
             ,
             but
             did
             not
             find
             the
             Stock-fish
             Counterband
             ,
             except
             in
             the
             case
             of
             a
             siege
             ,
             to
             which
             point
             Secretary
             Morish
             Letter
             was
             produced
             ,
             in
             relation
             to
             the
             Custom
             of
             England
             ,
             and
             having
             also
             considered
             the
             Proclmation
             of
             War
             ,
             in
             which
             there
             is
             no
             mention
             of
             returns
             ,
             but
             only
             a
             Warrand
             to
             sease
             Ships
             belonging
             to
             Enemies
             ,
             having
             in
             them
             Enemies
             Goods
             ,
             or
             Counterband
             Goods
             ,
             and
             having
             also
             considered
             the
             Admirals
             Commission
             ,
             which
             extends
             only
             to
             the
             return
             of
             Counterband
             Goods
             ,
             and
             not
             to
             the
             return
             of
             Enemies
             Goods
             ;
             and
             it
             being
             offered
             to
             be
             proven
             positive
             ,
             that
             by
             the
             Custom
             of
             England
             ,
             no
             seasure
             is
             sustained
             upon
             returns
             ,
             but
             only
             when
             Enemies
             Goods
             or
             Counterband
             are
             actually
             taken
             Aboard
             ;
             they
             were
             unclear
             whether
             seasure
             should
             be
             sustained
             in
             any
             other
             case
             upon
             returns
             ,
             and
             therefore
             ordered
             an
             other
             Letter
             to
             be
             written
             to
             the
             Secretary
             ,
             to
             know
             the
             Kings
             Mind
             ,
             and
             the
             Custom
             of
             England
             in
             that
             point
             before
             answer
             ,
             and
             ordained
             the
             opinion
             of
             some
             Merchants
             to
             be
             taken
             ,
             whether
             Parkmans
             Ship
             Fraught
             in
             Norway
             to
             Holland
             ,
             and
             Disloaden
             there
             ,
             and
             thence
             going
             to
             
             France
             with
             Ballast
             ,
             not
             upon
             the
             account
             of
             the
             former
             Fraught
             ,
             but
             the
             Owners
             ,
             if
             it
             should
             be
             accounted
             one
             Voyage
             ,
             or
             two
             ,
             so
             that
             the
             return
             from
             France
             ,
             might
             be
             accounted
             the
             immediat
             return
             of
             the
             Voyage
             to
             Holland
             .
          
           
             In
             this
             Processe
             the
             Lords
             ,
             by
             a
             former
             Interlocutor
             ,
             had
             found
             the
             taking
             on
             of
             the
             Men
             ,
             as
             they
             were
             qualified
             and
             proven
             ,
             to
             be
             no
             ground
             of
             seasure
             .
          
        
         
           
             Dowgal
             Mcferson
             contra
             Alexander
             Wedderburn
             ,
             Eodem
             die
             .
          
           
             
               DOwgal
               Mcferson
            
             having
             Charged
             
               Alexander
               Wedderburn
            
             of
             Kingennie
             ,
             Provost
             of
             Dundee
             ,
             for
             payment
             of
             a
             Sum
             of
             Money
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Sum
             was
             payable
             to
             Dowgal
             and
             his
             Wise
             in
             Liferent
             ,
             and
             contained
             a
             Clause
             of
             premonition
             ,
             and
             Requisition
             ,
             and
             the
             Sum
             to
             be
             Consigned
             in
             the
             Hands
             of
             the
             Dean
             of
             Gild
             of
             Dundee
             ,
             which
             was
             Consigned
             accordingly
             .
             The
             Charger
             answered
             ,
             that
             he
             offered
             to
             prove
             by
             the
             Suspenders
             Oath
             ,
             that
             he
             took
             up
             the
             Money
             from
             the
             Dean
             of
             Gild
             ,
             and
             therefore
             he
             must
             re-produce
             the
             same
             ,
             with
             the
             Annualrents
             thereof
             since
             the
             Consignation
             .
             It
             was
             answered
             ,
             that
             it
             being
             the
             Chargers
             fault
             ,
             that
             the
             Suspender
             was
             put
             to
             Consigne
             ,
             because
             he
             had
             not
             a
             Discharge
             granted
             by
             his
             Wife
             judicially
             ,
             that
             therefore
             he
             could
             not
             be
             lyable
             for
             Annualrent
             ,
             in
             that
             he
             uplifted
             the
             Soum
             ,
             unlesse
             it
             were
             proven
             he
             had
             made
             Profit
             thereof
             ,
             but
             he
             offered
             to
             Depone
             ,
             that
             he
             had
             all
             the
             Money
             still
             lying
             by
             him
             ,
             and
             got
             no
             Profit
             of
             the
             same
             ,
             and
             that
             he
             ought
             to
             have
             uplifted
             ,
             in
             regard
             he
             was
             lyable
             for
             the
             hazard
             of
             the
             Consignation
             .
          
           
             The
             Lords
             found
             the
             Suspender
             lyable
             to
             produce
             the
             Money
             Consigned
             ,
             with
             the
             Annualrent
             since
             ,
             seing
             he
             uplifted
             the
             same
             without
             difference
             ,
             whether
             he
             made
             Profit
             or
             not
             .
          
        
         
           
             The
             Baillie
             of
             the
             Regality
             of
             Killimure
             contra
             Burgh
             of
             Killimure
             ,
             Eodem
             die
             .
          
           
             THe
             Heretable
             Baillie
             of
             the
             Regality
             of
             Killimure
             having
             Conveened
             ,
             and
             Amerciat
             a
             Person
             in
             the
             Burgh
             ,
             they
             Suspend
             on
             this
             Reason
             ,
             that
             the
             Burgh
             being
             a
             Burgh
             of
             Regality
             ,
             having
             its
             own
             Magistrats
             Inhabitants
             ,
             are
             only
             lyable
             to
             the
             Jurisdiction
             .
             It
             was
             answered
             ,
             that
             the
             Burghs
             Jurisdiction
             being
             granted
             by
             the
             Lord
             of
             Regality
             ,
             is
             only
             cumulative
             ,
             and
             not
             exclusive
             of
             the
             Lord
             of
             Regality
             ,
             or
             his
             Baillie
             ,
             in
             the
             same
             way
             ,
             as
             the
             Jurisdiction
             of
             all
             Vassals
             is
             not
             exclusive
             of
             their
             Superiors
             Jurisdiction
             ,
             for
             the
             Burgh
             are
             Vassals
             Holding
             of
             him
             ,
             and
             therefore
             
               est
               locus
               preventioni
            
             ,
             and
             the
             first
             Citation
             ,
             without
             negligence
             ,
             is
             preferable
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Earl
             of
             Argyle
             contra
             George
             Campbel
             ,
             Ianuary
             15.
             1668.
             
          
           
             THe
             Earl
             of
             Argyle
             pursues
             
               George
               Campbel
            
             ,
             to
             Remove
             from
             a
             Tenement
             of
             Land
             in
             Inerera
             ,
             who
             alleadged
             no
             Processe
             ,
             because
             the
             Pursuer
             produces
             no
             Infeftment
             of
             this
             Burgh
             ,
             or
             Tenement
             therein
             .
             The
             Pursuer
             answered
             ,
             that
             he
             produced
             his
             Infeftment
             of
             the
             Barony
             of
             Lochow
             ,
             and
             offered
             him
             to
             prove
             ,
             that
             this
             is
             part
             and
             pertinent
             
             of
             the
             Barony
             .
             The
             Defender
             answered
             ,
             that
             this
             Burgh
             cannot
             be
             carried
             as
             part
             and
             pertinent
             ,
             but
             requires
             a
             special
             Infeftment
             .
             first
             ,
             Because
             by
             the
             late
             Marquess
             of
             Argyls
             Infeftment
             ,
             in
             anno
             1610.
             produced
             ,
             this
             Burgh
             is
             exprest
             ,
             and
             not
             in
             the
             Pursuers
             Infeftment
             .
             2dly
             ,
             Because
             in
             the
             Pursuers
             Infeftment
             ,
             there
             is
             exprest
             particulars
             of
             far
             lesse
             moment
             .
             3dly
             ,
             Because
             a
             Burgh
             of
             Barony
             is
             of
             that
             nature
             ,
             that
             cannot
             be
             convoyed
             without
             special
             Infeftment
             .
             The
             Pursuer
             opponed
             his
             Infeftment
             of
             the
             Barony
             of
             Lochow
             ,
             which
             is
             
               nomen
               universitatis
            
             ,
             and
             comprehends
             all
             parts
             of
             the
             Barony
             ,
             although
             there
             were
             none
             exprest
             ,
             and
             therefore
             the
             expressing
             of
             this
             particular
             in
             a
             former
             Charter
             ,
             or
             lesse
             particulars
             in
             this
             Charter
             derogat
             nothing
             ,
             it
             being
             in
             the
             Pursuers
             option
             to
             expresse
             none
             ,
             or
             any
             he
             pleases
             ;
             and
             albeit
             in
             an
             Infeftment
             of
             an
             ordinary
             Holding
             ,
             without
             Erection
             in
             a
             Barony
             ,
             Milns
             ,
             Fortalices
             ,
             Salmond
             Fishings
             ,
             and
             Burghs
             of
             Barony
             cannot
             be
             conveyed
             under
             the
             name
             of
             part
             and
             pertinent
             ,
             yet
             they
             are
             all
             carried
             in
             baronia
             ,
             without
             being
             exprest
             .
          
           
             The
             Lords
             Repelled
             the
             Defence
             in
             respect
             of
             the
             Reply
             ,
             and
             found
             that
             this
             being
             a
             Barony
             ,
             might
             carry
             a
             Burgh
             of
             Barony
             ,
             as
             part
             and
             pertinent
             ,
             though
             not
             exprest
             ,
             albeit
             it
             was
             exprest
             in
             a
             former
             Infeftment
             ,
             and
             lesser
             Rights
             expressed
             in
             this
             Infeftment
             .
          
           
             The
             Defender
             further
             alleadged
             no
             Processe
             ,
             because
             the
             Pursuers
             Infeftment
             is
             qualified
             ,
             and
             restricted
             to
             so
             much
             of
             the
             Estate
             ,
             as
             was
             worth
             ,
             and
             payed
             yearly
             fifteen
             thousand
             Pounds
             ,
             and
             the
             superplus
             belongs
             to
             the
             Creditors
             ,
             conform
             to
             the
             Kings
             Gift
             ,
             likeas
             the
             King
             granted
             a
             Commission
             to
             clear
             the
             Rental
             ,
             and
             Set
             out
             the
             Lands
             to
             the
             Pursuer
             ,
             and
             to
             the
             Creditors
             ,
             who
             accordingly
             did
             Establish
             a
             Rental
             ,
             wherein
             there
             is
             no
             mention
             of
             the
             Lands
             of
             Innerera
             ,
             and
             therefore
             they
             cannot
             belong
             to
             the
             Pursuer
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             he
             oppones
             his
             Infeftment
             ,
             which
             is
             of
             the
             whole
             Estate
             ,
             and
             whatever
             Reservation
             be
             in
             Favours
             of
             the
             Creditors
             ,
             it
             is
             
               jus
               tertij
            
             to
             the
             Defender
             .
             It
             was
             answered
             ,
             that
             the
             Defenders
             Advocats
             concurred
             for
             a
             number
             of
             the
             Creditors
             ,
             whom
             they
             named
             ,
             and
             alleadged
             that
             they
             would
             not
             suffer
             the
             Defender
             to
             be
             Removed
             ,
             seing
             they
             only
             can
             have
             Interest
             to
             these
             Lands
             in
             question
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Creditors
             Concourse
             or
             Interest
             was
             not
             Relevant
             ,
             because
             they
             have
             no
             Real
             Right
             or
             Infeftment
             ,
             but
             only
             a
             personal
             Provision
             ,
             that
             this
             Pursuer
             shall
             dispone
             ,
             and
             Resigne
             the
             superplus
             of
             the
             Estate
             in
             their
             Favours
             ,
             or
             otherwise
             pay
             them
             eighteen
             years
             purchase
             therefore
             at
             his
             option
             ,
             whensoever
             they
             shall
             insist
             
               Via
               actionis
            
             ,
             the
             Earl
             shall
             declare
             his
             option
             ,
             but
             they
             having
             no
             Infeftment
             cannot
             hinder
             the
             Donatar
             to
             Remove
             ,
             Parties
             having
             no
             Right
             ,
             which
             is
             the
             Creditors
             advantage
             ,
             and
             cannot
             be
             stopped
             by
             a
             Few
             of
             them
             ,
             likeas
             the
             whole
             Barony
             of
             Lochow
             is
             Set
             out
             by
             the
             said
             Commission
             ,
             to
             the
             Pursuer
             himself
             ,
             conform
             to
             their
             Sentence
             produced
             .
          
           
             The
             Lords
             did
             also
             Repel
             this
             Defence
             ,
             and
             found
             that
             the
             Provision
             in
             Favours
             of
             the
             Creditors
             ,
             could
             not
             stop
             this
             Removing
             .
          
        
         
           
             Earl
             of
             Kinghorn
             contra
             the
             Laird
             of
             Vdney
             ,
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Kinghorn
             pursues
             the
             Laird
             of
             Vdney
             ,
             as
             representing
             his
             Father
             ,
             to
             Denude
             himself
             of
             a
             Wodset
             Right
             ,
             granted
             by
             the
             late
             Earl
             to
             the
             Defenders
             Father
             ,
             conform
             to
             the
             Defuncts
             Missive
             Letter
             ,
             acknowledging
             the
             Receipt
             of
             the
             Sums
             of
             the
             Wodset
             ,
             and
             obliging
             himself
             
             all
             written
             with
             his
             own
             Hand
             ,
             and
             craved
             that
             the
             Defender
             might
             Enter
             ,
             and
             Infeft●
             himself
             in
             the
             Wodset
             ,
             and
             Resigne
             in
             Favours
             of
             the
             Pursuer
             ,
             that
             the
             Lands
             might
             be
             purged
             thereof
             ,
             and
             insisted
             against
             the
             Defender
             ▪
             first
             ,
             As
             lawfully
             Charged
             to
             enter
             Heir
             ,
             who
             offered
             to
             Renunce
             to
             be
             Heir
             .
             The
             Pursuer
             answered
             ,
             he
             would
             not
             suffer
             him
             to
             Renunce
             ,
             because
             he
             offered
             him●
             to
             prove
             that
             he
             was
             lucrative
             Successor
             by
             the
             Disposition
             of
             the
             Lands
             of
             Vdney
             ,
             whereunto
             their
             is
             an
             expresse
             Reservation
             in
             Favours
             of
             his
             Father
             ,
             to
             Dispone
             ,
             Wodset
             ,
             and
             grant
             Tacks
             ,
             and
             therefore
             any
             Deed
             done
             by
             his
             Father
             ,
             behoved
             to
             affect
             him
             ,
             at
             least
             the
             Fee
             of
             the
             Estate
             ;
             so
             that
             albeit
             this
             Letter
             be
             posterior
             to
             the
             Disposition
             of
             the
             Estate
             ,
             it
             must
             Burden
             the
             same
             ,
             and
             the
             Defender
             
               quoad
               valorem
               .
               2dly
            
             ,
             The
             Letter
             produced
             ,
             acknowledges
             a
             Wodset
             ,
             and
             payment
             made
             ,
             and
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Letter
             was
             anterior
             to
             the
             Disposition
             of
             Vdney
             ,
             so
             that
             by
             the
             Receipt
             of
             the
             Wodset
             Sums
             ,
             the
             Defunct
             was
             (
             by
             the
             Nature
             ,
             and
             Tenor
             of
             the
             Rights
             of
             Wodset
             )
             obliged
             to
             Resign
             in
             Favour
             of
             the
             Pursuer
             ,
             and
             therefore
             the
             Defender
             Succeeding
             to
             him
             by
             this
             Disposition
             ,
             after
             that
             obligement
             ,
             to
             Denude
             himself
             ▪
             upon
             payment
             is
             obliged
             as
             Successor
             ,
             
               titulo
               lucrativo
               post
               contractum
               debitum
            
             ,
             to
             Denude
             himself
             ,
             and
             that
             the
             Wodset
             was
             prior
             to
             the
             Disposition
             of
             Vdney
             ,
             was
             offered
             to
             be
             proven
             .
             The
             Defender
             answered
             ,
             that
             the
             provisions
             in
             his
             Infeftment
             could
             never
             affect
             him
             ,
             nor
             the
             Estate
             ,
             because
             there
             was
             nothing
             in
             the
             provision
             ,
             that
             the
             Estate
             should
             be
             lyable
             to
             the
             Debts
             contracted
             by
             the
             Defunct
             thereafter
             ,
             but
             only
             that
             he
             might
             Dispone
             ,
             or
             Wodset
             ,
             or
             Redeem
             for
             an
             Angel
             ,
             and
             it
             cannot
             be
             subsumed
             ,
             that
             the
             Letter
             produced
             doth
             import
             any
             of
             these
             ,
             but
             at
             most
             a
             personal
             obligement
             .
             2dly
             ,
             Albeit
             it
             were
             notour
             ,
             that
             there
             had
             been
             such
             a
             Wodset
             before
             the
             Defenders
             Disposition
             of
             his
             proper
             Estate
             ,
             yet
             it
             behoved
             to
             be
             also
             instructed
             ,
             that
             it
             was
             payed
             before
             that
             Disposition
             ,
             but
             his
             Fathers
             Missive
             after
             his
             Disposition
             ,
             could
             never
             instruct
             that
             it
             was
             payed
             ,
             or
             payed
             before
             ,
             and
             yet
             the
             Defender
             offered
             to
             Renunce
             all
             Right
             he
             had
             to
             the
             Wodset
             Lands
             ,
             or
             to
             suffer
             an
             Certification
             ,
             and
             Improbation
             to
             passe
             against
             the
             same
             ,
             seing
             they
             are
             not
             extant
             or
             produced
             ,
             or
             to
             consent
             that
             the
             Lords
             would
             declare
             upon
             the
             Letter
             ,
             that
             the
             Wodset
             thereby
             was
             Redeemed
             ,
             and
             Extinct
             ,
             which
             last
             the
             Pursuer
             would
             have
             accepted
             ,
             providing
             the
             Defender
             would
             give
             a
             Bond
             of
             Warrandice
             for
             his
             Fathers
             Deed
             ,
             and
             his
             own
             ,
             which
             the
             Defender
             refused
             .
          
           
             The
             Lords
             proceeded
             to
             determine
             the
             Point
             
               in
               jure
            
             ;
             and
             as
             to
             that
             Point
             anent
             the
             provision
             ,
             in
             the
             Defenders
             Infeftment
             ,
             some
             were
             of
             opinion
             ,
             that
             any
             Debt
             contracted
             by
             the
             Father
             ,
             would
             affect
             the
             Estate
             ,
             others
             thought
             not
             ,
             there
             being
             no
             provision
             to
             contract
             Debt
             ,
             but
             to
             Wodset
             or
             Dispone
             ,
             which
             was
             not
             done
             ,
             and
             all
             agreed
             ,
             that
             the
             Case
             being
             new
             ,
             and
             now
             very
             frequent
             ,
             required
             a
             more
             accurat
             Debate
             ;
             but
             the
             Lords
             found
             that
             the
             Defenders
             Father
             ,
             having
             by
             his
             Letter
             acknowledged
             the
             Wodset
             ,
             and
             the
             payment
             thereof
             ,
             to
             which
             Wodset
             the
             Defender
             had
             no
             Right
             ,
             that
             any
             grant
             of
             Redemption
             by
             the
             Father
             (
             after
             his
             Disposition
             to
             his
             Son
             )
             was
             probative
             against
             the
             Son
             ,
             and
             that
             the
             Letter
             being
             proven
             Holograph
             ,
             did
             instruct
             the
             Wodset
             to
             be
             payed
             ,
             and
             therefore
             sound
             it
             relevant
             to
             the
             Pursuer
             ,
             to
             prove
             that
             the
             Wodset
             was
             before
             the
             Defenders
             Disposition
             ,
             and
             that
             it
             did
             import
             a
             conditional
             obligement
             ,
             that
             the
             Father
             should
             Resign
             upon
             payment
             ,
             and
             that
             the
             Sons
             Disposition
             being
             after
             the
             Wodset
             ,
             he
             was
             lucrative
             Successor
             ,
             after
             that
             obligation
             contracted
             by
             the
             Wodset
             .
          
        
         
           
           
             Captain
             Strachan
             contra
             George
             Morison
             ,
             Ianuary
             17.
             1668.
             
          
           
             CAptain
             Strachan
             having
             obtained
             Decreet
             before
             the
             Admiral
             ,
             against
             
               George
               Morison
            
             for
             wrongous
             Intromission
             of
             a
             Loadning
             of
             Wine
             ,
             belonging
             to
             the
             Pursuer
             ,
             in
             anno
             1638.
             which
             was
             brought
             home
             by
             him
             ,
             in
             the
             Ship
             called
             Stulla
             ,
             whereof
             he
             had
             an
             eight
             part
             ,
             and
             the
             Defenders
             the
             rest
             ;
             and
             the
             Pursuer
             being
             Skipper
             ,
             did
             upon
             his
             own
             Credit
             buy
             the
             Wine
             ,
             and
             having
             brought
             it
             home
             ,
             the
             Ship
             was
             broken
             at
             Newburgh
             ,
             and
             Loadning
             was
             medled
             with
             by
             the
             Defenders
             ,
             whereupon
             they
             are
             Decerned
             to
             pay
             conjunctly
             and
             severally
             .
             
               George
               Morison
            
             raises
             Reduction
             on
             two
             grounds
             .
             first
             ,
             That
             the
             Decreet
             was
             unjust
             ,
             in
             so
             far
             as
             the
             Defenders
             were
             Decerned
             
               in
               solidum
            
             ,
             each
             for
             the
             whole
             .
             2dly
             ,
             That
             there
             was
             no
             probation
             of
             any
             of
             their
             Intromissions
             ,
             but
             upon
             the
             Testimony
             of
             one
             Witnesse
             ,
             and
             Captain
             Strachans
             own
             Oath
             taken
             in
             Supplement
             .
             It
             was
             answered
             to
             the
             first
             Reason
             ,
             that
             the
             whole
             Intrometters
             were
             justly
             Decerned
             
               in
               solidum
               .
               first
            
             ,
             Because
             this
             was
             in
             it self
             a
             Spuilzie
             ;
             and
             albeit
             the
             Defender
             did
             not
             insist
             within
             three
             years
             ,
             yet
             he
             ought
             not
             to
             be
             excluded
             ,
             because
             he
             was
             in
             the
             Kings
             Service
             all
             the
             time
             of
             the
             trouble
             ,
             and
             fled
             the
             Countr●y
             at
             the
             time
             of
             this
             Intromission
             .
             2dly
             ,
             Because
             the
             prescription
             of
             the
             priviledge
             of
             Spuilzie
             is
             only
             in
             relation
             to
             violent
             profits
             ,
             and
             the
             Oath
             
               in
               litem
            
             ,
             and
             these
             are
             only
             lost
             ,
             if
             pursute
             be
             not
             within
             three
             years
             ,
             but
             the
             Parties
             being
             all
             lyable
             
               in
               solidum
            
             is
             not
             lost
             ,
             for
             the
             Intromission
             remaines
             still
             a
             wrongous
             Intromission
             ,
             and
             is
             not
             in
             the
             same
             case
             as
             a
             Vindication
             ,
             and
             Restitution
             of
             Goods
             in
             the
             Defenders
             hands
             ,
             without
             Violence
             or
             Vice
             ,
             and
             in
             many
             cases
             correi
             ,
             are
             lyable
             
               in
               solidum
            
             ,
             as
             Tutors
             ,
             or
             where
             the
             Intromission
             is
             joynt
             ,
             or
             promiscuous
             ,
             for
             it
             were
             against
             reason
             ,
             if
             there
             were
             many
             vitious
             Intrometters
             ,
             that
             the
             particular
             Intromission
             of
             each
             of
             them
             behoved
             to
             be
             proven
             ,
             which
             oft
             times
             is
             impossible
             ,
             as
             in
             the
             same
             case
             ,
             and
             likewise
             socij
             are
             lyable
             
               in
               solidum
            
             ,
             and
             here
             was
             a
             co-partnery
             betwixt
             these
             Parties
             .
             It
             was
             answered
             for
             Morison
             ,
             that
             there
             was
             three
             years
             elapsed
             since
             the
             Kings
             Restauration
             before
             any
             pursute
             ,
             and
             though
             that
             had
             not
             been
             ,
             there
             is
             nothing
             that
             can
             stop
             that
             short
             prescription
             ,
             and
             therefore
             infancy
             or
             minority
             hinders
             not
             the
             course
             thereof
             ,
             and
             in
             this
             case
             the
             Decreet
             in
             question
             restricts
             to
             wrongous
             Intromission
             .
             As
             to
             the
             second
             ,
             all
             the
             priviledges
             of
             Spuilzie
             are
             lost
             by
             the
             prescription
             ;
             and
             it
             was
             never
             found
             at
             any
             time
             ,
             that
             in
             wrongous
             Intromission
             ,
             the
             Parties
             were
             all
             lyable
             
               in
               solidum
            
             ,
             especially
             where
             the
             thing
             Intrometted
             with
             was
             divisible
             ,
             as
             Wines
             ;
             and
             as
             to
             the
             alleadged
             co-partinery
             there
             was
             nothing
             Lybelled
             thereon
             .
          
           
             The
             Lords
             did
             not
             consider
             the
             poynt
             of
             co-partinery
             ,
             but
             found
             that
             in
             wrongous
             Intromission
             ,
             each
             Intromettor
             was
             not
             lyable
             in
             solidum
             ,
             but
             a
             joynt
             Intromission
             proven
             against
             many
             ,
             did
             in●er
             against
             each
             of
             them
             ,
             an
             equal
             share
             ,
             unlesse
             the
             Pursuer
             proved
             that
             they
             Intrometted
             with
             a
             greater
             share
             ,
             and
             found
             not
             a
             necessity
             to
             prove
             against
             each
             of
             them
             the
             particular
             quantity
             of
             their
             Intromission
             .
          
        
         
           
             Walter
             Stuart
             contra
             Robert
             Acheson
             .
             eodem
             die
             .
          
           
             
               WAlter
               Stuart
            
             as
             being
             infeft
             in
             the
             Baronie
             of
             North-Barwick
             ,
             and
             being
             charged
             for
             the
             whole
             Taxation
             thereof
             ,
             Charges
             
               Robert
               Acheson
            
             for
             his
             Proportion
             ,
             according
             to
             the
             Stent
             Roll
             ,
             who
             Suspends
             on
             this
             Reason
             ▪
             that
             his
             Interest
             is
             only
             Teinds
             ,
             which
             is
             only
             applyed
             to
             the
             Ki●k
             ,
             whereof
             he
             
             produces
             the
             Bishops
             Testificat
             ,
             and
             therefore
             by
             the
             exception
             of
             the
             Act
             of
             Convention
             he
             is
             free
             .
             The
             Charger
             answered
             
               non
               relevat
            
             ,
             because
             the
             Suspender
             ought
             to
             have
             conveened
             at
             the
             Dyet
             appointed
             ,
             by
             the
             Act
             of
             Convention
             ,
             for
             making
             of
             the
             Stent
             Roll
             ,
             and
             there
             have
             instructed
             that
             his
             Teinds
             were
             exhausted
             ,
             wherein
             having
             failzied
             ,
             and
             being
             taxed
             ,
             no
             other
             could
             pay
             for
             him
             ,
             neither
             could
             the
             King
             lose
             that
             proportion
             .
             It
             was
             answered
             ,
             that
             he
             had
             no
             interest
             to
             conveen
             ,
             the
             Minist●r
             having
             the
             only
             Right
             to
             his
             Teinds
             .
          
           
             The
             Lords
             Repelled
             the
             Reason
             ,
             and
             adhered
             to
             the
             Stent
             Roll
             ,
             but
             prejudice
             to
             the
             Suspender
             ,
             to
             seek
             his
             relief
             of
             any
             Partie
             he
             pleaseth
             ,
             as
             accords
             .
          
        
         
           
             Mr.
             Andrew
             Brown
             contra
             David
             Henderson
             ,
             and
             Thomas
             George
             ,
             Ianuary
             18.
             1668.
             
          
           
             MAster
             
               Andrew
               Brown
            
             granted
             a
             Bond
             of
             700.
             
             Merks
             ,
             blank
             in
             the
             Creditors
             Name
             to
             
               George
               Short
            
             ,
             wherein
             the
             Name
             of
             
               David
               Henderson
            
             is
             now
             filled
             up
             .
             Thereon
             George
             having
             Arrested
             all
             Sums
             due
             to
             
               Alexander
               Short
            
             in
             the
             hands
             of
             Mr.
             
               Andrew
               Brown
            
             ,
             he
             raises
             a
             double
             Poynding
             ,
             wherein
             the
             Competition
             arises
             betwixt
             the
             Arrester
             ,
             and
             the
             the
             Person
             whose
             Name
             is
             filled
             up
             in
             the
             blank
             Bond.
             It
             was
             alleadged
             for
             the
             Arrester
             ,
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             he
             Arrested
             Shorts
             Money
             ,
             and
             at
             the
             time
             of
             the
             Arrestment
             ,
             this
             Bond
             having
             been
             Delivered
             to
             Short
             blank
             in
             the
             Creditors
             Name
             ,
             Short
             was
             Creditor
             ay
             and
             while
             ,
             not
             only
             another
             Name
             were
             filled
             up
             ,
             but
             also
             an
             Instrument
             of
             Intimation
             were
             taken
             thereupon
             ,
             for
             Shorts
             filling
             up
             of
             the
             Name
             of
             Henderson
             ,
             is
             no
             more
             then
             an
             Assignation
             ,
             which
             requires
             Intimation
             ,
             and
             is
             excluded
             by
             an
             Arrestment
             before
             the
             Intimation
             ,
             albeit
             after
             the
             Assignation
             .
             It
             was
             answered
             for
             Henderson
             ,
             that
             there
             needed
             no
             Intimation
             to
             the
             filling
             up
             of
             a
             Creditors
             Name
             in
             a
             blank
             Bond
             ,
             which
             was
             never
             required
             by
             Law
             nor
             Custom
             ,
             and
             his
             Bond
             being
             now
             in
             his
             own
             Name
             ,
             nothing
             could
             prove
             that
             it
             was
             blank
             
               ab
               initio
            
             ,
             or
             that
             it
             did
             belong
             to
             Short
             ,
             but
             Hendersons
             own
             Oath
             ,
             in
             which
             case
             it
             would
             be
             sufficient
             for
             him
             to
             Depone
             qualificat●
             ,
             that
             the
             Bond
             indeed
             was
             blank
             
               ab
               initio
            
             ;
             and
             delivered
             by
             the
             Debtor
             to
             Short
             ,
             and
             by
             Short
             to
             him
             ,
             and
             his
             Name
             filled
             up
             therein
             before
             the
             Arrestment
             ,
             or
             at
             least
             that
             before
             the
             Arrestment
             ,
             he
             had
             showen
             the
             Bond
             filled
             up
             to
             the
             Debtor
             ,
             which
             is
             equivalent
             ,
             as
             if
             he
             had
             given
             back
             the
             first
             Bond
             ,
             and
             gotten
             a
             new
             Bond
             from
             the
             Debtor
             ,
             after
             which
             ,
             no
             Arrestment
             (
             upon
             account
             of
             the
             prior
             Creditor
             )
             could
             be
             prejudicial
             to
             him
             ,
             
               ita
               est
            
             ,
             he
             hath
             done
             more
             ,
             for
             he
             hath
             proven
             that
             before
             the
             Arrestment
             ,
             the
             Bond
             was
             produced●
             and
             shown
             to
             Birny
             the
             Debtor
             .
             It
             was
             answered
             ,
             that
             in
             a
             former
             case
             ,
             in
             a
             Competition
             of
             the
             Creditors
             of
             
               Alexander
               Vetch
            
             ,
             the
             Lords
             found
             that
             the
             Arrestment
             laid
             on
             ,
             before
             Intimation
             of
             the
             filling
             up
             of
             a
             blank
             Bond
             ,
             preferred
             the
             Arrester
             ,
             and
             that
             otherwise
             Collusion
             could
             not
             be
             evited
             with
             these
             blank
             Bonds
             ,
             to
             exclude
             and
             to
             save
             Creditors
             Arresting
             .
          
           
             The
             Lords
             preferred
             Henderson
             ,
             whose
             Name
             was
             filled
             up
             ,
             and
             presented
             to
             the
             Debtor
             before
             the
             Arrestment
             ;
             for
             in
             Vetches
             Case
             there
             was
             nothing
             to
             instruct
             that
             the
             Bond
             was
             truely
             filled
             up
             ,
             and
             presented
             to
             the
             Debtor
             before
             the
             Arrestment
             ;
             and
             they
             found
             the
             filling
             up
             ,
             and
             presenting
             thereof
             sufficiently
             proven
             by
             the
             Witnesses
             ,
             taken
             
               ex
               officio
            
             .
          
        
         
           
           
             Pollock
             contra
             Pollock
             and
             Rutherfoord
             ,
             Eodem
             die
             .
          
           
             UMquhil
             
               Iohn
               Pollock
            
             in
             the
             Cannongate
             ,
             having
             given
             a
             Bond
             to
             
               Iames
               Pollock
            
             his
             Son
             of
             5000.
             
             Merks
             ,
             he
             pursues
             
               Robert
               Pollock
            
             the
             Heir
             of
             Line
             ,
             and
             Pollock
             ,
             Heir
             of
             the
             second
             Marriage
             ,
             for
             payment
             .
             The
             Heir
             of
             Line
             Compearing
             ,
             Renunced
             :
             whereupon
             the
             Pursuer
             insisted
             against
             the
             Heir
             of
             Provision
             ,
             who
             alleadged
             no
             Process
             ,
             till
             the
             Heretage
             be
             falling
             to
             the
             Heir
             of
             Line
             were
             first
             discust
             ,
             and
             condescended
             upon
             the
             Heirship
             Moveable
             .
             The
             Pursuer
             answered
             ,
             there
             could
             be
             no
             Heirship
             in
             this
             Case
             ,
             because
             the
             Heir
             of
             Line
             had
             Renunced
             all
             he
             might
             Succeed
             to
             by
             his
             Father
             ,
             Heretable
             ,
             or
             Moveable
             ,
             in
             Favours
             of
             his
             Father
             ,
             his
             Heirs
             and
             Executors
             bearing
             expresly
             ,
             that
             his
             Wife
             ,
             and
             his
             Bairns
             of
             the
             second
             Marriage
             should
             have
             the
             whole
             Right
             :
             
               Ita
               est
               ,
               Rutherfoord
            
             ;
             the
             Wife
             had
             Confirmed
             the
             whole
             Moveables
             promis●ue
             ,
             without
             exception
             of
             Heirship
             ,
             and
             therefore
             the
             Heir
             of
             Line
             himself
             (
             if
             he
             were
             Entered
             )
             could
             claim
             none
             .
             It
             was
             answered
             ,
             that
             the
             Renunciation
             of
             the
             Heir
             apparent
             of
             Line
             ,
             being
             in
             Favours
             of
             his
             Father
             ,
             after
             his
             Fathers
             death
             ,
             it
             returned
             back
             to
             him
             from
             his
             Father
             as
             Heir
             of
             Line
             again
             ,
             and
             could
             go
             to
             no
             other
             Person
             ,
             neither
             thereby
             could
             the
             Heretable
             Moveables
             belong
             to
             the
             Executor
             .
          
           
             The
             Lords
             found
             the
             Renunciation
             sufficient
             to
             exclude
             the
             Heir
             of
             Line
             from
             the
             Heirship
             Moveable
             ,
             and
             that
             they
             did
             thereby
             belong
             to
             the
             Fathers
             Exe●utor
             ,
             therefore
             found
             no
             further
             necessity
             to
             discusse
             the
             Heir
             of
             Line
             ,
             and
             Decerned
             against
             the
             Heir
             of
             Provision
             .
          
        
         
           
             Grissel
             Stuart
             contra
             the
             Laird
             of
             Rosyth
             her
             Brother
             ,
             Ianuary
             21.
             1668.
             
          
           
             UMquhil
             Rosyth
             gave
             a
             Bond
             of
             Provision
             to
             his
             Daughter
             
               Grissel
               Stuart
            
             of
             10000.
             pounds
             ,
             payable
             at
             her
             age
             of
             17.
             years
             ,
             with
             an
             Obligement
             to
             Entertain
             her
             in
             the
             mean
             time
             ,
             but
             no
             Obligement
             of
             Annualrent
             ;
             she
             pursues
             her
             Brother
             (
             as
             representing
             her
             Father
             )
             for
             Implement
             ,
             and
             having
             Lived
             with
             her
             Uncle
             a
             part
             of
             her
             Fathers
             time
             ,
             and
             alleadging
             that
             she
             was
             hardly
             used
             by
             her
             Step-mother
             ,
             she
             craves
             Aliment
             for
             that
             time
             of
             her
             Fathers
             Lifetime
             ,
             and
             for
             six
             ,
             or
             seven
             years
             since
             his
             Death
             ,
             or
             craved
             Annualrent
             for
             her
             Sum.
             The
             Defender
             alleadged
             Absolvitor
             ,
             as
             to
             the
             Annualrent
             before
             her
             Fathers
             Death
             ,
             because
             she
             ought
             to
             have
             continued
             in
             her
             Fathers
             Family
             ,
             and
             there
             neither
             is
             ,
             nor
             can
             be
             alleadged
             any
             just
             Cause
             wherefore
             she
             should
             have
             deserted
             the
             same
             .
             2dly
             .
             Absolvitor
             from
             Annualrent
             ,
             or
             Entertainment
             since
             her
             age
             of
             17.
             years
             ,
             because
             the
             Bond
             bears
             Entertainment
             till
             that
             age
             ,
             and
             no
             Entertainment
             ,
             or
             Annualrent
             thereafter
             .
             3dly
             ,
             She
             does
             not
             ,
             nor
             cannot
             alleadge
             that
             she
             payed
             out
             any
             thing
             for
             Entertainment
             ,
             but
             was
             Entertained
             gratis
             by
             her
             Uncle
             .
          
           
             The
             Lords
             found
             this
             no
             ground
             to
             exclude
             her
             from
             Aliment
             ,
             and
             found
             Aliment
             due
             after
             the
             Term
             of
             her
             Bond
             ,
             as
             well
             as
             before
             ,
             but
             not
             Annualrent
             ,
             and
             modified
             six
             hundreth
             Merkes
             
               per
               annum
            
             ,
             without
             allowing
             any
             thing
             for
             the
             year
             her
             Father
             Lived
             ,
             but
             modified
             the
             more
             largely
             ,
             it
             being
             unfit
             to
             Dispute
             the
             necessities
             of
             her
             Removal
             .
          
        
         
           
           
             Ianet
             Schaw
             contra
             Margaret
             Calderwood
             ,
             Eodem
             die
             .
          
           
             
               JAnet
               Schaw
            
             pursues
             a
             Reduction
             of
             a
             Liferent
             Infeftment
             ,
             granted
             to
             
               Margaret
               Calderwood
            
             by
             the
             Pursuers
             Father
             ,
             as
             being
             
               in
               lecto
            
             .
             The
             Defender
             alleadged
             no
             Processe
             ,
             because
             the
             Pursuer
             was
             not
             Heir
             the
             time
             of
             the
             Disposition
             ,
             but
             another
             Heir
             appearand
             ,
             who
             never
             Entered
             .
          
           
             The
             Lords
             Repelled
             the
             Defence
             .
          
           
             The
             Defender
             alleadged
             that
             this
             being
             an
             Liferent
             Infeftment
             to
             her
             by
             her
             Husband
             ,
             and
             but
             of
             a
             small
             value
             ,
             it
             was
             valide
             ,
             and
             the
             Husband
             might
             Discharge
             that
             natural
             Debt
             of
             providing
             his
             Wife
             on
             Death-bed
             ,
             she
             having
             no
             Contract
             of
             provision
             before
             ,
             The
             Pursuer
             answered
             ,
             that
             the
             Defender
             might
             take
             the
             benefit
             of
             her
             Terce
             ,
             which
             is
             her
             legal
             Provision
             ,
             beyond
             which
             ,
             a
             Deed
             on
             Death-bed
             (
             in
             prejudice
             of
             the
             Heir
             )
             is
             null
             ,
             and
             this
             Liferent
             is
             of
             the
             Husbands
             whole
             Estate
             ,
             and
             yet
             the
             Pursuer
             is
             willing
             it
             should
             stand
             ,
             it
             being
             restricted
             to
             a
             third
             of
             the
             Rents
             of
             the
             Lands
             .
          
           
             The
             Lords
             Sustained
             the
             Infeftment
             only
             for
             a
             third
             .
          
        
         
           
             Mary
             Dowglasse
             Lady
             of
             Wamphray
             ,
             contra
             the
             Laird
             of
             Wamphray
             ,
             Ianuary
             22.
             1668.
             
          
           
             UMquhil
             Wamphray
             having
             Infeft
             his
             Lady
             in
             two
             thousand
             Merks
             of
             Liferent
             yearly
             ,
             by
             her
             Contract
             of
             Marriage
             ,
             out
             of
             certain
             Lands
             therein
             mentioned
             ;
             and
             being
             obliged
             to
             pay
             her
             ,
             as
             well
             Infeft
             ,
             as
             not
             Infeft
             ,
             and
             to
             warrand
             the
             Lands
             to
             be
             worth
             two
             thousand
             Merks
             of
             Free
             Rent
             .
             She
             pursues
             this
             Wamphray
             for
             payment
             ,
             who
             alleadged
             Deductions
             of
             publick
             Burdens
             .
             It
             was
             answered
             ,
             that
             an
             Annualrent
             was
             not
             lyable
             to
             publick
             Burdens
             ;
             for
             the
             Act
             of
             Parliament
             ,
             1647.
             made
             thereanent
             was
             Rescinded
             ,
             and
             not
             Revived
             ,
             and
             this
             Provision
             is
             payable
             ,
             not
             only
             really
             ,
             but
             personally
             ,
             though
             there
             had
             been
             no
             Infeftment
             ,
             and
             that
             the
             obligement
             to
             make
             the
             Land
             worth
             two
             thousand
             Merks
             of
             free
             Rent
             ,
             could
             be
             to
             no
             other
             End
             but
             to
             make
             the
             Annualrent
             free
             ,
             especially
             the
             Contract
             being
             in
             anno
             1647.
             after
             Maintainance
             was
             imposed
             ,
             which
             was
             the
             heaviest
             Burden
             .
             It
             was
             answered
             ,
             that
             an
             obligement
             for
             payment
             of
             an
             Annualrent
             ,
             relating
             to
             no
             particular
             Land
             ,
             could
             not
             be
             burdened
             with
             the
             Land
             ,
             or
             if
             it
             did
             relate
             to
             a
             stock
             of
             Money
             ,
             the
             ordinar
             Annualrent
             of
             the
             Money
             behoved
             to
             be
             free
             ,
             but
             this
             Annualrent
             relates
             to
             no
             stock
             ,
             and
             its
             first
             Constitution
             is
             out
             of
             the
             Lands
             mentioned
             in
             the
             Contract
             ;
             so
             that
             albeit
             there
             had
             been
             no
             Infeftment
             ,
             it
             must
             bear
             proportionably
             with
             the
             Land
             ,
             and
             albeit
             the
             Act
             of
             Parliament
             be
             Rescinded
             ,
             yet
             the
             common
             ground
             of
             Law
             and
             Equity
             ,
             and
             the
             Custom
             thereupon
             remains
             ,
             neither
             doth
             the
             provision
             (
             to
             make
             the
             Land
             worth
             so
             much
             of
             free
             Rent
             )
             infer
             ,
             that
             therefore
             the
             Annualrent
             must
             be
             free
             ,
             which
             would
             have
             been
             so
             exprest
             at
             the
             Constitution
             of
             the
             Annualrent
             ,
             if
             it
             had
             been
             so
             meaned
             .
          
           
             The
             Lords
             found
             this
             Annualrent
             lyable
             for
             the
             Assesment
             ,
             notwithstanding
             the
             Act
             of
             Parliament
             was
             Rescinded
             ,
             and
             all
             that
             was
             alleadged
             against
             the
             same
             ,
             was
             repelled
             .
          
        
         
           
           
             Iohn
             Iustice
             contra
             Mary
             Stirling
             his
             Mother
             ,
             Ianuary
             23.
             1668.
             
          
           
             THere
             was
             a
             Bond
             granted
             by
             Stirling
             of
             Coldoch
             ,
             whereby
             he
             granted
             him
             to
             have
             received
             from
             Umquhil
             
               Iohn
               Iustice
            
             ,
             and
             
               Mary
               Stirling
            
             his
             Spouse
             ,
             the
             Sum
             of
             1300.
             
             Merks
             ,
             and
             obliged
             him
             to
             pay
             to
             the
             said
             Husband
             and
             his
             Spouse
             ,
             and
             longest
             liver
             of
             them
             two
             ,
             and
             the
             Heirs
             gotten
             between
             them
             ,
             or
             their
             Assigneys
             ,
             which
             failzying
             to
             the
             Heirs
             of
             the
             last
             liver
             :
             the
             said
             Mary
             having
             survived
             ,
             did
             uplift
             the
             Sum
             ,
             and
             now
             
               Iohn
               Iustice
            
             (
             as
             Heir
             of
             the
             Marriage
             to
             his
             Father
             )
             pursues
             his
             Mother
             to
             make
             forthcoming
             the
             Sum
             ,
             and
             imploy
             the
             same
             to
             her
             in
             Liferent
             ,
             and
             to
             him
             in
             Fee.
             It
             was
             alleadged
             for
             the
             Defender
             Absolvitor
             ,
             because
             by
             the
             conception
             of
             the
             Bond
             she
             is
             Feear
             ,
             and
             so
             may
             dispose
             of
             the
             Money
             at
             her
             pleasure
             .
             The
             Pursuer
             answered
             ,
             that
             the
             conception
             of
             the
             Bond
             did
             no
             wayes
             make
             the
             Wife
             Feear
             ,
             but
             the
             Husband
             ,
             according
             to
             the
             ordinar
             Interpretation
             of
             Law
             in
             Conjunct-fees
             betwixt
             Husband
             and
             Wife
             ;
             and
             as
             to
             the
             Clause
             ,
             in
             relation
             to
             the
             longest
             liver
             ,
             their
             Heirs
             and
             Assigneys
             ,
             the
             Fee
             could
             not
             be
             Constitute
             thereby
             ,
             otherwise
             the
             Fee
             behoved
             to
             be
             pendent
             and
             uncertain
             ,
             and
             in
             effect
             be
             in
             no
             Person
             so
             long
             as
             they
             live
             together
             ,
             but
             after
             the
             Death
             of
             either
             ,
             the
             Fee
             should
             then
             begin
             to
             be
             Constitute
             in
             the
             Surviver
             ,
             which
             is
             inconsistent
             ,
             and
             therefore
             the
             Fee
             behoved
             to
             be
             Constitute
             by
             the
             first
             words
             ,
             obliging
             to
             pay
             the
             Sum
             to
             the
             Husband
             and
             Wife
             ,
             the
             longest
             liver
             of
             them
             two
             ,
             whereby
             the
             Husband
             was
             Feear
             and
             might
             have
             disposed
             thereupon
             during
             his
             Life
             ,
             but
             without
             prejudice
             of
             his
             Wifes
             Liferent
             ;
             there
             is
             no
             doubt
             but
             this
             Sum
             might
             have
             been
             Arrested
             for
             his
             Debt
             ,
             and
             it
             could
             not
             be
             then
             pretended
             that
             
               ex
               even●u
            
             ,
             the
             Wife
             by
             surviving
             might
             become
             the
             Feear
             .
             It
             was
             answered
             for
             the
             Wife
             ,
             that
             albeit
             Conjunct-fees
             between
             Man
             and
             Wife
             do
             ordinarly
             Constitute
             the
             Husband
             Feear
             ,
             yet
             there
             are
             many
             Cases
             in
             which
             such
             Conjunct
             fees
             the
             Wife
             may
             be
             Feear
             ,
             and
             here
             the
             termination
             being
             upon
             the
             Surviver
             ,
             makes
             her
             the
             Surviver
             sole
             Feear
             ,
             although
             both
             were
             Conjunct
             Feears
             before
             ,
             and
             neither
             of
             them
             properly
             a
             Liferenter
             ,
             till
             by
             the
             event
             it
             did
             appear
             who
             should
             Survive
             ,
             neither
             can
             any
             such
             subtilty
             of
             the
             dependence
             ,
             or
             uncertainty
             of
             the
             Fee
             ,
             render
             the
             intention
             of
             the
             Parties
             ineffectual
             .
          
           
             The
             Lords
             found
             ,
             that
             by
             the
             foresaid
             Clause
             ,
             the
             Husband
             was
             Feear
             ,
             and
             the
             Heirs
             of
             the
             Marriage
             ,
             were
             Heirs
             of
             Provision
             to
             him
             ,
             and
             that
             failzying
             the
             Heirs
             of
             the
             Marriage
             ,
             the
             Wifes
             Heirs
             were
             substitute
             as
             Heirs
             of
             Tailzie
             ,
             and
             therefore
             ordained
             the
             Sum
             to
             be
             so
             imployed
             ,
             and
             secured
             ,
             that
             if
             the
             Pursuer
             being
             the
             only
             Heir
             of
             the
             Marriage
             should
             Die
             before
             he
             dispose
             thereupon
             ,
             it
             should
             return
             to
             the
             Heirs
             and
             Assigneys
             of
             the
             Mother
             .
          
        
         
           
             The
             Lady
             Wolmet
             and
             Dankeith
             her
             Spouse
             ,
             contra
             Major
             Biggar
             ,
             and
             Iames
             Todrig
             ,
             Ianuary
             24.
             1668.
             
          
           
             THe
             Lady
             Wolmet
             and
             Dankeith
             her
             Spouse
             ,
             pursues
             Major
             Biggar
             ,
             and
             the
             Tennents
             of
             Wolmet
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             
               Iames
               Todrig
            
             ,
             who
             being
             Assigned
             to
             an
             Annualrent
             ,
             due
             out
             of
             the
             Lands
             of
             Wolmet
             ,
             to
             the
             old
             Lady
             Wolmet
             by
             an
             Infeftment
             ,
             long
             prior
             to
             this
             Ladies
             Infeftment
             ;
             upon
             which
             Right
             there
             was
             also
             raised
             an
             Inhibition
             ,
             whereupon
             Todrig
             (
             as
             Assigney
             )
             pursues
             Reduction
             of
             the
             Pursuers
             Right
             ,
             and
             several
             others
             ,
             and
             obtained
             Decreet
             thereupon
             ,
             and
             now
             alleadges
             that
             the
             Lady
             can
             have
             no
             Mails
             and
             Duties
             ,
             because
             her
             
             Right
             stands
             Reduced
             at
             the
             Instance
             of
             the
             said
             
               Iames
               Todrig
            
             ,
             who
             hath
             also
             Appryzed
             upon
             his
             anterior
             Annualrent
             .
             The
             Pursuer
             answered
             ,
             that
             the
             alleadgeance
             ought
             to
             be
             repelled
             ,
             because
             the
             Right
             of
             his
             Annualrent
             ,
             Appryzing
             ,
             and
             Reduction
             has
             been
             several
             years
             in
             the
             Person
             of
             Major
             Biggar
             ,
             who
             has
             been
             all
             that
             time
             in
             Possession
             of
             the
             Lands
             ,
             and
             therefore
             by
             his
             Intromission
             ,
             Todrigs
             Appryzing
             is
             satisfied
             within
             the
             legal
             .
             It
             was
             answered
             for
             Major
             Biggar
             ,
             albeit
             the
             Right
             was
             ,
             and
             had
             been
             his
             ,
             and
             he
             in
             Possession
             ,
             yet
             the
             Appryzing
             cannot
             be
             satisfied
             thereby
             ,
             unlesse
             he
             had
             Possest
             by
             vertue
             of
             the
             Appryzing
             ,
             which
             cannot
             be
             alleadged
             ,
             because
             he
             offers
             him
             to
             prove
             that
             he
             Entered
             ,
             and
             continued
             in
             Possession
             many
             years
             before
             he
             got
             this
             Right
             ,
             by
             vertue
             of
             other
             Infeftments
             .
             The
             Pursuer
             answered
             ,
             that
             by
             the
             Reduction
             at
             Todrigs
             Instance
             ,
             all
             Major
             Biggars
             Rights
             stands
             reduced
             ,
             so
             that
             albeit
             by
             them
             he
             entered
             in
             Possession
             ,
             yet
             he
             cannot
             ascribe
             his
             Possession
             to
             them
             after
             they
             were
             Reduced
             .
             It
             was
             answered
             ,
             that
             albeit
             his
             Rights
             were
             Reduced
             ,
             there
             was
             no
             Removing
             ,
             or
             Action
             of
             Mails
             and
             Duties
             intented
             against
             him
             upon
             the
             prevailing
             Right
             ,
             and
             therefore
             his
             Possession
             behoved
             to
             be
             ascribed
             to
             his
             prior
             Possession
             ,
             though
             Reduced
             .
             2dly
             ,
             He
             having
             now
             divers
             Rights
             in
             his
             Person
             ,
             may
             ascribe
             his
             Possession
             to
             any
             of
             them
             he
             pleases
             against
             this
             Pursuer
             ,
             from
             whom
             he
             derived
             not
             his
             Possession
             ,
             nor
             the
             Cause
             thereof
             .
             3dly
             ,
             It
             was
             answered
             ,
             that
             the
             Pursuer
             might
             acquire
             this
             Right
             ,
             
               ad
               hunc
               effectum
            
             to
             purge
             it
             ,
             and
             the
             Inhibition
             ,
             and
             Reduction
             thereon
             ,
             in
             so
             far
             as
             it
             might
             be
             prejudicial
             to
             his
             prior
             Rights
             ,
             and
             not
             to
             bruik
             by
             it
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             Biggar
             might
             have
             acquired
             this
             Right
             ,
             to
             evacuat
             and
             purge
             the
             same
             ,
             if
             that
             had
             been
             declared
             in
             his
             acquisition
             thereof
             ,
             or
             otherwise
             legally
             ,
             yet
             not
             having
             done
             it
             ,
             he
             must
             be
             understood
             to
             bruik
             only
             by
             that
             Right
             that
             was
             standing
             .
             2dly
             ,
             If
             he
             should
             declare
             that
             he
             did
             acquire
             it
             to
             purge
             it
             ,
             then
             ,
             as
             his
             own
             Right
             ,
             revives
             which
             was
             Reduced
             ,
             so
             must
             this
             Pursuers
             Right
             ,
             which
             was
             also
             Reduced
             in
             that
             same
             Reduction
             revive
             ,
             especially
             in
             
               casu
               tam
               favorabili
            
             ,
             that
             the
             Pursuer
             may
             not
             be
             excluded
             from
             her
             Liferent
             ,
             which
             is
             her
             Aliment
             ,
             and
             seing
             the
             Decreet
             of
             Reduction
             was
             obtained
             by
             meer
             Collusion
             ,
             and
             is
             offered
             to
             be
             disclaimed
             upon
             Oath
             ,
             by
             the
             Advocats
             marked
             ,
             Compearing
             therein
             .
          
           
             The
             Lords
             found
             that
             Major
             Biggar
             behoved
             to
             ascribe
             his
             Possession
             to
             Todrigs
             Right
             ,
             and
             to
             none
             of
             the
             Reduced
             Rights
             ,
             all
             being
             joyntly
             in
             his
             Person
             ,
             and
             not
             having
             declared
             
               quo
               titulo
               possidebat
            
             ,
             and
             that
             he
             cannot
             now
             declare
             that
             he
             makes
             no
             use
             of
             Todrigs
             Right
             ,
             in
             so
             far
             as
             may
             be
             prejudicial
             to
             his
             own
             prior
             Rights
             ,
             and
             makes
             use
             of
             it
             as
             it
             is
             prejudicial
             to
             the
             Pursuers
             Rights
             ,
             which
             were
             reduced
             together
             ,
             seing
             the
             Pursuers
             Rights
             would
             have
             excluded
             the
             Majors
             other
             Rights
             ,
             to
             which
             he
             would
             now
             ascribe
             his
             Pessession
             .
          
        
         
           
             Magistrats
             of
             contra
             the
             Earl
             of
             Findlator
             ,
             Eodem
             die
             .
          
           
             THere
             was
             a
             Bond
             granted
             by
             one
             Iackson
             Principal
             ,
             and
             a
             Cautioner
             which
             is
             also
             alleadged
             to
             have
             been
             Subscribed
             by
             Umquhil
             Inch-Martin
             as
             an
             other
             Cautioner
             ;
             which
             Bond
             being
             Registrat
             at
             the
             Creditors
             Instance
             ,
             he
             did
             thereupon
             Incarcerat
             the
             principal
             Debtor
             ,
             whom
             the
             Magistrats
             having
             suffered
             unwarrantably
             to
             escape
             ;
             the
             Creditor
             obtained
             Decreet
             against
             the
             Magistrats
             for
             payment
             of
             the
             Debt
             .
             The
             Magistrats
             payes
             the
             Debt
             ,
             but
             takes
             Assignation
             from
             the
             Creditor
             ,
             and
             now
             
             as
             Assigney
             pursues
             the
             Earl
             of
             Findlator
             ,
             as
             Representing
             Inchmartin
             one
             of
             the
             Cautioners
             for
             payment
             ,
             who
             alleadged
             Absolvitor
             .
             first
             ,
             Because
             the
             Bond
             is
             null
             as
             to
             Inchmartin
             ,
             wanting
             both
             Date
             and
             Witnesses
             ;
             for
             it
             bears
             to
             have
             been
             Subscribed
             by
             the
             Principal
             ,
             and
             the
             other
             Cautioner
             ,
             at
             such
             a
             place
             ,
             such
             a
             day
             ,
             before
             these
             Witnesses
             ,
             who
             are
             subjoyned
             ,
             and
             designed
             ,
             and
             after
             the
             Names
             of
             these
             Witnesses
             sayes
             ,
             
               and
               subscribed
               by
            
             Inchmartin
             ,
             at
             after
             which
             there
             nothing
             follows
             in
             the
             Bond
             ,
             but
             the
             Subscriptions
             of
             Parties
             ,
             none
             of
             which
             subscribe
             as
             Witness
             to
             Inchmartin
             ,
             yet
             his
             Subscription
             is
             amongst
             the
             Subscriptions
             of
             the
             other
             Parties
             ,
             but
             as
             to
             him
             it
             hath
             neither
             place
             ,
             day
             ,
             nor
             Witnesses
             .
             The
             Pursuer
             offered
             to
             condescend
             ,
             that
             the
             day
             and
             place
             of
             the
             Subscription
             of
             the
             Witnesses
             ,
             were
             the
             same
             to
             Inchmartin
             ,
             as
             to
             the
             Principal
             and
             other
             Cautioner
             ,
             which
             they
             alleadged
             to
             be
             sufficient
             to
             make
             up
             this
             nullity
             ,
             as
             is
             ordinar
             where
             the
             Writer
             and
             Witnesses
             are
             not
             Designed
             ,
             for
             thereupon
             the
             Defender
             may
             improve
             the
             Bond
             by
             the
             Witnesses
             insert
             .
             The
             Defender
             answered
             ,
             that
             albeit
             the
             Lords
             supply
             the
             want
             of
             Designation
             of
             Writer
             or
             Witnesses
             ,
             by
             condescending
             on
             their
             Designation
             ,
             that
             means
             of
             Improbation
             may
             be
             afforded
             ,
             which
             is
             not
             the
             question
             here
             ;
             yet
             the
             Lords
             did
             never
             suffer
             Parties
             to
             fill
             up
             Witnesses
             ,
             where
             no
             Witnesses
             were
             insert
             ,
             nor
             no
             Date
             ,
             either
             as
             to
             Year
             or
             Moneth
             .
          
           
             The
             Lords
             would
             not
             Sustain
             the
             Bond
             upon
             this
             condescendence
             ,
             but
             
               ex
               officio
            
             ordained
             the
             Witnesses
             (
             if
             they
             were
             alive
             )
             to
             be
             Examined
             ,
             whether
             they
             were
             Witnesses
             to
             Inchmartins
             Subscription
             ,
             that
             same
             day
             ,
             and
             place
             with
             the
             rest
             ,
             reserving
             to
             themselves
             what
             their
             Testimonies
             should
             ●perat
             .
          
           
             The
             Defender
             further
             alleadged
             Absolvitor
             ,
             because
             he
             offers
             him
             to
             prove
             ,
             that
             the●e
             was
             a
             Decreet
             against
             the
             Magistrats
             now
             pursuing
             ,
             at
             the
             Instance
             of
             the
             Creditor
             ,
             for
             payment
             of
             the
             Debt
             ,
             because
             they
             suffered
             the
             Principal
             Creditor
             Incarcerat
             to
             escape
             ,
             so
             that
             the
             Debt
             being
             payed
             by
             the
             Magistrats
             ,
             coming
             in
             the
             place
             of
             the
             Principal
             Debtor
             
               ex
               delicto
            
             ,
             it
             is
             in
             the
             same
             case
             ,
             as
             if
             the
             Principal
             Debtor
             himself
             had
             payed
             ;
             which
             necessarly
             liberats
             his
             Cautioners
             .
             It
             was
             answered
             ,
             that
             the
             Magistrats
             are
             only
             lyable
             to
             the
             User
             of
             the
             Diligence
             ,
             
               pro
               damno
               &
               interesse
            
             ,
             and
             to
             no
             other
             ,
             for
             the
             Creditor
             (
             User
             of
             the
             Diligence
             )
             might
             have
             consented
             to
             the
             escape
             of
             the
             Rebel
             ,
             or
             might
             discharged
             the
             subsidiarie
             Obligation
             ,
             or
             Action
             competent
             ,
             against
             the
             Magistrats
             for
             suffering
             him
             to
             escape
             ,
             whether
             the
             Cautioners
             would
             or
             not
             ,
             and
             therefore
             the
             Magistrats
             might
             as
             well
             take
             an
             Assignation
             from
             the
             Creditor
             for
             payment
             of
             the
             Debt
             ,
             which
             implies
             the
             Creditor
             his
             passing
             from
             them
             as
             bound
             
               ex
               delicto
            
             ,
             in
             which
             case
             he
             would
             only
             have
             given
             them
             a
             Discharge
             ,
             but
             here
             the
             Magistrats
             Contracts
             with
             the
             Creditor
             ,
             and
             acquires
             the
             Assignation
             ,
             
               ut
               quilibet
            
             upon
             an
             equivalent
             Cause
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             this
             Assignation
             is
             evidently
             simulat
             in
             place
             of
             a
             Discharge
             ,
             there
             having
             preceeded
             a
             Decreet
             against
             the
             Magistrats
             ,
             
               ita
               est
            
             ,
             that
             Assignations
             granted
             to
             persons
             obliged
             for
             a
             Debt
             ,
             doth
             operat
             alwise
             as
             to
             the
             Matter
             only
             as
             a
             Discharge
             ,
             though
             more
             summarly
             ,
             as
             when
             Cautioners
             pay
             ,
             and
             are
             Assigned
             ,
             they
             must
             allow
             their
             own
             part
             ,
             but
             much
             more
             these
             who
             are
             lyable
             
               ex
               delicto
            
             ,
             having
             payed
             upon
             a
             Decreet
             ,
             cannot
             seek
             relief
             ,
             whether
             they
             have
             Assingation
             or
             Discharge
             ,
             especially
             against
             Cautioners
             ,
             and
             if
             this
             were
             Sustained
             ,
             all
             Rebels
             who
             had
             Cautioners
             might
             be
             suffered
             to
             escape
             ,
             where
             there
             is
             any
             Cautioners
             ,
             for
             Messengers
             might
             be
             Deforced
             ,
             taking
             Assignation
             to
             the
             Debt
             ,
             and
             proceeding
             against
             the
             Cautioners
             ,
             and
             albeit
             
             the
             user
             of
             the
             Diligence
             might
             consent
             to
             the
             Liberation
             ,
             yet
             he
             could
             not
             pass
             from
             the
             Obligation
             ,
             
               ex
               delicto
            
             ,
             which
             accresceth
             to
             all
             Parties
             having
             Interest
             ;
             and
             if
             the
             Cautioners
             had
             been
             dist●est
             by
             the
             Creditor
             ,
             they
             might
             pursue
             the
             Magistrats
             ,
             suffering
             the
             Principal
             to
             escape
             ,
             
               ex
               delicto
               &
               damno
            
             ,
             for
             if
             he
             had
             not
             been
             suffered
             to
             escape
             ,
             they
             would
             have
             been
             payed
             .
          
           
             The
             Lords
             found
             this
             Defence
             relevant
             ,
             that
             the
             Magistrats
             pursuers
             ,
             having
             suffered
             the
             Rebel
             to
             escape
             ,
             and
             Decreet
             against
             them
             ,
             and
             having
             satisfied
             the
             Debt
             to
             the
             Creditor
             ,
             that
             they
             could
             not
             have
             recourse
             against
             the
             Cautioners
             ,
             either
             by
             vertue
             of
             a
             Discharge
             ;
             or
             Assignation
             .
             Here
             it
             was
             not
             Debated
             ,
             whether
             or
             not
             they
             might
             have
             recourse
             against
             the
             principal
             Debtor
             escaping
             ,
             who
             was
             
               principaliter
               in
               delicto
            
             ,
             and
             the
             Magistrats
             but
             accessory
             .
          
        
         
           
             Mr.
             William
             Mushate
             Minister
             of
             Hassenden
             ,
             contra
             the
             Duke
             and
             Dutches
             of
             Buccleugh
             ,
             Ianuary
             28.
             1668.
             
          
           
             THe
             Minister
             of
             Hassenden
             having
             obtained
             Designation
             of
             a
             Gleib
             ,
             out
             of
             the
             Duke
             of
             Buccleughs
             Lands
             ,
             pursues
             Removing
             .
             The
             Duke
             Suspends
             on
             this
             Reason
             that
             the
             Designation
             is
             null
             ,
             not
             bearing
             Citation
             ,
             nor
             ●numation
             to
             the
             Parochiners
             ,
             neither
             is
             the
             Duke
             Cited
             to
             the
             Designation
             upon
             60.
             dayes
             ,
             as
             being
             out
             of
             the
             Countrey
             .
             It
             was
             answered
             ,
             that
             by
             the
             constant
             Custom
             in
             such
             Cases
             ,
             there
             is
             only
             Intimation
             given
             at
             the
             Kirk
             Door
             ,
             or
             out
             of
             the
             Pulpit
             of
             the
             day
             of
             Designation
             ,
             which
             the
             Defender
             offers
             to
             prove
             ,
             uses
             to
             be
             done
             in
             the
             like
             case
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             albeit
             the
             Intimation
             was
             not
             mentioned
             in
             the
             Designation
             .
          
        
         
           
             Robert
             Dobby
             contra
             the
             Lady
             Stanyhil
             his
             mother
             ,
             Eodem
             die
             .
          
           
             
               RObert
               Dobby
            
             pursues
             the
             Lady
             Stanyhil
             his
             Mother
             ,
             for
             an
             Aliment
             ,
             upon
             this
             ground
             ,
             that
             she
             being
             provided
             to
             an
             plentiful
             Liferent
             ,
             being
             an
             Annualrent
             of
             2800.
             
             Merks
             yearly
             ,
             there
             remains
             nothing
             to
             Aliment
             him
             the
             Heir
             ,
             of
             free
             Rent
             ,
             being
             all
             exhausted
             by
             the
             Liferent
             ,
             and
             Annualrent
             of
             the
             Debt
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             there
             is
             no
             ground
             in
             Law
             nor
             Custom
             for
             an
             Aliment
             to
             the
             Heir
             ,
             except
             the
             Rents
             were
             exhausted
             by
             real
             burdens
             by
             Infeftment
             ;
             but
             here
             at
             the
             Defuncts
             Death
             ,
             there
             was
             only
             this
             Liferent
             ,
             which
             was
             not
             the
             half
             of
             the
             Rent
             ,
             and
             there
             was
             no
             Infeftment
             more
             .
             2dly
             ,
             Aliments
             is
             only
             competent
             to
             Minors
             ,
             the
             Pursuer
             is
             Major
             ,
             and
             may
             do
             for
             himself
             .
             The
             Pursuer
             answered
             ,
             that
             it
             was
             alike
             whether
             the
             Debts
             were
             personal
             ,
             or
             real
             ,
             for
             if
             Apprysings
             had
             been
             used
             ,
             they
             would
             all
             have
             been
             real
             ,
             but
             the
             Pursuer
             did
             prevent
             the
             same
             ,
             by
             Selling
             a
             part
             of
             the
             Land
             at
             a
             great
             Rate
             ,
             which
             was
             all
             applyed
             to
             the
             Creditors
             ,
             and
             yet
             the
             Liferent
             ,
             and
             Annualrent
             of
             the
             Debt
             is
             ▪
             more
             then
             the
             Rent
             ;
             neither
             is
             there
             any
             distinction
             in
             the
             Law
             as
             to
             Majors
             and
             Minors
             ,
             who
             were
             not
             bred
             with
             a
             Calling
             ;
             and
             therefore
             Carberry
             (
             who
             was
             a
             man
             of
             age
             )
             got
             an
             Aliment
             ,
             and
             
               Anthonia
               Brown
            
             got
             an
             Aliment
             from
             her
             Mother
             ,
             who
             had
             an
             Annualrent
             in
             Liferent
             ,
             and
             the
             Debts
             were
             all
             personal
             at
             her
             Fathers
             Death
             ,
             albeit
             some
             of
             them
             were
             Appryzed
             for
             ,
             before
             she
             got
             her
             Aliment
             .
             The
             Defender
             answered
             ,
             that
             there
             was
             a
             sufficient
             Superplus
             ,
             because
             she
             offered
             to
             take
             the
             Lands
             ,
             or
             find
             sufficient
             Tennents
             therefore
             ,
             for
             4300.
             
             Merks
             yearly
             ,
             which
             was
             a
             1000.
             
             Pounds
             above
             her
             Liferent
             ,
             and
             would
             exceed
             the
             Annualrents
             of
             all
             the
             Debts
             .
          
           
           
             The
             Lords
             found
             this
             last
             Defence
             relevant
             ,
             but
             did
             not
             proceed
             to
             determin●
             ,
             whether
             an
             Aliment
             would
             be
             due
             ,
             where
             the
             burden
             was
             but
             by
             personal
             Debt
             .
          
        
         
           
             Alexander
             Binny
             contra
             Margaret
             Binny
             ,
             Eodem
             die
             .
          
           
             
               MArgaret
               Binny
            
             granted
             a
             Bond
             ,
             obliging
             her self
             to
             Enter
             Heir
             of
             Line
             to
             her
             Father
             ,
             and
             to
             Resign
             the
             Lands
             in
             Favours
             of
             her Self
             ,
             and
             the
             Heirs
             to
             be
             Procreat
             of
             her
             own
             Body
             ;
             which
             failzying
             ,
             to
             the
             Heirs
             of
             
               Alexander
               Binny
            
             her
             Father
             ,
             and
             obliged
             her self
             to
             do
             nothing
             contrair
             to
             that
             Succession
             ;
             and
             having
             Married
             
               William
               Brotherstanes
            
             ,
             by
             her
             Contract
             of
             Marriage
             ,
             
               nomine
               dotis
            
             ,
             she
             Dispones
             the
             Lands
             to
             him
             .
             This
             Margaret
             was
             the
             only
             Child
             of
             
               Alexander
               Binnies
            
             first
             Marriage
             ,
             and
             there
             was
             an
             Inhibition
             used
             upon
             the
             Bond
             ,
             before
             her
             Contract
             of
             Marriage
             :
             
               Alexander
               Binny
            
             being
             Son
             of
             the
             second
             Marriage
             ,
             and
             Heir
             of
             Line
             to
             his
             Father
             ,
             pursues
             the
             said
             Margaret
             to
             fulfil
             the
             Bond
             ,
             and
             to
             Enter
             ,
             and
             Resign
             the
             Land
             conform
             thereto
             ,
             and
             thereupon
             did
             obtain
             Decreet
             ,
             which
             being
             now
             Suspended
             .
             It
             was
             alleadged
             ,
             that
             this
             being
             but
             an
             obligement
             to
             Constitute
             a
             Tailzy
             ,
             could
             have
             no
             effect
             to
             hinder
             her
             to
             Dispone
             to
             her
             Husband
             in
             name
             of
             Tocher
             ,
             which
             is
             the
             most
             favourable
             Debt
             ,
             or
             to
             Contract
             any
             other
             Debt
             ,
             which
             the
             Pursuer
             (
             who
             behoved
             to
             be
             her
             Heir
             )
             could
             never
             quarrel
             .
             2dly
             ,
             It
             was
             alleadged
             for
             the
             Husband
             ,
             that
             he
             could
             not
             be
             Decerned
             as
             Husband
             ,
             to
             consent
             to
             this
             Resignation
             ,
             contrair
             to
             his
             own
             Contract
             .
             It
             was
             answered
             ,
             that
             this
             was
             not
             only
             a
             Bond
             of
             Tailzy
             ,
             but
             an
             obligement
             to
             do
             nothing
             that
             might
             change
             the
             Succession
             ,
             and
             so
             she
             could
             not
             voluntarly
             Dispone
             ,
             but
             the
             Husbands
             Provision
             might
             be
             Competent
             enough
             ,
             seing
             both
             she
             has
             the
             Liferent
             ,
             and
             the
             Children
             of
             the
             Marriage
             will
             succeed
             in
             the
             Fee●
             and
             albeit
             the
             Pursuer
             must
             be
             Heir
             of
             Tailzy
             ,
             yet
             obligements
             in
             favours
             of
             Heirs
             of
             Tailzy
             ,
             are
             alwayes
             effectual
             against
             Heirs
             of
             Line
             ,
             in
             relation
             to
             whom
             the
             Heir
             of
             Tailzy
             is
             but
             as
             an
             stranger
             .
          
           
             The
             Lords
             repelled
             the
             Reason
             ,
             and
             found
             the
             Letters
             orderly
             proceeded
             ,
             till
             the
             Wife
             Entered
             ,
             and
             Resigned
             with
             Consent
             of
             her
             Husband
             ,
             conform
             to
             the
             Bond
             ,
             seing
             there
             was
             Inhibition
             used
             before
             the
             Contract
             ;
             but
             they
             did
             not
             Decide
             ,
             whether
             this
             Clause
             would
             have
             excluded
             the
             Debts
             ,
             to
             be
             Contracted
             by
             the
             said
             Margaret
             ,
             or
             her
             Heirs
             ,
             upon
             a
             just
             ground
             without
             Collusion
             ,
             but
             found
             that
             she
             could
             not
             make
             a
             voluntare
             Disposition
             ,
             to
             exclude
             that
             Succession
             ,
             in
             respect
             of
             the
             obligement
             to
             do
             nothing
             in
             the
             contrair
             .
          
        
         
           
             E●phan
             Brown
             contra
             Thomas
             Happiland
             ,
             Ianuary
             29.
             1668.
             
          
           
             
               MArjory
               Brown
            
             being
             first
             Married
             to
             Happiland
             ,
             and
             thereafter
             to
             
               Robert
               Brown
            
             ;
             she
             Acquired
             Right
             to
             a
             Tenement
             of
             Land
             to
             her self
             in
             Liferent
             ,
             and
             
               Euphan
               Happiland
            
             her
             Daughter
             of
             the
             first
             Marriage
             in
             Fee
             ;
             which
             Infeftment
             is
             given
             by
             the
             said
             
               Thomas
               Brown
            
             her
             Husband
             ,
             being
             then
             Bailly
             for
             the
             time
             .
             
               Agnes
               Happiland
            
             Dispones
             this
             Tenement
             to
             
               Thomas
               Brown
            
             ,
             Heir
             of
             the
             Marriage
             ,
             betwixt
             the
             said
             Umquhil
             
               Thomas
               Brown
            
             ,
             and
             
               Marjory
               Bruce
            
             ,
             and
             for
             the
             price
             thereof
             ,
             gets
             a
             Bond
             relative
             thereto
             .
             
               Thomas
               Brown
            
             being
             Charged
             upon
             this
             Bond
             ,
             raises
             Reduction
             upon
             Minority
             and
             Lesion
             .
             To
             the
             which
             it
             was
             answered
             ,
             there
             was
             no
             Lesion
             ,
             because
             the
             Disposition
             of
             the
             Land
             was
             an
             equivalent
             Onerous
             Cause
             .
             It
             was
             answered
             ,
             that
             the
             Disposition
             was
             no
             Onerous
             Cause
             ,
             
             because
             the
             Lands
             Disponed
             ,
             belonged
             not
             to
             the
             Disponer
             ,
             but
             to
             the
             Suspender
             himself
             ,
             in
             so
             far
             as
             they
             were
             Conquest
             by
             
               Marjory
               Bruce
            
             ,
             while
             she
             was
             Spouse
             to
             his
             Father
             ,
             so
             that
             the
             Money
             (
             wherewith
             she
             Acquired
             the
             same
             )
             belonging
             to
             the
             Husband
             
               jure
               Mariti
            
             ,
             the
             Land
             must
             also
             be
             his
             ,
             unlesse
             it
             were
             condescended
             and
             instructed
             ,
             that
             she
             had
             Heretable
             Sums
             ,
             not
             falling
             within
             the
             
               jus
               Mariti
            
             ,
             wherewith
             this
             Right
             was
             Acquired
             .
             It
             was
             duplyed
             ,
             that
             this
             was
             but
             a
             ●aked
             Conjecture
             and
             Presumption
             ,
             which
             is
             sufficiently
             taken
             off
             ,
             by
             the
             Husbands
             giving
             Seising
             as
             Bailly
             .
             It
             was
             answered
             ,
             that
             this
             was
             
               actus
               officij
            
             ,
             which
             he
             could
             not
             refuse
             ,
             but
             he
             knew
             that
             the
             Infeftment
             in
             favours
             of
             his
             Wife
             ,
             would
             accresce
             to
             himself
             .
          
           
             The
             Lords
             repelled
             the
             Reasons
             of
             Suspension
             and
             Reply
             ,
             in
             respect
             of
             the
             Answer
             and
             Duply
             ,
             and
             found
             that
             the
             Fee
             of
             the
             Land
             belonged
             to
             the
             Wife
             and
             her
             Daughter
             ,
             and
             that
             there
             was
             no
             Lesion
             in
             giving
             Bond
             therefore
             .
          
        
         
           
             Laird
             Aitoun
             contra
             Iames
             Fairy
             ,
             Eodem
             die
             .
          
           
             THe
             Laird
             of
             Aitoun
             having
             bought
             a
             Horse
             from
             
               Iames
               Fairy
            
             ;
             pursues
             for
             repetition
             of
             the
             price
             ,
             and
             for
             entertainment
             of
             the
             Horse
             since
             ,
             upon
             this
             ground
             ,
             that
             he
             offered
             to
             prove
             by
             the
             Witnesses
             ,
             at
             the
             buying
             of
             the
             Horse
             ,
             that
             
               Iames
               Fairy
            
             promised
             to
             uphold
             him
             but
             six
             years
             old
             ,
             and
             that
             he
             was
             truly
             twelve
             years
             old
             :
             The
             question
             was
             ,
             whether
             this
             was
             only
             probable
             by
             Oath
             ,
             or
             Witnesses
             .
          
           
             But
             the
             Lords
             perceiving
             an
             anterior
             question
             ,
             how
             soon
             the
             Horse
             was
             offered
             back
             by
             the
             Pursuer
             ,
             they
             ordained
             him
             to
             condescend
             ,
             that
             very
             shortly
             thereafter
             he
             offered
             the
             Horse
             back
             ,
             otherwise
             they
             would
             not
             sustain
             the
             Processe
             .
          
        
         
           
             John
             Papla
             contra
             the
             Magistrats
             of
             Edinburgh
             ,
             Ianuary
             31.
             1668.
             
          
           
             
               JOhn
               Papla
            
             pursues
             the
             present
             Magistrats
             of
             Edinburgh
             ,
             for
             payment
             of
             a
             Debt
             due
             to
             him
             ,
             by
             a
             Person
             Incarcerat
             in
             their
             Tolbooth
             ,
             who
             escaped
             .
             The
             Defenders
             alleadged
             no
             Processe
             ,
             till
             the
             Magistrats
             who
             then
             were
             ,
             especially
             Bailly
             Boyd
             (
             by
             whose
             Warrand
             the
             Rebel
             came
             out
             )
             be
             called
             .
             2dly
             ,
             The
             present
             Magistrats
             cannot
             be
             lyable
             Personally
             ,
             having
             done
             no
             Fault
             ;
             neither
             can
             they
             be
             lyable
             ,
             as
             representing
             the
             Burgh
             ,
             at
             least
             but
             subsidiarie
             after
             the
             Magistrats
             who
             then
             were
             in
             culpa
             ,
             were
             Discussed
             now
             after
             six
             or
             seven
             years
             time
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Prison
             being
             the
             Prison
             of
             the
             Burgh
             ,
             the
             Burgh
             was
             lyable
             principaliter
             ,
             and
             if
             only
             the
             Magistrat
             doing
             the
             Fault
             were
             lyable
             ,
             the
             Creditor
             might
             oftimes
             loose
             his
             Debt
             ,
             these
             being
             oftimes
             of
             no
             Fortune
             ,
             or
             sit
             to
             Govern
             ,
             and
             the
             Town
             who
             Choiseth
             them
             ,
             is
             answerable
             for
             them
             ;
             neither
             is
             the
             Pursuer
             obliged
             to
             know
             who
             were
             Baillies
             at
             that
             time
             ,
             or
             who
             did
             the
             fault
             ,
             and
             so
             is
             not
             bound
             to
             Cite
             them
             .
          
           
             The
             Lords
             Repelled
             the
             Defences
             ,
             and
             found
             the
             present
             Magistrats
             (
             as
             representing
             the
             Town
             )
             lyable
             ,
             but
             prejudice
             to
             them
             ,
             to
             Cite
             them
             who
             did
             the
             Fault
             .
          
        
         
           
             Robert
             Ker
             contra
             Henry
             Ker
             ,
             February
             5.
             1668.
             
          
           
             
               RObert
               Ker
            
             of
             Graden
             having
             granted
             Bond
             to
             
               Robert
               Ker
            
             his
             Son
             ,
             for
             3000.
             
             Merks
             of
             borrowed
             Money
             ,
             and
             3000.
             
             Merks
             of
             Portion
             ;
             for
             
             which
             Sum
             he
             did
             Infeft
             him
             in
             an
             Annualrent
             of
             240.
             
             Pound
             yearly
             ,
             Suspending
             the
             Payment
             of
             the
             one
             half
             of
             the
             Annualrent
             till
             his
             Death
             ;
             whereupon
             Robert
             pursues
             a
             Poinding
             of
             the
             Ground
             .
             It
             was
             alleadged
             for
             
               Henry
               Ker
            
             (
             the
             eldest
             Son
             ,
             who
             stands
             now
             Infeft
             in
             the
             Lands
             )
             Absolvitor
             ,
             because
             he
             stands
             Infeft
             in
             the
             Lands
             before
             this
             Infeftment
             of
             Annualrent
             being
             but
             base
             ,
             took
             effect
             by
             Possession
             .
             The
             Pursuer
             answered
             ,
             first
             ,
             That
             the
             Defenders
             Infeftment
             ,
             being
             posterior
             ,
             and
             granted
             to
             the
             appearand
             Heir
             ,
             without
             a
             Cause
             Onerous
             ,
             it
             is
             
               perceptio
               Haereditatis
            
             ,
             and
             if
             the
             Father
             were
             Dead
             ,
             it
             would
             make
             the
             Defender
             lyable
             as
             Heir
             ,
             and
             therefore
             now
             he
             cannot
             make
             use
             thereof
             ,
             in
             prejudice
             of
             the
             Pursuer
             .
             2dly
             .
             The
             Pursuer
             offered
             to
             prove
             ,
             that
             his
             Annualrent
             was
             cled
             with
             Possession
             before
             the
             Defenders
             Infeftment
             ,
             in
             so
             far
             as
             he
             Received
             the
             half
             of
             the
             Annual●ent
             ,
             which
             is
             sufficient
             to
             validat
             the
             Infeftment
             for
             the
             whole
             ,
             seing
             there
             are
             not
             two
             Annualrents
             ,
             but
             one
             for
             the
             whole
             Sum
             ,
             and
             seing
             the
             〈◊〉
             could
             do
             no
             more
             ,
             the
             one
             half
             of
             the
             Annualrent
             being
             Suspended
             till
             his
             Fathers
             Death
             .
          
           
             The
             Lords
             found
             this
             second
             Reply
             relevant
             ,
             and
             found
             the
             Possession
             of
             the
             half
             was
             sufficient
             to
             validat
             the
             Possession
             for
             the
             whole
             ,
             but
             superceded
             to
             give
             answer
             to
             the
             former
             Reply
             ,
             till
             the
             conclusion
             of
             the
             Cause
             ,
             not
             being
             clear
             ,
             that
             the
             Defense
             upon
             the
             Defenders
             Inseftment
             could
             be
             taken
             away
             summarly
             ,
             though
             he
             was
             appearand
             Heir
             without
             Reduction
             ,
             upon
             the
             Act
             of
             Parliament
             ,
             1621.
             
          
        
         
           
             Mr.
             George
             Iohnstoun
             contra
             Sir
             Charles
             Erskin
             ,
             February
             6.
             1668.
             
          
           
             THe
             Lands
             of
             Knock●●●
             ,
             being
             part
             of
             the
             Lands
             of
             Houdon
             ,
             did
             belong
             to
             Umquhil
             
               Richard
               Irwing
            
             ,
             Umquhile
             Mr.
             
               Iohn
               Alexander
            
             Minister
             ,
             having
             Charged
             
               Robert
               Irwing
            
             to
             enter
             Heir
             in
             special
             to
             the
             said
             Richard
             his
             Grand-sir
             in
             these
             Lands
             ,
             he
             did
             Appryze
             the
             same
             from
             Robert
             as
             specially
             Charged
             to
             enter
             Heir
             ,
             but
             Robert
             died
             before
             he
             was
             Infeft
             ,
             or
             Charged
             ;
             the
             Superior
             ,
             Sir
             
               Charles
               Erskine
            
             ,
             hath
             Appryzed
             from
             Mr.
             
               Iohn
               Alexander
            
             all
             Right
             competent
             to
             him
             in
             these
             Lands
             ,
             and
             thereby
             having
             Right
             to
             Mr.
             
               Iohn
               Alexanders
            
             Appryzing
             ,
             he
             is
             Infeft
             thereupon
             .
             After
             
               Robert
               Irwings
            
             Decease
             ,
             his
             Sisters
             served
             themselves
             Heir
             to
             Richard
             their
             Grand-sir
             ,
             and
             are
             Infeft
             ,
             do
             Dispone
             to
             Mr.
             
               George
               Iohnstoun
            
             ,
             who
             is
             also
             Inseft
             .
             Mr.
             George
             pursues
             for
             Mails
             and
             Duties
             ,
             in
             the
             Name
             of
             Irwings
             his
             Authors
             ;
             Compearance
             is
             made
             for
             Sir
             
               Charles
               Erskine
            
             ,
             who
             alleadged
             Absolvitor
             .
             First
             ,
             Because
             he
             hath
             been
             seven
             years
             in
             Possession
             of
             the
             Lands
             in
             question
             ,
             by
             vertue
             of
             Mr.
             
               Iohn
               Alexanders
            
             Appryzing
             ,
             and
             his
             own
             ,
             and
             so
             is
             
               tulus
               exceptione
               in
               judicio
               possess●rio
            
             ,
             and
             cannot
             be
             quarrelled
             till
             his
             Right
             be
             Reduced
             .
             2dly
             ,
             He
             is
             
               potior
               jure
            
             ,
             and
             his
             Right
             must
             exclude
             the
             Pursuers
             ,
             because
             he
             having
             Right
             to
             Mr.
             
               Iohn
               Alexanders
            
             Appryzing
             ,
             which
             was
             Deduced
             against
             
               Robert
               Irwing
            
             ,
             as
             specially
             Charged
             to
             enter
             Heir
             ;
             so
             Richard
             ,
             as
             to
             him
             ,
             is
             in
             as
             good
             case
             ,
             as
             Robert
             had
             been
             actually
             Entered
             ,
             and
             Infeft
             by
             the
             Act
             of
             Parliament
             ,
             declaring
             that
             when
             Parties
             are
             Charged
             to
             enter
             Heir
             ,
             and
             lyes
             out
             ,
             sicklike
             Processe
             ,
             and
             Execution
             shall
             be
             against
             them
             ,
             as
             they
             were
             actually
             Entered
             ;
             likeas
             the
             Tenor
             of
             the
             special
             Charge
             introduced
             by
             Custom
             ,
             to
             perfect
             the
             foresaid
             Act
             of
             Parliament
             ,
             bears
             expresly
             ,
             that
             the
             Person
             Charged
             shall
             enter
             specially
             ,
             and
             obtain
             himself
             Infeft
             ,
             with
             Certification
             ,
             that
             the
             user
             of
             the
             Charge
             shall
             have
             the
             like
             Execution
             against
             him
             ,
             as
             if
             he
             were
             Entered
             ,
             and
             Infeft
             ;
             and
             therefore
             Mr.
             
               Iohn
               Alexanders
            
             Appryzing
             against
             
               Robert
               I●wing
            
             ,
             so
             Charged
             ,
             was
             as
             effectual
             to
             him
             ,
             as
             if
             Robert
             had
             
             been
             actually
             Infeft
             ,
             in
             which
             case
             there
             is
             no
             question
             ,
             but
             the
             Appryzer
             might
             obtain
             himself
             Infeft
             upon
             the
             Appryzing
             ,
             after
             the
             Death
             of
             him
             against
             whom
             he
             Appryzed
             ,
             and
             that
             summarly
             ,
             without
             new
             Processe
             ,
             and
             there
             is
             no
             difference
             whether
             the
             Superior
             were
             Charged
             during
             the
             Life
             of
             the
             Debtor
             ,
             or
             not
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             no
             Party
             can
             claim
             the
             benefit
             of
             a
             Possessory
             judgement
             ,
             unlesse
             he
             have
             a
             real
             Right
             by
             Infeftment
             ,
             at
             least
             by
             Tack
             ;
             but
             a
             naked
             Appryzing
             ,
             thoug
             it
             may
             carry
             Mails
             and
             Duties
             ,
             as
             a
             naked
             Assigation
             ,
             and
             is
             valide
             against
             the
             Debtor
             or
             his
             Heir
             ,
             ●et
             in
             it self
             it
             is
             an
             incompleat
             Right
             ,
             and
             not
             become
             real
             .
             It
             was
             answered
             ,
             that
             the
             Appryzing
             alone
             was
             sufficient
             ,
             as
             was
             lately
             found
             in
             the
             Case
             of
             Mr.
             
               Rodger
               Hog
            
             ,
             against
             the
             Tennent
             of
             Wauchtoun
             .
          
           
             The
             Lords
             repelled
             the
             first
             Defense
             ,
             and
             found
             there
             was
             no
             grond
             for
             a
             Possessory
             judgement
             ;
             here
             there
             was
             neither
             Infeftment
             ,
             nor
             Charge
             upon
             the
             Appryzing
             .
          
           
             The
             Pursuer
             answered
             to
             the
             second
             Defense
             ,
             that
             it
             was
             not
             relevant
             to
             exclude
             him
             ,
             because
             
               Richard
               Irving
            
             having
             Dyed
             last
             ,
             vest
             and
             seised
             in
             the
             Lands
             ,
             and
             
               Robert
               Irving
            
             never
             having
             been
             In●eft
             ,
             the
             Pursuers
             ,
             Roberts
             Sisters
             ,
             who
             were
             Heirs
             appearand
             ,
             buth
             to
             Richard
             their
             Grand-sir
             ,
             and
             Robert
             their
             Brother
             ,
             could
             not
             possibly
             obtain
             themselves
             Infeft
             as
             Heirs
             to
             their
             Brother
             ,
             becuse
             the
             Inquest
             could
             not
             find
             that
             Robert
             Dyed
             last
             ,
             vest
             and
             seised
             as
             of
             Fee
             ,
             but
             Richard
             and
             any
             Appryzing
             against
             Robert
             (
             who
             was
             never
             Infeft
             )
             evanished
             ,
             seing
             no
             Infeftment
             was
             obtained
             upon
             the
             Appryzing
             ,
             nor
             no
             Charge
             used
             against
             the
             Supperior
             ,
             during
             Roberts
             Life
             ,
             so
             that
             the
             Appryzer
             ought
             to
             have
             Charged
             
               de
               novo
            
             these
             Pursuers
             to
             Enter
             Heir
             to
             Richard
             ,
             and
             ought
             to
             have
             Appryzed
             from
             them
             ,
             as
             lawfully
             Chaged
             ,
             and
             to
             have
             obtained
             Infeftment
             upon
             the
             Appryzing
             in
             their
             Life
             ,
             and
             as
             the
             Sisters
             would
             exclude
             the
             imperfect
             Diligence
             against
             the
             Brother
             ,
             so
             much
             more
             may
             Mr.
             
               George
               Iohnstoun
            
             ,
             who
             is
             their
             singular
             Successor
             .
             It
             was
             duplyed
             by
             the
             Defender
             ,
             that
             Mr.
             
               George
               Iohnstoun
            
             ,
             albeit
             he
             be
             singular
             Successor
             ,
             yet
             he
             is
             Infeft
             after
             Sir
             
               Charles
               Erskin
            
             ;
             and
             therefore
             the
             question
             now
             is
             only
             betwixt
             the
             Appryzer
             ,
             having
             Charged
             the
             Brother
             in
             special
             ,
             to
             Enter
             to
             these
             Lands
             to
             his
             Grand-sir
             ,
             and
             these
             Sisters
             being
             Infeft
             as
             Heirs
             to
             the
             same
             Grand-sir
             ,
             and
             albeit
             they
             could
             only
             Infeft
             themselves
             as
             Heirs
             to
             the
             Grand-sir
             ,
             the
             Brother
             never
             having
             been
             Infeft
             ,
             to
             the
             effect
             ,
             that
             they
             might
             either
             Reduce
             ,
             or
             Redeem
             the
             Appryzing
             led
             against
             their
             Brother
             ,
             because
             the
             Charge
             to
             Enter
             Heir
             ,
             did
             state
             their
             Brother
             Charged
             ,
             as
             if
             he
             had
             been
             actually
             Infeft
             ,
             only
             in
             relation
             to
             ,
             and
             in
             favours
             of
             the
             Appryzer
             ,
             who
             Charged
             him
             ,
             yet
             as
             to
             that
             Appryzer
             ,
             he
             is
             in
             the
             same
             condition
             ,
             as
             if
             Robert
             had
             been
             actually
             Infeft
             ,
             and
             there
             is
             no
             Law
             requiring
             him
             to
             obtain
             Infeftment
             ,
             or
             to
             Charge
             the
             Superior
             during
             the
             Life
             of
             Robert
             ,
             who
             is
             specially
             Charged
             ;
             but
             as
             in
             other
             Appryzings
             ,
             so
             in
             this
             ,
             he
             may
             Charge
             the
             Superior
             ,
             or
             obtain
             Infeftment
             when
             ever
             he
             pleases
             .
             It
             is
             true
             ,
             that
             if
             a
             singular
             Successor
             had
             obtained
             Infeftment
             upon
             the
             Resignation
             of
             Richards
             Heirs
             ,
             Entered
             and
             Infeft
             before
             the
             Appryzer
             had
             obtained
             Infeftment
             ,
             the
             Appryzers
             delay
             might
             have
             prejudged
             him
             ,
             and
             preferred
             the
             first
             compleat
             Right
             ,
             but
             the
             Heirs
             themselves
             could
             never
             exclude
             him
             ,
             though
             their
             Infeftment
             were
             prior
             .
          
           
             The
             Lordi
             found
             the
             second
             Defence
             and
             Duply
             relevant
             ,
             and
             found
             the
             Infeftment
             upon
             the
             Appryzing
             (
             against
             the
             appearand
             Heir
             )
             specially
             Cla●ged
             ,
             and
             the
             Appriyzing
             it self
             to
             be
             as
             valide
             ,
             as
             if
             the
             appearand
             Heir
             had
             been
             actually
             In●eft
             ,
             and
             that
             the
             Compryzing
             became
             not
             void
             through
             want
             of
             
             Infeftment
             ,
             or
             Charge
             against
             the
             Superior
             ,
             during
             that
             appearand
             Heirs
             Life
             .
          
        
         
           
             Alexander
             Chisholm
             contra
             Renies
             ,
             Eodem
             die
             .
          
           
             
               ALexander
               Chisholm
            
             as
             Executor
             to
             
               Iohn
               Graham
            
             of
             Orchel
             ,
             pursues
             William
             and
             
               Archibald
               Renies
            
             for
             a
             Bond
             ,
             granted
             by
             them
             to
             the
             Defunct
             ,
             in
             anno
             1635.
             who
             alleadged
             that
             the
             true
             cause
             of
             the
             Bond
             was
             by
             Transaction
             of
             a
             Blood-wit
             ,
             made
             by
             the
             Laird
             of
             Gloret
             ,
             and
             Mr.
             
               Iames
               Row
            
             ,
             in
             whose
             Hands
             this
             Bond
             (
             then
             being
             blank
             )
             was
             put
             ,
             and
             which
             unwarrantably
             came
             in
             the
             Hands
             of
             Orchel
             the
             Party
             ,
             who
             in
             stead
             of
             400.
             
             Merks
             ,
             filled
             up
             2000.
             
             Merks
             ,
             which
             is
             offered
             to
             be
             proven
             by
             the
             Arbiters
             Oaths
             ,
             yet
             on
             Life
             .
             The
             Pursuer
             answered
             ,
             that
             his
             Bond
             could
             not
             be
             taken
             away
             by
             Witnesses
             ,
             especially
             extrinsick
             Witnesses
             ,
             there
             being
             no
             Writ
             relative
             to
             this
             Bond
             ,
             or
             of
             the
             same
             Date
             ,
             or
             Witnesses
             that
             might
             give
             any
             presumption
             of
             the
             Cause
             thereof
             .
             The
             Defender
             answered
             ,
             that
             there
             were
             here
             far
             stronger
             presumptions
             ,
             viz.
             That
             this
             Bond
             hath
             been
             Dormant
             33.
             years
             ,
             albeit
             it
             bore
             no
             Annualrent
             ,
             and
             Orchel
             was
             known
             to
             be
             in
             great
             necessity
             ,
             and
             by
             ocular
             inspection
             ,
             it
             appears
             to
             be
             filled
             up
             with
             another
             Hand
             ,
             and
             blotted
             ,
             which
             presumptions
             ,
             being
             so
             singular
             ,
             give
             ground
             enough
             to
             the
             Lords
             to
             Examine
             Witnesses
             ,
             
               ex
               nobili
               officio
            
             .
          
           
             The
             Lords
             ordained
             the
             Witnesses
             and
             Arbiters
             to
             be
             Examined
             
               ex
               officio
            
             ,
             reserving
             to
             themselves
             what
             these
             Testimonies
             should
             operat
             ,
             in
             respect
             of
             the
             antiquity
             and
             singularity
             of
             the
             Case
             .
          
        
         
           
             Captain
             Coningsby
             contra
             Captain
             Mastertoun
             ,
             Feb.
             7.
             1668.
             
          
           
             CAptain
             Coningsby
             ,
             Captain
             of
             a
             Privateer
             ,
             pursues
             Captain
             Mastertoun
             for
             his
             share
             of
             two
             Prizes
             ,
             taken
             upon
             the
             5th
             .
             of
             August
             1666.
             upon
             two
             grounds
             ,
             first
             ,
             upon
             concourse
             ,
             because
             both
             these
             Privateers
             being
             in
             view
             of
             the
             first
             Prize
             ,
             did
             both
             make
             up
             to
             her
             ;
             Coningsby
             being
             nearest
             ,
             and
             that
             when
             they
             came
             to
             near
             distance
             ,
             within
             half
             a
             Mile
             ,
             Coningsby
             fired
             the
             first
             Gun
             ,
             Mastertoun
             the
             second
             ,
             and
             Coningsby
             the
             third
             ;
             at
             the
             firing
             of
             which
             the
             Prize
             streekt
             Sail
             ,
             which
             signified
             her
             surrender
             without
             more
             resistance
             ;
             and
             albeit
             Mastertoun
             being
             to
             the
             Windward
             ,
             came
             first
             Aboard
             ,
             yet
             it
             was
             without
             resistance
             ,
             the
             Prize
             having
             rendered
             before
             ,
             by
             streiking
             Sail
             ;
             Coningsby
             being
             within
             a
             small
             distance
             ,
             came
             presently
             up
             ,
             and
             Demanded
             his
             share
             ,
             according
             to
             the
             proportion
             of
             the
             Men
             and
             Guns
             of
             both
             Friggats
             ,
             being
             the
             ordinar
             Rule
             of
             division
             of
             Prizes
             ,
             betwixt
             concurring
             Friggars
             .
             2dly
             ,
             Upon
             the
             ground
             of
             consortship
             ,
             or
             society
             made
             up
             betwixt
             the
             two
             Captains
             ,
             after
             taking
             of
             the
             first
             Prize
             ,
             and
             by
             the
             same
             consortship
             ,
             craved
             the
             share
             of
             a
             second
             Prize
             ,
             taken
             that
             same
             day
             ,
             it
             having
             been
             agreed
             ,
             that
             both
             should
             be
             sharers
             in
             all
             Prizes
             that
             should
             be
             taken
             by
             either
             ,
             till
             their
             Victuals
             were
             spent
             .
             The
             Defender
             ,
             Mastertoun
             and
             his
             Owners
             ,
             alleadged
             Absolvitor
             ,
             from
             both
             these
             grounds
             ,
             for
             as
             to
             the
             concourse
             ,
             it
             is
             not
             relevant
             ,
             unlesse
             the
             Pursuer
             had
             alleadged
             that
             he
             had
             a
             real
             influence
             upon
             the
             Capture
             ,
             for
             as
             to
             any
             Guns
             he
             shot
             ,
             they
             were
             without
             a
             Miles
             distance
             ,
             and
             Mastertouns
             Friggat
             being
             much
             lighter
             and
             swifter
             ,
             did
             Oversail
             Coningsby
             ,
             and
             when
             the
             Prize
             streikt
             Sail
             ,
             Coningsby
             was
             a
             Mile
             behind
             ,
             and
             at
             the
             same
             distance
             when
             she
             was
             taken
             ,
             and
             therefore
             was
             neither
             concurrent
             in
             the
             force
             ,
             nor
             in
             
             the
             fear
             ,
             and
             as
             to
             the
             consortship
             ,
             it
             was
             answered
             ,
             first
             ,
             that
             albeit
             there
             was
             a
             communing
             of
             consortship
             ,
             yet
             there
             was
             no
             concluded
             agreement
             ,
             for
             Coningsby
             claimed
             a
             share
             according
             to
             Men
             and
             Guns
             ,
             which
             Mastertoun
             denyed
             ,
             having
             far
             fewer
             Men
             and
             Guns
             ,
             whereby
             he
             that
             took
             the
             Prize
             would
             have
             had
             the
             smallest
             share
             ,
             so
             that
             it
             evanished
             .
             2dly
             ,
             Albeit
             there
             had
             been
             a
             consortship
             made
             by
             the
             Captain
             ,
             yet
             that
             could
             not
             be
             effectual
             ,
             until
             it
             had
             been
             concluded
             in
             Writ
             .
             3dly
             ,
             It
             could
             not
             be
             effectual
             in
             prejudice
             of
             the
             Owners
             ;
             the
             Captain
             having
             no
             power
             to
             make
             any
             such
             consortship
             ,
             either
             by
             his
             office
             ,
             or
             special
             Commission
             .
             The
             Pursuer
             answered
             ,
             that
             his
             alleadgeance
             upon
             concurrence
             was
             most
             relevant
             ,
             he
             being
             nearer
             when
             the
             Chase
             began
             ,
             and
             within
             a
             small
             distance
             when
             the
             Pryze
             streiked
             Sail
             ,
             and
             was
             taken
             ;
             and
             it
             cannot
             be
             doubted
             but
             the
             Prize
             had
             terror
             of
             both
             ,
             to
             the
             second
             ,
             Masters
             of
             Ships
             by
             their
             Office
             ,
             may
             in
             many
             cases
             impignorat
             ,
             or
             Sell
             the
             Ship
             ,
             or
             Outreik
             ,
             and
             Captains
             of
             Privateers
             having
             Commission
             to
             make
             Prize
             ,
             have
             
               eo
               ipso
            
             ,
             the
             power
             to
             use
             the
             most
             conducible
             means
             ,
             and
             so
             to
             make
             consortship
             for
             that
             end
             :
             and
             albeit
             the
             first
             Prize
             was
             taken
             before
             the
             consortship
             ,
             yet
             the
             Pursuer
             having
             upon
             his
             concourse
             demanded
             a
             proportion
             ,
             conform
             to
             his
             Men
             and
             Guns
             ,
             and
             being
             far
             stronger
             nor
             Mastertoun
             ,
             and
             able
             to
             master
             him
             ,
             and
             his
             Prize
             both
             ,
             he
             might
             in
             such
             a
             case
             transact
             ,
             and
             make
             this
             Co-partinary
             ,
             which
             was
             useful
             to
             his
             Owners
             ,
             making
             them
             to
             have
             the
             half
             of
             the
             first
             Prize
             ,
             whereof
             they
             would
             not
             have
             fallen
             above
             a
             third
             or
             fourth
             Part
             ,
             so
             that
             it
             was
             
               utiliter
               gestum
               ,
               et
               transactum
               in
               re
               dubia
               ,
            
             and
             whereas
             it
             is
             alleadged
             to
             have
             been
             but
             a
             communing
             ,
             the
             contrair
             is
             evident
             ,
             by
             the
             putting
             in
             of
             Coningsbies
             Men
             both
             in
             Mastertouns
             Ship
             ,
             and
             in
             the
             Prize
             ;
             neither
             is
             there
             any
             necessity
             of
             Writ
             in
             such
             Transactions
             made
             
               in
               procinctu
               belli
               ,
               et
               in
               alto
               mari
               .
            
          
           
             The
             Lords
             having
             before
             answer●
             Examined
             Mastertoun
             and
             Witnesses
             
               hinc
               inde
            
             ,
             for
             clearing
             the
             matter
             of
             Fact
             ,
             Mastertoun
             himself
             did
             acknowledge
             the
             consortship
             to
             have
             been
             agreed
             upon
             ,
             but
             affirmed
             that
             when
             they
             came
             to
             Subscribe
             the
             Writ
             ,
             Coningsby
             craved
             a
             proportion
             ,
             by
             Men
             and
             Guns
             ,
             which
             he
             refused
             without
             an
             equal
             division
             ,
             and
             several
             of
             the
             Witnesses
             having
             Deponed
             ,
             that
             that
             difference
             was
             referred
             to
             the
             Owners
             without
             dissolving
             the
             consortship
             ;
             Mastertoun
             himself
             having
             also
             Deponed
             ,
             that
             in
             contemplation
             of
             the
             consortship
             ,
             Coningsbies
             Men
             wa●
             put
             Aboard
             of
             him
             and
             the
             Prize
             ,
             and
             the
             Witnesses
             having
             variously
             Deponed
             anent
             the
             distance
             ,
             when
             the
             first
             Prize
             streiked
             Sail
             ,
             and
             was
             taken
             .
          
           
             The
             Lords
             found
             a
             consortship
             sufficiently
             proven
             ,
             and
             that
             there
             was
             a
             concourse
             as
             to
             the
             first
             Prize
             ,
             and
             therefore
             found
             Coningsby
             to
             have
             a
             Right
             to
             a
             share
             ,
             which
             they
             found
             to
             be
             the
             equal
             share
             ,
             seing
             Mastertoun
             was
             most
             instrumental
             ,
             and
             did
             actually
             seize
             upon
             both
             Prizes
             .
          
        
         
           
             The
             Minister
             of
             Cockburns-path
             contra
             his
             Parochiners
             .
             Eodem
             die
             .
          
           
             THe
             Minister
             of
             Cockburns-path
             having
             obtained
             a
             Designation
             of
             a
             Horse
             ,
             and
             two
             Kines
             Grasse
             ,
             conform
             to
             the
             Act
             of
             Parliament
             1661.
             pursues
             a
             Declarator
             of
             his
             Right
             thereby
             .
             It
             was
             alleadged
             Absolvitor
             ,
             because
             the
             Designation
             was
             null
             ,
             in
             respect
             it
             was
             by
             the
             Bishops
             Warrand
             direct
             to
             three
             Ministers
             Nominatim
             ,
             and
             it
             was
             performed
             only
             by
             two
             ,
             the
             third
             not
             having
             come
             ,
             and
             a
             Commission
             to
             the
             three
             must
             be
             understood
             joyntly
             ,
             and
             not
             to
             empower
             any
             two
             of
             them
             ,
             unlesse
             it
             had
             been
             
             exprest
             ,
             likeas
             the
             Act
             of
             Parliament
             anent
             the
             Grasse
             ,
             requires
             the
             Designation
             of
             three
             Ministers
             .
             The
             Pursuer
             answered
             ,
             that
             by
             the
             Act
             of
             Parliament
             ,
             1661.
             the
             Designation
             of
             Grasse
             is
             appointed
             to
             be
             according
             to
             the
             old
             standing
             Acts
             ,
             anent
             Manses
             and
             Gleibs
             ,
             which
             do
             not
             require
             three
             Ministers
             ,
             that
             number
             being
             only
             required
             by
             the
             Act
             of
             Parliament
             1649.
             which
             is
             Rescinded
             ,
             and
             not
             revived
             as
             to
             that
             point
             ,
             and
             seing
             three
             Ministers
             are
             not
             neces●ar
             ,
             but
             that
             two
             are
             sufficient
             ,
             the
             Designation
             done
             by
             two
             is
             sufficient
             .
          
           
             The
             Lords
             Sustained
             the
             Designation
             ,
             unlesse
             the
             Defender
             shew
             weighty
             Reasons
             of
             prejudice
             upon
             the
             matter
             .
          
        
         
           
             Sir
             John
             Weyms
             contra
             the
             Laird
             of
             Touchon
             ,
             February
             8.
             1668.
             
          
           
             SIr
             
               Iohn
               Weyms
            
             having
             a
             Commission
             from
             the
             Parliament
             to
             lift
             the
             Maintainance
             ,
             when
             he
             was
             General
             Commissar
             ,
             Charges
             the
             Laird
             of
             Touchon
             for
             his
             Lands
             ,
             who
             Suspended
             on
             this
             Reason
             ,
             that
             by
             that
             Act
             and
             Commission
             ,
             singular
             Successors
             are
             excepted
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Act
             excepteth
             singular
             Successors
             ,
             who
             Bought
             the
             Lands
             ,
             but
             the
             Suspender
             is
             appearand
             Heir
             ,
             and
             Bought
             in
             Appryzings
             for
             small
             Sums
             ;
             and
             as
             Wodsetters
             are
             not
             freed
             as
             singular
             Successors
             ,
             nor
             Appryzers
             within
             the
             legal
             ,
             so
             neither
             can
             the
             Suspender
             ;
             for
             albeit
             the
             legal
             ,
             as
             to
             the
             Appryzer
             be
             expired
             ,
             yet
             the
             Act
             of
             Parliament
             between
             Debtor
             and
             Creditor
             ,
             makes
             all
             Apprizings
             Bought
             in
             by
             appearand
             Heirs
             Redeemable
             from
             them
             ,
             on
             payment
             of
             the
             Sums
             they
             Bought
             them
             in
             for
             ,
             within
             ten
             years
             after
             they
             Bought
             them
             ,
             and
             therefore
             as
             to
             Touchon
             ,
             who
             is
             apperand
             Heir
             ,
             he
             is
             in
             the
             same
             case
             with
             an
             Appryzer
             ,
             within
             the
             legal
             .
          
           
             Which
             the
             Lords
             found
             relevant
             ,
             and
             Decerned
             against
             Touchon
             .
          
        
         
           
             Andrew
             Greirson
             contra
             Patrick
             Mcilroy
             ,
             Messenger
             ,
             February
             13.
             1668.
             
          
           
             
               ANdrew
               Greirson
            
             having
             employed
             
               Patrick
               Mcilroy
            
             Messenger
             ,
             to
             use
             Inhibition
             ,
             and
             Arrestment
             against
             Sir
             
               Iames
               Mcdougal
            
             of
             Garthland
             ,
             and
             having
             failed
             to
             make
             use
             thereof
             in
             time
             before
             he
             Disponed
             ,
             did
             pursue
             him
             ,
             and
             Houstoun
             of
             Cutreoch
             his
             Cautioner
             ,
             before
             the
             Lord
             Lyon
             ,
             whereupon
             the
             said
             Patrick
             and
             his
             Cautioner
             were
             Decerned
             to
             make
             payment
             of
             500
             Merks
             of
             Penalty
             ,
             and
             of
             the
             Damnage
             and
             Interest
             sustained
             by
             the
             Pursuer
             ,
             to
             the
             value
             of
             the
             Sums
             ,
             whereupon
             the
             Inhibition
             and
             Arrestment
             should
             have
             been
             used
             .
             The
             Messenger
             and
             his
             Cautioner
             raises
             Suspension
             and
             Reduction
             ,
             and
             insists
             upon
             this
             Reason
             ,
             that
             the
             Decreet
             is
             null
             ,
             as
             a
             
               non
               suo
               judice
            
             ,
             because
             albeit
             the
             Lyon
             be
             Authorized
             by
             Act
             of
             Parliament
             1587.
             cap.
             46.
             to
             take
             Caution
             for
             Messengers
             Discharge
             of
             their
             Office
             ,
             and
             upon
             default
             ,
             may
             Summond
             Messengers
             and
             their
             Cautioners
             ,
             and
             may
             Deprive
             the
             Messengers
             ,
             and
             Decern
             them
             ,
             and
             their
             Cautioners
             ,
             in
             the
             pains
             and
             penalty
             for
             which
             they
             became
             Cautioners
             ,
             yet
             the
             Lyon
             is
             not
             warranted
             thereby
             to
             Determine
             the
             Damnage
             of
             Parties
             ,
             through
             Default
             of
             Messengers
             ,
             which
             may
             be
             of
             the
             greatest
             Moment
             and
             Intricacy
             ;
             and
             would
             be
             of
             dangerous
             consequence
             to
             give
             the
             Lyon
             such
             Jurisdiction
             over
             all
             the
             Kingdom
             .
             The
             Charger
             answered
             ,
             that
             the
             Messenger
             was
             unquestionably
             lyable
             to
             the
             Lyons
             Juridiction
             ,
             and
             that
             both
             he
             and
             the
             Cautioner
             had
             made
             themselves
             lyable
             thereto
             ,
             by
             Enacting
             themselves
             in
             the
             Lyons
             Books
             ,
             ●nd
             granting
             Bond
             Registerable
             therein
             and
             it
             
             would
             be
             great
             inconvenience
             to
             pursue
             Messengers
             before
             the
             Lyon
             only
             for
             Deprivation
             and
             Penalty
             ,
             and
             have
             need
             of
             another
             Process
             for
             Damnage
             ,
             and
             Interest
             ,
             and
             that
             the
             Lyon
             has
             been
             accustomed
             to
             Decern
             Cautioners
             so
             before
             .
          
           
             The
             Lords
             found
             the
             Reason
             of
             Reduction
             relevant
             ,
             and
             turned
             the
             Decreet
             into
             a
             Lybel
             ,
             but
             Sustained
             the
             Decreet
             as
             to
             the
             Penalty
             of
             500.
             
             Merks
             ,
             in
             which
             the
             Messenger
             was
             Enacted
             ,
             but
             n●t
             for
             the
             Damnage
             and
             Interest
             ,
             ne●●her
             against
             the
             Messenger
             nor
             Cautioner
             .
          
        
         
           
             William
             Borthwick
             contra
             Lord
             Borthwick
             ,
             February
             14.
             1668.
             
          
           
             
               WIlliam
               Borthwick
            
             having
             Charged
             the
             Lord
             Borthwick
             for
             payment
             of
             a
             Sum
             of
             Money
             ,
             he
             Suspends
             ,
             and
             alleadges
             that
             William
             is
             Debtor
             to
             him
             in
             an
             equivalent
             Sum
             ,
             for
             the
             price
             of
             the
             Lands
             of
             Hal●eriot
             ,
             Sold
             by
             my
             Lord
             to
             the
             Charger
             ,
             conform
             to
             a
             Minut
             produced
             .
             The
             Charger
             answered
             ,
             that
             the
             Reason
             was
             not
             relevant
             ,
             unl●sse
             the
             Suspender
             would
             extend
             and
             perfect
             the
             Minut
             ,
             which
             my
             Lord
             refuses
             especially
             ,
             and
             particularly
             ,
             to
             Subscribe
             a
             Disposition
             of
             the
             Lands
             ,
             with
             common
             Pasturage
             in
             Borthwick
             Moor.
             The
             Suspender
             answered
             ,
             that
             he
             was
             most
             willing
             to
             extend
             the
             Minut
             ,
             but
             would
             not
             insert
             that
             Clause
             ,
             because
             the
             Minut
             could
             not
             carry
             ,
             nor
             import
             the
             same
             ,
             bearing
             only
             a
             Disposition
             of
             the
             Lands
             ,
             with
             Parts
             ,
             Pendicles
             ,
             and
             Pertinents
             thereof
             ,
             which
             he
             was
             content
             should
             be
             insert
             in
             the
             extended
             Disposition
             ,
             and
             it
             was
             only
             proper
             after
             the
             Infeftment
             was
             perfected
             ,
             that
             the
             Charger
             should
             make
             use
             of
             it
             ,
             so
             far
             as
             it
             could
             reach
             ,
             which
             he
             was
             content
             should
             be
             reserved
             as
             accords
             .
             2dly
             ,
             If
             he
             were
             obliged
             to
             Dispute
             the
             effect
             of
             it
             ,
             it
             could
             not
             extend
             to
             Pasturage
             in
             the
             Moor
             of
             
               Borthwick●
               first
            
             ,
             Because
             a
             special
             servitude
             of
             a
             Pasturage
             in
             such
             a
             Moor
             ,
             requires
             an
             express
             Infeftment
             ,
             and
             cannot
             be
             carried
             under
             the
             name
             of
             Pendicles
             ,
             Parts
             ,
             or
             Pertinents
             ,
             albeit
             the
             Moor
             were
             contiguous
             ,
             and
             the
             common
             Moor
             of
             a
             Barony
             :
             but
             ,
             2dly
             ,
             This
             Moor
             lyes
             discontiguous
             from
             the
             Lands
             of
             Halheriot
             ,
             and
             my
             Lords
             Lands
             lyes
             betwixt
             ,
             and
             does
             not
             belong
             to
             the
             whole
             Barony
             ,
             but
             to
             some
             of
             the
             Tennents
             of
             it
             only
             .
             The
             Charger
             answered
             ,
             that
             this
             being
             a
             Minut
             ,
             beh●ved
             to
             be
             extended
             in
             ample
             form
             ,
             expressing
             all
             Rights
             ,
             particularly
             that
             the
             Right
             
               de
               jure
            
             ,
             could
             carry
             ,
             and
             there
             was
             no
             Reason
             to
             make
             him
             accept
             of
             Lands
             with
             a
             Plea
             ,
             and
             
               de
               jure
            
             Pendicles
             ,
             and
             Pertinents
             ,
             do
             well
             extend
             to
             common
             Pasturage
             ,
             when
             the
             said
             Pasturage
             is
             so
             Possessed
             ,
             and
             it
             cannot
             be
             contraverted
             ,
             but
             the
             Heretors
             and
             Possessors
             of
             Halheriot
             ,
             have
             been
             in
             undoubted
             Possession
             of
             common
             Pasturage
             in
             this
             Moor
             ,
             and
             that
             the
             Rent
             payable
             therefore
             is
             upon
             consideration
             of
             the
             Pasturage
             ,
             without
             which
             ,
             it
             could
             neither
             give
             the
             Rent
             it
             payes
             ,
             nor
             the
             Price
             ,
             so
             that
             when
             my
             Lord
             Dispones
             the
             Lands
             ,
             with
             the
             Pertinents
             ,
             and
             at
             the
             time
             of
             the
             Disposition
             ;
             this
             Pasturage
             is
             unquestionably
             Possest
             as
             a
             Pertinent
             of
             the
             Land
             ;
             the
             extended
             Charter
             ,
             and
             Disposition
             ought
             in
             all
             Reason
             to
             comprehend
             it
             expresly
             :
             neither
             is
             there
             any
             difference
             whether
             the
             Pasturage
             be
             of
             a
             Moor
             contiguous
             ,
             or
             belonging
             to
             the
             whole
             Barony
             ,
             seing
             it
             cannot
             be
             Contraverted
             ,
             but
             it
             was
             Possest
             as
             Pertinent
             of
             this
             Room
             the
             time
             of
             the
             Bargain
             ;
             and
             to
             clear
             that
             it
             was
             so
             Possest
             ,
             the
             Charger
             produced
             a
             Wodset
             ,
             granted
             by
             the
             Lord
             Borthwick
             to
             himself
             of
             the
             same
             Room
             ,
             bearing
             expresly
             Pasturage
             in
             the
             common
             Moor
             of
             Borthwick
             .
             The
             Suspender
             answered
             ,
             that
             the
             Wodset
             made
             against
             the
             Charger
             ,
             in
             respect
             this
             Clause
             being
             express
             in
             the
             Wodset
             ,
             he
             had
             not
             put
             it
             in
             the
             Minut
             ,
             
             which
             as
             
               jus
               nobilius
            
             absorbed
             the
             Wodset
             ,
             and
             cannot
             be
             looked
             upon
             as
             a
             Discharge
             of
             the
             Reversion
             only
             ,
             because
             my
             Lord
             was
             Superior
             by
             the
             Wodset
             ,
             and
             by
             the
             Minut
             he
             is
             to
             Resign
             ,
             likeas
             in
             the
             minut
             there
             is
             a
             Disposition
             of
             the
             Teinds
             ,
             which
             is
             not
             in
             the
             Wodset
             .
          
           
             The
             Lords
             found
             that
             the
             Minut
             ought
             to
             be
             extended
             ,
             bearing
             expresly
             the
             common
             Pasturage
             in
             the
             Moor
             of
             Borthwick
             ,
             in
             respect
             the
             same
             was
             a
             Pertinent
             of
             the
             Lands
             ,
             Sold
             the
             time
             of
             the
             Bargain
             ,
             and
             was
             not
             excepted
             .
          
        
         
           
             Sir
             George
             Mckenzy
             contra
             Iohn
             Fairholm
             ,
             Eodem
             die
             .
          
           
             SIr
             
               George
               Mckenzie
            
             insisted
             in
             the
             Reduction
             of
             the
             Bond
             Subscribed
             by
             him
             ,
             as
             Cautioner
             for
             his
             Father
             in
             his
             Minority
             .
             It
             was
             alleadged
             for
             
               Iohn
               Fairholm
            
             ,
             that
             he
             could
             not
             Reduce
             upon
             Minority
             ,
             because
             he
             had
             Homologat
             the
             Bonds
             after
             his
             Majority
             ,
             in
             so
             far
             as
             he
             had
             accepted
             Discharges
             of
             the
             Annualrent
             ,
             bearing
             Deduction
             of
             the
             Bond
             by
             his
             Father
             as
             Principal
             ,
             and
             him
             as
             Cautioner
             ,
             and
             Discharging
             them
             both
             ,
             which
             Discharges
             Sir
             George
             himself
             did
             Receive
             from
             
               Iohn
               Fairholm
            
             ,
             and
             payed
             the
             Money
             .
             Sir
             George
             answered
             ,
             that
             the
             Discharges
             do
             not
             bear
             that
             he
             payed
             the
             Money
             ,
             but
             bears
             that
             the
             same
             was
             payed
             by
             the
             Principal
             Debtor
             ,
             and
             his
             Receiving
             of
             a
             Discharge
             ,
             not
             having
             payed
             ,
             cannot
             import
             his
             Homologation
             ,
             or
             acknowledgement
             of
             the
             Bond
             ,
             for
             to
             prevent
             question
             and
             trouble
             ,
             one
             may
             take
             Discharge
             of
             what
             he
             denyes
             to
             be
             Due
             ,
             and
             the
             Bond
             being
             then
             standing
             Unreduced
             ,
             he
             may
             well
             accept
             a
             Discharge
             ,
             not
             knowing
             the
             event
             of
             the
             relevancy
             ,
             or
             probation
             of
             his
             Minority
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             that
             the
             Discharges
             imported
             no
             Homologation
             ,
             unlesse
             it
             were
             instructed
             that
             Sir
             George
             ,
             out
             of
             his
             own
             Money
             ,
             payed
             the
             Annualrent
             .
          
        
         
           
             The
             Laird
             of
             Haining
             contra
             the
             Town
             of
             Selkirk
             ,
             February
             15.
             1668.
             
          
           
             THere
             being
             mutual
             Pursuits
             betwixt
             the
             Town
             of
             Selkirk
             ,
             and
             the
             Laird
             of
             Haining
             ,
             the
             Town
             pursuing
             a
             Declarator
             of
             the
             Right
             of
             Property
             of
             the
             Commonty
             of
             Selkirk
             ,
             and
             Haining
             pursuing
             a
             Declarator
             of
             his
             Right
             of
             Pasturage
             in
             the
             said
             Commonty
             ,
             by
             vertue
             of
             his
             Infeftments
             of
             the
             Lands
             of
             Haining
             ,
             which
             Lands
             are
             a
             part
             of
             the
             Kings
             Property
             of
             the
             Barony
             of
             Selkirk
             ,
             and
             that
             this
             Common
             is
             the
             Commonty
             of
             the
             said
             Barony
             ,
             Possest
             by
             all
             the
             adjacent
             Fewars
             of
             the
             Barony
             ,
             and
             whereof
             they
             have
             been
             in
             immemorial
             Possession
             .
          
           
             The
             Lords
             did
             ,
             before
             answer
             ,
             ordain
             both
             Parties
             to
             produce
             all
             Rights
             ,
             Writs
             ,
             or
             Evidents
             they
             would
             make
             use
             of
             in
             the
             Cause
             ,
             and
             also
             to
             adduce
             Witnesses
             ,
             
               hinc
               inde
            
             ,
             of
             both
             their
             Possessions
             ,
             and
             interrupting
             others
             .
          
           
             Haining
             produced
             a
             Charter
             by
             the
             King
             ,
             in
             anno
             1505.
             of
             the
             Lands
             of
             Haining
             ,
             being
             a
             part
             of
             the
             Kings
             Property
             ,
             bearing
             
               cum
               partibus
               et
               pertinentibus
               ,
               cum
               pascuis
               et
               pasturis
               ,
            
             but
             not
             bearing
             
               in
               communi
               pastura
            
             ,
             or
             
               cum
               communiis
            
             ,
             generally
             or
             particularly
             in
             the
             Common
             of
             Selkirk
             ;
             he
             did
             also
             produce
             posterior
             Charters
             of
             the
             same
             Land
             ,
             bearing
             
               cum
               communi
               pastura
            
             ,
             and
             did
             adduce
             several
             Witnesses
             ,
             proving
             40.
             years
             continual
             Possession
             ,
             but
             some
             of
             his
             Witnesses
             proved
             Interruptions
             ,
             by
             the
             
             Town
             of
             Selkirk's
             ,
             cutting
             of
             Divots
             ,
             cast
             by
             him
             and
             his
             Predecessors
             upon
             the
             Moor.
             The
             Town
             of
             Selkirk
             produced
             their
             Charter
             of
             the
             Burgh
             ,
             posterior
             to
             Hainings
             first
             Charter
             ,
             bearing
             that
             their
             Ancient
             Evidents
             were
             burnt
             by
             the
             English
             ,
             and
             therefore
             the
             King
             gives
             them
             the
             Priviledge
             of
             the
             Burgh
             of
             Selkirk
             ,
             with
             the
             Burgage
             Lands
             thereof
             ,
             
               cum
               communiis
               ad
               dictum
               Burgum
               spectantibus
               ,
            
             which
             the
             King
             confirms
             by
             a
             posterior
             Charter
             ,
             giving
             the
             Town
             warrand
             to
             Ryve
             out
             1000.
             
             Aikers
             of
             Land
             of
             the
             Common
             ;
             they
             did
             also
             produce
             several
             Instruments
             of
             interruption
             ,
             not
             only
             by
             cutting
             of
             the
             Fail
             and
             Divots
             ,
             cast
             by
             Haining
             or
             his
             Tennents
             ,
             but
             by
             turning
             their
             Cattel
             off
             the
             Moor
             ,
             as
             proper
             to
             themselves
             ,
             and
             turning
             off
             all
             the
             Heretors
             Cattel
             they
             found
             thereupon
             ,
             and
             by
             yearly
             Riding
             about
             the
             whole
             Marches
             of
             the
             Moor.
             They
             did
             also
             produce
             a
             Decreet
             at
             the
             Towns
             Instance
             against
             the
             Tennents
             of
             Haining
             ,
             Decerning
             them
             to
             Defist
             and
             Cease
             from
             the
             Moor
             ;
             in
             which
             Decreet
             ,
             Hainings
             Predecessor
             was
             Provost
             of
             Selkirk
             ,
             and
             is
             Pursuer
             of
             the
             Cause
             ;
             they
             also
             produced
             two
             Missives
             ,
             Written
             by
             Umquhil
             Haining
             ,
             acknowledging
             that
             the
             Town
             had
             cut
             his
             Divots
             ,
             Casten
             upon
             the
             Head
             Room
             ,
             and
             making
             apollogy
             for
             Casting
             of
             the
             same
             ,
             denying
             it
             to
             be
             by
             his
             Warrand
             or
             Knowledge
             ;
             they
             did
             also
             produce
             two
             Acts
             of
             the
             Town
             Court
             ,
             bearing
             Haining
             to
             have
             desired
             liberty
             to
             draw
             Stones
             off
             the
             Common
             to
             Build
             a
             Park
             Dike
             ,
             and
             to
             Cast
             some
             Divots
             for
             his
             Tennents
             Houses
             ;
             they
             did
             also
             adduce
             several
             Witnesses
             ,
             proving
             their
             continual
             ,
             and
             uninterrupted
             Possession
             of
             the
             Moor
             this
             fourty
             years
             and
             more
             ,
             which
             proved
             also
             frequent
             interruptions
             against
             Haining
             ,
             especially
             by
             cutting
             of
             Divots
             ,
             and
             also
             by
             turning
             off
             his
             Cattel
             ,
             upon
             which
             probation
             it
             was
             alleadged
             for
             the
             Town
             that
             they
             had
             instructed
             sufficient
             Right
             to
             the
             Property
             of
             this
             Moor
             ,
             and
             that
             they
             had
             debarred
             the
             Laird
             of
             Haining
             and
             his
             Tennents
             therefrom
             ,
             whenever
             they
             heard
             they
             came
             upon
             the
             same
             .
             It
             was
             answered
             for
             Haining
             ,
             that
             he
             did
             not
             deny
             the
             Town
             of
             Selkirks
             Right
             of
             Pasturage
             in
             the
             Moor
             ,
             but
             did
             deny
             they
             had
             Right
             of
             Property
             therein
             ,
             but
             that
             the
             property
             did
             yet
             remain
             in
             the
             King
             ,
             as
             a
             part
             of
             the
             Barony
             of
             Selkirk
             ,
             being
             of
             the
             Kings
             annexed
             Property
             ,
             but
             that
             the
             said
             Property
             (
             as
             to
             the
             Moor
             )
             was
             now
             burdened
             with
             a
             Common
             Pasturage
             ,
             belonging
             to
             the
             Town
             of
             Selkirk
             ,
             and
             also
             belonging
             to
             the
             Laird
             of
             Haining
             ,
             and
             the
             other
             Feuars
             of
             the
             Barony
             of
             Selkirk
             ,
             and
             therefore
             alleadged
             that
             his
             Charter
             in
             the
             year
             of
             God
             1507.
             being
             long
             before
             any
             Charter
             ,
             granted
             by
             the
             King
             to
             the
             Town
             ,
             did
             Feu
             to
             his
             Predecessors
             ,
             the
             Lands
             of
             
               Haining
               ,
               cum
               pertinentibus
               ,
               cum
               pascuis
               &
               pasturis
               ,
            
             and
             this
             Common
             being
             the
             Commonty
             of
             the
             Barony
             of
             Selkirk
             ,
             the
             King
             Feuing
             a
             part
             of
             the
             Barony
             ,
             
               cum
               pertinentibus
               ,
               et
               pascuis
            
             ,
             did
             certainly
             thereby
             grant
             all
             that
             belonged
             to
             these
             Lands
             ,
             as
             Pertinent
             thereof
             ;
             as
             it
             was
             the
             time
             of
             the
             Feu
             ,
             being
             then
             Possessed
             by
             the
             Kings
             Farmorers
             ,
             but
             that
             they
             had
             Common
             Pasturage
             in
             the
             Moor
             of
             Selkirk
             ,
             is
             not
             only
             presumed
             (
             because
             it
             is
             the
             Common
             of
             the
             whole
             Barony
             ,
             and
             Possest
             by
             all
             the
             adjacent
             Feuars
             thereof
             )
             but
             also
             by
             their
             continual
             Possession
             since
             ;
             for
             Possession
             40.
             years
             is
             sufficient
             to
             prove
             all
             bygone
             Possession
             ,
             since
             the
             Right
             capable
             of
             that
             Possession
             ,
             it
             being
             impossible
             to
             adduce
             Witnesses
             to
             prove
             Possession
             eight
             score
             years
             since
             otherways
             ,
             and
             therefore
             as
             in
             the
             Case
             of
             the
             Lord
             Borthwick
             ,
             and
             
               William
               Borthwick
            
             ,
             Decided
             the
             14th
             of
             this
             Instant
             .
             The
             Lord
             Borthwicks
             Minut
             ,
             Disponing
             the
             Lands
             
               cum
               pertinentibus
            
             ,
             without
             any
             word
             of
             Pasturage
             ,
             was
             found
             to
             carry
             Common
             Pasturage
             in
             the
             Moor
             of
             Borthwick
             ,
             as
             being
             a
             Pertinent
             of
             the
             Lands
             Disponed
             the
             time
             of
             the
             Minut
             ,
             and
             not
             Reserved
             ,
             
             much
             more
             the
             King
             Disponing
             the
             Lands
             of
             Haining
             ,
             not
             only
             
               cum
               pertnen●tibus
            
             ,
             but
             
               cum
               pascuis
               ,
               et
               pasturis
            
             did
             carry
             to
             Haining
             the
             Right
             of
             Common
             Pasturage
             in
             the
             Common
             of
             Selkirk
             ,
             being
             then
             the
             Commonty
             of
             the
             Barony
             ,
             so
             that
             any
             Interruptions
             done
             since
             ,
             cannot
             take
             away
             the
             Right
             of
             Common
             Pasturage
             once
             constitute
             by
             the
             King
             :
             and
             albeit
             the
             King
             had
             unquestionably
             granted
             the
             Right
             of
             Property
             to
             the
             Town
             thereafter
             ,
             yet
             that
             could
             not
             prejudge
             the
             Common
             Pasturage
             of
             another
             Constitute
             before
             .
             For
             if
             Haining
             claimed
             this
             Common
             Pasturage
             only
             by
             Possession
             ,
             and
             Prescription
             ,
             Interruptions
             might
             be
             Sustained
             to
             exclude
             the
             famine
             ,
             but
             he
             claimes
             it
             chiefly
             by
             vertue
             of
             his
             Infeftment
             ,
             as
             having
             Right
             thereto
             the
             first
             day
             he
             was
             Infeft
             ,
             so
             that
             his
             Possession
             since
             ,
             albeit
             troubled
             by
             this
             Commonalty
             ,
             yet
             preserves
             his
             Right
             ,
             that
             the
             Town
             cannot
             alleadge
             a
             total
             and
             compleat
             Possession
             ,
             excluding
             him
             ,
             and
             thereby
             taking
             away
             his
             Right
             by
             Prescription
             in
             their
             Favour
             ;
             and
             as
             to
             the
             Towns
             Charter
             ,
             
               cum
               communiis
            
             ,
             it
             contains
             nothing
             
               per
               expressum
            
             of
             this
             Moor
             ,
             or
             Pasturage
             therein
             ,
             nor
             gives
             any
             thing
             
               de
               novo
            
             ,
             but
             bears
             
               cum
               communiis
               ad●urgum
               spectantibus
            
             ,
             which
             the
             King
             might
             have
             given
             ,
             though
             there
             had
             not
             been
             a
             Commonty
             within
             40.
             
             Miles
             ,
             in
             the
             same
             manner
             ,
             as
             the
             common
             Clauses
             in
             all
             Charters
             ,
             bearing
             Coal
             ,
             and
             Chalk
             ,
             Cuningars
             ,
             or
             Ducats
             ,
             whether
             there
             be
             any
             or
             not
             ,
             and
             the
             most
             the
             Town
             can
             pretend
             by
             their
             Charter
             ,
             is
             ,
             that
             they
             being
             a
             Burgh
             ,
             Erected
             within
             the
             Barony
             of
             
               Selkirk
               ,
               cum
               communiis
            
             ,
             may
             therefore
             claim
             Pasturage
             with
             the
             rest
             of
             the
             Feuars
             of
             the
             Barony
             ,
             but
             cannot
             exclude
             them
             as
             to
             the
             Liberty
             granted
             by
             the
             King
             ,
             to
             Ryve
             out
             a
             1000.
             
             Aikers
             ,
             it
             clearly
             evinceth
             that
             they
             had
             not
             the
             Property
             before
             ,
             neither
             did
             that
             take
             any
             effect
             ,
             nor
             could
             it
             ,
             because
             the
             common
             Pasturage
             (
             constitute
             to
             the
             Feuars
             before
             )
             would
             have
             hindered
             any
             posterior
             power
             of
             Tillage
             :
             As
             to
             the
             Decreet
             against
             the
             Tennents
             of
             Haining
             ,
             it
             is
             in
             absence
             ,
             the
             Heretor
             for
             the
             time
             not
             being
             call●d
             ,
             and
             albeit
             it
             bears
             Hainings
             Predecessor
             ,
             as
             Provost
             to
             be
             present
             ,
             that
             will
             neither
             import
             his
             Consent
             ,
             nor
             Knowledge
             ,
             Countrey
             Gentlemen
             being
             then
             ordinarly
             Provosts
             of
             Towns
             ,
             who
             lived
             not
             with
             them
             ,
             their
             Affairs
             at
             Law
             were
             Managed
             by
             their
             Town
             Clerk
             and
             Baillies
             ,
             though
             the
             Provosts
             Name
             behoved
             to
             be
             insert
             ;
             neither
             did
             this
             Decreet
             take
             effect
             ,
             for
             Hainings
             Tennents
             never
             ceased
             to
             pasture
             :
             as
             to
             the
             Letters
             they
             do
             only
             acknowledge
             the
             towns
             Head
             Rooms
             ,
             because
             in
             great
             Commonties
             ,
             it
             is
             ordinar
             for
             several
             proprietars
             ,
             to
             have
             peculiar
             Places
             ,
             most
             convenient
             for
             them
             where
             they
             law
             their
             Cattel
             ,
             and
             casts
             Fail
             and
             Divot
             ,
             and
             which
             doth
             sufficiently
             consist
             with
             the
             Commonty
             ;
             as
             for
             the
             Acts
             of
             Court
             ,
             they
             can
             prove
             nothing
             against
             Haining
             .
          
           
             The
             Lords
             found
             that
             the
             Town
             of
             Selkirk
             had
             undoubted
             Right
             of
             P●sturage
             ,
             Fewel
             ,
             Fail
             and
             Divot
             in
             this
             Commonty
             ,
             and
             that
             they
             had
             immemorial
             Possession
             thereof
             ,
             without
             any
             interruption
             ,
             and
             found
             that
             Haining
             had
             no
             Right
             by
             vertue
             of
             Possession
             ,
             and
             Prescription
             ,
             but
             found
             that
             by
             vertue
             of
             his
             Charter
             ,
             anterior
             to
             the
             Towns
             Right
             ,
             he
             had
             Right
             to
             common
             Pasturage
             in
             this
             Moor
             ,
             it
             being
             the
             Common
             Moor
             of
             the
             Barony
             ;
             but
             seing
             he
             did
             not
             sufficiently
             prove
             Possession
             of
             Fail
             and
             Divot
             ,
             but
             was
             therein
             continually
             interrupted
             ,
             much
             more
             then
             in
             the
             Pasturage
             ,
             and
             that
             nothing
             appeared
             ,
             that
             in
             the
             time
             of
             his
             Original
             Right
             ,
             the
             Feuars
             had
             priviledge
             of
             Fail
             and
             Divot
             .
             Therefore
             the
             Lords
             found
             that
             he
             had
             no
             Right
             thereto
             ,
             albeit
             common
             Pasturage
             doth
             ordinarly
             carry
             therewith
             Fail
             and
             Divot
             ,
             yet
             they
             found
             that
             it
             was
             a
             several
             Servitude
             ,
             separable
             therefrom
             ,
             either
             by
             Consent
             ,
             or
             Custom
             ,
             and
             found
             that
             the
             Town
             should
             enjoy
             their
             Head
             Rooms
             ,
             excluding
             Haining
             therefrom
             .
          
        
         
           
           
             Iames
             Colquhoun
             contra
             Watson
             ,
             Eodem
             die
             .
          
           
             
               JAmes
               Colquhoun
            
             Pipe-maker
             in
             Glasgow
             ,
             having
             gotten
             a
             tollerance
             from
             
               George
               Blair
            
             (
             Heretor
             of
             Lunloch
             )
             to
             dig
             Clay
             for
             Pipes
             there
             for
             certain
             years
             ,
             excluding
             all
             others
             ;
             there
             being
             an
             anterior
             Tack
             of
             the
             Lands
             ,
             the
             Tennents
             grants
             licence
             to
             one
             Watson
             ,
             for
             digging
             Clay
             there
             for
             Pipes
             :
             the
             Heretor
             also
             concurrs
             with
             
               Watson
               .
               Colquhoun
            
             pursues
             Watson
             for
             Intrusion
             ,
             and
             to
             desist
             from
             medling
             with
             any
             Clay
             there
             ,
             and
             for
             paying
             the
             value
             of
             what
             he
             had
             medled
             with
             .
             Watson
             alleadged
             Absolvitor
             ;
             First
             ,
             Because
             the
             licence
             granted
             to
             the
             Pursuer
             ,
             being
             exclusive
             of
             all
             others
             ,
             was
             
               contra
               bonum
               publicum
               .
               2dly
            
             ,
             The
             licence
             was
             posterior
             to
             the
             Tennents
             Tack
             ,
             who
             thereby
             had
             Right
             to
             the
             whole
             profits
             of
             the
             Ground
             ,
             and
             accordingly
             gave
             tollerance
             to
             the
             Defender
             .
             3dly
             ,
             The
             Heretor
             having
             granted
             the
             Tack
             ,
             could
             not
             in
             prejudice
             thereof
             ,
             give
             power
             to
             the
             Pursuer
             to
             break
             the
             arable
             Ground
             ,
             and
             there
             being
             much
             more
             Clay
             nor
             the
             Pursuer
             could
             make
             use
             of
             ,
             ought
             to
             give
             power
             to
             the
             Defender
             to
             make
             use
             thereof
             for
             that
             effect
             .
             The
             Pursuer
             answered
             ,
             that
             a
             total
             and
             negative
             licence
             was
             legal
             ,
             as
             well
             as
             any
             other
             total
             and
             sole
             Right
             ,
             and
             it
             was
             free
             to
             the
             Heretor
             to
             grant
             the
             same
             ,
             but
             could
             do
             no
             posterior
             Deed
             contrair
             thereto
             ,
             because
             he
             had
             bound
             up
             his
             own
             hands
             thereby
             ●
             and
             as
             to
             the
             Tack
             ,
             whether
             posterior
             or
             anterior
             to
             the
             licence
             ,
             it
             can
             only
             give
             Right
             to
             the
             Tennent
             ,
             
               uli
               fruiut
               colonus
            
             ,
             to
             Manure
             the
             Ground
             ,
             and
             reap
             the
             profits
             thereof
             ,
             but
             cannot
             give
             him
             Right
             to
             any
             Mineral
             under
             the
             superfice
             ,
             whether
             Coal
             ,
             Lime-stone
             ,
             Clay
             ,
             &c.
             which
             is
             reserved
             to
             the
             Heretor
             ,
             and
             he
             may
             make
             use
             thereof
             ,
             which
             necessarly
             imports
             that
             he
             may
             break
             up
             the
             Ground
             to
             come
             at
             it
             ,
             or
             else
             the
             Right
             were
             not
             reserved
             to
             him
             ,
             and
             he
             is
             most
             willing
             to
             satisfie
             the
             Tennents
             damnage
             by
             opening
             the
             Ground
             ;
             neither
             needs
             any
             reservation
             thereof
             be
             exprest
             ,
             because
             it
             s
             implyed
             in
             the
             nature
             of
             the
             Tack
             ,
             which
             gives
             only
             power
             of
             the
             Superfice
             ,
             Tillage
             ,
             Pasturage
             ,
             and
             Profits
             thereof
             ,
             but
             the
             Tennent
             has
             no
             power
             to
             take
             away
             part
             of
             the
             Ground
             ,
             or
             to
             give
             licence
             to
             any
             other
             so
             to
             do
             .
          
           
             The
             Lords
             Repelled
             the
             Defenses
             ,
             and
             found
             the
             Pursuer
             had
             the
             only
             Right
             by
             the
             Heretors
             exclusive
             licence
             ,
             and
             that
             the
             Tennent
             by
             his
             Tack
             had
             no
             Right
             to
             this
             Clay
             ;
             and
             that
             albeit
             his
             Tack
             was
             prior
             to
             the
             Pursuers
             licence
             ,
             he
             could
             give
             licence
             to
             no
             other
             .
          
        
         
           
             Mr.
             Iohn
             Forbes
             contra
             Innes
             ,
             February
             20.
             1668.
             
          
           
             MAster
             
               Iohn
               Forbes
            
             insisted
             in
             the
             Cause
             against
             
               Margaret
               Innes
            
             ,
             mentioned
             in
             the
             8th
             ,
             of
             Ianuary
             last
             ,
             for
             Mails
             and
             Duties
             ,
             as
             Assigney
             by
             
               Margaret
               Allardice
            
             ,
             who
             being
             Infeft
             in
             Liferent
             in
             principal
             Lands
             ,
             and
             Warrandice
             Lands
             ,
             and
             the
             principal
             Lands
             being
             evicted
             ,
             she
             and
             the
             Pursuer
             (
             her
             Assigney
             )
             returns
             upon
             the
             Warrandice
             Lands
             ,
             wherein
             
               Margaret
               Innes
            
             is
             Infeft
             in
             Liferent
             by
             her
             Husband
             ,
             who
             stood
             publickly
             Infeft
             therein
             ,
             upon
             the
             Resignation
             of
             
               Margaret
               Allerdices
            
             Husband
             ,
             and
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Defender
             ,
             and
             her
             Husband
             being
             Infeft
             ,
             and
             in
             Possession
             these
             20.
             years
             past
             ,
             have
             the
             benefit
             of
             a
             Possessory
             judgement
             ,
             and
             so
             cannot
             be
             put
             from
             her
             Possession
             ,
             till
             her
             Right
             be
             Reduced
             .
             The
             Pursuer
             answered
             ,
             that
             the
             benefit
             of
             a
             Possessory
             judgement
             can
             take
             no
             place
             against
             a
             pursuit
             ,
             upon
             an
             Infeftment
             in
             Warrandice
             ,
             
             unlesse
             the
             Possession
             had
             been
             seven
             ,
             or
             more
             years
             after
             the
             Eviction
             ;
             for
             before
             the
             Eviction
             ,
             there
             could
             be
             no
             Pursuit
             upon
             the
             Infeftment
             of
             Warrandice
             in
             the
             same
             case
             ,
             as
             an
             Infeftment
             of
             Liferent
             is
             not
             excluded
             by
             a
             Possession
             during
             the
             Husbands
             Lifetime
             ,
             when
             the
             Wife
             could
             not
             pursue
             .
             The
             Defender
             answered
             ,
             that
             the
             Pursuer
             ought
             in
             a
             petitory
             judgement
             to
             have
             declared
             the
             Distresse
             ,
             before
             he
             could
             put
             the
             Defender
             from
             her
             Possession
             .
             The
             Pursuer
             answered
             ,
             there
             was
             no
             Declarator
             required
             ,
             but
             only
             the
             Eviction
             ,
             which
             gives
             immediat
             recourse
             upon
             the
             Warrandice
             Lands
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             and
             found
             no
             need
             of
             a
             Declarator
             ,
             or
             Reduction
             to
             attain
             recourse
             ,
             and
             that
             a
             Possessory
             judgement
             was
             not
             compent
             upon
             any
             Possession
             ,
             anterior
             to
             the
             Eviction
             .
          
           
             The
             Defender
             further
             alleadged
             Absolvitor
             ,
             because
             this
             pursuit
             is
             founded
             upon
             
               Margaret
               Allardice
            
             her
             Infeftment
             in
             Warrandice
             ,
             which
             is
             base
             holden
             of
             her
             Husband
             ;
             and
             the
             Defender
             and
             her
             Husbands
             Infeftment
             are
             publick
             ,
             holden
             of
             the
             Superior
             ,
             and
             albeit
             posterior
             to
             the
             Infeftment
             of
             Warrandice
             ,
             yet
             is
             preferable
             ,
             the
             Infeftment
             of
             Warrandice
             being
             base
             ,
             never
             cled
             with
             Possession
             .
             The
             Pursuer
             answered
             ,
             that
             Infeftments
             in
             the
             Warrandice
             are
             sufficiently
             validat
             by
             Possession
             of
             the
             principal
             Lands
             ,
             especially
             now
             when
             all
             Seisings
             must
             be
             Registrat
             ,
             as
             was
             lately
             found
             in
             the
             Case
             of
             
               Iohn
               Scot
            
             :
             and
             the
             said
             
               Margaret
               Allardice
            
             has
             not
             only
             been
             in
             Possession
             of
             the
             principal
             Lands
             since
             her
             Husbands
             Death
             ,
             but
             her
             Husband
             was
             in
             full
             Possession
             of
             both
             ,
             which
             is
             more
             then
             sufficient
             .
             The
             Pursuer
             answered
             ,
             that
             in
             Scots
             Case
             this
             was
             singular
             ,
             that
             in
             
               Iohn
               Scots
            
             Case
             ,
             both
             the
             Principal
             and
             Warrandice
             Lands
             were
             granted
             in
             an
             Infeftment
             ,
             and
             so
             the
             Person
             Infeft
             being
             in
             Possession
             of
             the
             principal
             Lands
             ,
             his
             Infeftment
             could
             not
             be
             partly
             publick
             ,
             and
             partly
             privat
             ,
             but
             this
             Infeftment
             in
             Warrandice
             is
             
               ex
               intervallo
            
             .
          
           
             The
             Lords
             repelled
             also
             the
             Defence
             ,
             and
             found
             the
             Infeftment
             in
             Warrandice
             (
             though
             base
             )
             sufficient
             ,
             the
             Person
             Infeft
             being
             in
             Possession
             of
             the
             principal
             Lands
             ,
             albeit
             the
             Infeftment
             in
             the
             Warrandice
             Lands
             was
             
               ex
               intervallo
            
             .
          
        
         
           
             Farquhar
             of
             Tonley
             contra
             Gordoun
             ,
             Eodem
             die
             .
          
           
             FArquhar
             of
             Tonley
             pursues
             Reduction
             of
             a
             Bond
             granted
             by
             him
             upon
             Minority
             and
             Lesion
             .
             It
             was
             alleadged
             Absolvitor
             ,
             because
             he
             had
             Homologat
             the
             Bond
             ,
             in
             so
             far
             as
             he
             being
             Cautioner
             in
             the
             Bond
             ,
             he
             had
             pursued
             releif
             ,
             and
             obtained
             Decreet
             for
             releif
             ,
             which
             did
             necessarly
             import
             ,
             that
             he
             acknowledged
             himself
             bound
             ,
             else
             he
             could
             not
             have
             craved
             releif
             .
             The
             Pursuer
             answered
             ,
             that
             seing
             the
             Bond
             stood
             unreduced
             at
             that
             time
             he
             might
             lawfully
             pursue
             the
             principal
             Debitor
             to
             releive
             him
             ,
             against
             which
             he
             could
             have
             no
             objection
             ,
             for
             the
             benefit
             of
             Reduction
             upon
             Minority
             ,
             is
             peculiar
             to
             the
             Minor
             himself
             ,
             and
             no
             other
             can
             make
             use
             of
             it
             ;
             and
             in
             his
             pursuit
             of
             releif
             he
             might
             very
             well
             have
             declared
             that
             ,
             in
             case
             he
             obtained
             not
             releif
             against
             the
             principal
             Debitor
             ,
             he
             might
             free
             himself
             by
             Reduction
             against
             the
             Creditor
             ,
             so
             that
             Homologation
             being
             a
             tacite
             consent
             ,
             can
             never
             be
             presumed
             where
             the
             Deed
             done
             might
             have
             another
             intent
             ,
             and
             his
             pursuit
             for
             relief
             was
             not
             to
             bind
             himself
             ,
             but
             to
             louse
             himself
             ;
             he
             did
             also
             alleadge
             that
             the
             pursuit
             of
             releif
             was
             at
             his
             Fathers
             instance
             ,
             and
             his
             own
             promiscuously
             ,
             and
             after
             the
             Decreet
             was
             thereupon
             extracted
             ,
             
             he
             gave
             it
             in
             again
             ,
             and
             took
             a
             new
             Extract
             ,
             which
             bears
             not
             a
             releif
             for
             him
             of
             this
             Debt
             .
          
           
             The
             Lords
             found
             the
             Pursuit
             ,
             and
             Decreet
             of
             releif
             ,
             to
             be
             no
             Homologation
             to
             exclude
             this
             Reduction
             .
          
           
             The
             Defender
             then
             offered
             him
             to
             prove
             that
             the
             Pursuer
             was
             Major
             when
             he
             Subscribed
             ,
             so
             that
             the
             Lybel
             and
             Defence
             being
             contrary
             ,
             and
             great
             advantage
             arising
             to
             him
             ,
             who
             had
             the
             benefit
             of
             Probation
             by
             Highland
             Witnesses
             .
          
           
             The
             Lords
             resolved
             to
             prefer
             neither
             to
             probation
             ,
             but
             before
             answer
             ,
             ordained
             to
             adduce
             such
             Evidents
             ,
             and
             Adminicles
             ,
             as
             they
             would
             use
             to
             prove
             the
             Pursuers
             age
             ,
             that
             they
             might
             prefer
             the
             strongest
             and
             clearest
             Probation
             .
          
        
         
           
             Sir
             Laurence
             Scot
             of
             Clerkingtoun
             contra
             the
             Lady
             Clerkingtoun
             ,
             February
             21.
             1668.
             
          
           
             SIr
             
               Laurence
               Scot
            
             of
             Clerkingtoun
             having
             obtained
             himself
             to
             be
             Executor
             surrogat
             
               ad
               omissa
               et
               male
               appreciata
            
             of
             his
             Fathers
             Testament
             ,
             and
             having
             obtained
             licence
             to
             pursue
             ,
             pursues
             the
             Lady
             Clerkingtoun
             as
             principal
             Executrix
             ,
             who
             alleadged
             no
             Processe
             upon
             the
             licence
             ,
             because
             licences
             are
             only
             competent
             to
             Executors
             principal
             ,
             before
             there
             be
             any
             Confirmation
             ,
             after
             which
             the
             Commissars
             neither
             use
             ,
             nor
             may
             give
             licence
             
               ad
               omissa
            
             ,
             as
             was
             found
             the
             14.
             of
             
               December
               ,
               1621.
               
               Halliday
            
             contra
             observed
             by
             Dury
             .
             The
             Pursuer
             answered
             ,
             that
             there
             was
             more
             reason
             to
             sustain
             licences
             after
             the
             principal
             Confirmation
             ,
             when
             the
             best
             of
             the
             Inventar
             was
             given
             up
             ,
             and
             what
             remained
             was
             uncertain
             ,
             and
             for
             the
             practique
             the
             Lords
             had
             since
             allowed
             licences
             after
             Confirmation
             .
          
           
             The
             Lords
             repelled
             the
             Defense
             ,
             and
             Sustained
             the
             Processe
             upon
             the
             licence
             .
          
        
         
           
             Bartholomew
             Parkman
             contra
             Captain
             Allan
             ,
             Eodem
             die
             .
          
           
             CAptain
             Allan
             a
             Privateer
             ,
             having
             taken
             
               Bartholomew
               Parkman
            
             an
             Swede
             ,
             he
             obtained
             him
             to
             be
             Declared
             Pryze
             by
             the
             Admiral
             ,
             upon
             this
             ground
             mainly
             ,
             that
             he
             had
             carried
             Tar
             ,
             being
             Counterband
             Goods
             ,
             from
             Norway
             to
             Holland
             ,
             then
             in
             Enmity
             with
             the
             King
             ,
             and
             from
             thence
             carried
             ballast
             to
             France
             ,
             and
             returning
             with
             a
             Loadning
             of
             Salt
             ,
             was
             taken
             ,
             because
             by
             the
             Captains
             Commission
             from
             the
             Admiral
             ,
             he
             was
             warranted
             to
             to
             take
             Ships
             carrying
             Counterband
             Goods
             ,
             or
             to
             take
             the
             saids
             Ships
             in
             their
             immediat
             return
             ,
             after
             they
             have
             carried
             Counterband
             Goods
             to
             the
             Kings
             Enemies
             ,
             which
             hath
             always
             been
             the
             Custom
             of
             Scotland
             ,
             as
             appears
             by
             Commissions
             granted
             by
             the
             Admiral
             ,
             Anno
             1627.
             of
             the
             same
             Tenor
             ,
             and
             by
             a
             Decreet
             of
             the
             Admiral
             at
             that
             time
             ,
             finding
             the
             Lybel
             relevant
             ,
             bearing
             that
             a
             Ship
             was
             taken
             in
             her
             return
             ,
             having
             taken
             in
             Counterband
             to
             the
             Enemy
             in
             that
             Voyage
             ,
             which
             is
             founded
             upon
             evident
             reason
             ,
             because
             that
             while
             Ships
             are
             going
             towards
             the
             Enemy
             ,
             it
             is
             but
             an
             intention
             of
             Delinquence
             against
             the
             King
             ,
             and
             assisting
             his
             Enemies
             ,
             but
             when
             they
             have
             actually
             gone
             in
             ,
             and
             sold
             the
             Counterband
             ,
             it
             is
             
               delictum
               Commissum
            
             ,
             and
             though
             it
             might
             infer
             a
             quarrel
             against
             the
             Delinquent
             ,
             when
             ever
             he
             could
             be
             found
             ,
             yet
             the
             Law
             of
             Nations
             ,
             hath
             for
             the
             freedom
             of
             Trade
             ,
             abridged
             it
             to
             the
             immediat
             return
             of
             the
             same
             Voyage
             ,
             because
             quarrels
             would
             be
             multiplied
             ,
             upon
             pretence
             of
             any
             former
             Voyage
             .
             Parkman
             having
             
             raised
             Reduction
             of
             the
             Admirals
             Decreet
             ,
             insists
             on
             these
             grounds
             .
             First
             ,
             That
             by
             the
             Kings
             proclamation
             Denuncing
             the
             War
             ,
             it
             is
             evident
             that
             the
             King
             gives
             only
             Command
             to
             seise
             upon
             Ships
             having
             in
             them
             Enemies
             Goods
             ,
             or
             Counterband
             Goods
             ,
             without
             any
             mention
             of
             seising
             them
             in
             their
             return
             ,
             which
             would
             destroy
             the
             freedom
             of
             all
             Trade
             ,
             for
             upon
             that
             pretence
             ,
             every
             Ship
             that
             were
             met
             with
             at
             Sea
             might
             be
             brought
             up
             ,
             and
             therefore
             the
             Kings
             Proclamation
             did
             justly
             and
             humanly
             Warrand
             the
             seisure
             of
             Ships
             ,
             only
             when
             the
             Enemies
             Goods
             ,
             or
             Counterband
             Goods
             is
             found
             Aboard
             ,
             in
             which
             case
             ,
             for
             most
             part
             ,
             the
             cause
             of
             seisure
             is
             sensible
             to
             the
             Eye
             ,
             wherewith
             there
             was
             also
             produced
             a
             Testificat
             from
             Judge
             Ienkins
             ,
             Judge
             of
             the
             Admirality
             Court
             of
             England
             ,
             by
             the
             Kings
             Warrand
             upon
             the
             Petition
             of
             the
             Kings
             Resident
             of
             Sweden
             ,
             wherein
             he
             having
             advised
             with
             the
             Kings
             Advocat
             general
             ,
             who
             dayly
             attended
             that
             Court
             ,
             declareth
             that
             none
             of
             them
             remembers
             that
             in
             this
             War
             any
             Neuter
             were
             made
             Pryze
             in
             their
             return
             ,
             with
             the
             product
             of
             Enemies
             Goods
             ,
             and
             that
             he
             knew
             no
             Law
             nor
             Custom
             for
             the
             same
             .
             2dly
             ,
             There
             was
             produced
             the
             Treaties
             betwixt
             the
             King
             and
             the
             Crown
             of
             Sweden
             ,
             bearing
             that
             the
             Swedes
             should
             be
             made
             Pryze
             ,
             carrying
             Enemies
             Goods
             ,
             or
             Counterband
             Goods
             ,
             
               si
               deprehendantur
            
             .
             It
             was
             also
             answered
             to
             the
             Reasons
             of
             Adjudication
             ,
             that
             the
             Stile
             of
             a
             Commission
             ,
             not
             granted
             by
             the
             King
             immediatly
             ,
             but
             by
             the
             Admiral
             ,
             could
             be
             no
             ground
             of
             Adjudication
             of
             Friends
             and
             Allies
             ,
             who
             were
             not
             obliged
             to
             know
             the
             same
             ,
             or
             what
             was
             the
             Tenor
             of
             the
             Admiral
             of
             Scotlands
             Commissions
             ,
             but
             were
             only
             obliged
             to
             take
             notice
             of
             the
             Law
             and
             Custom
             of
             Nations
             ,
             and
             of
             the
             Kings
             Proclamations
             of
             War
             :
             and
             as
             to
             the
             Admirals
             Commission
             ,
             and
             Decreet
             thereupon
             ,
             in
             Anno
             1627.
             
             It
             could
             not
             evidence
             the
             Custom
             of
             Scotland
             ,
             being
             but
             a
             Decreet
             in
             absence
             ,
             and
             upon
             a
             Lybel
             ,
             bearing
             not
             only
             the
             carrying
             of
             Counterband
             ,
             before
             in
             that
             Voyage
             ,
             but
             having
             actually
             Aboard
             Enemies
             Goods
             the
             time
             of
             the
             seisure
             ,
             which
             Lybel
             is
             found
             relevant
             by
             the
             Admiral
             ,
             but
             it
             appears
             not
             that
             he
             would
             have
             found
             it
             relevant
             alone
             ,
             upon
             the
             product
             of
             Counterband
             ,
             much
             lesse
             that
             that
             was
             proven
             ,
             and
             in
             Decreets
             in
             absence
             ,
             the
             Lords
             themselves
             suffers
             Decreets
             to
             pass
             with
             far
             less
             consideration
             ,
             and
             ofttimes
             of
             course
             ,
             so
             that
             it
             were
             strange
             to
             fortifie
             the
             Admirals
             Decreets
             that
             are
             now
             quarrelled
             after
             full
             hearing
             ,
             upon
             an
             Decreet
             of
             the
             Admirals
             in
             absence
             .
             It
             was
             answered
             for
             Captain
             Allan
             ,
             that
             the
             Pursuer
             could
             not
             enjoy
             the
             benefit
             of
             the
             Swedish
             Treaty
             ,
             because
             he
             had
             transgrest
             the
             Treaty
             ,
             and
             served
             the
             Kings
             Enemies
             :
             and
             as
             to
             the
             Testificat
             of
             Judge
             Ienkins
             ,
             or
             Custom
             of
             England
             ,
             this
             being
             a
             distinct
             Kingdom
             ,
             is
             not
             Ruled
             by
             the
             Custom
             of
             England
             ,
             and
             Judge
             Ienkins
             Testificat
             was
             impetrat
             by
             the
             Pursuer
             ,
             and
             not
             upon
             any
             Commission
             ,
             or
             proposal
             made
             by
             the
             Lords
             ,
             and
             the
             case
             therein
             mentioned
             is
             only
             anent
             the
             seisures
             in
             the
             return
             ,
             with
             the
             product
             of
             Enemies
             Goods
             ,
             and
             says
             only
             that
             they
             do
             not
             remember
             that
             ever
             the
             Case
             was
             decided
             there
             ,
             but
             says
             not
             that
             the
             Courts
             of
             Admirality
             had
             found
             ,
             that
             upon
             any
             Plea
             or
             Dispute
             ,
             that
             Ships
             could
             not
             be
             taken
             ,
             unless
             they
             had
             Aboard
             Counterband
             ,
             or
             Enemies
             Goods
             .
          
           
             The
             Lords
             having
             formerly
             in
             this
             Cause
             desired
             to
             know
             the
             Kings
             Pleasure
             ,
             whether
             by
             the
             Swedish
             Treaty
             ,
             which
             maketh
             far
             fewer
             things
             Counterband
             ,
             then
             what
             are
             such
             by
             the
             Law
             of
             Nations
             ,
             and
             by
             which
             Tar
             is
             not
             Counterband
             ,
             the
             Swedes
             might
             Loaden
             Tar
             in
             Norway
             ,
             not
             being
             their
             own
             Growth
             ,
             and
             carry
             it
             to
             the
             Kings
             Enemies
             .
             The
             King
             returned
             answer
             negative
             ,
             in
             which
             the
             Lords
             acquiesced
             ;
             and
             as
             to
             the
             present
             Dispute
             ,
          
           
           
             The
             Lords
             did
             not
             find
             the
             grounds
             alleadged
             for
             the
             Privat●er
             relevant
             ,
             or
             sufficient
             to
             instruct
             the
             Custom
             of
             Scotland
             ,
             or
             the
             Rule
             of
             the
             War
             ,
             and
             had
             litle
             respect
             to
             Judge
             Ienkins
             Testimony
             ,
             and
             therefore
             were
             not
             clear
             to
             approve
             the
             Adjudication
             ,
             but
             before
             answer
             ,
             did
             declare
             that
             the
             Lords
             by
             their
             own
             Commission
             ,
             would
             inquire
             in
             the
             Custom
             of
             Nations
             ,
             concerning
             the
             return
             of
             Counterband
             ,
             or
             Enemies
             Goods
             ,
             both
             by
             Commissions
             direct
             to
             England
             ,
             and
             other
             places
             .
          
        
         
           
             Captain
             Strachan
             contra
             Morison
             ,
             February
             22.
             1668.
             
          
           
             CAptain
             Srachan
             pursues
             the
             Heirs
             of
             Umquhile
             
               George
               Morison
            
             before
             the
             Admiral
             ,
             for
             a
             Ship
             and
             Goods
             m●d●ed
             with
             wrongously
             ,
             by
             George
             and
             others
             ,
             in
             Anno
             1638.
             
             They
             raise
             Reduction
             on
             this
             Reason
             ,
             that
             there
             was
             no
             Probation
             but
             one
             Witness
             ,
             and
             Captain
             Strachans
             Oath
             taken
             in
             supplement
             .
          
           
             The
             Lords
             having
             considered
             the
             Probation
             ,
             in
             relation
             to
             the
             Ship
             ,
             found
             it
             sufficiently
             proven
             ,
             that
             Captain
             Strachan
             was
             an
             Owner
             of
             an
             eight
             part
             of
             the
             S●●p
             ,
             but
             found
             that
             the
             value
             thereof
             was
             not
             proven
             ,
             and
             seing
             Morison
             ,
             and
             the
             other
             partners
             sold
             the
             Ship
             ,
             after
             they
             had
             long
             made
             use
             of
             her
             ,
             without
             Strachans
             consent
             ,
             they
             found
             that
             Strachans
             Oath
             
               in
               litem
            
             ought
             to
             be
             taken
             as
             to
             the
             value
             ,
             and
             would
             not
             put
             him
             to
             prove
             the
             same
             after
             so
             long
             time
             ,
             and
             for
             the
             profits
             thereof
             ,
             ordained
             him
             Annualrent
             since
             he
             was
             dispossest
             .
             This
             question
             arose
             to
             the
             Lords
             ,
             whether
             there
             being
             three
             Partners
             beside
             Captain
             Strachan
             ,
             who
             all
             medled
             whether
             Morison
             should
             be
             lyable
             
               in
               solidum
            
             ,
             or
             only
             for
             his
             third
             part
             ,
             in
             which
             the
             Lords
             found
             the
             Ship
             being
             
               corpus
               indivisibile
            
             ,
             and
             all
             the
             Partners
             in
             a
             Society
             ,
             and
             that
             Captain
             Strachan
             being
             absent
             in
             the
             Kings
             Service
             ,
             from
             the
             time
             of
             their
             medling
             to
             the
             Kings
             return
             ,
             and
             the
             other
             Parties
             in
             the
             mean
             time
             becoming
             insolvent
             .
          
           
             The
             Lords
             found
             
               George
               Morison
            
             lyable
             
               in
               solidum
            
             for
             the
             eight
             part
             of
             the
             Ship
             ;
             but
             as
             to
             the
             Wines
             and
             others
             that
             were
             in
             the
             Ship
             ,
             whereanent
             there
             was
             no
             co-partinery
             proven
             ,
             and
             but
             one
             Witness
             of
             
               George
               Morisons
            
             Intromission
             ,
             and
             Captain
             Srachans
             own
             Oath
             in
             supplement
             .
             The
             Lords
             found
             the
             same
             not
             sufficient
             ,
             and
             yet
             allowed
             Captain
             Strachan
             in
             fortification
             of
             the
             Decreet
             ,
             to
             adduce
             further
             probation
             .
          
        
         
           
             Gavin
             Cochran
             contra
             〈…〉
             Eodem
             die
             .
          
           
             
               GAvin
               Cochran
            
             as
             Donator
             to
             the
             Recognition
             of
             certain
             Land
             ,
             holden
             Waird
             of
             my
             Lord
             Cochran
             ,
             pursues
             the
             Vassal
             ,
             as
             having
             Alienat
             the
             Major
             part
             ,
             and
             also
             the
             Subvassal
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             that
             the
             Lands
             had
             Recognosced
             by
             the
             Alienation
             ,
             made
             by
             the
             Vassal
             so
             the
             Subvassal
             .
             It
             was
             alleadged
             for
             the
             Subvassal
             that
             he
             was
             Minor
             ,
             and
             therefore
             During
             his
             Minority
             ,
             
               non
               tenetur
               placitari
               super
               haereditate
               paterna
               .
            
             It
             was
             answered
             ,
             that
             that
             holds
             only
             in
             Disputing
             the
             Minors
             Rights
             ,
             but
             is
             not
             sufficient
             against
             the
             Obligation
             ,
             or
             the
             Delinquence
             of
             the
             Defunct
             .
             2dly
             ,
             The
             Party
             principally
             called
             in
             this
             Process
             ,
             is
             the
             Vassal
             who
             is
             Major
             ,
             and
             whose
             Fee
             falls
             to
             the
             Superior
             by
             his
             Alieanation
             ,
             and
             the
             Subvassals
             Right
             falls
             only
             in
             consequence
             ,
             so
             that
             no
             priviledge
             of
             the
             Subvassal
             ,
             can
             hinder
             the
             Superior
             to
             declare
             the
             Recognition
             of
             his
             immediat
             Vassal
             .
          
           
             The
             Lords
             Repelled
             the
             Defence
             ,
             and
             Sustained
             Processe
             .
          
        
         
           
           
             Captain
             Mastertoun
             contro
             the
             strangers
             of
             Ostend
             ,
             February
             24.
             1668.
             
          
           
             CAptain
             Mastertoun
             having
             taken
             a
             Ship
             of
             Ostend
             Pryze
             ,
             obtained
             her
             Adjudged
             before
             Ludquharn
             ,
             Admiral
             Deput
             of
             Peterhead
             .
             The
             Strangers
             pursued
             Reduction
             before
             the
             High
             Admiral
             at
             Leith
             ,
             and
             obtained
             Sentence
             ,
             because
             the
             Decreet
             at
             Peterhead
             ,
             and
             Warrands
             thereof
             were
             not
             produced
             ,
             by
             which
             Sentence
             there
             was
             Decerned
             16000.
             
             Dollars
             for
             the
             Ship
             and
             Loadning
             ,
             which
             was
             Fish
             ,
             taken
             in
             
               Island
               Mastertoun
            
             raises
             Reduction
             of
             the
             High
             Admirals
             Decreet
             on
             this
             ground
             ,
             that
             it
             was
             meerly
             in
             absence
             ,
             and
             proceeded
             without
             valuing
             the
             Ship
             or
             Goods
             ,
             and
             offered
             to
             restore
             the
             Ship
             ,
             or
             value
             ,
             and
             what
             he
             got
             for
             the
             Fish
             ,
             which
             was
             but
             a
             Dollar
             the
             Barrel
             ,
             in
             regard
             they
             spoilled
             the
             time
             of
             the
             dependence
             of
             the
             Plea
             ,
             and
             craved
             allowance
             of
             what
             he
             payed
             to
             the
             King
             ,
             being
             the
             fifteenth
             part
             ,
             and
             the
             tenth
             part
             to
             the
             Admiral
             ,
             and
             alleadged
             he
             could
             be
             lyable
             for
             no
             more
             nor
             
               quantum
               lucratus
               est
            
             ,
             seing
             he
             did
             
               bona
               fide
            
             bring
             up
             this
             Ship
             ,
             finding
             Aboard
             a
             Pass
             from
             the
             Magistrats
             of
             Ostend
             ,
             which
             was
             defective
             ,
             not
             conform
             to
             the
             Articles
             of
             Treaty
             with
             the
             King
             of
             Spain
             ,
             in
             so
             far
             as
             it
             bore
             no
             mention
             of
             the
             Sailers
             ,
             that
             they
             were
             the
             King
             of
             Spains
             Subjects
             ,
             and
             the
             Sailers
             did
             Depone
             that
             they
             did
             belong
             to
             Zurickzea
             ,
             under
             the
             States
             of
             Holland
             ;
             and
             albeit
             now
             
               ex
               post
               facto
            
             ,
             he
             is
             informed
             that
             they
             did
             reside
             sometime
             in
             Ostend
             ,
             yet
             he
             being
             in
             
               bona
               fide
            
             ,
             can
             be
             lyable
             in
             no
             more
             nor
             what
             he
             got
             .
             It
             was
             answered
             for
             the
             Strangers
             ,
             that
             it
             being
             acknowledged
             ,
             that
             the
             Goods
             or
             Persons
             were
             free
             ,
             it
             cannot
             be
             denyed
             in
             Justice
             to
             restore
             them
             to
             their
             Ship
             ,
             and
             true
             value
             of
             their
             Goods
             ,
             that
             they
             might
             have
             made
             thereof
             in
             Ostend
             ,
             and
             not
             the
             price
             thereof
             that
             the
             Captain
             made
             ,
             for
             seing
             he
             acknowledges
             that
             they
             were
             corrupted
             for
             want
             of
             Salt
             ,
             it
             was
             his
             own
             Fault
             ,
             for
             he
             should
             have
             caused
             raise
             the
             Fish
             in
             the
             Barrels
             ,
             and
             Salted
             them
             again
             ;
             and
             as
             for
             the
             King
             ,
             and
             Admirals
             part
             ,
             there
             is
             no
             reason
             to
             allow
             the
             samine
             ,
             and
             put
             the
             Strangers
             to
             a
             Processe
             against
             the
             King
             ,
             and
             Admiral
             ;
             but
             if
             it
             be
             just
             he
             have
             restitution
             of
             his
             Goods
             ,
             he
             must
             have
             it
             of
             his
             whole
             Goods
             ,
             at
             the
             same
             availls
             as
             he
             could
             have
             sold
             them
             ,
             with
             his
             Damnage
             and
             Interest
             ,
             and
             any
             pretence
             of
             
               bona
               fide's
            
             can
             operat
             no
             more
             ,
             but
             to
             free
             him
             from
             a
             spuilzy
             ,
             and
             the
             Pursuers
             Oath
             
               in
               litem
            
             ,
             for
             the
             value
             and
             profits
             ,
             and
             to
             restrict
             the
             Process
             to
             wrongous
             Intromission
             ,
             to
             the
             true
             prices
             ,
             and
             true
             Damnages
             .
             It
             was
             answered
             for
             the
             Captain
             ,
             that
             seing
             he
             was
             in
             
               bona
               fide
            
             to
             seize
             upon
             the
             Ship
             ,
             and
             seing
             he
             did
             obtain
             Decreet
             from
             the
             Judge
             Ordinar
             ,
             he
             was
             also
             in
             
               bona
               fide
            
             to
             sell
             and
             roup
             the
             Goods
             ,
             as
             they
             gave
             at
             Peterhead
             ;
             and
             it
             does
             not
             appear
             that
             there
             was
             Salt
             there
             for
             Salting
             them
             again
             ,
             nor
             Men
             that
             had
             skill
             ,
             nor
             could
             they
             medle
             with
             them
             till
             Decreet
             was
             pronunced
             ,
             which
             was
             a
             long
             time
             ;
             they
             were
             also
             in
             
               bona
               fide
            
             to
             pay
             the
             King
             and
             Admiral
             ,
             neither
             are
             the
             Kings
             Officer
             nor
             Admiral
             Cited
             ,
             but
             only
             the
             Admiral
             Deput
             .
          
           
             The
             Lords
             found
             ,
             that
             seing
             the
             Pass
             did
             not
             bear
             the
             Sailers
             to
             be
             the
             King
             of
             Spains
             Subjects
             ,
             conform
             to
             the
             Articles
             ,
             that
             the
             Captain
             was
             in
             
               bona
               fide
            
             to
             bring
             her
             up
             ,
             and
             found
             him
             free
             of
             any
             Damnages
             ,
             and
             found
             him
             lyable
             for
             the
             price
             of
             the
             Ship
             ,
             and
             Fish
             ,
             as
             they
             might
             have
             been
             sold
             at
             Peterhead
             by
             rouping
             ,
             as
             use
             is
             ,
             if
             they
             had
             been
             preserved
             ;
             and
             found
             him
             obliged
             to
             have
             preserved
             them
             ;
             and
             repelled
             the
             alleadgeance
             as
             to
             the
             tenth
             and
             fifteenth
             ,
             but
             prejudice
             to
             the
             Captain
             and
             Owners
             to
             seek
             repetition
             
             thereof
             ,
             and
             found
             no
             necessity
             to
             Cite
             the
             Admiral
             ,
             his
             Deput
             being
             Cited
             .
          
        
         
           
             Merchants
             of
             Hamburgh
             contra
             Captain
             Dishingtoun
             ,
             February
             25.
             1668.
             
          
           
             CAptain
             Dishingtoun
             having
             taken
             a
             Merchant
             Ship
             of
             Hamburgh
             ,
             and
             obtained
             her
             to
             be
             declared
             Pryze
             :
             the
             Hamburgers
             raises
             Reduction
             on
             this
             Reason
             ,
             that
             the
             only
             ground
             of
             declaring
             her
             Pryze
             ,
             was
             ,
             because
             she
             carried
             Counterband
             Goods
             towards
             the
             King
             of
             Denmarks
             Domissions
             ,
             being
             then
             in
             Enmity
             with
             the
             King
             ,
             which
             was
             no
             relevant
             ground
             ,
             because
             it
             is
             evident
             the
             Ship
             was
             seized
             a
             Moneth
             before
             the
             proclamation
             of
             War
             against
             the
             Danes
             .
             It
             was
             answered
             for
             the
             Captain
             ,
             that
             it
             is
             not
             the
             proclamation
             of
             War
             that
             makes
             the
             War
             for
             the
             Kings
             Declaration
             ,
             is
             only
             to
             give
             an
             account
             to
             the
             World
             ,
             upon
             what
             account
             the
             King
             had
             made
             War
             with
             the
             Danes
             ;
             and
             it
             is
             notour
             that
             there
             were
             frequent
             Acts
             of
             Hostility
             ,
             both
             by
             the
             Danes
             ,
             and
             against
             the
             Danes
             before
             this
             Capture
             .
             It
             was
             answered
             for
             the
             Strangers
             ,
             that
             publick
             denunciation
             makes
             only
             a
             publick
             and
             lawful
             War
             ;
             but
             whatever
             might
             have
             been
             done
             against
             the
             Danes
             ,
             the
             Hamburgers
             (
             being
             the
             Kings
             Allies
             and
             Friends
             )
             were
             not
             obliged
             to
             know
             the
             same
             ,
             until
             such
             time
             that
             the
             proclamation
             of
             War
             might
             come
             to
             their
             Ears
             ,
             so
             that
             they
             have
             done
             no
             Fault
             ,
             being
             in
             
               bona
               fide
            
             to
             continue
             their
             Trade
             ,
             until
             the
             War
             was
             made
             publick
             to
             the
             World.
             It
             was
             answered
             for
             the
             Captain
             ,
             that
             he
             was
             in
             
               optima
               fide
            
             to
             execute
             the
             Kings
             Commission
             ,
             bearing
             expresly
             to
             make
             Pryze
             of
             all
             carrying
             Counterband
             Goods
             to
             the
             Danes
             ,
             and
             therefore
             he
             could
             not
             be
             Decerned
             as
             praedo
             ,
             but
             the
             most
             can
             be
             Decerned
             against
             him
             (
             though
             the
             Pursuer
             should
             be
             found
             to
             have
             been
             in
             
               bona
               fide
            
             ,
             to
             Trade
             with
             the
             Danes
             )
             is
             to
             restore
             
               in
               quantum
               lucratus
               est
            
             ;
             but
             so
             it
             is
             that
             he
             made
             no
             profit
             ,
             for
             after
             the
             Capture
             ,
             he
             being
             pursued
             at
             Sea
             by
             the
             Enemy
             ,
             was
             forced
             to
             leave
             the
             Ship
             in
             question
             ,
             being
             Loadned
             by
             him
             ,
             whereby
             she
             was
             driven
             a
             shore
             ,
             and
             suffered
             Ship-wrack
             .
          
           
             The
             Lords
             found
             that
             the
             Hamburgers
             were
             in
             
               bona
               fide
            
             to
             continue
             their
             Trade
             with
             Denmark
             ,
             and
             to
             carry
             to
             them
             Counterband
             Goods
             at
             the
             time
             of
             the
             seisure
             ,
             and
             therefore
             Reduced
             the
             Admirals
             Decreet
             ,
             as
             to
             the
             Restitution
             of
             the
             Ship
             and
             Goods
             ,
             or
             what
             profit
             the
             Defender
             made
             of
             them
             ,
             but
             for
             no
             higher
             value
             nor
             damnages
             ,
             in
             respect
             the
             Captain
             was
             in
             
               bona
               fide
            
             to
             execute
             the
             Kings
             Commission
             ,
             unlesse
             it
             were
             alleadged
             ,
             the
             Captain
             was
             
               in
               culpa
            
             in
             the
             losse
             of
             the
             Ship
             ,
             or
             misprising
             the
             Goods
             .
          
        
         
           
             Lord
             Almond
             contra
             Thomas
             Dalmahoy
             ,
             Eodem
             die
             .
          
           
             THe
             Lord
             Almond
             pursues
             a
             Declarator
             of
             the
             Escsheet
             of
             
               Thomas
               Dalmahoy
            
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             he
             was
             Denunced
             upon
             a
             Bond
             granted
             by
             the
             Dutchess
             of
             Hamiltoun
             ,
             wherein
             he
             being
             only
             Charged
             as
             Husband
             for
             his
             interest
             ,
             and
             Denunced
             at
             the
             Mercat
             Crosse
             of
             Edinburgh
             ,
             and
             Peir
             and
             Shoare
             of
             Lieth
             ,
             being
             then
             Residenter
             in
             England
             ;
             and
             now
             the
             Marriage
             being
             dissolved
             by
             the
             Dutchess
             Death
             ,
             his
             Interest
             ●e●seth
             as
             to
             all
             effects
             ,
             and
             so
             as
             to
             this
             Horning
             .
             2dly
             ,
             The
             Denunciation
             being
             upon
             a
             Bond
             due
             to
             the
             Dutchess
             own
             Mother
             ,
             done
             by
             Mr.
             
               Iohn
               El●is
            
             Commissioner
             for
             her
             ,
             it
             was
             without
             Warrand
             ,
             and
             so
             null
             .
          
           
             The
             Lords
             repelled
             both
             Defenses
             ,
             and
             found
             that
             the
             Contumacy
             incurred
             by
             not
             paying
             ,
             or
             suspending
             
               Deb●to
               tempore
            
             ,
             which
             is
             the
             cause
             of
             the
             Denunciation
             ,
             was
             not
             taken
             away
             by
             the
             dissolution
             of
             the
             Marriage
             .
          
        
         
           
           
             Patrick
             Dun
             contra
             Isobel
             and
             Elizabeth
             Dunes
             ,
             his
             Sisters
             ,
             Eodem
             die
             .
          
           
             UMquhile
             Doctor
             Dun
             having
             provided
             4000.
             
             Merks
             to
             one
             of
             his
             Daughters
             ,
             and
             10000.
             
             Merks
             to
             another
             ,
             and
             Entertainment
             during
             their
             Minority
             ,
             that
             their
             Portion
             might
             go
             to
             the
             Fore
             ,
             bearing
             Annualrent
             ;
             did
             thereafter
             grant
             to
             Isobel
             another
             Bond
             of
             2000.
             
             Merks
             ,
             whereof
             Patrick
             his
             Heir
             raises
             Reduction
             ,
             as
             being
             done
             on
             Death-bed
             ,
             after
             the
             Defunct
             had
             broken
             his
             Leg
             ,
             and
             the
             same
             was
             cut
             off
             ,
             whereof
             he
             took
             a
             Fever
             and
             Died
             ,
             and
             never
             went
             out
             to
             Kirk
             or
             Mercat
             .
             The
             Defenders
             answered
             ,
             that
             they
             offered
             them
             to
             prove
             ,
             that
             albeit
             the
             Defunct
             happened
             not
             to
             come
             out
             ,
             yet
             he
             was
             in
             his
             
               leige
               Pousty
            
             ,
             and
             perfect
             health
             ,
             and
             did
             all
             his
             Affaires
             ,
             which
             did
             much
             more
             evidence
             his
             health
             ,
             then
             the
             stepping
             out
             to
             the
             Mercat
             ,
             2dly
             ,
             The
             Bond
             in
             question
             being
             a
             Provision
             to
             a
             Daughter
             ,
             it
             was
             a
             Natural
             Obligation
             ,
             which
             the
             Father
             might
             do
             on
             Death-bed●
             The
             Pursuer
             answered
             ,
             that
             the
             Law
             allowed
             no
             other
             evidence
             to
             give
             Capacity
             to
             Dispone
             in
             
               leige
               pousty
            
             ,
             but
             going
             out
             to
             Kirk
             and
             Mercat
             ,
             and
             if
             any
             equivalent
             were
             accepted
             ,
             it
             would
             render
             the
             most
             Ancient
             Law
             Doubious
             ,
             and
             Elusory
             .
             As
             to
             the
             second
             ,
             the
             Defender
             having
             been
             Portioned
             before
             ,
             any
             Adition
             on
             Death-bed
             had
             not
             so
             much
             as
             the
             favour
             of
             a
             Portion
             Natural
             .
          
           
             The
             Lords
             rep●lled
             the
             Defences
             ,
             and
             sustained
             the
             Summonds
             .
          
        
         
           
             The
             Owners
             of
             the
             Ship
             called
             the
             Castle
             of
             Riga
             ,
             contra
             Captain
             Seatoun
             ,
             Eodem
             die
             .
          
           
             THis
             Cause
             being
             Debated
             the
             27th
             .
             of
             Iuly
             last
             ,
             in
             which
             Debate
             Captain
             
               Seat
               un
            
             did
             chiefly
             insist
             to
             maintain
             the
             Decreets
             of
             Adjudication
             upon
             the
             presumptions
             ,
             and
             evidences
             ,
             that
             the
             Ship
             or
             Loadning
             did
             truly
             belong
             to
             the
             Hollande●s
             ;
             and
             that
             their
             Passes
             and
             Bills
             were
             but
             Contrivances
             ,
             which
             the
             Lords
             found
             not
             sufficiently
             proven
             to
             make
             her
             Pryze
             .
             Now
             the
             Captain
             insists
             upon
             another
             ground
             ,
             contained
             in
             the
             Decreets
             of
             Adjudication
             ,
             viz.
             That
             she
             was
             Navigat
             by
             Hollanders
             ,
             the
             Kings
             Enemies
             ,
             and
             therefore
             by
             the
             Kings
             Declaration
             of
             the
             War
             ,
             the
             Ship
             and
             Goods
             are
             lawful
             Pryze
             ,
             because
             the
             last
             Article
             of
             the
             Declaration
             bears
             expresly
             to
             take
             all
             Ships
             Pryzes
             ,
             that
             are
             Sailed
             by
             the
             Subjects
             of
             the
             United
             Provinces
             ;
             and
             by
             the
             Testimony
             of
             the
             Witnesses
             taken
             at
             Cromarty
             .
             It
             was
             evident
             that
             the
             whole
             Company
             was
             Hollanders
             ,
             taken
             on
             at
             Amsterdame
             ,
             and
             Residenters
             there
             .
             It
             was
             answered
             for
             the
             Strangers
             ,
             that
             there
             was
             a
             solemn
             Treaty
             perfected
             betwixt
             their
             King
             ,
             and
             the
             King
             of
             Sweden
             their
             Soveraign
             ,
             that
             Treaty
             behoved
             to
             be
             the
             only
             Rule
             ,
             as
             to
             the
             Subjects
             of
             Sweden
             ;
             by
             which
             there
             was
             nothing
             provided
             ,
             that
             a
             Ship
             should
             be
             Pryze
             ,
             being
             Sailed
             with
             Hollanders
             ;
             but
             on
             the
             contrair
             ,
             the
             Passe
             agreed
             upon
             by
             the
             Treaty
             ,
             and
             exprest
             v●rba●im
             therein
             bears
             ,
             that
             Oath
             is
             to
             be
             made
             ,
             that
             the
             Vessel
             and
             Loadning
             belongs
             to
             Swedes
             ,
             but
             makes
             no
             mention
             of
             what
             Countrey
             the
             Sailers
             should
             be
             ;
             and
             bears
             that
             the
             Master
             of
             the
             Ship
             may
             be
             of
             any
             Nation
             ,
             and
             therefore
             
               mul●o
               magis
            
             ,
             the
             Sailers
             .
             It
             was
             answered
             for
             the
             Captain
             ,
             that
             the
             Treaty
             with
             the
             Swedes
             cannot
             be
             the
             adequat
             Rule
             ,
             in
             relation
             to
             all
             Swedish
             Pryzes
             ,
             there
             being
             multitudes
             of
             Cases
             not
             touched
             therein
             ;
             and
             it
             cannot
             be
             thought
             the
             intent
             of
             the
             King
             ,
             in
             so
             short
             a
             Treaty
             ,
             to
             comprehend
             all
             the
             Laws
             of
             Nations
             at
             Sea
             ,
             and
             all
             the
             Cases
             
               de
               jure
               belli
            
             betwixt
             their
             Subjects
             ,
             but
             the
             Treaty
             doth
             only
             clear
             some
             most
             important
             Cases
             ,
             and
             grants
             special
             Priviledges
             to
             either
             
             Party
             ,
             as
             that
             such
             a
             Passe
             should
             be
             sufficient
             ,
             and
             that
             there
             should
             be
             no
             search
             at
             Sea
             ,
             where
             such
             a
             Passe
             is
             found
             ,
             
               nisi
               gravis
               suspicio
               subsit
            
             ,
             so
             that
             these
             Cases
             must
             still
             be
             Regulat
             by
             the
             Law
             and
             Custom
             of
             Nations
             ,
             and
             especially
             by
             the
             Kings
             Declaration
             of
             the
             War
             ;
             so
             that
             these
             making
             the
             Rule
             ,
             the
             Treaty
             can
             make
             but
             the
             exception
             ,
             and
             therefore
             the
             King
             ,
             by
             the
             Declaration
             of
             the
             War
             against
             the
             H●llanders
             ,
             gave
             an
             expresse
             Command
             to
             make
             Pryze
             all
             Ships
             belonging
             to
             the
             Hollanders
             ,
             or
             having
             in
             them
             Goods
             belonging
             to
             the
             Hollanders
             ,
             or
             Counterband
             Goods
             going
             to
             the
             Hollanders
             ,
             or
             Navigat
             by
             any
             number
             of
             the
             Hollanders
             ,
             this
             must
             stand
             as
             the
             Rule
             ,
             seing
             there
             is
             nothing
             in
             the
             Treaty
             to
             alter
             the
             same
             ,
             neither
             doth
             the
             Tenor
             of
             the
             Passe
             (
             not
             mentioning
             the
             Sailers
             )
             infer
             any
             thing
             ,
             because
             the
             Sailers
             can
             be
             known
             of
             what
             Nation
             they
             are
             ,
             by
             their
             Language
             ,
             and
             it
             were
             unnecessar
             to
             cause
             the
             Swedes
             Depone
             upon
             Oath
             that
             they
             are
             Swedes
             ,
             but
             cannot
             be
             so
             well
             known
             to
             whom
             the
             Ship
             and
             Goods
             belong
             ,
             and
             therefore
             Oath
             is
             to
             be
             made
             thereupon
             ;
             and
             albeit
             a
             Passe
             be
             found
             Aboard
             ,
             conform
             to
             the
             Treaty
             ,
             whereby
             it
             is
             provided
             ,
             
               ne
               quid
               ulterius
               inquiratur
               in
               navigium
               ,
               hon●●
               aut
               homines
               nulla
               t●nus
               inquiratur
               ,
            
             it
             immediatly
             follows
             ,
             
               Quod
               si
               gravis
               aliqua
               susp●cio
               subsit
               ,
            
             that
             there
             may
             be
             seisure
             even
             where
             there
             is
             a
             Passe
             ,
             or
             if
             the
             Passe
             were
             old
             or
             vitiat
             ,
             or
             appear
             not
             to
             agree
             with
             the
             Hand
             ,
             and
             Seal
             of
             the
             places
             whence
             it
             is
             directed
             ,
             seisure
             might
             be
             made
             ,
             and
             therefore
             in
             this
             Case
             ,
             the
             whole
             Company
             being
             Hollanders
             ,
             as
             is
             evident
             by
             their
             Language
             ,
             although
             there
             had
             been
             no
             suspition
             of
             the
             truth
             of
             the
             Passe
             ,
             they
             might
             justly
             have
             been
             seised
             and
             confiscat
             ,
             conform
             to
             the
             Kings
             Declaration
             ;
             neither
             is
             it
             a
             good
             Argument
             ,
             that
             because
             the
             Treaty
             gives
             leave
             to
             have
             the
             Master
             of
             any
             Nation
             ,
             that
             therefore
             all
             the
             Sailers
             may
             be
             of
             any
             Nation
             ,
             and
             therefore
             if
             the
             Company
             might
             have
             been
             of
             any
             Nation
             ,
             there
             needed
             no
             such
             expression
             for
             the
             Master
             ,
             
               exceptio
               firmat
               regulam
               in
               non
               exceptis
               ,
            
             which
             is
             the
             more
             clear
             ,
             that
             by
             the
             Treaty
             betwixt
             the
             King
             ,
             and
             the
             King
             of
             Spain
             :
             there
             is
             a
             special
             priviledge
             to
             the
             ●l●ndrians
             ,
             that
             they
             shall
             not
             be
             questioned
             ,
             as
             being
             Navigat
             by
             Hollanders
             ,
             in
             respect
             of
             the
             Identity
             of
             their
             Language
             ,
             which
             would
             never
             have
             been
             Demanded
             ,
             if
             by
             the
             Law
             of
             Nations
             ,
             Hollanders
             the
             Kings
             Enemies
             ,
             might
             have
             been
             made
             use
             of
             by
             any
             in
             Amity
             with
             him
             .
          
           
             The
             Lords
             found
             that
             this
             Swedish
             Ship
             being
             Navigat
             by
             the
             Sailers
             ,
             all
             or
             the
             most
             part
             being
             Hollanders
             ,
             Residenters
             in
             ,
             or
             about
             Amsterdam
             ,
             when
             they
             entered
             this
             Voyage
             ,
             that
             the
             same
             was
             a
             sufficient
             ground
             of
             Confiscation
             ,
             in
             respect
             of
             the
             Kings
             Declaration
             of
             War
             ,
             and
             that
             by
             the
             Swedish
             Treaty
             ,
             there
             was
             no
             priviledge
             granted
             to
             the
             Swedes
             as
             to
             this
             matter
             ,
             and
             therefore
             Assoilzied
             from
             the
             Reduction
             ,
             having
             found
             it
             sufficiently
             proven
             by
             the
             Testimonies
             at
             Cromarty
             ;
             and
             whereas
             it
             was
             alleadged
             that
             these
             Testimonies
             were
             extorted
             ,
             by
             holding
             Swords
             and
             Pistols
             to
             the
             Companies
             Breasts
             ,
             both
             at
             Sea
             ,
             and
             after
             Landing
             ,
             to
             make
             them
             confess
             that
             they
             and
             Goods
             belonged
             to
             Hollanders
             .
          
           
             The
             Lords
             found
             the
             alleadgeance
             relevant
             ▪
             that
             at
             Land
             ,
             and
             about
             the
             time
             of
             their
             Testimony
             ,
             the
             Witnesses
             were
             so
             threatned
             ,
             but
             would
             not
             sustain
             that
             they
             were
             so
             threatned
             at
             Sea
             ,
             when
             they
             were
             taken
             ,
             unlesse
             it
             were
             alleadged
             ,
             that
             at
             Sea
             they
             were
             forced
             to
             Swear
             ,
             or
             Depo●e
             upon
             Oath
             ,
             whereupon
             it
             might
             have
             been
             presumed
             ,
             that
             by
             Reason
             thereof
             they
             would
             adhere
             to
             it
             when
             they
             came
             to
             Land.
             
          
        
         
           
           
             George
             Graham
             contra
             Grissel
             Tours
             ,
             and
             the
             Laird
             of
             Kilhead
             her
             Husband
             ,
             February
             26.
             1668.
             
          
           
             
               GEorge
               Graham
            
             having
             obtained
             a
             Decreet
             before
             the
             Baillie
             ,
             against
             
               Grissel
               Tours
            
             and
             her
             Husband
             ,
             for
             Furnishing
             to
             her
             first
             Husbands
             Funerals
             ;
             her
             Husband
             Suspends
             ,
             and
             raises
             Reduction
             on
             these
             Reasons
             ,
             that
             albeit
             he
             stayed
             sometimes
             in
             a
             Chamber
             in
             Edinburgh
             ,
             he
             was
             not
             in
             this
             Jurisdiction
             ,
             and
             that
             his
             Wifes
             Oath
             could
             infer
             no
             burden
             upon
             him
             ,
             and
             that
             the
             Baillies
             did
             unwarrantably
             hold
             him
             as
             Confest
             ,
             for
             not
             giving
             his
             Oath
             of
             Calumny
             ,
             whether
             he
             had
             reason
             to
             distrust
             his
             Wifes
             Oath
             .
          
           
             The
             Lords
             found
             this
             unwarrantable
             ,
             and
             therefore
             Reduced
             the
             Decreet
             as
             to
             the
             Husband
             ,
             but
             Decerned
             against
             the
             Wife
             ,
             
               ad
               hunc
               effectum
            
             ,
             to
             affect
             her
             if
             she
             survive
             ,
             or
             her
             Executors
             after
             her
             Death
             ,
             or
             otherwise
             to
             affect
             any
             other
             Goods
             she
             had
             excepted
             from
             her
             Husbands
             
               jus
               mariti
            
             .
          
        
         
           
             The
             Laird
             of
             Milntoun
             contra
             the
             Lady
             of
             Milntoun
             ,
             Eodem
             die
             .
          
           
             THe
             Lady
             Milntoun
             having
             obtained
             Decreet
             of
             Divorce
             against
             
               Iohn
               Maxwel
            
             her
             Husband
             ,
             the
             Laird
             of
             Milntoun
             having
             Right
             from
             her
             Husband
             to
             her
             Liferent
             ,
             which
             Right
             fell
             by
             the
             Divorce
             ;
             pursued
             a
             Reduction
             of
             the
             Decreet
             of
             Divorce
             ,
             wherein
             the
             Witnesses
             being
             Examined
             ,
             and
             Re-examined
             .
          
           
             The
             Lords
             adheres
             to
             the
             Decreet
             of
             Divorce
             ,
             and
             Assoilzies
             from
             the
             Reduction
             ;
             at
             which
             time
             the
             Lords
             having
             allowed
             him
             to
             insist
             as
             in
             Reprobators
             :
             he
             now
             pursues
             the
             same
             for
             Convelling
             the
             Testimonies
             of
             the
             Witnesses
             ,
             because
             they
             were
             corrupted
             and
             suborned
             ,
             both
             by
             promises
             ,
             and
             getting
             of
             good
             Deed
             ,
             and
             being
             prompted
             how
             to
             swear
             ,
             as
             their
             Oath
             on
             Re-examination
             bears
             .
             And
             because
             their
             Oath
             is
             not
             only
             suspicious
             ,
             but
             impossible
             ;
             because
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Parties
             were
             alibi
             ,
             at
             a
             great
             distance
             from
             the
             place
             ,
             where
             the
             Witnesses
             Deponed
             that
             they
             committed
             Adultery
             ,
             and
             that
             for
             several
             dayes
             and
             nights
             thereafter
             ,
             and
             before
             .
             The
             Defender
             alleadged
             that
             the
             Lybel
             was
             no
             wayes
             relevant
             .
             First
             ,
             In
             so
             far
             as
             it
             would
             Convel
             the
             Testimonies
             ,
             as
             to
             the
             principal
             points
             referred
             to
             Probation
             ,
             against
             which
             no
             contrair
             Testimonies
             (
             either
             of
             the
             same
             ,
             or
             other
             Witnesses
             )
             can
             be
             admitted
             by
             the
             Law
             of
             all
             Nations
             ,
             otherwise
             Plea's
             should
             be
             infinit
             :
             for
             if
             the
             second
             Witnesses
             might
             improve
             the
             Testimonies
             of
             the
             first
             ,
             third
             Witnesses
             might
             improve
             their's
             ,
             and
             so
             without
             end
             :
             and
             the
             alleadgeances
             that
             the
             Parties
             were
             alibi
             ,
             are
             most
             irrelevant
             ,
             and
             is
             ordinarly
             rejected
             ,
             as
             being
             a
             contrair
             and
             incompatible
             Probation
             ,
             for
             this
             being
             a
             Crime
             unlawful
             at
             all
             times
             ,
             and
             places
             ,
             albeit
             the
             Witnesses
             should
             have
             forgotten
             ,
             or
             mistaken
             the
             time
             ,
             if
             they
             be
             positive
             in
             the
             Act
             
               non
               obest
            
             ,
             and
             so
             proving
             alibi
             at
             that
             time
             ,
             which
             is
             not
             essential
             is
             of
             no
             moment
             .
             3dly
             ,
             The
             Reprobators
             in
             so
             far
             as
             they
             would
             improve
             ,
             and
             convel
             the
             extrinsick
             points
             of
             the
             Testimonies
             ,
             
               ad
               hunc
               effectum
            
             ,
             to
             render
             the
             Witnesses
             infamous
             ,
             and
             their
             Testimonie
             invalide
             as
             to
             the
             whole
             ,
             which
             is
             the
             proper
             and
             only
             subject
             of
             Reprobators
             ,
             the
             famine
             is
             not
             now
             competent
             ,
             unless
             first
             at
             the
             time
             of
             the
             taking
             of
             the
             Testimonies
             ,
             the
             Pursuer
             had
             protested
             for
             Reprobators
             ,
             and
             had
             not
             referred
             his
             objections
             against
             the
             habilitie
             of
             the
             Witnesses
             ,
             to
             their
             own
             Oaths
             ,
             but
             had
             only
             interrogat
             them
             of
             their
             Age
             ,
             Marriage
             ,
             Residence
             ,
             freedom
             of
             partial
             Counsel
             ,
             or
             Corruption
             ,
             
             &c.
             
             And
             upon
             the
             reason
             of
             their
             Knowledge
             ,
             in
             that
             case
             Reprobators
             might
             have
             been
             competent
             to
             prove
             the
             contrair
             of
             these
             extrinsick
             points
             ,
             and
             so
             infirm
             the
             Testimony
             ,
             but
             here
             the
             Witnesses
             being
             Examined
             ,
             especially
             as
             to
             the
             Interrogators
             of
             partial
             Counsel
             ,
             and
             as
             to
             the
             reason
             of
             their
             Knowledge
             ,
             and
             no
             protestation
             taken
             at
             that
             time
             for
             Reprobators
             ,
             he
             cannot
             now
             make
             use
             thereof
             ,
             and
             albeit
             that
             Reprobators
             were
             reserved
             by
             the
             Lords
             ,
             yet
             that
             was
             not
             at
             the
             taking
             ,
             but
             at
             the
             advising
             of
             the
             Testimonies
             ,
             when
             all
             that
             is
             now
             alleadged
             (
             as
             to
             their
             corruption
             ,
             arising
             from
             the
             Re-examination
             )
             did
             appear
             to
             the
             Lords
             ,
             and
             yet
             the
             Lords
             adhered
             to
             the
             Decreet
             of
             Divorce
             ,
             and
             first
             Testimonies
             .
          
           
             The
             Pursuer
             answered
             ,
             that
             he
             did
             not
             intend
             to
             Convel
             principally
             the
             intrinsick
             points
             of
             the
             Testmonies
             ,
             but
             mainly
             to
             prove
             their
             partiality
             and
             corruption
             ,
             and
             therewith
             also
             to
             prove
             their
             Testimonies
             were
             false
             ,
             and
             impossible
             ;
             neither
             is
             it
             essential
             to
             protest
             at
             the
             taking
             of
             the
             Testimonies
             ,
             nor
             is
             there
             any
             necessity
             that
             the
             Witnesses
             Oathes
             should
             not
             be
             taken
             on
             the
             extrinsick
             points
             ,
             but
             on
             the
             contrair
             ,
             the
             intent
             of
             Reprobators
             being
             ,
             that
             their
             Oaths
             ,
             as
             to
             these
             extrinsicks
             being
             false
             ,
             they
             should
             be
             found
             perjured
             and
             infamous
             ,
             and
             the
             whole
             Testimonies
             to
             fall
             .
          
           
             There
             was
             no
             Interloqutor
             at
             this
             time
             ,
             upon
             this
             Debate
             .
          
        
         
           
             Reoch
             contra
             Cowan
             ,
             Eodem
             die
             .
          
           
             REoch
             pursues
             Cowan
             as
             representing
             a
             Defunct
             to
             pay
             a
             Debt
             ,
             due
             by
             the
             Defunct
             to
             the
             Pursuer
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             Reo●h
             was
             vitious
             Intrometter
             with
             the
             Defuncts
             Goods
             ,
             in
             so
             far
             as
             he
             lifted
             50.
             
             Pound
             ,
             belonging
             to
             the
             Defunct
             ,
             and
             gave
             his
             Discharge
             ,
             produced
             and
             albeit
             thereafter
             he
             Confirmed
             himself
             Executor
             Dative
             ,
             yet
             he
             wilfully
             omited
             that
             Sum
             out
             of
             the
             Confirmation
             ,
             and
             so
             as
             vitious
             Intrometter
             ,
             is
             both
             Debitor
             and
             Creditor
             ,
             and
             cannot
             pursue
             the
             Heir
             .
             It
             was
             answered
             ,
             that
             this
             was
             
               res
               modica
            
             ,
             and
             could
             not
             infer
             the
             passive
             Title
             .
          
           
             The
             Lords
             found
             that
             this
             Sum
             inferred
             not
             a
             general
             passive
             Title
             ,
             but
             only
             that
             is
             made
             him
             comptab●e
             for
             the
             Sum.
             
          
        
         
           
             Maitland
             contra
             Lesly
             ,
             February
             27.
             1668.
             
          
           
             IN
             a
             concluded
             Cause
             of
             abstracted
             Multers
             betwixt
             Maitland
             and
             Lesly
             ,
             The
             Pursuer
             being
             ●nfeft
             in
             the
             Miln
             ,
             with
             the
             Multers
             and
             Sequels
             ,
             and
             having
             proven
             the
             astriction
             of
             Intown
             Multers
             ,
             and
             Witnesses
             being
             adduced
             concerning
             the
             Services
             ,
             for
             upholding
             the
             Miln
             and
             Dam
             ,
             and
             bringing
             home
             Milnstones
             ,
             who
             proved
             that
             some
             of
             the
             Lands
             were
             not
             in
             use
             of
             these
             Services
             ,
             but
             by
             two
             or
             three
             several
             Acts
             ,
             as
             once
             laying
             in
             the
             Dam
             ,
             at
             which
             the
             Heretor
             was
             offended
             ,
             and
             brake
             the
             Tennents
             Head
             ,
             and
             twice
             going
             to
             help
             home
             the
             Milnstones
             ,
             whether
             these
             Lands
             were
             lyable
             to
             the
             Services
             .
          
           
             Whereupon
             the
             Lords
             considered
             whether
             the
             constitution
             of
             a
             Thirlage
             ,
             with
             Multers
             and
             Sequels
             ,
             did
             by
             the
             nature
             of
             the
             Right
             ,
             give
             the
             ordinary
             Miln
             service
             without
             relation
             to
             Possession
             ,
             so
             that
             immediatly
             after
             the
             constitution
             ,
             thes
             might
             be
             demanded
             .
          
           
             Which
             the
             Lords
             decided
             affirmative
             ,
             and
             then
             found
             that
             these
             Lands
             were
             lyable
             to
             the
             service
             ,
             unlesse
             they
             had
             either
             by
             Paction
             ,
             or
             Prescriptio●
             ,
             attained
             freedom
             from
             the
             service
             ,
             and
             found
             that
             the
             Testimonies
             did
             not
             prove
             freedom
             for
             fourty
             years
             ,
             and
             that
             these
             Acts
             were
             enough
             to
             interrupt
             ,
             and
             so
             Decerned
             for
             the
             ordinary
             services
             .
          
        
         
           
           
             David
             Henderson
             contra
             Mr.
             Andrew
             Birny
             ,
             Eodem
             die
             .
          
           
             MAster
             
               Andrew
               Birny
            
             having
             granted
             a
             Bond
             to
             
               Alexander
               Short
            
             ,
             blank
             in
             the
             Creditors
             Name
             ,
             he
             for
             an
             equivalent
             Cause
             ,
             delivered
             the
             same
             to
             
               David
               Henderson
            
             ,
             who
             filled
             up
             his
             Name
             therein
             ,
             and
             Charges
             Mr.
             Andrew
             therefore
             ;
             he
             Suspends
             on
             a
             Reason
             of
             Compensation
             ,
             upon
             a
             Debt
             owing
             to
             him
             by
             Short
             ,
             to
             whom
             he
             delivered
             the
             blank
             Bond
             ,
             for
             whom
             he
             became
             Cautioner
             before
             he
             granted
             the
             Bond
             ,
             and
             payed
             the
             Debt
             ,
             partly
             before
             ,
             and
             partly
             after
             this
             Bond
             ,
             so
             that
             Henderson
             by
             filling
             up
             his
             Name
             ,
             being
             Assigney
             ,
             and
             Short
             Cedent
             ,
             payment
             or
             compensation
             against
             the
             Cedent
             ,
             before
             the
             Assignation
             ,
             is
             relevant
             against
             the
             Assigney
             .
             It
             was
             answered
             ,
             that
             in
             this
             Case
             compensation
             is
             not
             relevant
             ,
             because
             the
             very
             Delivery
             of
             a
             Bond
             ,
             in
             a
             blank
             Creditors
             Name
             ,
             imports
             that
             the
             Receiver
             thereof
             ,
             may
             put
             in
             any
             Mans
             Name
             he
             will
             ,
             and
             he
             may
             never
             make
             use
             of
             Compensation
             against
             him
             whose
             Name
             is
             filled
             up
             ,
             otherwise
             why
             should
             the
             Creditors
             Name
             have
             been
             left
             blank
             ,
             which
             if
             it
             had
             been
             filled
             up
             ,
             it
             behoved
             to
             have
             had
             an
             Assignation
             ,
             which
             is
             but
             a
             Procuratory
             
               in
               rem
               suaem
            
             ,
             so
             that
             the
             Procurator
             can
             be
             in
             no
             better
             state
             nor
             the
             Constituent
             ,
             but
             the
             blank
             makes
             the
             Person
             filled
             up
             Creditor
             principally
             .
          
           
             The
             Lords
             found
             Compensation
             not
             relevant
             ,
             against
             a
             Person
             whose
             Name
             was
             filled
             up
             in
             the
             blank
             ,
             being
             a
             singular
             Successor
             to
             him
             ,
             who
             first
             received
             the
             Bond.
             
          
        
         
           
             Mr.
             William
             Chalmers
             contra
             Wood
             of
             Balbegno
             ,
             Eodem
             die
             .
          
           
             MAster
             
               William
               Chalmers
            
             ,
             Parson
             of
             Feltercarn
             ,
             pursues
             Reduction
             of
             a
             Tack
             of
             the
             Teinds
             of
             the
             Paroch
             ,
             granted
             by
             his
             Predecessors
             ,
             on
             this
             ground
             ,
             that
             it
             is
             null
             by
             Act
             of
             Parliament
             ,
             as
             wanting
             Consent
             of
             the
             Patron
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuer
             had
             Homologat
             his
             Tack
             ,
             in
             so
             far
             as
             he
             had
             received
             payment
             of
             the
             Duty
             ,
             conform
             to
             the
             Tack
             ,
             which
             was
             a
             clear
             acknowledgement
             thereof
             .
             It
             was
             answered
             ,
             that
             this
             could
             only
             be
             an
             Homologation
             for
             the
             years
             received
             ,
             and
             could
             not
             Homologat
             the
             Tack
             itself
             ,
             because
             the
             Tack
             was
             a
             standing
             Right
             ,
             valid
             till
             it
             were
             Reduced
             ,
             and
             the
             Pursuer
             could
             get
             no
             more
             then
             the
             Tack-Duty
             ,
             till
             he
             should
             Reduce
             the
             same
             .
          
           
             The
             Lords
             found
             this
             no
             Homologation
             ,
             to
             validat
             the
             Tack
             .
          
        
         
           
             Lord
             Justice
             Clerk
             contra
             Home
             of
             Linthel
             ,
             the
             Procurator-Fiscal
             and
             Officers
             ,
             February
             28.
             1668.
             
          
           
             THe
             Lord
             
               Iustice
               Clerk
            
             being
             Fined
             in
             50.
             
             Pound
             for
             his
             absence
             from
             the
             Lord
             Homes
             Head
             Court
             of
             his
             Barony
             .
             The
             Officers
             Poinded
             an
             Ox
             ,
             in
             October
             after
             the
             Plowing
             was
             begun
             .
             The
             Lord
             
               Iustice
               Clerk
            
             pursues
             a
             Spuilzy
             ,
             as
             being
             Poinded
             in
             Labouring
             time
             ,
             and
             insisted
             against
             Linthel
             as
             Depute
             ,
             who
             gave
             the
             Decreet
             ,
             and
             Precept
             to
             Poind
             ,
             and
             as
             he
             who
             knew
             of
             the
             Poinding
             of
             the
             Ox
             by
             the
             Officer
             ,
             before
             he
             was
             Delivered
             ,
             and
             commanded
             to
             Deliver
             him
             ,
             and
             against
             the
             Officer
             who
             Poinded
             ,
             and
             the
             Procurator
             Fiscal
             ,
             who
             by
             the
             Executions
             of
             the
             Poinding
             ,
             produced
             ;
             Received
             the
             Ox
             from
             the
             Officer
             :
             at
             the
             advising
             of
             the
             Cause
             ,
             Linthel
             having
             Deponed
             by
             his
             Oath
             ,
             that
             the
             Officer
             had
             told
             him
             an
             Ox
             was
             Poinded
             ,
             and
             he
             commanded
             the
             Officer
             to
             Deliver
             him
             ,
             and
             that
             he
             knew
             not
             he
             was
             a
             Labouring
             Ox
             ,
             so
             that
             that
             member
             not
             being
             proven
             ,
             the
             question
             was
             ,
             whether
             Linthel
             as
             Deput
             ,
             giving
             a
             Precept
             to
             the
             Officer
             to
             Poind
             in
             common
             form
             ,
             was
             lyable
             for
             the
             Spuilzy
             ,
             if
             the
             Officer
             did
             illegally
             Poind
             ,
             and
             so
             was
             answerable
             for
             the
             Fault
             of
             the
             Officer
             .
          
           
           
             The
             Lords
             found
             him
             not
             lyable
             ,
             and
             therefore
             Assoilzied
             Linthel
             ,
             and
             found
             that
             the
             Execution
             of
             the
             Poinding
             was
             sufficient
             Probation
             of
             the
             Delivery
             of
             the
             Ox
             to
             the
             Procurator-Fiscal
             ,
             especially
             seing
             the
             Defenders
             defended
             themselves
             with
             the
             Poinding
             ,
             and
             themselves
             produced
             the
             Execution
             ;
             and
             for
             the
             violent
             profits
             ,
             the
             Lords
             Decerned
             5.
             
             Shilling
             for
             every
             day
             ,
             from
             October
             to
             
               May
               inclusive
            
             ,
             being
             Labouring
             time
             ,
             and
             that
             yearly
             since
             the
             Spuilzy
             till
             the
             Sentence
             .
          
        
         
           
             Duke
             Hamiltoun
             contra
             Maxwel
             of
             Moreith
             ,
             February
             29.
             1668.
             
          
           
             THe
             Duke
             of
             Hamiltoun
             ,
             as
             Collector-General
             of
             the
             Taxations
             ,
             having
             Charged
             Maxwel
             of
             Moreith
             ,
             he
             Suspends
             upon
             this
             Reason
             ,
             and
             alleadges
             that
             he
             had
             Imparked
             ,
             and
             Inclosed
             a
             ten
             Merk
             Land
             ,
             since
             the
             Act
             of
             Parliament
             ,
             1661.
             anent
             the
             Inclosing
             of
             Grounds
             ,
             by
             which
             ,
             all
             Lands
             to
             be
             Inclosed
             thereafter
             ,
             are
             to
             be
             free
             of
             all
             publick
             Burdens
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Convention
             was
             posterior
             ,
             and
             had
             no
             such
             exception
             ,
             but
             on
             the
             contrair
             ,
             took
             away
             all
             former
             exceptions
             .
             It
             was
             answered
             ,
             that
             an
             Act
             of
             Parliament
             cannot
             be
             Derogat
             ,
             or
             Abrogat
             ,
             by
             an
             Act
             of
             Convention
             .
          
           
             The
             Lords
             found
             the
             Reason
             relevant
             ,
             notwithstanding
             of
             the
             Act
             of
             Convention
             .
          
        
         
           
             Ioanna
             M●alexander
             contra
             Charles
             Dalrymple
             ,
             Iune
             9.
             1668.
             
          
           
             
               IOanna
               M●alexander
            
             ,
             a
             Sister
             Daughter
             ,
             and
             one
             of
             the
             nearest
             of
             kin
             of
             Umquhile
             
               Elizabeth
               Dalrymple
            
             ,
             pursues
             a
             Reduction
             of
             the
             said
             Elizabeth
             her
             Testament
             ,
             whereby
             she
             nominat
             
               Charles
               Dalrymple
            
             her
             Brothers
             Son
             ,
             her
             Executor
             ,
             and
             universal
             Legator
             ,
             upon
             this
             Reason
             ,
             that
             in
             the
             time
             of
             the
             making
             that
             Testament
             she
             was
             not
             
               compos
               mentis
            
             ,
             but
             fatuous
             and
             insensible
             .
          
           
             The
             Lords
             having
             appointed
             the
             Witnesses
             of
             the
             Testament
             ,
             and
             other
             Witnesses
             to
             be
             Examined
             thereanent
             ,
             the
             Witnesses
             in
             the
             Testament
             ,
             and
             Writer
             thereof
             being
             Examined
             ,
             Deponed
             that
             she
             was
             in
             her
             right
             Mi●●
             ,
             and
             gave
             order
             for
             drawing
             of
             the
             Testament
             ,
             and
             gave
             order
             to
             Subscribe
             it
             ;
             the
             other
             Witnesses
             Deponed
             that
             about
             that
             time
             ,
             for
             several
             weeks
             before
             ,
             and
             some
             time
             after
             ,
             the
             Defunct
             was
             fatuous
             ,
             and
             not
             in
             a
             right
             Mind
             ,
             and
             to
             every
             question
             proposed
             to
             her
             ,
             she
             answered
             alwise
             yea
             ,
             yea
             ,
             and
             some
             words
             of
             Ravery
             ,
             which
             she
             frequently
             spoke
             .
          
           
             The
             Lords
             having
             also
             caused
             Re-examine
             the
             Testamentar
             Witnesses
             ,
             that
             it
             might
             appear
             whether
             she
             did
             only
             answer
             to
             Interrogators
             ,
             as
             when
             it
             was
             answered
             ,
             whether
             she
             would
             have
             
               Charles
               Dalrymple
            
             her
             Executor
             ,
             and
             universal
             Legator
             ,
             and
             whether
             she
             said
             yea●
             yea
             ;
             and
             whether
             she
             gave
             Direction
             without
             a
             forgoing
             question
             by
             words
             that
             might
             signify
             her
             Sensibility
             .
             And
             having
             considered
             the
             whole
             Testimonies
             ,
             they
             found
             that
             Probation
             most
             pregnant
             ,
             that
             she
             was
             Fatuous
             ,
             and
             insensible
             at
             the
             time
             of
             the
             making
             the
             Testament
             ,
             and
             therefore
             Reduced
             ,
             albeit
             the
             Witnesses
             were
             Extraneous
             that
             proved
             ,
             and
             were
             not
             present
             at
             making
             the
             Testament
             ,
             at
             which
             time
             a
             lucide
             interval
             of
             a
             Person
             Distempered
             by
             Disease
             ,
             not
             constantly
             Fatuous
             ,
             might
             have
             been
             sufficient
             .
          
           
             This
             was
             stoped
             till
             it
             were
             further
             heard
             .
          
        
         
           
           
             Sir
             Iohn
             Gibson
             contra
             Iames
             Oswald
             ,
             Iune
             13.
             1668.
             
          
           
             SIr
             
               Iohn
               Gibson
            
             and
             
               Iames
               Oswald
            
             having
             mutual
             Declarators
             of
             Property
             ,
             of
             a
             peice
             of
             contraverted
             Ground
             ,
             lying
             on
             the
             M●rch
             between
             two
             Gairs
             ,
             or
             Bentish
             Strypes
             of
             Ground
             ,
             through
             a
             Moor
             ;
             equal
             number
             of
             Witnesses
             being
             Examined
             for
             either
             Party
             ,
             one
             Witnesse
             for
             either
             side
             proved
             40.
             years
             constant
             Possession
             of
             the
             Party
             Adducer
             ,
             and
             that
             they
             did
             interrupt
             the
             other
             Party
             and
             turned
             away
             their
             Cattel
             when
             they
             came
             over
             :
             some
             of
             the
             witnesses
             did
             prove
             either
             Party
             to
             have
             had
             Possession
             above
             40.
             years
             since
             ,
             but
             did
             not
             prove
             that
             they
             knew
             the
             same
             constantly
             so
             Bruiked
             ,
             neither
             did
             they
             know
             any
             thing
             to
             the
             contrary
             ,
             and
             many
             Witnesses
             on
             either
             side
             proved
             not
             only
             that
             the
             ●eithes
             Lybeled
             by
             the
             Party
             who
             Adduced
             them
             ,
             were
             holden
             and
             repute
             the
             true
             Marches
             for
             a
             very
             long
             time
             ,
             but
             did
             not
             express
             how
             long
             ;
             but
             some
             of
             them
             Deponed
             ,
             that
             Stones
             in
             the
             meithes
             were
             commonly
             holden
             and
             repute
             to
             be
             March
             Stones
             ,
             and
             so
             the
             Testimonies
             were
             contrary
             ,
             and
             if
             there
             had
             not
             been
             mutual
             Probation
             ,
             either
             Party
             would
             have
             proven
             sufficiently
             ;
             and
             neither
             Party
             having
             bounding
             Charters
             ,
             the
             question
             arose
             whether
             the
             ●preg●antest
             Probation
             should
             be
             preferred
             ,
             to
             give
             the
             property
             to
             that
             Party
             ,
             and
             exclude
             the
             other
             ,
             or
             if
             both
             Parties
             ,
             proving
             so
             long
             Possession
             ,
             and
             mutual
             interruptions
             ,
             the
             Probation
             should
             infer
             a
             promiscuous
             Possession
             ,
             and
             Right
             of
             the
             contraverted
             peice
             of
             Land
             ,
             and
             so
             resolve
             into
             a
             Commonty
             ,
             albeit
             neither
             Party
             Claimed
             nor
             Lybeled
             Commonty
             .
          
           
             The
             Lords
             found
             the
             Testimonies
             of
             the
             Witnesses
             to
             infer
             a
             Commonty
             to
             either
             Party
             of
             the
             Ground
             in
             controversie
             ,
             albeit
             they
             found
             that
             Sir
             
               Iohn
               Gibsons
            
             Witnesses
             were
             more
             pregnant
             ,
             yet
             not
             so
             far
             as
             to
             exclude
             the
             others
             ,
             but
             declared
             that
             if
             either
             Party
             desired
             that
             piece
             to
             de
             divided
             ,
             they
             would
             grant
             Commission
             for
             dividing
             the
             same
             ,
             and
             setting
             down
             of
             March-Stones
          
        
         
           
             Burnet
             contra
             Nasmith
             ,
             Iune
             19.
             1668.
             
          
           
             
               ALexa●
               de●
               Burnet
            
             of
             Carl●ps
             ,
             being
             Creditor
             to
             Sir
             
               Michael
               Nasmith
            
             of
             ●osso
             ,
             pursues
             a
             Declarator
             against
             
               Iames
               Nasmith
            
             his
             eldest
             Son
             ,
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             that
             an
             expired
             Appryzing
             of
             the
             Estate
             of
             P●sso
             ,
             now
             standing
             in
             the
             Person
             of
             the
             said
             Iames
             ,
             is
             Redeemable
             by
             the
             Pursuer
             as
             a
             Creditor
             ,
             from
             the
             said
             Iames
             ,
             as
             appearing
             Heir
             of
             the
             Party
             ,
             against
             whom
             it
             was
             deduced
             within
             ten
             years
             after
             the
             appearand
             Heirs
             Right
             ,
             upon
             payment
             of
             the
             Sums
             ,
             that
             the
             appearand
             Heir
             truly
             gave
             out
             ,
             conform
             to
             the
             Act
             of
             Parliament
             betwixt
             Debitor
             and
             Creditor
             .
             The
             Defender
             alleadged
             Absol●itor
             ,
             because
             the
             Act
             of
             Parliament
             could
             not
             extend
             as
             to
             his
             Case
             ,
             because
             the
             Act
             bears
             ,
             [
             where
             appearand
             Heirs
             takes
             Right
             to
             Appyzing
             of
             their
             Predecessors
             Lands
             ]
             but
             the
             Defenders
             Father
             being
             living
             ,
             cannot
             be
             said
             to
             be
             his
             Predecessor
             ,
             or
             that
             the
             Defender
             is
             his
             appearand
             Heir
             ,
             and
             Statutes
             are
             
               stricti
               juris
            
             not
             to
             be
             extended
             to
             like
             Cases
             .
             It
             was
             answered
             ,
             that
             Reason
             of
             the
             Law
             ,
             given
             in
             that
             part
             of
             the
             Statute
             ,
             being
             the
             same
             ,
             and
             rather
             more
             in
             this
             Case
             ,
             where
             there
             may
             be
             Collusion
             betwixt
             the
             Father
             and
             the
             Son
             ,
             there
             is
             no
             ground
             to
             except
             the
             same
             from
             the
             Act
             of
             Parliament
             ,
             the
             words
             whereof
             do
             bear
             this
             Case
             ,
             for
             in
             the
             ordinar
             Stile
             it
             uses
             to
             be
             thus
             express
             ,
             such
             a
             person
             to
             be
             eldest
             Son
             ,
             and
             appearand
             Heir
             to
             his
             Father
             ,
             
             and
             albeit
             his
             Father
             be
             not
             dead
             ,
             he
             may
             well
             be
             said
             to
             be
             his
             Predecessor
             ,
             not
             only
             in
             regard
             of
             his
             age
             ,
             but
             as
             being
             his
             Predecessor
             in
             the
             Right
             of
             these
             Lands
             ,
             whereunto
             the
             Son
             is
             a
             Successor
             ,
             alb●it
             he
             be
             a
             singular
             Successor
             .
          
           
             The
             Lords
             found
             the
             Clause
             of
             the
             Act
             of
             Parliament
             to
             comprehend
             Rights
             acquired
             by
             appearand
             Heirs
             ,
             in
             their
             Predec●ssors
             Life
             ,
             and
             therefore
             declared
             .
          
        
         
           
             Agnes
             Hadden
             and
             Mary
             Lawder
             contra
             Shorswood
             .
             Eodem
             die
             .
          
           
             
               THomas
               Shorswood
            
             having
             granted
             an
             Assignation
             to
             a
             Bond
             of
             500.
             merks
             in
             favours
             of
             
               Agnes
               Hadden
            
             and
             
               Mary
               L●wder
            
             ,
             they
             pursue
             
               Magdalen
               Shorswood
            
             ,
             his
             nearest
             of
             kin
             ,
             to
             d●liver
             the
             same
             :
             who
             alleadged
             Absolvitor●
             because
             the
             Assignation
             was
             never
             delivered
             ,
             but
             being
             made
             a
             year
             before
             the
             Defunctsdeath
             ,
             remained
             by
             him
             till
             his
             death
             ,
             and
             was
             never
             delivered
             :
             and
             it
             is
             not
             the
             Subscribing
             of
             a
             Writ
             ,
             but
             the
             Delivery
             thereof
             ,
             that
             makes
             it
             that
             Parties
             ,
             in
             whose
             favours
             it
             is
             conceived
             ,
             unless
             the
             Party
             were
             in
             Family
             ,
             as
             a
             Fathers
             C●stody
             is
             the
             Childs
             Custody
             ,
             and
             equivalent
             to
             Delivery
             ,
             and
             unless
             the
             Writ
             had
             contained
             a
             Clause
             to
             be
             valide
             without
             Delivery
             ,
             which
             this
             doth
             not
             .
             The
             Pursuer
             answered
             ,
             that
             this
             Assignation
             reserveth
             expresly
             the
             Defuncts
             Liferent
             ,
             and
             a
             power
             to
             dispose
             thereof
             ,
             during
             his
             Life
             ,
             which
             sheweth
             his
             mind
             ,
             not
             to
             deliver
             the
             Assignation
             ,
             even
             when
             he
             made
             it
             ;
             otherwise
             the
             Reservation
             in
             his
             own
             favour
             ,
             would
             not
             have
             been
             in
             his
             own
             hand
             ,
             which
             sufficiently
             shews
             his
             mind
             ,
             that
             the
             Writ
             should
             be
             valide
             ,
             though
             not
             delivered
             in
             his
             life
             .
             2.
             
             This
             being
             a
             moveable
             sum
             ,
             this
             Assignation
             is
             in
             effect
             
               d●natio
               mortis
               causa
            
             ,
             and
             so
             must
             be
             valide
             ,
             without
             Delivery
             ,
             for
             a
             Testament
             or
             Legacy
             is
             valide
             without
             Delivery
             .
             It
             was
             answered
             to
             the
             first
             Alleadgance
             ,
             that
             the
             Defunct
             might
             have
             Delivered
             the
             Assignation
             ,
             and
             keeped
             the
             Bond
             ;
             so
             that
             the
             keeping
             of
             the
             Assignation
             was
             not
             necessary
             ,
             and
             so
             did
             not
             import
             his
             meaning
             to
             be
             ,
             that
             the
             Assignation
             should
             be
             valide
             without
             Delivery
             .
             To
             the
             second
             ,
             this
             Assignation
             is
             in
             the
             Terms
             and
             Nature
             of
             a
             proper
             Assignation
             ,
             and
             is
             a
             Right
             
               inter
               vivos
            
             ,
             and
             not
             
               donatio
               mor●
               is
               c●usa
            
             ;
             because
             
               donatio
               mortis
               causa
            
             ,
             is
             but
             as
             a
             Legacy
             ,
             affecting
             only
             the
             Deads
             part
             :
             but
             if
             this
             Assignation
             had
             been
             Delivered
             ,
             it
             would
             have
             affected
             all
             ,
             and
             so
             could
             be
             no
             
               donatio
               mortis
               causa
            
             ,
             and
             albeit
             it
             was
             not
             Delivered
             ,
             it
             remains
             the
             same
             kind
             of
             Right
             .
          
           
             The
             Lords
             Rep●lled
             the
             Defenses
             ,
             and
             decerned
             Delivery
             in
             regard
             of
             the
             Tenor
             of
             the
             Assignation
             ,
             and
             that
             it
             was
             a
             moveable
             sum
             ,
             it
             being
             also
             info●med
             that
             the
             Defunct
             had
             no
             Children
             ,
             and
             the
             said
             
               Agnes
               Hadden
            
             ,
             who
             was
             to
             have
             400.
             merks
             of
             the
             sum
             ,
             was
             Cousin-german
             to
             the
             Defunct
             .
          
        
         
           
             Relict
             of
             Galrigs
             contra
             Wallace
             of
             Galrigs
             .
             Eodem
             die
             .
          
           
             THe
             Relict
             of
             Galrigs
             pursues
             for
             Mails
             and
             Duties
             upon
             her
             Seasine
             ,
             given
             
               propriis
               manibus
            
             .
             It
             was
             alleadged
             for
             Galrigs
             no
             Process
             ,
             because
             the
             Seasine
             is
             but
             
               assertio
               notarij
            
             ,
             without
             a
             Warrand
             ,
             there
             being
             neither
             a
             Contract
             nor
             Obligation
             to
             give
             such
             a
             Seasine
             .
             It
             was
             answered
             ,
             that
             Instruments
             of
             Seasine
             given
             to
             a
             Wife
             ,
             
               p●opr●is
               manibus
            
             ,
             have
             a
             sufficient
             Adminicle
             ,
             and
             presumption
             by
             the
             Marriage
             ,
             and
             the
             duty
             of
             the
             Husband
             to
             provide
             the
             Wife
             ,
             especially
             where
             there
             is
             no
             Contract
             ,
             nor
             other
             Provision
             ;
             but
             most
             of
             all
             where
             the
             Wife
             Renunced
             her
             Joynture
             she
             had
             with
             a
             former
             Husband
             in
             favours
             of
             the
             Granter
             of
             the
             Seasine
             ,
             
             and
             his
             Creditors
             ,
             which
             is
             a
             strong
             presumption
             ,
             he
             would
             give
             her
             something
             in
             lieu
             thereof
             .
          
           
             Which
             the
             Lords
             sustained
             .
          
        
         
           
             Steuart
             of
             Torrence
             contra
             Feuars
             of
             Ernock
             .
             Iune
             24.
             1668.
             
          
           
             
               JAmes
               Steuart
            
             ,
             as
             Donator
             to
             the
             Ward
             of
             the
             Laird
             of
             Ernock
             ,
             by
             the
             Lord
             Semple
             of
             whom
             Ernock
             held
             the
             Lands
             Ward
             :
             pursues
             the
             Possessors
             for
             Removing
             ,
             who
             alleadged
             absolvitor
             ,
             because
             they
             brooked
             their
             Lands
             by
             Feues
             ,
             granted
             by
             the
             Laird
             of
             Ernock
             .
             The
             pursuer
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             the
             Feues
             were
             consented
             to
             ,
             or
             Confirmed
             by
             the
             Superiour
             ;
             for
             by
             the
             Feudal
             Law
             ,
             no
             deed
             of
             the
             Vassal
             can
             prejudge
             the
             Superiour
             ,
             when
             the
             Lands
             are
             Ward
             .
             The
             Defenders
             alleadged
             ,
             their
             Feues
             needed
             no
             Confirmation
             ,
             because
             they
             are
             warranted
             by
             Law
             ,
             by
             the
             
               72d
               .
               Act
            
             K.
             Iam.
             2.
             which
             stood
             valide
             until
             the
             Act
             of
             Parliament
             1606.
             
             Prohibiting
             Feues
             granted
             but
             by
             immediat
             Vassals
             of
             the
             King
             ,
             
               Ita
               est
            
             ,
             The
             first
             Act
             cannot
             extend
             to
             the
             Kings
             Sub-vassals
             ,
             because
             it
             bears
             only
             Free-holders
             ,
             and
             bears
             that
             the
             King
             shall
             accept
             of
             the
             Feu
             Duty
             ,
             during
             the
             Ward
             :
             but
             the
             Ward
             of
             his
             Sub-vassals
             would
             never
             fall
             in
             the
             Kings
             hand
             :
             and
             this
             meaning
             of
             the
             Act
             of
             Parliament
             is
             evident
             by
             the
             Act
             of
             Parliament
             1606.
             bearing
             expresly
             ,
             that
             there
             was
             no
             warrand
             by
             the
             first
             Act
             for
             any
             Feues
             ,
             but
             such
             as
             were
             granted
             by
             the
             Kings
             immediat
             Vassals
             .
             It
             was
             answered
             for
             the
             Defenders
             ,
             that
             they
             oppone
             the
             first
             Act
             of
             Parliament
             ,
             bearing
             expresly
             a
             general
             Reason
             of
             granting
             Feues
             ,
             for
             the
             policy
             of
             the
             Kingdom
             ,
             and
             that
             the
             King
             would
             give
             Example
             to
             the
             rest
             ;
             and
             that
             the
             Act
             no
             wayes
             restricteth
             to
             Free-holders
             of
             the
             King
             ,
             but
             others
             who
             hold
             of
             Subjects
             Ward
             ,
             are
             called
             Free-holders
             ,
             in
             opposition
             to
             Feues
             ;
             which
             is
             also
             cleared
             by
             the
             91.
             
             
               Act
               Parliament
            
             1503.
             
             The
             Title
             whereof
             bears
             ,
             (
             a
             power
             to
             all
             persons
             Spiritual
             and
             Temporal
             ,
             to
             set
             their
             Ward
             Lands
             Feu
             ,
             )
             which
             clears
             the
             meaning
             of
             the
             Parliament
             ,
             and
             the
             common
             custom
             till
             the
             year
             1606.
             which
             is
             acknowledged
             in
             the
             Narrative
             of
             the
             Act
             1606.
             which
             doth
             only
             annul
             Feues
             set
             to
             Sub-vassals
             ,
             in
             time
             thereafter
             :
             and
             as
             to
             the
             Narrative
             thereof
             ,
             the
             Statutory
             part
             ,
             and
             not
             the
             Narratives
             of
             the
             Acts
             of
             Parliament
             ,
             which
             the
             Parliament
             doth
             not
             much
             notice
             ,
             are
             our
             Rules
             ;
             and
             this
             Narrative
             is
             contradicted
             by
             the
             Narrative
             of
             the
             Act
             of
             Parliament
             1633.
             bearing
             that
             there
             is
             no
             reason
             why
             the
             Kings
             immediat
             Vassals
             should
             grant
             Feues
             more
             then
             Sub-vassals
             .
          
           
             The
             Lords
             sustained
             the
             Feues
             ,
             being
             granted
             before
             the
             Act
             of
             Parliament
             1606.
             
          
        
         
           
             Andrew
             Gray
             contra
             Howison
             and
             Gray
             .
             Eodem
             die
             .
          
           
             
               ANdrew
               Gray
            
             being
             Infe●t
             as
             Heir
             to
             his
             Grandsire
             ,
             in
             certain
             Lands
             of
             the
             Barony
             of
             Foules
             ,
             holden
             blensh
             of
             the
             House
             of
             Gray
             :
             pursues
             a
             Reduction
             of
             a
             late
             Infeftment
             in
             Anno
             1655.
             granted
             to
             
               Walter
               Watson
            
             ,
             as
             long
             Posterior
             to
             his
             Right
             .
             Compearance
             is
             made
             for
             
               William
               Gray
            
             of
             Haystoun
             ,
             as
             being
             Infeft
             by
             the
             Lord
             Gray
             ,
             and
             Sir
             
               George
               Kinnard
            
             ,
             who
             was
             Donator
             to
             the
             Recognition
             of
             the
             Estate
             of
             Gray
             ,
             by
             the
             alienation
             of
             this
             Lords
             Father
             ;
             which
             Recognition
             hath
             been
             declared
             by
             the
             Lords
             ,
             and
             alleadged
             that
             he
             hath
             the
             only
             Right
             ;
             because
             by
             the
             Recognition
             ,
             the
             old
             Rights
             of
             the
             House
             of
             Gray
             being
             void
             ,
             the
             Pursuers
             Subaltern
             Right
             fell
             in
             consequence
             therewith
             .
             The
             Pursuer
             answered
             ,
             that
             before
             the
             Defenders
             Right
             ,
             he
             had
             obtained
             a
             Precept
             of
             
               clarè
               constat
            
             ,
             acknowledging
             his
             old
             Right
             ,
             whereupon
             he
             was
             Infeft
             .
             It
             was
             answered
             ,
             that
             the
             Precept
             doth
             
             bear
             expreslly
             ,
             to
             be
             in
             obedience
             of
             Precepts
             out
             of
             the
             Chancellary
             upon
             the
             Pursuers
             Retour
             ,
             and
             so
             being
             a
             necessar
             Act
             ,
             and
             not
             voluntar
             ,
             it
             could
             be
             no
             acknowledgement
             ,
             or
             Ratification
             of
             the
             Pursuers
             Right
             .
          
           
             The
             Lords
             having
             considered
             the
             Precept
             ,
             that
             albeit
             it
             mentioned
             the
             Retour
             in
             obedience
             to
             the
             Precept
             :
             yet
             it
             bore
             also
             ,
             
               &
               quoniam
               mihi
               clare
               constat
            
             ,
             &c.
             in
             the
             common
             strain
             of
             a
             Precept
             of
             
               clarè
               constat
            
             ,
             acknowledging
             the
             Pursuers
             Predecessors
             Right
             and
             his
             Own.
             
          
           
             They
             found
             that
             it
             did
             exclude
             the
             Donator
             ,
             and
             all
             having
             Right
             from
             him
             thereafter
             ,
             and
             after
             the
             Seasine
             past
             thereon
             .
          
        
         
           
             George
             Heriot
             contra
             Town
             of
             Edinburgh
             .
             Iune
             25.
             1668.
             
          
           
             
               GEorge
               Heriots
            
             Father
             being
             Infeft
             in
             an
             Annualrent
             ,
             out
             of
             certain
             Tenements
             in
             the
             Canongate
             ,
             obtained
             himself
             to
             be
             Served
             Heir
             in
             special
             therein
             ,
             before
             the
             Baillies
             of
             the
             Canongate
             ,
             and
             because
             the
             samine
             is
             within
             a
             Regality
             ,
             having
             a
             proper
             Chappel
             ,
             and
             was
             not
             to
             be
             Retoured
             to
             the
             Kings
             Chancellary
             ;
             So
             that
             Precepts
             were
             not
             to
             be
             had
             out
             of
             the
             Chancellary
             ,
             against
             the
             Town
             of
             Edinburgh
             ,
             Superiours
             ,
             to
             Charge
             them
             to
             Infeft
             him
             ;
             therefore
             George
             upon
             Supplication
             ,
             obtained
             Letters
             from
             the
             Lords
             to
             Charge
             them
             ;
             and
             they
             being
             now
             Charged
             ,
             he
             pursues
             a
             Poinding
             of
             the
             Ground
             .
             It
             was
             alleadged
             for
             the
             Town
             ,
             no
             Process
             for
             poinding
             of
             the
             Ground
             ,
             till
             the
             Pursuer
             were
             Infeft
             in
             the
             Annualrent
             .
             It
             was
             answered
             ,
             that
             he
             having
             done
             Diligence
             against
             the
             Town
             ,
             it
             was
             equivalent
             ,
             and
             did
             exclude
             them
             from
             proponing
             that
             alleadgance
             .
             It
             was
             answered
             ,
             that
             no
             personal
             objection
             against
             the
             Town
             ,
             could
             be
             a
             sufficient
             Title
             against
             this
             Action
             without
             a
             real
             Right
             .
          
           
             The
             Lords
             found
             no
             Process
             till
             Infeftment
             ,
             but
             declared
             that
             so
             soon
             as
             the
             Magistrates
             should
             be
             Denunced
             ,
             they
             would
             grant
             Warrand
             to
             the
             Director
             of
             the
             Chancellary
             to
             issue
             a
             Precept
             for
             Infefting
             the
             Pursuer
             ,
             for
             supplying
             the
             place
             of
             the
             Magistrates
             ,
             and
             their
             Contumacy
             .
          
        
         
           
             Black
             contra
             Scot.
             Eodem
             die
             .
          
           
             
               ALexander
               Black
            
             having
             obtained
             a
             Decreet
             before
             the
             Commissar
             of
             
               St.
               Andrews
            
             ,
             against
             
               Iames
               Scot
            
             ,
             for
             126.
             pounds
             ;
             pursues
             a
             Transferrence
             thereof
             ,
             against
             the
             Representatives
             of
             
               Iames
               Scot
            
             ,
             who
             alleadged
             absolvitor
             ,
             because
             the
             Decreet
             is
             
               ipso
               jure
            
             ,
             null
             ,
             being
             given
             by
             a
             Commissar
             ,
             in
             a
             matter
             not
             Consistorial
             far
             above
             the
             quantity
             allowed
             by
             the
             Injunctions
             ,
             and
             there
             being
             nothing
             to
             instruct
             but
             the
             Defenders
             being
             holden
             as
             confest
             ,
             the
             Decreet
             at
             least
             must
             be
             turned
             to
             a
             Libel
             ,
             and
             yet
             proven
             .
             2.
             
             If
             the
             Defunct
             had
             been
             obliged
             to
             have
             compeared
             ,
             he
             would
             not
             only
             have
             denyed
             the
             Receipt
             of
             the
             Vinegar
             and
             Grapes
             Libelled
             ,
             but
             he
             would
             have
             offered
             to
             prove
             ,
             and
             the
             Defender
             offers
             yet
             to
             prove
             ,
             that
             they
             were
             refused
             ,
             and
             lay
             publickly
             upon
             the
             Shore
             where
             they
             were
             disloaded
             .
             3.
             
             It
             was
             offered
             to
             be
             proven
             ,
             the
             Defunct
             was
             lying
             on
             Death-bed
             ,
             the
             time
             he
             was
             Cited
             to
             Depone
             ,
             and
             was
             holden
             as
             confest
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             these
             Reasons
             were
             relevant
             to
             Repone
             a
             Party
             holden
             as
             confest
             to
             their
             Oath
             ,
             yet
             were
             not
             sufficient
             to
             annual
             the
             Decreet
             ,
             seing
             the
             Pursuer
             lost
             his
             Probation
             ,
             the
             Receipt
             of
             the
             Goods
             having
             been
             two
             years
             agoe
             ;
             and
             albeit
             this
             sum
             exceeded
             the
             Commissars
             Injunctions
             ;
             yet
             the
             violation
             thereof
             does
             not
             annual
             his
             Sentence
             ,
             or
             take
             away
             his
             power
             ,
             unlesse
             the
             samine
             had
             been
             objected
             upon
             Compearance
             .
          
           
           
             The
             Lords
             found
             not
             the
             Defenses
             Relevant
             to
             annul
             the
             Decreet
             ,
             or
             to
             hazard
             the
             loss
             of
             the
             Pursuers
             Probation
             :
             but
             seing
             the
             Defender
             burdened
             himself
             with
             a
             contrair
             Probation
             ,
             The
             Lords
             inclined
             to
             admit
             the
             same
             ,
             if
             it
             were
             sufficiently
             pregnant
             ;
             and
             therefore
             ordained
             the
             Pursuer
             before
             answer
             ,
             to
             adduce
             Witnesses
             ,
             that
             the
             Goods
             were
             never
             taken
             off
             the
             Shore
             ,
             but
             Boated
             there
             .
          
        
         
           
             Inglis
             contra
             Laird
             Balfour
             .
             Eodem
             die
             .
          
           
             THere
             being
             an
             Un-printed
             Act
             of
             Parliament
             ,
             for
             uplifting
             the
             Taxt
             and
             Loan
             of
             the
             Shire
             of
             Fife
             ,
             for
             Relief
             of
             some
             Noblemen
             ingaged
             for
             the
             Shire
             in
             Anno
             1661.
             
             The
             Council
             did
             thereafter
             give
             Commission
             to
             certain
             persons
             in
             the
             Shire
             ,
             to
             conveen
             the
             persons
             resting
             ,
             and
             accordingly
             Cited
             the
             Laird
             of
             Balfour
             ,
             and
             he
             not
             compearing
             ,
             ordered
             quartering
             against
             him
             :
             he
             Suspends
             on
             this
             Reason
             ,
             that
             this
             being
             a
             privat
             and
             particular
             Act
             of
             Parliament
             ,
             to
             which
             he
             was
             not
             called
             ,
             is
             
               salvo
               jure
            
             ,
             and
             could
             not
             burden
             his
             Lands
             of
             Creik
             ,
             because
             he
             is
             singular
             Successor
             therein
             to
             the
             Laird
             of
             Creik
             .
             It
             was
             answered
             ,
             that
             there
             is
             no
             exception
             of
             singular
             Successors
             in
             the
             Act
             of
             
               Parliament
               ▪
            
             so
             that
             this
             Act
             being
             a
             Reviving
             of
             the
             old
             Rescinded
             
               Act
               ,
               pro
               tan●o
            
             ,
             it
             must
             be
             in
             the
             same
             case
             as
             Taxation
             and
             Maintenance
             ,
             which
             is
             ever
             accounted
             
               debitum
               fundi
            
             .
             It
             was
             answered
             ,
             that
             these
             burdens
             Imposed
             by
             the
             Rescinded
             Parliaments
             ,
             are
             not
             in
             the
             same
             case
             with
             other
             publick
             Burdens
             ,
             especially
             where
             it
             is
             but
             a
             particular
             Act
             ,
             relating
             to
             particular
             persons
             and
             Shires
             ,
             without
             Citation
             of
             them
             ,
             for
             if
             they
             had
             known
             of
             this
             Act
             ,
             they
             would
             have
             petitioned
             the
             Parliament
             ,
             that
             singular
             Successors
             might
             have
             been
             excepted
             ,
             as
             they
             were
             in
             other
             Acts
             of
             this
             nature
             .
          
           
             The
             Lords
             Suspended
             the
             Decreet
             ,
             and
             found
             that
             as
             they
             were
             singular
             Successors
             they
             were
             not
             lyable
             .
          
        
         
           
             David
             Dick
             contra
             Ker.
             Iune
             26.
             1668.
             
          
           
             
               DAvid
               Dick
            
             as
             Donator
             to
             the
             Escheat
             of
             Ker
             ,
             insists
             in
             a
             special
             Declarator
             ,
             for
             payment
             of
             a
             sum
             due
             to
             the
             Rebel
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             it
             being
             a
             Bond
             ,
             bearing
             Annualrent
             ,
             it
             fell
             not
             under
             the
             single
             Escheat
             .
             It
             was
             Replyed
             ,
             that
             Bonds
             bearing
             Annualrent
             ,
             are
             still
             holden
             moveable
             ,
             until
             the
             first
             Term
             of
             payment
             of
             Annualrent
             ,
             and
             is
             Disposeable
             by
             Testament
             ,
             if
             the
             Defunct
             die
             before
             that
             Term
             :
             but
             here
             the
             Rebellion
             was
             before
             the
             date
             of
             the
             Bond
             ,
             and
             so
             the
             sum
             fell
             to
             the
             Fisk
             ,
             the
             day
             it
             was
             Subscribed
             .
             It
             was
             answered
             ,
             that
             the
             32.
             
             
               Act
               ,
               Parliament
            
             1661.
             declares
             Bonds
             bearing
             Annualrent
             ,
             to
             exclude
             the
             Fisk
             ,
             without
             any
             exception
             or
             limitation
             .
          
           
             The
             Lords
             having
             considered
             the
             Act
             ,
             found
             that
             it
             left
             Bonds
             bearing
             Annualrent
             ,
             in
             the
             same
             case
             that
             they
             were
             formerly
             ;
             and
             found
             that
             before
             the
             Term
             of
             payment
             of
             Annualrent
             ,
             they
             were
             moveable
             .
          
        
         
           
             Peterson
             contra
             Captain
             Anderson
             .
             Iune
             30.
             1668.
             
          
           
             CAptain
             Anderson
             having
             taken
             a
             Ship
             ,
             whereof
             
               Peter
               Peterson
            
             was
             Master
             ,
             and
             obtained
             the
             same
             declared
             Prize
             by
             the
             Admiral
             ,
             upon
             two
             grounds
             ;
             one
             that
             the
             Ship
             was
             sailed
             ,
             a
             great
             part
             of
             the
             company
             being
             Hollanders
             ,
             then
             the
             Kings
             enemies
             :
             The
             other
             ,
             that
             albeit
             it
             was
             pretended
             that
             the
             Ship
             belonged
             to
             Swedes
             ,
             yet
             by
             several
             presumptions
             and
             evidences
             ,
             it
             appeared
             ,
             that
             is
             was
             but
             a
             conveyance
             ,
             and
             that
             the
             Ship
             truely
             belonged
             to
             Hollanders
             :
             There
             is
             now
             a
             Reduction
             raised
             of
             the
             Decreet
             ,
             and
             the
             first
             ground
             thereupon
             Debated
             and
             Decided
             .
             It
             was
             alleadged
             for
             the
             Strangers
             ,
             
             that
             they
             being
             Swedes
             ,
             their
             case
             was
             only
             to
             be
             ruled
             by
             the
             Treaty
             betwixt
             the
             King
             and
             the
             Crown
             of
             Sweden
             ,
             by
             which
             it
             is
             expresly
             provided
             ,
             that
             the
             Subjects
             of
             Sweden
             having
             such
             Passes
             ,
             as
             are
             exprest
             in
             the
             Articles
             ,
             shall
             not
             be
             Seased
             ,
             or
             brought
             up
             ,
             and
             particularly
             
               in
               bona
               &
               homines
               nullo
               modo
               inquir●tur
               ,
               viz.
            
             Where
             such
             a
             Pass
             is
             found
             aboard
             ,
             and
             the
             said
             Pass
             being
             here
             found
             aboard
             ,
             the
             Ship
             was
             unwarrantably
             Seased
             ,
             and
             unwarrantably
             declared
             Prize
             ,
             upon
             pretence
             of
             being
             sailed
             with
             Hollanders
             ;
             because
             that
             Article
             takes
             away
             all
             question
             about
             the
             men
             ,
             and
             so
             gives
             liberty
             to
             the
             Swedes
             ,
             to
             make
             use
             of
             any
             Mariners
             they
             please
             .
             It
             was
             answered
             ,
             that
             the
             Reason
             of
             Adjudication
             was
             most
             just
             ;
             and
             this
             Reason
             of
             Reduction
             ought
             to
             be
             repelled
             ,
             because
             the
             Kings
             Proclamation
             ,
             denuncing
             the
             War
             ,
             gives
             express
             warrand
             to
             sease
             all
             such
             Ships
             as
             had
             any
             number
             of
             Hollanders
             therein
             ,
             which
             must
             stand
             as
             the
             Rule
             ,
             unless
             the
             Swedes
             had
             by
             their
             Treaty
             ,
             a
             particular
             exception
             ,
             derogating
             from
             that
             Rule
             ,
             which
             they
             have
             not
             :
             but
             on
             the
             contrary
             ,
             the
             Treaty
             contains
             an
             express
             provision
             ,
             that
             they
             may
             make
             use
             of
             a
             Hollands
             Master
             ,
             and
             not
             unless
             he
             became
             a
             Citizen
             of
             some
             City
             of
             Sweden
             ,
             and
             be
             sworn
             Burgess
             thereof
             :
             but
             upon
             the
             former
             ground
             ,
             there
             needed
             no
             such
             Article
             for
             Masters
             ,
             and
             all
             might
             thereby
             be
             Hollanders
             .
             And
             as
             to
             the
             Article
             of
             the
             Treaty
             ,
             concerning
             no
             further
             inquiry
             ,
             there
             is
             subjoyned
             ,
             
               quod
               si
               gravis
               aliqua
               suspitio
               subsit
            
             ;
             in
             which
             case
             ,
             notwithstanding
             of
             the
             Pass
             ,
             Seasure
             might
             be
             made
             ;
             but
             here
             there
             was
             
               gravis
               suspitio
            
             ,
             that
             the
             Ship
             or
             Goods
             belonged
             to
             the
             Hollanders
             ,
             the
             Master
             ,
             and
             major
             part
             of
             the
             Company
             being
             Hollanders
             ,
             and
             the
             Pass
             mentioning
             a
             Ship
             of
             an
             hundred
             Tuns
             ,
             whereas
             this
             Ship
             was
             two
             hundreth
             Tuns
             .
             It
             was
             answered
             for
             the
             Strangers
             ,
             that
             the
             Kings
             Proclamation
             could
             be
             no
             Rule
             to
             the
             Subjects
             of
             any
             other
             free
             Prince
             ;
             but
             the
             Law
             of
             Nations
             ,
             or
             their
             own
             Treaties
             ,
             behoved
             to
             be
             the
             Rule
             :
             and
             by
             the
             Law
             of
             Nations
             ,
             the
             King
             could
             not
             hinder
             his
             Allies
             of
             any
             Commerce
             ,
             or
             Trade
             with
             His
             Enemies
             ,
             which
             they
             were
             accustomed
             ,
             or
             free
             to
             do
             before
             the
             War
             ,
             except
             such
             Acts
             only
             ,
             wherein
             they
             partaked
             with
             his
             Enemies
             ,
             by
             furnishing
             provisions
             of
             War
             ,
             or
             Counterband
             Goods
             ;
             and
             so
             the
             King
             by
             no
             Proclamation
             ,
             could
             hinder
             the
             Swedes
             to
             hire
             and
             make
             use
             of
             Hollanders
             ,
             which
             rather
             weakned
             ,
             then
             strengthned
             his
             Enemies
             :
             and
             in
             this
             case
             ,
             the
             making
             use
             of
             Hollanders
             was
             necessar
             ,
             because
             other
             Sailers
             could
             not
             be
             had
             ,
             when
             the
             Ship
             was
             bought
             ;
             and
             that
             Article
             of
             the
             Proclamation
             ought
             to
             be
             benignly
             interpret
             ,
             that
             when
             any
             Ship
             carries
             Hollenders
             as
             Passengers
             ,
             the
             same
             should
             be
             Seased
             ,
             but
             not
             when
             these
             were
             Servants
             and
             Mariners
             to
             other
             Nations
             .
             It
             was
             answered
             for
             the
             Captain
             ,
             that
             the
             Kings
             Proclamation
             of
             the
             War
             ,
             behoved
             to
             be
             a
             Rule
             to
             the
             Kings
             Judges
             ,
             and
             that
             it
             was
             most
             consonant
             to
             the
             Law
             of
             Nations
             ,
             and
             it
             was
             impossible
             without
             the
             same
             ,
             to
             know
             what
             Ships
             did
             truly
             belong
             to
             Allies
             ;
             and
             that
             in
             the
             Spanish
             Treaty
             with
             the
             King
             ,
             that
             priviledge
             was
             specially
             indulged
             to
             the
             Flandrians
             ,
             not
             to
             be
             quarrelled
             upon
             the
             account
             of
             Hollanders
             ,
             because
             of
             the
             Identity
             of
             their
             Language
             ,
             which
             would
             have
             been
             unnecessar
             ,
             if
             by
             the
             Law
             of
             Nations
             ,
             all
             might
             have
             so
             done
             .
          
           
             The
             Lords
             Repelled
             the
             Reason
             of
             the
             Reduction
             ,
             and
             found
             that
             ground
             of
             the
             Adjudication
             ,
             that
             the
             Ship
             was
             Sailed
             ,
             with
             a
             great
             part
             of
             the
             Company
             being
             Hollanders
             ,
             Relevant
             alone
             ,
             and
             that
             the
             same
             was
             sufficiently
             proven
             by
             the
             Testimony
             of
             the
             Steirsman
             ,
             and
             another
             Witness
             of
             the
             Company
             ,
             and
             therefore
             Assoilzied
             from
             the
             Reduction
             .
          
        
         
           
           
             The
             Minister
             of
             Elgin
             contra
             his
             Parochioners
             .
             Eodem
             die
             .
          
           
             THE
             Minister
             of
             Elgin
             pursues
             his
             Parochioners
             for
             the
             Viccarage
             of
             some
             Yeards
             in
             Elgin
             ,
             which
             belonged
             of
             old
             to
             the
             Canons
             of
             the
             Cathedral
             Kirk
             of
             Elgin
             ,
             and
             were
             by
             them
             Feued
             to
             the
             Defenders
             ,
             who
             alleadged
             Absolvitor
             ;
             because
             the
             Yeards
             being
             a
             part
             of
             the
             Canons
             Portions
             ,
             and
             in
             effect
             their
             Gleibs
             had
             in
             no
             time
             past
             ,
             ever
             payed
             Viccarage
             ,
             which
             is
             consuetudinar
             ,
             and
             local
             ,
             both
             as
             to
             the
             payment
             ,
             and
             the
             kinds
             ;
             for
             in
             some
             places
             ,
             Teind
             Lint
             ,
             and
             Hens
             are
             payed
             ,
             and
             in
             others
             not
             :
             but
             the
             ordinar
             Viccarage
             being
             Stirks
             ,
             Wool
             ,
             Milk
             and
             Lamb
             ,
             there
             is
             none
             of
             these
             to
             be
             had
             in
             these
             Yeards
             .
             It
             was
             answered
             ,
             that
             no
             Prescription
             could
             take
             away
             Teinds
             ,
             upon
             the
             forbearance
             of
             demanding
             it
             by
             Beneficed
             Persons
             ,
             who
             are
             but
             Administrators
             ,
             and
             cannot
             Delapidat
             ;
             otherwise
             all
             Benefices
             might
             be
             destroyed
             .
             2ly
             ,
             Lands
             that
             have
             been
             always
             Ploughed
             ,
             and
             so
             payed
             Parsonage
             ,
             and
             becoming
             Grass
             ,
             are
             lyable
             to
             Viccarage
             ,
             albeit
             it
             cannot
             be
             proven
             ,
             that
             ever
             they
             payed
             any
             before
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             unless
             the
             Pursuer
             could
             prove
             that
             Viccarage
             has
             been
             payed
             out
             of
             these
             ,
             or
             out
             of
             any
             other
             the
             Canons
             Portions
             of
             this
             Kirk
             .
          
        
         
           
             George
             Shein
             contra
             Iames
             Christie
             .
             Eodem
             die
             .
          
           
             G
             Christison
             of
             Bassallie
             ,
             gave
             an
             Infeftment
             to
             his
             eldest
             Son
             ,
             of
             the
             Lands
             of
             Bassallie
             ,
             and
             to
             his
             second
             Son
             ,
             of
             an
             Annualrent
             of
             86.
             merks
             forth
             thereof
             ,
             both
             of
             one
             date
             ,
             and
             both
             reserving
             the
             Fathers
             Liferent
             .
             
               Iames
               Christie
            
             hath
             Right
             by
             Appryzing
             ,
             led
             against
             the
             eldest
             Son
             ,
             in
             his
             Fathers
             life
             ,
             to
             the
             Lands
             .
             
               George
               Shein
            
             hath
             Right
             by
             Adjudication
             ,
             against
             the
             second
             Son
             ,
             to
             the
             Annualrent
             ,
             and
             pursues
             a
             poinding
             of
             the
             Ground
             .
             It
             was
             alleadged
             for
             
               Iames
               Christie
            
             ,
             that
             Sheins
             Authors
             Right
             was
             base
             ,
             never
             cled
             with
             Possession
             ,
             and
             so
             null
             ;
             whereas
             his
             Right
             was
             publick
             by
             an
             Appryzing
             ,
             and
             had
             attained
             to
             Possession
             .
             It
             was
             answered
             ,
             that
             the
             Fathers
             Liferent
             being
             reserved
             ,
             the
             Fathers
             Possession
             was
             both
             the
             Sons
             Possession
             ,
             and
             did
             validat
             both
             their
             Rights
             .
             It
             was
             answered
             ,
             that
             a
             Disposition
             by
             a
             Father
             to
             his
             own
             Children
             ,
             reserving
             his
             own
             Liferent
             ,
             though
             Infeftment
             follow
             ,
             is
             alwayes
             accounted
             simulat
             ,
             and
             never
             accounted
             cled
             with
             Possession
             ,
             by
             the
             Fathers
             Possession
             ,
             as
             hath
             been
             frequently
             decided
             .
             It
             was
             answered●
             that
             albeit
             in
             Competition
             betwixt
             base
             Infe●tments
             ,
             granted
             to
             Children
             ,
             and
             Infeftments
             granted
             to
             Strangers
             upon
             onerous
             Causes
             ;
             the
             Childrens
             Infeftment
             ,
             though
             prior
             ,
             and
             though
             reserving
             the
             Fathers
             Liferent
             ,
             uses
             to
             be
             preferred
             ;
             yet
             here
             that
             holds
             not
             ,
             for
             both
             Infeftments
             are
             granted
             to
             Children
             ,
             both
             of
             one
             date
             ,
             and
             neither
             of
             them
             to
             Strangers
             ,
             or
             upon
             onerous
             Causes
             ;
             and
             therefore
             the
             Reservation
             here
             is
             without
             suspition
             of
             Simulation
             ,
             and
             the
             Fathers
             Possession
             must
             both
             validat
             the
             second
             Sons
             Annualrent●
             and
             the
             eldest
             Sons
             property
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             that
             the
             Fathers
             Possession
             by
             this
             Reservation
             ,
             did
             sufficiently
             validat
             both
             the
             Sons
             Infeftments
             ;
             and
             that
             the
             Possession
             of
             one
             after
             his
             Death
             ,
             or
             of
             any
             succeeding
             in
             his
             Right
             ,
             did
             not
             exclude
             the
             other
             ,
             or
             his
             singular
             Successor
             .
          
        
         
           
           
             Mr.
             Robert
             Burnet
             contra
             Swane
             .
             Eodem
             die
             .
          
           
             MR.
             
               Robert
               Burnet
            
             Tutor
             of
             L●yes
             pursues
             for
             Mails
             and
             Duties
             of
             a
             Tenement
             in
             Aberdene
             .
             It
             was
             alleadged
             for
             Swane
             the
             Defender
             ,
             Absolvitor
             ,
             because
             he
             stands
             Infeft
             in
             the
             Lands
             ;
             and
             by
             vertue
             of
             his
             Infeftment
             ,
             in
             Possession
             ;
             and
             albeit
             the
             Pursuers
             Infeftment
             be
             prior
             ,
             it
             is
             null
             ,
             neither
             being
             Registrat
             in
             the
             Register
             of
             Seasins
             ,
             nor
             in
             the
             Town
             Clerks
             Books
             of
             Aberdene
             ,
             according
             to
             the
             custom
             of
             all
             Burghs
             ,
             but
             hath
             been
             latent
             many
             years
             ,
             and
             no
             vestige
             of
             it
             in
             the
             Town
             Books
             ;
             so
             that
             the
             Defender
             was
             in
             
               bona
               fide
            
             ,
             to
             Contract
             with
             the
             common
             Authour
             ,
             and
             Apprize
             thereafter
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Parliament
             excepted
             Seasins
             within
             Burgh
             ;
             and
             the
             Pursuer
             having
             the
             Town
             Clerks
             Subscription
             was
             not
             answerable
             for
             his
             keeping
             a
             Prothecal
             ,
             or
             Record
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             sustained
             the
             Seasine
             .
          
        
         
           
             Colquhoun
             and
             Mcquair
             contra
             Stuart
             of
             Barscub
             .
             Iuly
             1.
             1668.
             
          
           
             THe
             Laird
             of
             Barscub
             having
             seued
             certain
             Lands
             to
             Colquhoun
             and
             Mcquair
             ,
             to
             be
             holden
             of
             himself
             ,
             in
             the
             Contract
             of
             Alienation
             ,
             there
             is
             a
             special
             Clause
             ,
             that
             because
             the
             Lands
             are
             holden
             Ward
             of
             the
             Duke
             of
             Lenox
             ;
             therefore
             Barscub
             is
             obliged
             to
             relieve
             these
             Feues
             of
             any
             Ward
             that
             shall
             fall
             in
             time
             coming
             :
             Thereafter
             Barscub
             Dispones
             the
             Superiority
             of
             these
             Lands
             ,
             and
             by
             the
             Death
             of
             his
             singular
             Successor
             ,
             his
             Heir
             falls
             in
             Ward
             ,
             whereupon
             Sentence
             was
             obtained
             against
             the
             Feuars
             for
             the
             Ward
             Duties
             ,
             and
             the
             avail
             of
             the
             Marriage
             ,
             and
             they
             now
             pursue
             relief
             against
             Barscubs
             Heir
             ,
             upon
             the
             Clause
             of
             Warrandice
             above-written
             .
             The
             Defender
             alleadged
             ,
             that
             the
             Libel
             was
             no
             ways
             Relevant
             ,
             to
             infer
             warrandice
             against
             him
             ,
             upon
             the
             said
             Clause
             ;
             because
             the
             meaning
             thereof
             can
             only
             be
             ,
             that
             he
             as
             Superiour
             ,
             and
             so
             long
             as
             he
             remained
             Superiour
             ,
             shall
             relieve
             the
             Feuars
             ,
             which
             ceases
             ,
             he
             being
             now
             Denuded
             of
             the
             Superiority
             ;
             otherwise
             it
             behoved
             to
             have
             imported
             ,
             that
             he
             should
             never
             sell
             the
             Superiority
             ,
             without
             the
             Vassals
             consent
             ,
             which
             no
             Law
             doth
             require
             :
             or
             if
             the
             Lands
             had
             been
             Appryzed
             from
             him
             ,
             he
             could
             not
             be
             lyable
             for
             the
             Ward
             of
             the
             Appryzers
             Heir
             ,
             which
             is
             cleared
             by
             the
             ordinary
             Custom
             ,
             there
             being
             nothing
             more
             frequent
             in
             Charters
             ,
             than
             Clauses
             of
             absolute
             warrandice
             ;
             and
             yet
             none
             was
             ever
             overtaken
             thereby
             ,
             after
             they
             ceased
             to
             be
             Superiours
             .
             The
             Pursuer
             answered
             ,
             that
             his
             Libel
             was
             most
             Relevant
             ;
             because
             this
             being
             an
             Obligement
             ,
             conceived
             in
             their
             favours
             by
             Barscub
             ,
             not
             qualified
             as
             Superiour
             ,
             no
             Deed
             of
             Barscubs
             ,
             without
             their
             consent
             ,
             can
             take
             it
             from
             them
             ,
             unless
             Barscub
             ,
             when
             he
             sold
             the
             Superiority
             ,
             had
             taken
             the
             new
             Superiour
             obliged
             ,
             to
             receive
             the
             Vassals
             with
             the
             same
             warrandice
             ;
             but
             now
             the
             new
             Superiour
             ,
             not
             being
             obliged
             by
             this
             personal
             Clause
             ,
             Barscub
             the
             old
             Superiour
             ,
             must
             remain
             obliged
             ,
             especially
             in
             a
             Clause
             of
             this
             nature
             ,
             which
             is
             express
             for
             all
             Wards
             to
             come
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             Sustained
             the
             Libel
             ,
             and
             found
             the
             Superiour
             (
             albeit
             Denuded
             )
             lyable
             for
             Warrandice
             .
          
        
         
           
             Thomas
             Rue-contra
             Andrew
             Houstoun
             .
             Iuly
             3.
             1668.
             
          
           
             
               ANdrew
               Houstoun
            
             and
             
               Adam
               Mushet
            
             ,
             being
             Tacksmen
             of
             the
             Excize
             ,
             did
             Imploy
             
               Thomas
               Rue
            
             to
             be
             their
             Collector
             ,
             and
             gave
             him
             a
             Sallary
             of
             30.
             pound
             Sterling
             for
             a
             year
             ,
             thereafter
             he
             pursued
             
               Andrew
               Houstoun
            
             upon
             his
             promise
             ,
             to
             give
             him
             the
             like
             Sallary
             for
             the
             next
             year
             ,
             and
             in
             absence
             
             obtained
             him
             to
             be
             holden
             as
             confest
             and
             Decerned
             :
             Which
             being
             Suspended
             ,
             he
             obtained
             Protestation
             ,
             and
             therefore
             raised
             Caption
             ,
             and
             apprehended
             
               Andrew
               Houstoun
            
             at
             Wigtoun
             ,
             who
             gave
             him
             a
             Bond
             of
             500.
             
             Merks
             ,
             and
             got
             a
             Discharge
             ,
             and
             being
             Charged
             upon
             the
             Bond
             of
             500.
             
             Merks
             ,
             he
             Suspends
             on
             these
             Reasons
             ,
             that
             
               Thomas
               Rue
            
             had
             granted
             a
             general
             Discharge
             to
             
               Adam
               Mush●t
            
             ,
             who
             was
             his
             Conjunct
             ,
             and
             
               co●reus
               de●endi
            
             ,
             af●er
             the
             alleadged
             Service
             which
             Discharged
             Mush●t
             ,
             and
             consequently
             Houstoun
             his
             Partner
             .
             2dly
             ,
             The
             Decreet
             was
             for
             Sallary
             ,
             and
             it
             was
             offered
             to
             be
             proven
             ,
             that
             Rue
             (
             for
             his
             Malversation
             )
             was
             by
             warrand
             from
             Ceneral
             Monk
             ,
             excluded
             from
             Collection
             that
             year
             ,
             and
             by
             the
             Discharge
             of
             the
             Decreet
             ,
             and
             this
             Bond
             ,
             both
             of
             the
             same
             Date
             and
             VVitnesses
             ,
             it
             did
             appear
             that
             this
             Bond
             was
             granted
             for
             the
             Decreet
             ,
             and
             if
             the
             Decreet
             were
             Reduced
             ,
             by
             the
             Reduction
             thereof
             depending
             ,
             the
             Bond
             would
             fall
             in
             consequence
             ,
             as
             granted
             for
             the
             same
             Cause
             .
             The
             Charger
             answered
             ,
             that
             he
             was
             now
             not
             obliged
             to
             Dispute
             ,
             in
             relation
             to
             the
             Decreet
             .
             First
             ,
             Because
             the
             Suspender
             had
             Homologat
             the
             same
             ,
             by
             taking
             a
             Discharge
             thereof
             ,
             and
             giving
             a
             Bond
             therefore
             .
             2dly
             ,
             There
             was
             not
             only
             a
             Homologation
             ,
             but
             a
             Transaction
             upon
             a
             Reference
             ,
             made
             by
             the
             Parties
             to
             ●aldone
             ,
             conform
             to
             his
             Attestation
             produced
             ;
             so
             that
             that
             Transaction
             cannot
             be
             recalled
             upon
             any
             pretence
             ,
             but
             is
             the
             most
             firm
             ,
             and
             Obligatory
             Contract
             of
             any
             .
             The
             Suspender
             answered
             ,
             that
             his
             payment
             making
             and
             taking
             Discharge
             ,
             was
             no
             Approbation
             ,
             nor
             Homologation
             ,
             but
             that
             he
             might
             reduce
             the
             Decreet
             ,
             and
             repeat
             if
             he
             had
             payed
             ,
             or
             been
             poynded
             ,
             and
             so
             may
             retain
             ;
             especially
             seing
             it
             was
             done
             
               metu
               Carce●is
            
             ,
             he
             being
             taken
             with
             Caption
             :
             and
             as
             to
             the
             Transaction
             ,
             he
             denies
             the
             same
             ;
             neither
             can
             it
             be
             instructed
             by
             Baldones
             Attestation
             ,
             but
             by
             the
             Suspenders
             O●th
             or
             VVrit
             .
          
           
             The
             Lords
             f●und
             that
             the
             granting
             of
             the
             Bond
             was
             no
             H●mologation
             of
             the
             Decreet
             ,
             but
             that
             ●e
             might
             quarrel
             the
             same
             ;
             and
             that
             the
             giving
             of
             the
             Bond
             was
             no
             Transaction
             ,
             if
             he
             payed
             or
             gave
             Bond
             for
             the
             whole
             Sums
             contained
             in
             the
             Decreet
             :
             but
             found
             that
             ●f
             in
             consideration
             of
             the
             Grounds
             upon
             which
             he
             might
             quarrel
             the
             same
             ,
             he
             had
             g●●●en
             an
             abatement
             by
             Arbitration
             ,
             or
             otherwise
             that
             he
             could
             not
             quarrel
             the
             same
             ,
             and
             found
             it
             only
             probable
             by
             his
             Oath
             ,
             or
             ●●rit
             .
          
        
         
           
             Iames
             Donaldson
             contra
             Harrower
             .
             Eodem
             die
             .
          
           
             
               JAmes
               Donaldson
            
             pursues
             
               Iohn
               Harrower
            
             as
             representing
             his
             Father
             ,
             for
             whom
             the
             Pursuer
             became
             Cautioner
             to
             the
             Lord
             Rollo
             for
             100.
             pound
             ,
             for
             relief
             of
             the
             Defuncts
             Goods
             that
             were
             then
             a
             poinding
             ;
             for
             which
             the
             Defunct
             promised
             payment
             ,
             and
             did
             pay
             the
             Lord
             Rollo
             ,
             and
             produces
             a
             Testificat
             of
             the
             Lord
             Rollo's
             thereof
             ,
             and
             craves
             payment
             ,
             and
             offers
             to
             prove
             the
             Libel
             by
             VVitnesses
             ,
             the
             Libel
             not
             being
             above
             an
             hundred
             pound
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             this
             being
             a
             Cautionry
             ,
             and
             a
             Promise
             it
             was
             not
             probable
             by
             VVitnesses
             ,
             especially
             after
             so
             long
             a
             time
             ,
             the
             Promiser
             being
             dead
             ,
             who
             might
             either
             qualifie
             the
             Promise
             ,
             or
             instruct
             payment
             ,
             there
             being
             nothing
             more
             ordinar
             ,
             then
             to
             Transact
             such
             Affairs
             without
             any
             VVrit
             .
          
           
             The
             Lords
             found
             the
             Libel
             not
             probable
             by
             Witnesses
             .
          
        
         
           
             Frazer
             contra
             Frazer
             .
             Eodem
             die
             .
          
           
             
               JOhn
               Frazer
            
             having
             obtained
             a
             Decreet
             against
             
               William
               Frazer
            
             his
             Brother
             ,
             to
             deliver
             a
             Tack
             of
             the
             Lands
             of
             Boghead
             ,
             granted
             to
             their
             Father
             and
             his
             Heirs
             ,
             to
             whom
             the
             said
             Iohn
             is
             Heir
             .
             William
             Suspends
             on
             
             this
             Reason
             ,
             that
             he
             is
             Heir
             to
             his
             Father
             of
             the
             second
             Marriage
             ,
             and
             produces
             his
             Retour
             ,
             and
             produces
             the
             Contract
             of
             Marriage
             ,
             including
             a
             Clause
             ,
             that
             all
             Tacks
             Conquest
             during
             the
             Marriage
             ,
             should
             belong
             to
             the
             Heirs
             of
             the
             Marriage
             ;
             and
             this
             Tack
             being
             Acquired
             during
             the
             Marriage
             ,
             the
             same
             belongs
             to
             him
             :
             and
             albeit
             it
             he
             conceived
             to
             the
             Heirs
             generally
             ;
             yet
             by
             the
             Contract
             ,
             the
             Pursuer
             as
             Heir
             general
             ,
             will
             be
             oblieged
             to
             Assign
             .
             It
             was
             answered
             ,
             that
             this
             Tack
             was
             no
             new
             Conquest
             ,
             but
             had
             been
             the
             old
             Possession
             of
             the
             Father
             ,
             and
             the
             Tack
             bare
             the
             Lands
             to
             be
             presently
             possest
             by
             him
             .
          
           
             The
             Lords
             found
             this
             Tack
             to
             fall
             under
             the
             Clause
             of
             Conquest
             ,
             unless
             the
             Pursuer
             prove
             that
             there
             was
             an
             old
             Tack
             standing
             ,
             which
             expyred
             not
             till
             the
             second
             Marriage
             was
             Dissolved
             ,
             in
             lieu
             whereof
             ,
             this
             new
             Tack
             was
             taken
             .
          
        
         
           
             Hamiltoun
             contra
             Callender
             .
             Iuly
             7.
             1668.
             
          
           
             
               JAmes
               Hamiltoun
            
             having
             taken
             his
             Debitor
             with
             Caption
             ,
             offered
             him
             to
             
               Iames
               Callender
            
             Baillie
             of
             Falkirk
             ,
             to
             be
             Incarcerat
             in
             the
             Tolbooth
             of
             Falkirk
             ,
             and
             he
             refusing
             ,
             he
             now
             pursues
             a
             subsidiary
             Action
             against
             the
             Baillie
             ,
             for
             payment
             of
             the
             Debt
             ;
             who
             alleadged
             Absolvitor
             ,
             because
             he
             is
             no
             Magistrate
             of
             a
             Burgh
             Royal
             ,
             but
             of
             a
             Burgh
             of
             Regality
             ,
             the
             Baillies
             whereof
             were
             never
             in
             custom
             to
             be
             Charged
             with
             Rebels
             .
             The
             Pursuer
             opponed
             the
             Act
             of
             
               Parliament
               1597.
               cap.
            
             279.
             bearing
             expresly
             ▪
             Baillies
             of
             Stewartries
             and
             Regalities
             ,
             according
             to
             which
             ,
             the
             Tenor
             of
             all
             Captions
             ,
             bears
             the
             Letters
             to
             be
             direct
             against
             all
             Baillies
             of
             Regalities
             .
             The
             Defender
             answered
             ,
             that
             for
             the
             Letters
             ,
             it
             is
             but
             
               stylus
               curiae
            
             ;
             and
             for
             the
             Act
             of
             Parliament
             ,
             the
             Narrative
             and
             Reason
             thereof
             relates
             only
             to
             Burghs
             having
             Provest
             ,
             Baillies
             and
             Common
             Good.
             
          
           
             The
             Lords
             having
             considered
             the
             Act
             of
             Parliament
             ,
             Repelled
             the
             Defense
             and
             Decerned
             here
             the
             Rebel
             was
             Residenter
             within
             the
             Burgh
             of
             Regality
             ,
             where
             there
             was
             known
             to
             be
             a
             convenient
             Prison
             .
          
        
         
           
             Relict
             of
             William
             Pattoun
             contra
             Relict
             of
             Archibald
             Pattoun
             .
             Eodem
             die
             .
          
           
             THE
             Relict
             and
             Executors
             of
             
               William
               Pattoun
            
             ,
             pursues
             the
             Relict
             and
             Executors
             of
             
               Archibald
               Pattoun
            
             ,
             for
             Compt
             and
             Reckoning
             of
             Sums
             and
             Goods
             belonging
             to
             the
             said
             umquhil
             
               William
               Pattoun
            
             by
             Archibald
             ,
             and
             craves
             the
             Defender
             to
             produce
             Archi●alds
             Compt
             Books
             ,
             who
             alleadgen
             
               nemo
               tenetur
               edere
               instrumenta
               sua
               contra
               se
               ad
               fundandam
               ●item
            
             ;
             so
             that
             the
             desire
             was
             no
             wayes
             reasonable
             ,
             unless
             the
             Pursuer
             had
             given
             in
             a
             particular
             Charge
             ,
             and
             Litiscontestation
             had
             been
             made
             thereon
             ;
             in
             which
             case
             ,
             the
             Defender
             might
             have
             been
             compelled
             ,
             
               ad
               modum
               probationis
            
             ,
             to
             have
             produced
             the
             Books
             .
             It
             was
             answered
             ,
             the
             contrair
             was
             found
             in
             the
             Compt
             and
             Reckoning
             betwixt
             the
             Children
             of
             
               George
               Sui●ty
            
             against
             the
             Representatives
             of
             
               William
               Suitty
            
             their
             Tutor
             ,
             and
             that
             there
             was
             as
             great
             reason
             here
             ,
             the
             two
             Defuncts
             having
             been
             Brothers
             ,
             and
             being
             in
             Copartnery
             together
             ,
             and
             the
             one
             Factor
             for
             the
             other
             .
             It
             was
             answered
             ,
             that
             the
             case
             of
             a
             Tutor
             and
             his
             Pupil
             was
             no
             way
             alike
             ,
             because
             the
             Tutors
             Compt
             Book
             was
             in
             effect
             the
             Pupils
             ,
             and
             the
             Copartinery
             ,
             and
             Factory
             was
             denyed
             .
          
           
             The
             Lords
             ordained
             the
             Book
             to
             be
             put
             in
             the
             hands
             of
             the
             Auditor
             ,
             and
             if
             he
             found
             by
             inspection
             thereof
             ,
             any
             Accompts
             appeared
             as
             betwixt
             Partners
             and
             Factors
             ,
             he
             should
             produce
             the
             same
             to
             the
             other
             Party
             ,
             even
             
               ad
               fundandam
               litem
            
             ,
             otherwise
             that
             the
             same
             should
             be
             given
             back
             ,
             and
             not
             showen
             to
             the
             Pursuer
             .
          
        
         
           
           
             Margaret
             Alexander
             contra
             Laird
             of
             Clackmannan
             .
             Iuly
             9.
             1668.
             
          
           
             
               MArgaret
               Alexander
            
             being
             Infeft
             in
             an
             annualrent
             out
             of
             the
             Lands
             of
             Sauchie
             ,
             by
             a
             posterior
             Infeftment
             ,
             in
             Corroboration
             of
             the
             former
             Right
             ,
             she
             was
             Infeft
             in
             that
             same
             Annualrent
             ,
             out
             of
             other
             Lands
             ,
             whereof
             she
             was
             in
             Possession
             ;
             but
             this
             posterior
             Infeftment
             being
             Reduced
             upon
             an
             Inhibition
             prior
             thereto
             ;
             she
             pursues
             poinding
             of
             the
             Ground
             ,
             of
             the
             Lands
             of
             Sauchie
             ,
             upon
             the
             first
             Infeftment
             .
             It
             was
             alleadged
             for
             Clackmannan
             Absolvitor
             ,
             because
             the
             Pursuers
             Right
             of
             Annualrent
             is
             base
             ,
             never
             cled
             with
             Possession
             ,
             and
             now
             he
             is
             Infeft
             in
             the
             Lands
             ,
             either
             publickly
             ,
             or
             by
             another
             Infeftment
             cled
             with
             Possession
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Infeftment
             in
             the
             Lands
             of
             Sauchie
             was
             sufficiently
             cled
             with
             Possession
             ,
             in
             so
             far
             as
             the
             posterior
             Infeftment
             of
             Annualrent
             in
             Corroboration
             thereof
             was
             cled
             with
             Possession
             ,
             and
             as
             payment
             made
             by
             the
             Heretor
             ,
             by
             himself
             for
             his
             Tennents
             ,
             or
             by
             Assignation
             to
             Mails
             and
             Duties
             of
             other
             Lands
             in
             satisfaction
             of
             the
             Annualrent
             infers
             Possession
             ;
             so
             payment
             made
             by
             his
             Tennents
             ,
             by
             the
             posterior
             Infeftment
             in
             Corroboration
             ,
             can
             be
             no
             worse
             then
             an
             Assignation
             to
             the
             Mails
             and
             Duties
             of
             these
             Lands
             ;
             which
             as
             it
             payes
             some
             Terms
             Annualrent
             of
             the
             first
             Infeftment
             ,
             so
             it
             must
             cloath
             it
             sufficiently
             with
             Possession
             .
             It
             was
             answered
             ,
             that
             here
             being
             two
             distinct
             Infeftments
             at
             several
             times
             ,
             albeit
             for
             the
             Annualrent
             of
             the
             same
             sum
             ,
             yet
             the
             Possession
             of
             the
             last
             cannot
             relate
             to
             the
             first
             .
          
           
             The
             Lord
             Repelled
             the
             Defense
             in
             respect
             of
             the
             Reply
             ,
             and
             found
             that
             Possession
             by
             the
             last
             Infeftment
             ,
             did
             from
             that
             time
             sufficiently
             validat
             the
             first
             .
          
        
         
           
             Heugh
             Boog
             contra
             Robert
             Davidson
             .
             Eodem
             die
             .
          
           
             
               HEugh
               Boog
            
             having
             arrested
             
               Robert
               Davidsons
            
             Fee
             ,
             as
             Keeper
             of
             
               Herlots
               Hospital
            
             ,
             Pursues
             the
             Town
             of
             Edinburgh
             to
             make
             it
             forthcoming
             .
             It
             was
             alleadged
             for
             
               Robert
               Davidson
            
             Absolvitor
             ,
             because
             
               Robert
               Davidson
            
             had
             made
             
               cessionem
               bonorum
            
             ,
             in
             favours
             of
             this
             Pursuer
             and
             his
             other
             Creditors
             ,
             and
             thereupon
             was
             Assoilzied
             .
             The
             Pursuer
             answered
             ,
             that
             a
             Honorum
             did
             no
             wayes
             secure
             
               contra
               acquirenda
            
             ,
             unless
             the
             Assignation
             or
             Disposition
             had
             been
             equivalent
             to
             the
             Debt
             ,
             and
             satisfied
             it
             .
             The
             Defender
             answered
             ,
             that
             that
             which
             was
             here
             Acquired
             ,
             was
             only
             a
             Fee
             for
             Service
             ,
             which
             is
             Alimentar
             ,
             and
             the
             Fee
             will
             not
             be
             due
             ,
             unless
             the
             Defender
             Serve
             in
             suitable
             condition
             ,
             effeirand
             to
             his
             place
             ;
             and
             therefore
             it
             cannot
             be
             made
             forth
             coming
             to
             any
             other
             use
             .
          
           
             The
             Lords
             found
             that
             a
             Fee
             in
             so
             far
             as
             was
             necessar
             for
             the
             Servants
             Aliment
             conform
             to
             his
             condition
             of
             Service
             ,
             could
             not
             be
             reached
             by
             his
             Creditors
             to
             whom
             he
             had
             made
             
               cessionem
               bonorum
            
             ,
             except
             as
             to
             the
             superplus
             ,
             more
             then
             what
             was
             necessar
             ,
             and
             they
             found
             no
             superplus
             in
             this
             case
             .
          
        
         
           
             Captain
             Allan
             contra
             Parkman
             .
             Eodem
             die
             .
          
           
             CAptain
             Allan
             having
             taken
             
               Bartholomew
               Parkman
            
             ,
             and
             obtained
             him
             to
             be
             declared
             Prize
             .
             Parkman
             raises
             Reduction
             ,
             and
             for
             fortification
             of
             the
             Admirals
             Decreet
             of
             Adjudication
             ,
             these
             Grounds
             were
             alleadged
             :
             First
             ,
             That
             by
             the
             Testimonies
             of
             the
             Steirsman
             and
             Company
             ,
             it
             was
             proven
             that
             three
             of
             the
             Company
             were
             the
             Kings
             Enemies
             ;
             and
             so
             conform
             to
             the
             Kings
             Declaration
             of
             War
             ,
             Ordaining
             all
             Ships
             to
             be
             seazed
             wherein
             there
             were
             any
             number
             of
             men
             belonging
             to
             the
             Kings
             Enemies
             :
             this
             Ship
             was
             Prize
             ,
             as
             was
             lately
             found
             in
             the
             case
             of
             the
             Ship
             called
             ,
             
               The
               Castle
               of
               Riga
            
             .
             And
             albeit
             by
             a
             former
             Interloquitor
             ,
             the
             Lords
             had
             not
             found
             three
             men
             to
             be
             a
             
             number
             sufficient
             for
             Confiscation
             :
             Yet
             it
             was
             not
             then
             considered
             ;
             that
             the
             whole
             Company
             consisted
             but
             of
             eight
             ;
             so
             that
             near
             the
             third
             of
             the
             Sailers
             were
             the
             Kings
             Enemies
             ,
             and
             one
             of
             them
             the
             Steirsman
             ,
             which
             is
             a
             considerable
             proportion
             .
             2dly
             ,
             This
             Ship
             though
             pretended
             to
             belong
             to
             the
             Swedes
             ,
             yet
             she
             had
             served
             the
             Kings
             Enemies
             ,
             the
             Danes
             and
             Hollanders
             ,
             two
             years
             ▪
             and
             by
             the
             Swedish
             Treaty
             it
             is
             provided
             ,
             
               quod
               naves
               nullo
               modo
               accommodentur
               utriusque
               foederati
               inimicis
               .
               3dly
               .
            
             It
             is
             also
             proven
             ,
             that
             this
             Ship
             carried
             Counterband-goods
             ,
             viz.
             Tar
             ,
             which
             was
             not
             the
             product
             of
             Sweden
             ,
             but
             carried
             from
             Denmark
             to
             Holland
             ,
             and
             that
             she
             was
             taken
             in
             her
             return
             ,
             having
             in
             a
             loadning
             of
             Salt
             from
             France
             ;
             so
             that
             albeit
             the
             Ship
             had
             been
             empty
             ,
             she
             might
             have
             been
             taken
             Prize
             in
             that
             same
             Voyage
             ,
             in
             which
             she
             did
             partake
             with
             the
             Kings
             Enemies
             :
             or
             being
             taken
             in
             the
             same
             Voyage
             ,
             in
             which
             she
             had
             carried
             
               bona
               hostium
            
             .
             And
             lastly
             ,
             it
             was
             also
             instructed
             ,
             that
             the
             Cargo
             with
             which
             she
             was
             taken
             ,
             was
             the
             product
             of
             the
             Counterband-goods
             ,
             and
             so
             in
             the
             same
             case
             as
             if
             the
             Counterband-goods
             had
             been
             actually
             in
             her
             ,
             the
             product
             being
             
               surrogatum
               quod
               sapit
               naturam
               surrogati
            
             .
             It
             was
             answered
             for
             Parkman
             ,
             to
             the
             first
             Ground
             ,
             that
             he
             opponed
             the
             Lords
             Interlocutor
             ,
             finding
             three
             Sailers
             no
             sufficient
             number
             for
             Confiscation
             .
             And
             in
             the
             case
             of
             
               The
               Castle
               of
               Riga
            
             ,
             the
             major
             part
             ,
             at
             least
             the
             half
             were
             the
             Kings
             Enemies
             .
             To
             the
             second
             Ground
             it
             was
             answered
             ,
             that
             the
             Kings
             Allies
             making
             use
             of
             their
             Ships
             for
             Fraught
             ,
             was
             no
             way
             a
             lending
             of
             them
             to
             the
             Kings
             Enemies
             ;
             and
             as
             for
             the
             remnant
             Goods
             ,
             by
             the
             Kings
             Declaration
             of
             War
             ,
             there
             is
             only
             given
             Warrand
             to
             sease
             Ships
             ,
             having
             in
             them
             Counterband-goods
             ,
             or
             Enemies
             Goods
             ;
             and
             the
             
             Swedish
             ●rety
             bears
             expresly
             
               si
               deprehenduntur
            
             ;
             so
             that
             this
             Ship
             having
             in
             her
             when
             she
             was
             taken
             ,
             no
             Counterband
             nor
             Enemies
             Goods
             ,
             is
             free
             .
             It
             was
             answered
             ,
             that
             the
             Kings
             Declaration
             ,
             although
             it
             mention
             some
             cases
             of
             Seasure
             ,
             is
             not
             full
             or
             exclusive
             ,
             but
             the
             Law
             of
             Nations
             must
             take
             place
             ,
             or
             the
             Custom
             of
             Scotland
             ,
             in
             cases
             not
             exprest
             in
             the
             Kings
             Declaration
             .
             And
             as
             for
             the
             Swedish
             Treaty
             ,
             it
             cannot
             be
             pleaded
             ,
             unless
             Parkman
             had
             a
             Pass
             from
             Sweden
             ,
             in
             all
             points
             conform
             to
             the
             Treaty
             :
             but
             their
             Passes
             were
             in
             several
             things
             disconform
             ,
             as
             being
             granted
             when
             the
             Ship
             was
             in
             Holland
             ,
             and
             sent
             over
             Land.
             And
             as
             for
             the
             Custom
             of
             Scotland
             ,
             to
             take
             Ships
             in
             the
             return
             of
             that
             Voyage
             ,
             in
             which
             they
             carried
             Counterband
             ,
             or
             prohibited
             Goods
             ;
             it
             appeareth
             by
             the
             Captains
             Commission
             ,
             and
             former
             Commissions
             in
             Anno
             1628.
             and
             by
             a
             Decreet
             declaring
             a
             Prize
             ,
             wherein
             the
             same
             ground
             was
             Libelled
             ,
             that
             she
             was
             taken
             in
             the
             return
             of
             that
             same
             Voyage
             ,
             in
             which
             she
             had
             carried
             Counterband
             .
             And
             the
             Lords
             having
             Written
             to
             my
             Lord
             Secretary
             ,
             his
             Letter
             in
             return
             ,
             bears
             ,
             
               That
               the
               Lords
               should
               decide
               according
               to
               the
               Law
               of
            
             Scotland
             .
             It
             was
             answered
             for
             the
             Stranger
             ,
             that
             the
             particular
             Custom
             of
             Scotland
             can
             be
             no
             Rule
             for
             the
             Swedes
             ;
             but
             only
             the
             Law
             and
             Custom
             of
             Nations
             ●
             and
             that
             England
             ,
             nor
             no
             other
             Nation
             hath
             that
             Custom
             ,
             to
             make
             Seasure
             ,
             but
             in
             delicto
             ,
             otherwise
             all
             Trade
             and
             Commerce
             would
             be
             destroyed
             ,
             unless
             Seasure
             were
             only
             upon
             what
             were
             visibly
             Aboard
             ,
             and
             not
             upon
             the
             pretence
             of
             what
             had
             been
             Aboard
             :
             and
             albeit
             a
             Delinquence
             once
             committed
             by
             partaking
             with
             the
             Kings
             Enemies
             ,
             might
             endure
             for
             a
             longer
             time
             :
             Yet
             the
             Custom
             of
             Nations
             ,
             for
             the
             utility
             of
             Trade
             ,
             hath
             Abridged
             it
             to
             actual
             Seasure
             ,
             
               in
               delicto
            
             ,
             and
             accordingly
             Judge
             Ienkins
             ,
             Judge
             of
             the
             Admirality
             in
             England
             ,
             hath
             Attested
             ,
             that
             during
             this
             War
             ,
             after
             search
             of
             the
             Records
             ,
             and
             Conference
             with
             other
             Judges
             ,
             he
             knows
             not
             of
             any
             Prize
             declared
             ,
             but
             when
             the
             Counterband
             goods
             ,
             or
             Enemies
             Goods
             were
             taken
             actually
             in
             them
             .
             And
             for
             the
             Decreet
             alleadged
             on
             ,
             albeit
             that
             Ground
             be
             in
             the
             
             Libel
             ;
             yet
             other
             Grounds
             are
             also
             therein
             ,
             and
             there
             is
             no
             Debate
             as
             to
             that
             particular
             Point
             ;
             neither
             doth
             the
             Probation
             mentioned
             in
             the
             Decreet
             clear
             ,
             that
             that
             Point
             was
             proven
             .
             And
             as
             to
             the
             Tenor
             of
             the
             Commissions
             ,
             albeit
             they
             might
             excuse
             the
             Captain
             from
             Fine
             ,
             or
             Damnages
             ;
             yet
             Strangers
             did
             not
             ,
             nor
             were
             not
             obliged
             to
             know
             the
             same
             :
             but
             the
             Law
             and
             Custom
             of
             Nations
             ,
             and
             the
             Kings
             publick
             Declaration
             of
             the
             War
             ,
             and
             their
             Treaties
             .
          
           
             The
             Lords
             having
             considered
             the
             Debate
             ,
             and
             that
             the
             several
             Points
             were
             of
             Importance
             and
             Preparatives
             ,
             they
             resolved
             to
             take
             the
             Grounds
             joyntly
             ,
             and
             so
             found
             the
             Ship
             Prize
             ,
             as
             having
             so
             considerable
             a
             proportion
             of
             her
             Company
             the
             Kings
             Enemies
             .
             Some
             also
             were
             of
             the
             opinion
             ,
             that
             she
             having
             been
             taken
             in
             the
             return
             was
             sufficient
             ,
             especially
             not
             having
             a
             sufficient
             Swedish
             Pass●
             but
             the
             plurality
             wa●ed
             these
             Points
             ,
             whether
             the
             returns
             of
             Enemies
             Goods
             ,
             or
             Counterband
             ,
             or
             whether
             the
             Product
             ,
             or
             not
             Product
             thereof
             were
             sufficient
             Grounds
             of
             Seasure
             ,
             seing
             it
             did
             not
             so
             appear
             by
             the
             Custom
             of
             Nations
             ,
             or
             the
             Kings
             Declaration
             of
             War
             :
             but
             by
             the
             former
             Debate
             it
             appeared
             ,
             that
             she
             had
             Aboard
             when
             taken
             ,
             a
             small
             parcel
             of
             Tar.
             
          
        
         
           
             Mr.
             David
             Falconer
             contra
             Sir
             Iames
             Keith
             .
             Iuly
             14.
             1668.
             
          
           
             MR.
             
               David
               Falconer
            
             gave
             in
             a
             Complaint
             against
             Sir
             
               Iames
               Keith
            
             of
             Caddam
             ,
             that
             he
             being
             in
             the
             exercise
             of
             his
             Office
             ,
             informing
             the
             President
             to
             stop
             a
             Bill
             of
             Suspension
             ,
             given
             in
             by
             Sir
             
               Iames
               Keith
            
             :
             Sir
             Iames
             did
             revile
             and
             threaten
             him
             ,
             calling
             him
             a
             Liar
             and
             a
             Knave
             ,
             and
             saying
             if
             he
             found
             him
             in
             another
             place
             ,
             he
             would
             make
             him
             repent
             what
             he
             said
             .
          
           
             The
             Lords
             having
             received
             Witnesses
             in
             their
             own
             presence
             ,
             and
             finding
             it
             proven
             ,
             sent
             Sir
             James
             to
             the
             Tolbooth
             ,
             there
             to
             remain
             during
             their
             pleasure
             ,
             and
             Fined
             him
             in
             500.
             
             Merks
             .
          
        
         
           
             Earl
             of
             Wintoun
             contra
             Gordoun
             of
             Letterfary
             .
             Iuly
             15.
             1668.
             
          
           
             THe
             Earl
             of
             Wintoun
             having
             Appryzed
             certain
             Lands
             in
             the
             North
             pursues
             for
             Mails
             and
             Duties
             .
             It
             was
             alleadged
             for
             Gordoun
             of
             Letterfary
             ,
             that
             he
             stands
             Infeft
             in
             these
             Lands
             ;
             and
             by
             vertue
             of
             that
             Infeftment
             ,
             is
             seven
             years
             in
             Possession
             ,
             and
             thereby
             has
             the
             benefit
             of
             a
             possessory
             Judgement
             ,
             and
             must
             enjoy
             the
             Mails
             and
             Duties
             till
             his
             Right
             be
             Reduced
             .
             The
             Pursuer
             answered
             ,
             that
             he
             had
             Intented
             Process
             upon
             his
             Right
             for
             Mails
             and
             Duties
             ,
             Anno
             1658.
             whereby
             the
             matter
             became
             litigious
             ,
             and
             which
             stops
             the
             course
             of
             any
             possessory
             Judgement
             ,
             till
             that
             Citation
             expyre
             ,
             by
             the
             course
             of
             40.
             years
             ,
             in
             the
             same
             way
             as
             it
             is
             in
             Removings
             or
             Ejections
             :
             where
             Summons
             once
             Intented
             ,
             does
             not
             Prescribe
             by
             three
             years
             thereafter
             ,
             but
             lasts
             for
             40.
             years
             .
             The
             Defender
             answered
             ,
             that
             the
             case
             is
             not
             alike
             ;
             for
             the
             benefit
             of
             a
             poss●ssory
             Judgement
             is
             introduced
             for
             the
             Security
             of
             Persons
             Infeft
             ,
             that
             they
             be
             not
             summarly
             put
             to
             Dispute
             their
             Authors
             Rights
             which
             are
             oftimes
             not
             in
             their
             hands
             ,
             but
             in
             the
             hands
             of
             their
             Authors
             ,
             or
             Superiours
             ;
             and
             there
             was
             never
             any
             Reply
             Sustained
             against
             the
             same
             ,
             unless
             it
             were
             Vitious
             or
             Violent
             ,
             or
             Interrupted
             :
             but
             here
             the
             last
             seven
             years
             Possession
             ,
             after
             that
             Citation
             ,
             is
             neither
             Interrupted
             ,
             nor
             Vitious
             ;
             and
             these
             being
             no
             stop
             to
             take
             away
             the
             Effect
             of
             that
             Citation
             :
             it
             were
             of
             bad
             consequence
             ,
             if
             Persons
             Infeft
             39.
             years
             after
             a
             Citation
             ,
             behoved
             Summarly
             to
             Dispute
             their
             Rights
             .
          
           
           
             The
             Lords
             Sustained
             the
             Defense
             of
             the
             Possessory
             Judgement
             ,
             upon
             seven
             years
             peaceable
             Possession
             ,
             before
             the
             Citation
             ,
             and
             Repelled
             the
             Reply
             .
          
           
             The
             Pursuer
             further
             Replyed
             ,
             that
             in
             the
             seven
             years
             after
             the
             Citation
             ,
             there
             were
             some
             years
             wherein
             there
             was
             a
             surcease
             of
             Justice
             ,
             and
             no
             Courts
             in
             
               Scotland
               .
               2dly
            
             ,
             The
             Citation
             was
             by
             his
             Tutors
             and
             Curators
             ,
             and
             he
             was
             minor
             during
             the
             seven
             years
             .
             It
             was
             answered
             ,
             that
             a
             possessory
             Judgement
             was
             competent
             against
             minors
             ,
             and
             there
             was
             no
             respect
             of
             minority
             therein
             ,
             which
             is
             only
             excepted
             in
             the
             great
             Prescription
             ,
             extinguishing
             the
             Right
             ;
             but
             in
             the
             possessory
             Judgement
             in
             Relation
             to
             the
             way
             of
             Process
             ,
             and
             the
             Fruits
             in
             the
             mean
             time
             ,
             as
             in
             all
             Prescriptions
             ,
             
               tempus
               contin●um
            
             ,
             and
             not
             
               tempus
               utile
            
             ,
             is
             respected
             .
          
           
             The
             Lords
             also
             Repelled
             both
             these
             Replyes
             ,
             and
             notwithstanding
             thereof
             Sustained
             the
             Exception
             on
             the
             possessory
             Iudgement
             .
          
        
         
           
             Sir
             William
             Steuart
             contra
             Murrays
             .
             Iuly
             17.
             1668.
             
          
           
             SIr
             
               Iames
               Murray
            
             ,
             his
             Estate
             being
             Appryzed
             by
             many
             of
             his
             Creditors
             ;
             Sir
             
               William
               Steuart
            
             ,
             one
             of
             the
             Appryzers
             ,
             pursues
             the
             rest
             for
             Compt
             and
             Reckoning
             of
             a
             proportionable
             part
             of
             the
             Rents
             ,
             in
             respect
             that
             his
             Appryzing
             is
             within
             a
             year
             of
             the
             first
             effectual
             Appryzing
             ,
             and
             comes
             in
             therewith
             
               pari
               passu
            
             ,
             by
             the
             late
             Act
             of
             Parliament
             ,
             betwixt
             D●bitor
             and
             Creditor
             .
             It
             was
             alleadged
             Absolvitor
             :
             First
             ,
             Because
             the
             Pursuers
             Appryzing
             is
             incompleat
             ,
             nothing
             having
             followed
             thereupon
             now
             these
             16.
             or
             18.
             years
             ;
             and
             by
             the
             Act
             of
             the
             late
             Parliament
             ,
             anent
             the
             Registration
             of
             the
             allowance
             of
             Appryzings
             ,
             that
             is
             declared
             to
             be
             a
             necessar
             Solemnity
             for
             all
             Appryzings
             led
             since
             Iune
             1652.
             and
             this
             Appryzing
             is
             not
             yet
             allowed
             .
             It
             was
             answered
             ,
             that
             by
             the
             late
             Act
             of
             Parliament
             ,
             the
             Certification
             of
             the
             want
             of
             allowance
             is
             not
             ,
             that
             the
             Appryzing
             shall
             be
             null
             ;
             but
             that
             posterior
             Appryzings
             first
             allowed
             ,
             shall
             be
             preferred
             :
             but
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             brings
             in
             Appryzings
             together
             ,
             deduced
             within
             a
             year
             ,
             according
             to
             their
             Dates
             ,
             without
             mention
             of
             allowance
             ,
             and
             is
             posterior
             to
             the
             said
             other
             Act
             ,
             and
             cannot
             be
             Derogat
             from
             thereby
             ;
             nor
             does
             the
             Act
             require
             Infeftment
             ,
             or
             any
             thing
             else
             ,
             but
             takes
             away
             the
             preference
             of
             Appryzings
             by
             the
             former
             Act
             ,
             as
             to
             such
             as
             are
             led
             within
             a
             year
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             ,
             and
             Ordained
             the
             Pursuer
             now
             to
             allow
             his
             Appryzing
             ,
             which
             they
             found
             sufficient
             .
          
           
             The
             Defenders
             further
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuer
             had
             accepted
             a
             Disposition
             from
             Sir
             
               Iames
               Murray
            
             ,
             the
             common
             Debitor
             of
             a
             Tenement
             in
             Edinburgh
             ,
             bearing
             expresly
             ,
             in
             satisfaction
             of
             his
             Debt
             ,
             which
             is
             now
             produced
             by
             himself
             .
             The
             Pursuer
             answered
             ;
             First
             ,
             That
             he
             was
             excluded
             from
             the
             benefit
             of
             that
             Disposition
             by
             Eviction
             ,
             by
             the
             Earl
             of
             Panmure
             ,
             who
             Appryzed
             before
             he
             was
             Infeft
             .
             2dly
             .
             That
             whatever
             it
             bear
             ,
             it
             was
             but
             truely
             granted
             for
             Security
             ;
             for
             there
             is
             produced
             an
             Assignation
             by
             Sir
             Iames
             ,
             of
             certain
             sums
             to
             the
             Pursuer
             ,
             for
             the
             same
             Debt
             ,
             which
             could
             never
             have
             been
             ,
             if
             the
             first
             had
             been
             made
             in
             satisfaction
             .
             The
             Defenders
             opponed
             the
             Disposition
             ,
             bearing
             expresly
             in
             Satisfaction
             ,
             the
             benefite
             whereof
             accrescing
             to
             them
             ,
             upon
             the
             Pursuers
             Receiving
             the
             Disposition
             ,
             cannot
             be
             taken
             from
             them
             by
             any
             posterior
             Writ
             of
             the
             Common
             Debitor
             ;
             nor
             are
             they
             obliged
             to
             Dispute
             ,
             whether
             it
             was
             valid
             or
             effectual
             ,
             seing
             it
             was
             accepted
             ,
             and
             the
             Eviction
             doth
             not
             annul
             the
             Acceptance
             ,
             but
             giveth
             place
             to
             the
             Clause
             of
             Warrandice
             ,
             contained
             in
             the
             
             Disposition
             ,
             which
             is
             Personal
             ,
             and
             reacheth
             only
             the
             Common
             Debitor
             ,
             and
             not
             the
             Defenders
             :
             2dly
             ,
             It
             was
             the
             Pursuers
             own
             fault
             that
             he
             was
             excluded
             ,
             in
             not
             Infefting
             himself
             upon
             his
             Disposition
             ,
             which
             he
             received
             before
             
             Panmuire's
             Appryzing
             .
             It
             was
             answered
             ,
             that
             he
             could
             not
             compel
             the
             Superiour
             to
             receive
             him
             ,
             and
             that
             the
             Baillies
             of
             Edinburgh
             required
             bygone
             Sess
             ,
             and
             Feu-duties
             to
             be
             payed
             before
             he
             were
             Infeft
             ,
             which
             he
             was
             not
             obliged
             to
             pay
             ,
             seing
             by
             the
             Disposition
             he
             was
             to
             be
             free
             of
             all
             Incumberances
             .
             It
             was
             answered
             ,
             that
             the
             Baillies
             of
             Edinburgh
             refuse
             no
             body
             ,
             as
             is
             known
             ,
             and
             these
             Incumberances
             were
             but
             to
             be
             purged
             by
             a
             personal
             obligement
             of
             the
             common
             Debitors
             ,
             neither
             did
             the
             Pursuer
             ever
             give
             back
             the
             Disposition
             .
          
           
             The
             Lords
             Sustained
             this
             Defense
             ,
             and
             found
             the
             receiving
             ,
             and
             retaining
             the
             Disposition
             in
             Satisfaction
             ,
             sufficient
             to
             exclude
             the
             Pursuer
             .
          
           
             It
             was
             further
             alleadged
             for
             
               Patrick
               Murray
            
             of
             Deuchar
             ,
             that
             he
             has
             Right
             to
             the
             Lands
             of
             Deuchar
             not
             only
             by
             Appryzing
             ,
             but
             by
             a
             voluntar
             Disposition
             ,
             whereupon
             he
             was
             Infeft
             before
             the
             Pursuers
             Appryzing
             ,
             and
             hath
             been
             by
             vertue
             thereof
             in
             peaceable
             Possession
             these
             16.
             years
             ,
             and
             so
             hath
             the
             benefit
             of
             a
             possessory
             Judgement
             ,
             and
             a
             prior
             more
             valide
             Right
             .
             It
             was
             answered
             that
             this
             voluntar
             Disposition
             was
             granted
             after
             the
             Denunciation
             of
             the
             Pursuers
             Appryzing
             ;
             after
             which
             ,
             the
             common
             Debitor
             could
             not
             prefer
             any
             other
             Creditor
             by
             his
             voluntar
             Deed
             ;
             and
             so
             the
             Denunciation
             making
             the
             matter
             litigious
             ,
             any
             posterior
             Possession
             is
             Vitious
             ,
             and
             cannot
             give
             the
             benefit
             of
             a
             possessory
             Judgement
             ;
             neither
             is
             the
             Disposition
             being
             after
             the
             Denunciation
             a
             valide
             Right
             ;
             but
             especially
             it
             being
             considered
             ,
             that
             the
             Act
             of
             Parliament
             brings
             in
             this
             Pursuer
             with
             the
             other
             prior
             Appryzers
             ,
             as
             if
             they
             had
             been
             in
             one
             Appryzing
             ,
             and
             several
             of
             the
             other
             Appryzings
             are
             led
             ,
             and
             Infeftment
             thereon
             before
             the
             Disposition
             .
          
           
             The
             Lords
             Sustained
             this
             Defense
             ,
             and
             found
             that
             the
             Denunciation
             did
             not
             take
             away
             the
             benefite
             of
             a
             posterior
             possessory
             Iudgement
             .
          
        
         
           
             Lord
             Dumfreis
             contra
             Smart
             .
             Iuly
             .
             18.
             1668.
             
          
           
             THe
             Laird
             of
             Wamphray
             ,
             being
             due
             a
             yearly
             Annuity
             to
             his
             Good-mother
             ,
             the
             Lady
             Wamphray
             ,
             which
             now
             belongs
             to
             the
             Laird
             of
             Castlemaines
             her
             Husband
             ,
             
               jure
               mariti
            
             ,
             there
             is
             a
             competition
             thereanent
             ,
             betwixt
             .
          
           
             Factor
             to
             the
             Earl
             of
             Dumfress
             ,
             whose
             Name
             was
             used
             in
             the
             Gift
             to
             Dumfreis
             behove
             ,
             as
             Donator
             to
             the
             Escheat
             of
             Castlemaines
             ,
             and
             Smart
             as
             having
             appryzed
             from
             Castlemaines
             the
             Right
             to
             this
             Liferent
             ,
             
               jure
               mariti
            
             ,
             who
             alleadged
             that
             he
             ought
             to
             be
             preferred
             to
             the
             Donator
             ;
             because
             albeit
             his
             Appryzing
             was
             after
             the
             Rebellion
             ,
             yet
             it
             was
             upon
             a
             Debt
             anterior
             to
             the
             Rebellion
             ,
             and
             was
             long
             before
             the
             Donators
             Gift
             ;
             and
             therefore
             according
             to
             the
             known
             Custom
             ,
             Diligences
             of
             Creditors
             being
             before
             the
             Gift
             ,
             or
             Declarator
             ,
             are
             alwayes
             preferred
             to
             the
             Donators
             of
             single
             Escheat
             .
             It
             was
             answered
             for
             the
             Donator
             ,
             that
             that
             Custom
             was
             never
             further
             extended
             then
             to
             Moveables
             ,
             or
             Moveable
             Sums
             poynded
             ,
             or
             made
             forthcoming
             upon
             Arrestments
             ,
             but
             never
             to
             Rights
             having
             
               tractum
               futuri
               temporis
            
             ,
             which
             cannot
             be
             carried
             by
             poynding
             or
             Arrestment
             ,
             but
             by
             Appryzing
             or
             Adjudication
             ,
             as
             Tacks
             or
             Liferents
             ,
             when
             Assigned
             ,
             so
             that
             the
             
               jus
               mariti
            
             being
             a
             Legal
             Assignation
             ,
             and
             thereby
             falling
             under
             the
             Husbands
             single
             Escheat
             ,
             falls
             to
             the
             King
             and
             Donator
             by
             the
             Rebellion
             ,
             and
             cannot
             be
             taken
             away
             by
             an
             Appryzing
             ,
             pesterior
             to
             the
             Rebellion
             .
          
           
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             preferred
             the
             Donator
             .
          
        
         
           
             Mr.
             George
             Iohnstoun
             contra
             Parichloners
             of
             Hodony
             .
             Eodom
             die
             .
          
           
             MR.
             
               George
               Iohnstoun
            
             having
             Right
             to
             a
             Tack
             set
             by
             the
             Parson
             of
             
               Hodony
               ▪
            
             for
             his
             Lifetime
             and
             three
             years
             thereafter
             ,
             and
             having
             used
             Inhibition
             ,
             pursues
             the
             Possessors
             of
             the
             Lands
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Tack
             is
             null
             ,
             being
             set
             for
             more
             nor
             three
             years
             ,
             without
             consent
             of
             the
             Patron
             ,
             by
             the
             Act
             of
             Parliament
             1621.
             
             It
             was
             answered
             that
             the
             Pursuer
             restricts
             his
             Tack
             to
             three
             years
             .
             The
             Defender
             opponed
             the
             Act
             of
             Parliament
             ,
             declaring
             such
             Tacks
             simply
             null
             ,
             as
             were
             set
             for
             more
             then
             three
             year
             .
          
           
             The
             Lords
             Sustained
             the
             Tack
             for
             three
             years
             ,
             as
             allowed
             by
             the
             Act
             of
             Parliament
             .
          
        
         
           
             R●bert
             Thomson
             contra
             Earl
             of
             Glencairn
             .
             Iuly
             21.
             1668.
             
          
           
             
               RObert
               Thomson
            
             having
             pursued
             the
             Earl
             of
             Glencairn
             for
             a
             Compt
             of
             Wright
             Work
             ,
             wherein
             he
             was
             Imployed
             by
             the
             late
             Earl
             for
             his
             Lodging
             and
             Yeards
             ,
             when
             he
             dwelt
             in
             my
             Lord
             Oxfoords
             House
             .
             It
             was
             alleadged
             for
             the
             Earl
             ,
             that
             the
             Imployment
             being
             a
             Direction
             ,
             was
             only
             probable
             
               scripto
               vel
               juramento
            
             .
          
           
             The
             Lords
             before
             answer
             ,
             having
             ordained
             Witnesses
             to
             be
             Examined
             ,
             and
             their
             Testimonies
             being
             clear
             and
             pregnant
             ,
             that
             the
             late
             Earl
             did
             imploy
             the
             Pursuer
             in
             this
             Work
             ,
             and
             called
             for
             him
             frequently
             ,
             and
             ordered
             the
             Work
             from
             time
             to
             time
             ;
             they
             Sustained
             the
             Witnesses
             in
             the
             Probation
             ,
             and
             found
             it
             prove●
             .
             It
             did
             not
             appear
             that
             this
             Pursuer
             was
             within
             three
             years
             of
             the
             Work
             ,
             but
             the
             Defender
             did
             not
             insist
             in
             any
             Defense
             thereupon
             .
          
        
         
           
             Patoun
             contra
             Patoun
             .
             Eodem
             die
             .
          
           
             PAtoun
             in
             his
             Son●
             Contract
             of
             Marriage
             ,
             Dispones
             to
             him
             his
             Estate
             ,
             and
             the
             Tocher
             was
             payable
             to
             the
             Father
             ;
             after
             the
             Contract
             ,
             and
             before
             the
             Marriage
             the
             Father
             takes
             a
             Bond
             of
             2800.
             
             Merks
             from
             his
             Son
             ,
             the
             Wife
             and
             her
             Brother
             pursues
             a
             Reduction
             of
             this
             Bond
             as
             fraudulent
             ,
             
               &
               contra
               bonos
               more
               's
               &
               contra
               pacta
               dotalia
               .
            
             It
             was
             alleadged
             for
             the
             Father
             ,
             that
             he
             might
             very
             lawfully
             take
             a
             Bond
             from
             his
             Son
             ,
             for
             provision
             of
             his
             Children
             after
             the
             Contract
             ,
             and
             before
             the
             Marriage
             ,
             having
             Infeft
             his
             Son
             in
             his
             whole
             Estate
             ,
             which
             was
             worth
             1000.
             
             Merks
             yearly
             ,
             and
             getting
             but
             2500.
             
             Merks
             of
             Tocher
             ,
             and
             having
             some
             Debt
             and
             many
             Children
             .
             It
             was
             answered
             ,
             that
             the
             Estate
             was
             not
             worth
             600.
             
             Merks
             of
             Rent
             ,
             and
             the
             Fathers
             Liferent
             of
             400.
             
             Merks
             reserved
             ,
             so
             that
             the
             Annualrent
             of
             this
             Bond
             would
             exhaust
             the
             remainder
             ,
             and
             they
             would
             have
             nothing
             to
             live
             upon
             .
          
           
             The
             Lords
             having
             considered
             the
             Contract
             and
             Alleadgances
             ,
             thought
             that
             it
             was
             not
             sufficient
             to
             annul
             the
             Bond
             ,
             that
             it
             was
             after
             the
             Contract
             ,
             and
             before
             the
             Marriage
             ,
             if
             there
             was
             any
             reasonable
             cause
             .
             Therefore
             ,
             and
             before
             answer
             ordained
             the
             Commuuers
             at
             the
             Marriage
             to
             be
             Examined
             ,
             whether
             it
             was
             communed
             and
             agreed
             ,
             that
             the
             Tocher
             should
             be
             accepted
             for
             f●tisfaction
             of
             the
             Debt
             and
             Bairns
             Portions
             ,
             and
             they
             having
             Deponed
             Affirmative
             .
          
           
             The
             Lords
             Reduced
             the
             Bond
             as
             contrair
             to
             the
             Communing
             at
             the
             Contract
             of
             Marriage
             ,
             the
             Estate
             being
             very
             mean.
             
          
        
         
           
           
             Sir
             Iohn
             Weems
             contra
             Campbel
             of
             Ednample
             .
             Eodem
             die
             .
          
           
             SIr
             
               Iohn
               Weems
            
             having
             Charged
             Ednample
             for
             Maintainance
             due
             in
             
               Anno
               1648.
            
             
             He
             Suspends
             on
             this
             Reason
             ,
             that
             upon
             consideration
             of
             the
             burning
             of
             his
             House
             in
             the
             time
             of
             the
             Troubles
             ,
             he
             got
             an
             Exemption
             and
             Discharge
             from
             the
             King
             and
             
               Parliament
               ,
               Anno
            
             1651.
             
             It
             was
             answered
             that
             that
             Parliament
             was
             Rescinded
             ,
             and
             the
             Charger
             had
             a
             Commission
             to
             uplift
             all
             Maintainance
             in
             Anno
             1648.
             from
             the
             Heretors
             ,
             notwithstanding
             of
             any
             exemptions
             granted
             by
             these
             pretended
             Parliaments
             ,
             and
             their
             Committees
             .
             The
             Suspender
             answered
             ,
             that
             the
             Act
             Rescissory
             has
             an
             express
             Reservation
             of
             all
             privat
             Rights
             ,
             acquired
             by
             Authority
             of
             these
             Parliaments
             for
             the
             time
             ;
             and
             so
             this
             Exoneration
             of
             his
             becoming
             his
             privat
             Right
             ,
             falls
             not
             by
             the
             Act
             Rescissory
             :
             and
             as
             to
             the
             Act
             of
             Parliament
             ,
             and
             Commission
             to
             the
             Charger
             ,
             it
             must
             be
             understood
             
               salvo
               jure
            
             ,
             and
             cannot
             take
             away
             the
             Suspenders
             anterior
             Right
             acquired
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             Suspended
             the
             Letters
             ,
             and
             found
             that
             the
             Suspenders
             Exoneration
             was
             not
             taken
             away
             ,
             either
             by
             the
             Act
             Rescissory
             ,
             or
             by
             the
             Act
             and
             Commission
             in
             favours
             of
             Bogie
             .
          
        
         
           
             Lord
             Rentoun
             contra
             Laird
             Lamertoun
             .
             Eodem
             die
             .
          
           
             THe
             Lord
             Rentoun
             ,
             Justice
             Clerk
             ,
             having
             pursued
             Lamertoun
             ,
             as
             Representing
             his
             Father
             ,
             for
             the
             Pursuers
             Rents
             and
             Goods
             intrometted
             with
             by
             the
             Defenders
             Father
             in
             Anno
             1641.
             
             The
             Defender
             excepted
             upon
             the
             Act
             of
             Pacification
             in
             Anno
             1641.
             and
             upon
             the
             Act
             of
             Indemnity
             in
             Anno
             1661.
             and
             produced
             his
             Fathers
             Commission
             ,
             by
             which
             he
             medled
             ;
             so
             that
             having
             done
             by
             publick
             Authority
             for
             the
             time
             ,
             in
             relation
             to
             the
             War
             ,
             and
             differences
             of
             the
             time
             ,
             he
             was
             secured
             by
             both
             these
             Acts.
             The
             Pursuer
             answered
             ,
             that
             the
             Act
             of
             Pacification
             ,
             and
             that
             whole
             Parliament
             was
             Rescinded
             ,
             and
             the
             Act
             of
             Indemnity
             had
             an
             express
             exception
             of
             all
             that
             medled
             with
             publick
             Monies
             of
             Fines
             ,
             Forefaultors
             ,
             or
             Sequestrat
             Estates
             ,
             and
             had
             applyed
             the
             same
             to
             their
             own
             use
             ,
             and
             had
             not
             duly
             counted
             therefore
             :
             and
             the
             Pursuer
             insisted
             for
             what
             the
             Defenders
             Father
             had
             applyed
             to
             his
             own
             use
             ,
             or
             had
             not
             duly
             counted
             for
             .
             The
             Defender
             Duplyed
             ,
             that
             his
             Father
             had
             duly
             counted
             for
             his
             whole
             Intromission
             ,
             and
             had
             made
             Faith
             to
             the
             Committee
             of
             Estates
             particularly
             ,
             that
             he
             had
             truly
             given
             up
             his
             Charge
             without
             omission
             ,
             and
             thereupon
             was
             Discharged
             .
             The
             Pursuer
             answered
             ,
             that
             he
             had
             instructed
             much
             more
             Intromission
             ,
             and
             was
             content
             to
             allow
             the
             particulars
             in
             the
             Compt
             produced
             ,
             and
             craved
             the
             superplus
             ,
             which
             he
             had
             now
             proven
             by
             Witnesses
             adduced
             before
             answer
             :
             and
             as
             for
             the
             Oath
             ,
             it
             could
             only
             be
             understood
             as
             an
             Oath
             of
             Credulity
             ,
             like
             that
             of
             Executors
             Confirming
             Testaments
             ,
             which
             doth
             not
             exclude
             probation
             of
             Super-intromission
             :
             and
             there
             being
             two
             Compts
             produced
             ,
             the
             Charge
             of
             the
             last
             Compt
             is
             the
             rest
             of
             the
             former
             Compt
             ,
             and
             the
             Oath
             relates
             only
             to
             the
             last
             Compt.
             
          
           
             The
             Lords
             Repelled
             the
             Defense
             upon
             the
             Act
             of
             Pacification
             ,
             which
             they
             found
             was
             only
             unrescinded
             ,
             in
             so
             far
             as
             it
             is
             contained
             in
             the
             late
             Act
             of
             Indemnity
             ;
             and
             Repelled
             the
             Defense
             upon
             the
             Act
             of
             Indemnity
             ,
             in
             respect
             of
             the
             Exception
             ;
             and
             found
             that
             the
             Father
             had
             not
             Counted
             duly
             for
             his
             whole
             Intromission
             ;
             and
             that
             his
             Oath
             extended
             only
             to
             the
             last
             Compt
             :
             and
             having
             considered
             the
             Testimonies
             of
             the
             Witnesses
             ,
             they
             made
             a
             difference
             betwixt
             what
             umquhil
             Lamertoun
             applyed
             to
             his
             own
             use
             ,
             and
             what
             Corns
             and
             Cattel
             were
             carried
             away
             by
             Souldiers
             ,
             by
             his
             direction
             to
             the
             Army
             ,
             that
             he
             might
             be
             free
             of
             the
             latter
             ,
             and
             lyable
             for
             the
             former
             .
          
        
         
           
           
             Iohnstoun
             of
             Sheins
             contra
             Isobel
             Arnold
             ,
             Iuly
             22.
             1668.
             
          
           
             
               IAmes
               Arnold
            
             having
             granted
             a
             Bond
             of
             Provision
             to
             his
             Daughter
             Isobel
             ,
             became
             afterwards
             Debitor
             to
             Iohnstoun
             of
             Sheins
             ,
             who
             Appryzed
             Arnold's
             Estate
             ,
             in
             Anno
             1638.
             upon
             a
             Debt
             of
             his
             own
             ,
             and
             as
             Assigney
             to
             another
             Debt
             .
             Thereafter
             
               Isobel
               Arnold
            
             on
             her
             Bond
             of
             Provision
             Appryzes
             the
             same
             Lands
             ;
             Sheins
             conies
             in
             Possession
             of
             the
             most
             part
             ,
             and
             Isobel
             in
             a
             small
             part
             ,
             till
             they
             both
             acquire
             the
             benefit
             of
             a
             Possessory
             Judgement
             ,
             whereupon
             there
             are
             mutual
             Reductions
             ;
             Sheins
             Reason
             was
             ,
             that
             his
             Fathers
             Appryzing
             was
             long
             prior
             to
             the
             Defenders
             ,
             and
             that
             the
             ground
             of
             the
             Defenders
             Appryzing
             ,
             was
             only
             a
             Bond
             of
             Provision
             by
             a
             Father
             to
             his
             Daughter
             ,
             which
             could
             never
             exclude
             the
             Fathers
             Creditors
             ,
             especially
             if
             that
             Debt
             was
             contracted
             before
             the
             Bond
             of
             Provision
             was
             granted
             ,
             and
             while
             it
             remained
             in
             the
             Fathers
             Custody
             ,
             and
             so
             in
             his
             power
             to
             be
             Reduced
             at
             his
             pleasure
             .
             Isobels
             Reason
             of
             Reduction
             was
             ,
             that
             albeit
             Shein's
             Appryzing
             was
             prior
             ,
             yet
             there
             was
             no
             Infeftment
             thereon
             in
             Shein's
             person
             ,
             bearing
             to
             be
             on
             an
             Assignation
             to
             the
             Appryzing
             by
             Shein's
             to
             Collingtoun
             ,
             but
             any
             Infeftment
             produced
             is
             in
             Collingtouns
             Person
             ,
             bearing
             to
             be
             on
             an
             Assignation
             to
             the
             Appryzing
             by
             Sheins
             to
             Collingtoun
             ,
             which
             Assignation
             is
             not
             produced
             ,
             and
             so
             Shein's
             Infeftment
             ,
             flowing
             from
             Collingtoun
             is
             null
             ,
             because
             Collingtouns
             Right
             ,
             from
             Umquhile
             Shein's
             is
             wanting
             ,
             which
             is
             the
             mid-cuppling
             .
             
               2dly
               ,
               Shein's
            
             Appryzing
             being
             on
             two
             Sums
             ,
             the
             one
             whereof
             was
             to
             the
             behove
             of
             a
             Cautioner
             ,
             who
             had
             payed
             the
             Debt
             ,
             and
             taken
             the
             Assignation
             in
             Shein's
             Name
             to
             his
             own
             behove
             ;
             which
             Cautioner
             being
             conjunct
             Cautioner
             with
             
               Iames
               Arnold
            
             ,
             the
             common
             Author
             ,
             and
             having
             a
             Clause
             of
             relief
             ,
             neither
             he
             ,
             nor
             Shein's
             intrusted
             by
             him
             ,
             could
             justly
             or
             validly
             Appryze
             Arnold
             the
             Cautioners
             Lands
             for
             the
             whole
             Sum
             ,
             but
             behoved
             to
             deduce
             the
             other
             Cautioners
             part
             ,
             and
             so
             the
             Appryzing
             is
             upon
             invalide
             grounds
             ,
             and
             thereby
             is
             null
             ,
             and
             albeit
             prior
             to
             
               Isobel
               Arnold's
            
             Appryzing
             ,
             yet
             she
             has
             the
             only
             valide
             Appryzing
             .
             It
             was
             answered
             for
             Shein's
             that
             the
             first
             Reason
             was
             not
             competent
             to
             the
             Pursuer
             ,
             for
             it
             was
             
               jus
               tertij
            
             to
             her
             what
             progresse
             Collingtoun
             had
             from
             Umquhile
             Shein's
             ,
             seing
             she
             Derives
             no
             Right
             from
             him
             .
             2dly
             ,
             This
             Collingtoun
             by
             his
             Right
             granted
             to
             this
             Shein's
             ,
             acknowledges
             that
             aborigine
             the
             Infeftment
             ,
             in
             Collingtoun
             his
             Fathers
             person
             ,
             was
             to
             Shein's
             behove
             ,
             which
             is
             a
             sufficient
             Adminicle
             in
             place
             of
             the
             Assignation
             ;
             and
             to
             the
             second
             Reason
             ,
             albeit
             it
             were
             instructed
             it
             could
             not
             annul
             the
             Appryzing
             
               in
               totum
            
             ,
             but
             restrict
             it
             to
             the
             Sum
             truly
             Due
             ,
             especially
             seing
             that
             Shein's
             was
             content
             to
             declare
             his
             Appryzing
             Redeemable
             by
             payment
             of
             the
             Sums
             truly
             Resting
             ,
             within
             such
             times
             as
             the
             Lords
             would
             appoint
             ;
             and
             albeit
             the
             Lords
             are
             strict
             in
             the
             Formalities
             of
             Appryzings
             when
             they
             are
             expired
             ,
             and
             carry
             the
             whole
             Estate
             ,
             though
             improportional
             ,
             yet
             during
             the
             legal
             ,
             they
             allow
             them
             in
             so
             far
             as
             they
             are
             due
             .
          
           
             The
             Lords
             found
             
               Isobel
               Arnolds
            
             first
             Reason
             Competent
             ,
             and
             Relevant
             to
             her
             ,
             unlesse
             Collingtouns
             Assignation
             were
             produced
             ,
             or
             the
             Tenor
             of
             it
             proven
             ;
             and
             found
             the
             second
             Reason
             Relevant
             ,
             to
             restrict
             the
             Appryzing
             to
             the
             Sum
             truly
             due
             ,
             in
             respect
             that
             Shein's
             did
             of
             Consent
             declare
             it
             ,
             yet
             Redeemable
             for
             the
             true
             Sums
             .
             But
             they
             found
             Shein's
             alleadgeance
             ,
             that
             the
             ground
             of
             
               Isobel
               Arnolds
            
             Appryzing
             was
             a
             Bond
             of
             Provision
             ,
             posterior
             in
             Date
             or
             Delivery
             to
             Shein's
             Debt
             ,
             Relevant
             to
             prefer
             him
             as
             a
             Conjunct
             Creditor
             for
             his
             true
             Debt
             ,
             though
             the
             Assignation
             should
             not
             be
             produced
             ,
             a
             new
             one
             from
             Collingtoun
             being
             sufficient
             .
          
        
         
           
           
             Iohn
             Boswel
             contra
             the
             Town
             of
             Kirkaldy
             ,
             Eodem
             die
             .
          
           
             
               IOhn
               Boswel
            
             having
             some
             Aikers
             in
             the
             Towns
             Lands
             of
             Kirkaldy
             ,
             and
             some
             Houses
             in
             the
             Town
             ,
             but
             not
             dwelling
             within
             the
             Town
             ,
             or
             Paroch
             ,
             nor
             using
             any
             Trade
             therein
             :
             pursues
             the
             Town
             as
             having
             unwarrantably
             Stented
             him
             for
             his
             Stock
             and
             Trade
             ,
             he
             not
             dwelling
             in
             their
             Burgh
             .
             2dly
             ,
             For
             unequal
             Stenting
             him
             as
             to
             his
             Lands
             .
             3dly
             ,
             For
             Stenting
             him
             for
             the
             Towns
             Debts
             ,
             as
             for
             the
             Sums
             payed
             for
             their
             Erecting
             Harbours
             ,
             and
             some
             Teinds
             they
             Bought
             .
             4thly
             ,
             For
             Stenting
             him
             for
             the
             second
             Ministers
             Stipend
             ,
             whereas
             he
             payed
             the
             whole
             Teind
             to
             the
             first
             Minister
             ,
             nor
             dwelt
             he
             in
             the
             Paroch
             ,
             nor
             consented
             to
             a
             second
             Minister
             ,
             or
             to
             his
             Stipend
             ,
             and
             for
             unwarrantable
             Quartering
             on
             him
             ,
             and
             his
             Tennents
             ,
             and
             this
             since
             the
             year
             1644.
             
             It
             was
             answered
             for
             the
             Defenders
             ,
             that
             they
             denyed
             Stenting
             of
             the
             Pursuer
             ,
             for
             any
             Stock
             or
             Trade
             ,
             seing
             he
             was
             no
             Inhabitant
             ;
             or
             that
             they
             Quartered
             on
             him
             unwarrantably
             ,
             but
             alleadged
             there
             was
             now
             no
             ground
             after
             so
             long
             a
             time
             ,
             to
             quarrel
             the
             inequality
             of
             their
             Stent
             Rolls
             ,
             which
             were
             made
             by
             fifteen
             sworn
             Men
             ,
             especially
             after
             so
             long
             a
             time
             ,
             for
             this
             preparative
             would
             be
             the
             foundation
             of
             a
             Debate
             ,
             at
             the
             instance
             of
             every
             Burgess
             ,
             against
             every
             Town
             in
             Scotland
             :
             neither
             could
             there
             be
             a
             clear
             Rule
             ,
             as
             in
             Valuations
             ,
             but
             behoved
             to
             proceed
             by
             the
             Stenters
             Conjecture
             ,
             according
             to
             the
             common
             esteem
             of
             the
             Means
             ,
             and
             Trade
             of
             every
             Burgess
             ;
             so
             that
             unless
             the
             Complaint
             were
             against
             the
             inhability
             of
             the
             Stenters
             ,
             in
             due
             time
             made
             ,
             there
             could
             be
             no
             Debate
             thereafter
             :
             And
             further
             alleadged
             ,
             that
             for
             the
             Towns
             Debts
             ,
             that
             such
             as
             were
             contracted
             for
             the
             common
             benefit
             of
             the
             Town
             ,
             for
             getting
             their
             Erection
             ,
             and
             Harbour
             ;
             and
             for
             the
             second
             Ministers
             Stipend
             ,
             the
             half
             of
             which
             had
             been
             payed
             by
             the
             whole
             Heretors
             ,
             since
             the
             year
             1613.
             and
             the
             other
             half
             since
             the
             year
             1649.
             that
             their
             new
             Kirk
             was
             Erected
             ,
             should
             burden
             the
             Pursuer
             proportionally
             ,
             according
             to
             his
             Land
             Rent
             .
             The
             Pursuer
             answered
             ,
             that
             he
             not
             being
             an
             Inhabitant
             ,
             was
             not
             concerned
             in
             the
             Erection
             or
             Harbour
             ,
             nor
             in
             the
             second
             Ministers
             Stipend
             ,
             seing
             he
             payed
             his
             whole
             Teind
             to
             the
             first
             Minister
             .
          
           
             The
             Lords
             found
             the
             Pursuer
             lyable
             for
             the
             half
             of
             the
             Stipend
             ,
             in
             regard
             of
             the
             immemorial
             use
             of
             payment
             ,
             but
             found
             him
             free
             for
             what
             he
             had
             not
             payed
             of
             the
             other
             ,
             unless
             it
             had
             been
             imposed
             by
             Authority
             ,
             or
             his
             own
             Consent
             ;
             and
             also
             found
             him
             free
             of
             the
             Personal
             Debt
             ,
             and
             would
             not
             Sustain
             Process
             against
             the
             inequality
             of
             the
             Stent
             Roll
             ,
             after
             so
             long
             a
             time
             .
          
        
         
           
             Duncan
             Campbel
             contra
             the
             Laird
             of
             Glenorchy
             ,
             Iuly
             25.
             1668.
             
          
           
             
               DVncan
               Campbel
            
             pursues
             the
             Laird
             of
             Glenorchy
             ,
             for
             Ejecting
             him
             from
             certain
             Lands
             ,
             and
             especially
             ,
             that
             his
             Brother
             ,
             by
             his
             Direction
             ,
             did
             violently
             cast
             out
             the
             Pursuers
             Children
             ,
             and
             Servants
             out
             of
             a
             part
             of
             the
             Land
             ,
             Laboured
             by
             himself
             ;
             and
             perswaded
             ,
             and
             enticed
             his
             Tennents
             ,
             to
             receive
             Tacks
             from
             ,
             and
             pay
             the
             Mails
             and
             Duties
             to
             him
             ,
             and
             therefore
             craves
             Re-possession
             ,
             and
             Double
             Mail
             ,
             as
             the
             violent
             Profits
             of
             the
             whole
             Lands
             ,
             during
             the
             Defenders
             Possession
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             he
             had
             obtained
             Improbation
             against
             the
             Pursuer
             ,
             of
             all
             his
             Rights
             of
             these
             Lands
             ,
             and
             others
             ;
             and
             likewise
             Decreet
             of
             Removing
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defense
             ought
             to
             be
             Repelled
             ,
             because
             the
             Improbation
             was
             
             only
             by
             a
             Certification
             ,
             when
             he
             was
             Prisoner
             in
             Irland
             ,
             and
             the
             Defender
             by
             Articles
             of
             Agreement
             produced
             ,
             had
             acknowledged
             the
             Pursuers
             Right
             ,
             and
             obliged
             himself
             to
             Infest
             him
             in
             the
             Lands
             in
             question
             .
             2dly
             ,
             Though
             the
             Pursuer
             had
             but
             Possession
             without
             any
             Right
             ,
             he
             might
             not
             be
             Ejected
             ,
             but
             by
             a
             Precept
             of
             Ejection
             from
             a
             Judge
             ,
             which
             is
             not
             alleadged
             .
             The
             Defender
             answered
             ,
             that
             these
             Articles
             of
             Agreement
             were
             never
             perfected
             ,
             nor
             extended
             ,
             and
             could
             only
             import
             a
             Personal
             Action
             against
             the
             Defender
             ,
             for
             extention
             ,
             or
             implement
             ,
             wherein
             ,
             when
             the
             Pursuer
             insists
             he
             will
             get
             this
             answer
             ,
             that
             he
             can
             have
             no
             benefit
             of
             the
             Articles
             ,
             being
             mutual
             until
             he
             perform
             his
             part
             thereof
             ,
             which
             is
             not
             done
             .
          
           
             The
             Lords
             Repelled
             the
             Defence
             ,
             and
             Duply
             ,
             and
             Sustained
             the
             Ejection
             .
          
           
             The
             Defender
             alleadged
             ,
             further
             ,
             that
             that
             Member
             of
             the
             Libel
             ,
             craving
             violent
             profits
             for
             that
             part
             of
             the
             Land
             Possest
             by
             Tennents
             ,
             because
             by
             the
             Defenders
             perswasion
             ,
             they
             became
             his
             Tennents
             ,
             is
             not
             Relevant
             ,
             because
             Ejection
             is
             only
             competent
             to
             the
             natural
             Possess
             or
             upon
             violence
             ,
             and
             perswasion
             is
             no
             violence
             .
             The
             Pursuer
             answered
             ,
             that
             the
             prevailing
             with
             the
             Tennents
             ,
             was
             consequent
             to
             the
             casting
             out
             of
             the
             Defender
             ,
             out
             of
             his
             own
             House
             ,
             and
             natural
             Possession
             ,
             and
             was
             as
             great
             a
             fault
             as
             Intrusion
             ,
             and
             equivalent
             thereto
             .
             The
             Defender
             answered
             ,
             that
             the
             Law
             has
             allowed
             violent
             ▪
             profits
             only
             in
             Ejection
             or
             Intrusion
             ,
             which
             can
             be
             drawn
             to
             no
             other
             Case
             ,
             though
             it
             were
             as
             great
             ,
             or
             an
             greater
             fault
             .
          
           
             The
             Lords
             sustained
             the
             Defence
             ,
             and
             found
             violent
             profits
             only
             competent
             for
             that
             part
             ,
             that
             the
             Pursuer
             Possest
             naturally
             ;
             but
             if
             the
             whole
             Lands
             had
             been
             an
             united
             Tenement
             ,
             or
             Labouring
             ,
             that
             the
             Pursuer
             had
             been
             Ejected
             out
             of
             the
             principal
             messuage
             of
             the
             Barony
             ,
             and
             the
             Ejecter
             had
             thereby
             gotten
             Possession
             of
             the
             whole
             ,
             it
             is
             like
             the
             Lords
             would
             have
             sustained
             Ejection
             for
             the
             whole
             ,
             but
             this
             was
             not
             Pleaded
             .
          
        
         
           
             Lord
             Rentoun
             contra
             Lambertoun
             ,
             Iuly
             28.
             1668.
             
          
           
             THis
             day
             the
             Lord
             Rentouns
             Processe
             against
             Lambertoun
             ,
             mentioned
             the
             21.
             
             Instant
             ,
             was
             Advised
             ;
             by
             the
             Probation
             it
             appeared
             that
             the
             Corns
             in
             the
             Girnels
             of
             Haymouth
             ,
             and
             the
             Cattel
             in
             the
             Mains
             of
             Rentoun
             ,
             and
             Horses
             were
             taken
             away
             by
             Lambertoun
             ,
             with
             a
             Troop
             ,
             or
             Troopers
             ;
             and
             that
             the
             Corns
             were
             carried
             to
             Dunss
             ,
             the
             Army
             being
             thereabout
             at
             that
             time
             :
             whereupon
             the
             question
             arose
             ,
             whether
             or
             not
             Lambertoun
             were
             lyable
             for
             these
             ,
             which
             by
             the
             Probation
             did
             not
             appear
             to
             be
             applyed
             to
             his
             use
             ,
             but
             to
             the
             use
             of
             the
             Army
             .
          
           
             The
             Lords
             Assoilzied
             him
             therefrom
             ,
             as
             they
             had
             done
             in
             several
             cases
             formerly
             ,
             upon
             the
             Act
             of
             Indemnity
             ,
             whereby
             whatsoever
             was
             acted
             in
             the
             Troubles
             ,
             by
             Warrand
             of
             any
             Authority
             in
             Being
             ,
             was
             totally
             discharged
             ;
             and
             the
             Lords
             did
             thereupon
             find
             ,
             that
             the
             Actors
             were
             not
             obliged
             to
             produce
             ,
             or
             show
             a
             Warrand
             ,
             but
             that
             it
             was
             enough
             the
             Deeds
             were
             done
             ,
             
               man●
               militari
            
             ,
             unlesse
             the
             contrair
             were
             proven
             by
             the
             Actors
             own
             Oath
             ,
             that
             what
             was
             medled
             with
             ,
             was
             not
             employed
             to
             entertainment
             of
             Souldiers
             ,
             or
             any
             other
             publick
             use
             ,
             but
             to
             their
             own
             private
             use
             .
          
        
         
           
           
             Laird
             of
             Milntoun
             contra
             Lady
             Milntoun
             ,
             Iuly
             30.
             1668.
             
          
           
             THe
             Laird
             of
             Milntoun
             infifted
             in
             his
             Action
             of
             Reprobator
             ,
             wherein
             this
             point
             of
             the
             Dispute
             was
             only
             Discust
             ,
             whether
             Reprobators
             were
             competent
             ,
             unlesse
             they
             were
             protested
             for
             at
             the
             taking
             of
             the
             Witnesses
             Testimonies
             ,
             or
             whether
             it
             were
             sufficient
             to
             Protest
             at
             any
             time
             before
             Sentence
             ,
             or
             if
             there
             were
             no
             necessity
             at
             all
             ,
             and
             especially
             as
             to
             this
             Case
             .
             It
             was
             alleadged
             there
             was
             no
             necessity
             of
             a
             Protestation
             ,
             and
             if
             it
             were
             ,
             there
             was
             a
             Protestation
             at
             the
             Re-examination
             of
             the
             Witnesses
             ,
             and
             also
             before
             Sentence
             .
             It
             was
             answered
             ,
             that
             a
             Protestation
             was
             most
             necessar
             ,
             because
             the
             want
             of
             it
             was
             an
             acquiescence
             in
             the
             hability
             ,
             and
             honesty
             of
             the
             Witnesses
             ;
             and
             if
             it
             should
             not
             be
             necessar
             ,
             all
             Process
             this
             five
             years
             might
             come
             in
             question
             upon
             Reprobation
             ,
             which
             were
             of
             dangerous
             consequence
             ;
             and
             therefore
             ,
             as
             Incidents
             are
             not
             competent
             ,
             but
             when
             Protested
             for
             no
             more
             Reprobations
             ;
             as
             to
             the
             alleadged
             Protestation
             ,
             at
             the
             Examining
             of
             the
             Witnesses
             ,
             it
             is
             but
             subjoined
             to
             the
             Interrogators
             ,
             only
             Subscribed
             by
             one
             of
             the
             four
             Examinators
             ,
             who
             Subscribed
             the
             Testimonies
             ,
             and
             who
             does
             not
             remember
             of
             his
             Subscription
             ,
             so
             that
             it
             has
             been
             surreptitiously
             obtained
             from
             him
             ;
             as
             to
             the
             other
             Protestation
             ,
             the
             same
             was
             not
             when
             the
             Witnesses
             were
             taken
             ,
             but
             at
             the
             conclusion
             of
             the
             Cause
             .
             It
             was
             answered
             ,
             that
             it
             was
             in
             competent
             time
             ,
             even
             at
             the
             conclusion
             ,
             and
             that
             Reprobators
             were
             not
             only
             not
             rejected
             ,
             but
             expresly
             allowed
             by
             the
             Pursuer
             ,
             by
             way
             of
             Action
             .
          
           
             The
             Lords
             found
             this
             Reprobator
             competent
             in
             this
             Case
             ,
             but
             did
             not
             resolve
             the
             point
             generally
             ,
             whether
             they
             were
             competent
             ,
             when
             not
             at
             all
             Protested
             for
             ;
             as
             to
             which
             the
             Lords
             were
             of
             different
             Judgements
             ,
             but
             most
             seemed
             to
             require
             a
             Protestation
             ,
             
               ante
               rem
               Iudicatam
            
             ,
             yet
             so
             that
             if
             it
             were
             omitted
             ,
             the
             Lords
             might
             repone
             the
             Party
             to
             Reprobators
             ,
             if
             any
             emergent
             made
             the
             Testimonies
             suspect
             through
             inhability
             ,
             or
             corruption
             in
             the
             same
             manner
             ,
             as
             the
             Lords
             will
             repone
             Parties
             against
             Certifications
             ,
             Circumductions
             of
             the
             Term
             ,
             and
             being
             holden
             as
             Confest
             .
          
        
         
           
             Sir
             George
             Mckenzie
             contra
             the
             Laird
             of
             Newhal
             ,
             Eodem
             die
             .
          
           
             
               SIr
               George
               Mckenzie
            
             Advocat
             ,
             having
             Married
             a
             Daughter
             of
             
               Iohn
               Dickson
            
             of
             Hartrie
             ,
             they
             pursue
             a
             Proving
             of
             the
             Tenor
             of
             an
             Inventar
             of
             Har●ries
             Lands
             ,
             wherein
             he
             altered
             the
             former
             Substitution
             of
             his
             Children
             in
             several
             Bonds
             ,
             and
             paricularly
             of
             a
             Bond
             of
             5000.
             
             Merks
             ,
             granted
             by
             Whitehead
             of
             Park
             ,
             payable
             to
             himself
             ,
             and
             after
             his
             Decease
             to
             
               Helen
               Dickson
            
             his
             youngest
             Daughter
             ,
             who
             was
             Married
             to
             Ballenden
             of
             Newhal
             ;
             and
             by
             the
             Inventar
             the
             Substitution
             was
             altered
             ,
             and
             the
             one
             half
             of
             the
             Bond
             appointed
             to
             pertain
             to
             Elizabeth
             (
             now
             Spouse
             to
             Sir
             
               George
               Mckenzie
            
             )
             and
             the
             other
             to
             Helen
             and
             Michael
             :
             to
             prove
             that
             the
             samine
             was
             Holograph
             ,
             because
             it
             wanted
             Witnesses
             ;
             there
             was
             produced
             for
             Adminicles
             ,
             the
             Copy
             of
             it
             ,
             written
             by
             
               Iohn
               Kelloes
            
             Hand
             ,
             Hartries
             Nephew
             ,
             and
             an
             judicial
             Instrument
             ,
             containing
             the
             Tenor
             of
             it
             by
             way
             of
             Transumpt
             ;
             but
             there
             was
             some
             words
             of
             difference
             between
             the
             Instrument
             and
             the
             Copy
             ,
             which
             was
             Subscribed
             by
             
               Iohn
               Ramsay
               ,
               Hartries
            
             Good-brother
             ,
             and
             Mr.
             
               Iohn
               Pringle
               ,
               Hariries
            
             Good-son
             ;
             who
             ,
             and
             several
             others
             ,
             being
             adduced
             as
             Witnesses
             ,
             Deponed
             that
             the
             principal
             Inventar
             was
             produced
             by
             Hartrie
             on
             his
             Death-bed
             ,
             and
             shown
             to
             his
             Friends
             ,
             and
             by
             them
             Read
             ,
             and
             that
             the
             Subscribed
             Copy
             was
             Collationed
             with
             the
             principal
             by
             them
             that
             Subscribed
             the
             same
             ,
             and
             
             held
             in
             all
             points
             ;
             and
             that
             the
             principal
             Inventar
             was
             all
             written
             with
             Hartries
             own
             Hand
             ,
             except
             an
             alteration
             ,
             made
             upon
             a
             Bond
             of
             Tarbets
             ,
             which
             was
             written
             by
             Iohn
             Ramsay's
             Hand
             ,
             by
             direction
             of
             Hartrie
             ,
             some
             hours
             before
             he
             Died
             ,
             and
             was
             not
             able
             to
             Subscribe
             it
             ,
             with
             some
             other
             alterations
             in
             relation
             to
             Bonds
             ,
             wherein
             the
             Children
             Substitute
             ,
             were
             Dead
             ;
             but
             that
             this
             Article
             in
             relation
             to
             Whiteheads
             Bond
             ,
             was
             all
             written
             with
             Hartries
             own
             Hand
             .
          
           
             The
             Lords
             found
             the
             Tenor
             proven
             ,
             conform
             to
             the
             Subscribed
             Copy
             ,
             and
             found
             the
             said
             Inventar
             Holograph
             ,
             except
             in
             relation
             to
             Tarbets
             Bond
             ,
             and
             these
             other
             particulars
             written
             by
             Iohn
             Ramsay's
             Hand
             ,
             so
             that
             Holograph
             was
             proven
             ,
             without
             production
             of
             the
             principal
             Writ
             ,
             joyntly
             with
             the
             Tenor
             ,
             albeit
             some
             part
             of
             the
             Writ
             was
             not
             Hartries
             Hand
             ,
             but
             written
             by
             Iohn
             Ramsay's
             Hand
             ;
             but
             these
             not
             being
             Subscribed
             by
             Hartrie
             ,
             were
             in
             the
             same
             case
             as
             if
             they
             had
             been
             omitted
             forth
             of
             the
             Inventar
             ,
             and
             the
             remainder
             of
             the
             Inventar
             ,
             which
             only
             was
             Probative
             was
             all
             Holograph
             .
          
        
         
           
             Patrick
             Park
             contra
             Nicol
             Sommervel
             ,
             November
             12
             :
             1668.
             
          
           
             
               PAtrick
               Park
            
             pursues
             a
             Reduction
             of
             a
             Bond
             of
             1200.
             
             Merks
             Scots
             ,
             upon
             these
             Reasons
             ,
             First
             ,
             Because
             albeit
             the
             Bond
             bears
             borrowed
             Money
             ,
             and
             be
             in
             the
             Name
             of
             
               Nicol
               Sommervel
            
             ;
             yet
             he
             offers
             to
             prove
             by
             Nicols
             Oath
             ,
             that
             when
             he
             received
             the
             Bond
             ,
             it
             was
             blank
             in
             the
             Creditors
             Name
             ,
             and
             offers
             to
             prove
             by
             Witnesses
             ,
             that
             the
             true
             Cause
             thereof
             was
             ,
             that
          
           
             
               Sommervel
               ,
               Nicols
            
             Brother
             ,
             having
             win
             all
             the
             Pursuers
             Money
             he
             had
             at
             the
             Cards
             ,
             he
             being
             then
             distempered
             with
             Drink
             ,
             caused
             him
             Subscribe
             a
             blank
             Bond
             ,
             for
             filling
             up
             what
             Sum
             he
             should
             win
             from
             him
             ,
             and
             that
             this
             Sum
             was
             filled
             up
             in
             this
             Bond
             ,
             which
             he
             offers
             to
             prove
             by
             the
             Oath
             of
             Nicols
             Brother
             that
             wan
             the
             Money
             ,
             and
             the
             other
             Witnesses
             insert
             ,
             so
             that
             the
             Clause
             of
             the
             Bond
             being
             played
             Money
             ,
             by
             the
             Act
             of
             Parliament
             1621.
             the
             Winner
             can
             have
             no
             more
             but
             100.
             
             Merks
             thereof
             .
             2dly
             ,
             Before
             Nicols
             Name
             was
             filled
             up
             ,
             or
             any
             Diligence
             or
             Intimation
             thereof
             :
             there
             was
             a
             Decreet
             Arbitral
             betwixt
             the
             Winner
             and
             the
             Pursuer
             ,
             wherein
             all
             Sums
             were
             Discharged●
             which
             Discharge
             being
             by
             the
             C●dent
             ,
             to
             whom
             the
             Bond
             was
             Delivered
             ,
             before
             the
             filling
             up
             of
             Nicols
             Name
             ,
             or
             Intimation
             thereof
             ,
             which
             is
             in
             effect
             an
             Assignation
             ,
             excludes
             the
             Assigney
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             he
             opponed
             the
             Bond
             ,
             bearing
             borrowed
             Money
             ,
             grantled
             in
             his
             own
             Name
             ;
             and
             though
             he
             should
             acknowledge
             that
             the
             Bond
             was
             blank
             in
             the
             Name
             ,
             and
             that
             thereby
             his
             Name
             being
             filed
             up
             ,
             he
             is
             in
             effect
             and
             Assigney
             :
             yet
             the
             Bond
             being
             his
             Writ
             the
             Bond
             cannot
             be
             taken
             away
             ,
             but
             by
             Writ
             or
             Oath
             of
             Party
             ,
             and
             not
             by
             his
             Cedents
             Oath
             ,
             or
             Witnesses
             insert
             ,
             unless
             it
             were
             to
             the
             Cedents
             behove
             ,
             or
             without
             a
             Cause
             Onerous
             ,
             as
             the
             Lords
             have
             found
             by
             their
             Interlocutor
             already
             .
             3dly
             ,
             Albeit
             it
             were
             acknowledged
             to
             be
             played
             Money
             ,
             the
             Act
             of
             Parliament
             is
             in
             Desuetude
             ,
             and
             it
             is
             now
             frequent
             by
             Persons
             of
             all
             quality
             to
             play
             ,
             and
             to
             pay
             a
             greater
             Sum
             then
             100.
             
             Merks
             .
             4thly
             .
             The
             Pursuer
             who
             loseth
             the
             Money
             ,
             hath
             no
             Interest
             by
             the
             Act
             of
             Parliament
             ,
             because
             thereby
             he
             is
             appointed
             to
             pay
             the
             Money
             ,
             but
             the
             superplus
             Money
             ,
             more
             then
             100.
             
             Merks
             ,
             is
             appointed
             to
             belong
             to
             the
             poor
             ,
             and
             the
             Defender
             shall
             answer
             the
             poor
             ,
             whenever
             they
             shall
             pursue
             ,
             but
             it
             is
             
               jus
               tertij
            
             to
             the
             loser
             ,
             who
             cannot
             detain
             the
             
             Money
             thereupon
             ;
             but
             whatever
             was
             the
             cause
             ,
             the
             Defender
             having
             received
             the
             Bond
             for
             a
             Cause
             Onerous
             ,
             and
             being
             ignorant
             that
             it
             was
             for
             any
             other
             Cause
             but
             true
             borrowed
             Money
             ,
             he
             must
             be
             in
             t●to
             ;
             otherwise
             upon
             this
             pretence
             ,
             any
             Bond
             may
             be
             suspected
             ,
             and
             the
             Cedent
             after
             he
             is
             Denuded
             by
             Witnesses
             ,
             may
             take
             the
             same
             away
             .
          
           
             The
             Lord
             Advocat
             did
             also
             appear
             for
             the
             Poor
             ,
             and
             claimed
             the
             superplus
             of
             the
             Money
             ,
             more
             then
             100.
             
             Merks
             ,
             and
             alleadged
             that
             the
             Act
             of
             Parliament
             did
             induce
             a
             
               vitium
               reale
            
             .
             which
             follows
             the
             Sum
             to
             all
             singular
             Successors
             ;
             and
             that
             though
             ordinarly
             the
             Cedents
             Oath
             ,
             or
             Witnesses
             be
             not
             taken
             against
             Writ
             ,
             yet
             where
             there
             is
             Fraud
             ,
             Force
             ,
             or
             Fault
             ,
             Witnesses
             are
             alwayes
             Receiveable
             ,
             
               ex
               officio
            
             at
             least
             ,
             and
             ought
             to
             be
             in
             this
             Case
             ,
             where
             there
             is
             such
             Evidence
             of
             Fraud
             ,
             that
             it
             is
             acknowledged
             the
             Bond
             was
             blank
             in
             the
             Creditors
             Name
             ,
             when
             Nicol
             Received
             it
             ,
             and
             the
             filling
             up
             was
             betwixt
             two
             Brethren
             ,
             and
             the
             Debitor
             dwelling
             in
             Town
             ,
             did
             not
             ask
             him
             what
             was
             the
             Cause
             of
             the
             Bond
             ,
             and
             that
             an
             Act
             of
             Parliament
             cannot
             fall
             in
             desuetude
             ,
             by
             a
             contrait
             voluntar
             Custom
             never
             allowed
             by
             the
             Lords
             ,
             but
             being
             vitious
             against
             so
             good
             and
             so
             publick
             a
             Law.
             
          
           
             The
             Lords
             found
             the
             Act
             of
             Parliament
             to
             stand
             in
             vigour
             ,
             and
             that
             the
             Loser
             was
             lyable
             upon
             the
             same
             grounds
             ,
             and
             therefore
             ordained
             the
             Sum
             to
             be
             Consigned
             in
             the
             Clerks
             Hands
             ,
             and
             before
             answer
             ,
             to
             whom
             the
             Sum
             should
             be
             given
             up
             ,
             ordained
             Nicols
             Oath
             to
             be
             taken
             when
             his
             Name
             was
             filled
             up
             ,
             and
             for
             what
             Cause
             .
          
        
         
           
             Margaret
             Calderwood
             contra
             Ianet
             Schaw
             ,
             November
             ,
             14.
             1668.
             
          
           
             
               MArgaret
               Calderwood
            
             pursues
             
               Ianet
               Schaw
            
             to
             pay
             a
             Bond
             ▪
             as
             Heir
             to
             
               Iohn
               Schaw
            
             ,
             granted
             by
             him
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Bond
             is
             null
             ,
             wanting
             Witnesses
             ;
             the
             Pursuer
             offered
             him
             to
             prove
             Holograph
             .
             The
             Defender
             answered
             ,
             that
             Holograph
             could
             not
             prove
             its
             own
             Date
             ,
             so
             that
             it
             is
             presumed
             the
             Bond
             was
             granted
             on
             Death-bed
             ,
             unlesse
             〈◊〉
             be
             proven
             that
             the
             Date
             is
             true
             as
             it
             stands
             ,
             or
             at
             least
             that
             it
             was
             Subscribed
             before
             the
             Defuncts
             Sickness
             .
             The
             Pursuer
             answered
             ,
             that
             Holograph
             proves
             its
             Date
             ,
             except
             
               contra
               tertium
            
             ,
             but
             it
             is
             good
             against
             the
             granter
             or
             his
             Heir
             ,
             who
             cannot
             be
             heard
             to
             say
             that
             his
             Predecessors●
             Deed
             is
             false
             in
             the
             Date
             .
             The
             Defender
             answered
             ,
             that
             an
             Heir
             might
             very
             well
             deny
             the
             Date
             of
             a
             Holograph
             Writ
             ,
             otherwise
             the
             whole
             benefit
             of
             the
             Law
             (
             in
             favours
             of
             Heirs
             not
             to
             be
             prejudged
             by
             Deeds
             on
             Death-bed
             )
             may
             be
             evacuat
             by
             Antedated
             Holograph
             Writson
             Death-bed
             .
             The
             Pursuer
             answered
             ,
             that
             he
             was
             willing
             to
             sustain
             the
             Reason
             founded
             on
             Death-bed
             ,
             which
             was
             only
             competent
             by
             Reduction
             ,
             and
             not
             by
             exception
             or
             reply
             .
             The
             Defender
             answered
             ,
             that
             where
             Death-b●d
             is
             instantly
             verified
             by
             presumption
             of
             Law
             ,
             and
             that
             the
             Pursuer
             must
             make
             up
             a
             Write
             ,
             
               in
               rigore
               juris
            
             null
             for
             want
             of
             Witnesses
             ,
             he
             ought
             without
             multiplication
             of
             Processes
             ,
             both
             to
             prove
             the
             Bond
             Holograph
             ,
             and
             of
             a
             Date
             anterior
             to
             the
             Defuncts
             Sickness
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
           
             William
             Duncan
             contra
             the
             Town
             of
             Arbroth
             ,
             November
             17.
             1668.
             
          
           
             
               WIlliam
               Duncan
            
             Skipper
             in
             Dundee
             having
             lent
             the
             Town
             of
             Arbroth
             three
             Cannon
             ,
             in
             Iune
             1651.
             to
             be
             made
             use
             of
             for
             the
             Defence
             of
             their
             Town
             against
             the
             English
             ,
             got
             from
             the
             Magistrats
             of
             Arbroth
             a
             Bond
             of
             this
             Tenor
             (
             that
             they
             did
             acknowledge
             them
             to
             have
             Received
             in
             borrowing
             three
             Guns
             ,
             and
             obliged
             them
             to
             Restore
             the
             same
             within
             24
             ▪
             hours
             after
             they
             were
             Required
             ,
             without
             hurt
             ,
             skaith
             ,
             or
             damnage
             ;
             and
             in
             case
             of
             hurt
             ,
             skaith
             ,
             or
             damnage
             to
             be
             done
             to
             them
             ,
             obliged
             them
             to
             make
             payment
             of
             the
             Sum
             of
             500.
             pounds
             ,
             as
             the
             price
             agreed
             upon
             for
             them
             )
             upon
             this
             Bond
             
               William
               Duncan
            
             pursues
             for
             the
             price
             .
             It
             was
             alleadged
             for
             the
             Town
             of
             Arbroth
             Absolvitor
             ,
             because
             the
             Cannon
             were
             lost
             ,
             
               casu
               fortuito
               &
               vi
            
             majo●i
             in
             so
             far
             as
             the
             English
             ,
             after
             they
             had
             overcome
             the
             whole
             Countrey
             ,
             and
             taken
             Dundee
             ,
             did
             seize
             upon
             their
             Cannon
             after
             the
             Defenders
             had
             carried
             them
             the
             length
             of
             Bar●i-sands
             ,
             before
             they
             were
             taken
             ,
             and
             chaste
             back
             again
             by
             the
             English
             Ships
             ,
             and
             thereupon
             buried
             the
             Cannons
             in
             the
             Sand
             within
             the
             Sea
             Mark
             ,
             and
             hid
             the
             Carriages
             in
             a
             laigh
             Cellar
             ,
             wherein
             they
             were
             covered
             ,
             and
             it
             being
             clear
             by
             the
             Tenor
             and
             Nature
             of
             the
             Bond
             ,
             that
             the
             Guns
             were
             Received
             in
             borrowing
             ,
             and
             that
             it
             was
             
               contractus
               commoda●●
            
             ,
             or
             Loan
             ;
             which
             by
             the
             consent
             of
             all
             Lawyers
             ,
             does
             not
             put
             the
             peril
             of
             
               vis
               major
            
             ,
             or
             
               casus
               fortuitus
            
             upon
             the
             Borrower
             ,
             but
             upon
             the
             Lender
             ,
             who
             is
             
               dominus
               &
               res
               peri●●●●
               Domino
            
             .
             The
             Pursuer
             answered
             ,
             First
             ,
             That
             albeit
             by
             the
             nature
             of
             commodatum
             ,
             the
             Borrower
             hath
             not
             the
             peril
             ,
             yet
             the
             Law
             makes
             this
             exception
             ,
             
               si
               commodatum
               sit
               estimatum
            
             ,
             in
             which
             case
             the
             peril
             is
             the
             Borrowers
             ,
             and
             it
             is
             no
             proper
             Loan
             ,
             but
             rather
             Sale
             ,
             which
             is
             clear
             ,
             
               l.
               5
               〈◊〉
               .
               commodati
            
             ;
             but
             by
             this
             Bond
             it
             is
             evident
             that
             it
             is
             
               commodatum
               estimatum
            
             ,
             and
             here
             not
             only
             a
             value
             agreed
             upon
             ,
             but
             a
             Sum
             expresly
             declared
             to
             be
             the
             price
             .
             2dly
             ,
             There
             is
             no
             question
             but
             Loan
             may
             consist
             with
             that
             ,
             that
             the
             Borrower
             will
             undertake
             all
             peril
             :
             
               Ita
               est
            
             by
             this
             Bond
             the
             Defenders
             are
             obliged
             to
             Restore
             ,
             without
             hurt
             ,
             skaith
             ,
             or
             damnage
             ,
             which
             must
             import
             all
             perils
             ,
             especially
             such
             perils
             as
             was
             then
             imminent
             ,
             viz.
             The
             taking
             of
             the
             Cannons
             by
             the
             Enemy
             ,
             otherwise
             this
             Clause
             should
             operat
             nothing
             ,
             seing
             without
             it
             the
             naked
             naming
             of
             a
             Contract
             would
             oblige
             to
             Restitution
             .
             3dly
             ,
             Albeit
             the
             Borrower
             were
             free
             of
             
               casus
               fortuitus
            
             ,
             yet
             that
             is
             defined
             ,
             and
             understood
             to
             be
             
               qui
               a
               nemine
               potest
               praevideri
            
             ,
             but
             no
             body
             could
             have
             been
             ignorant
             of
             this
             Chance
             ,
             to
             have
             been
             taken
             by
             that
             Enemy
             who
             were
             then
             imminent
             ,
             and
             against
             whom
             particularly
             the
             Cannons
             were
             borrowed
             .
             4thly
             ,
             By
             all
             consents
             ,
             
               commodatarius
               ten●●ur
               ●ro
               levissima
               culpa
               &
               summa
               diligentia
               ,
            
             whereinto
             the
             Defender
             failed
             ;
             for
             they
             alleadged
             only
             an
             attempt
             ,
             for
             carrying
             back
             the
             Cannons
             to
             the
             Pursuer
             ,
             but
             they
             should
             have
             used
             other
             attempts
             ,
             other
             dayes
             ,
             and
             otherwayes
             ;
             and
             likewise
             they
             were
             negligent
             ,
             that
             they
             buried
             the
             Cannon
             to
             the
             knowledge
             of
             their
             whole
             Town
             ,
             whereas
             they
             should
             have
             entrusted
             some
             few
             to
             have
             done
             it
             in
             the
             night
             ;
             likeas
             they
             failed
             in
             this
             ,
             that
             they
             made
             no
             application
             as
             others
             did
             who
             got
             back
             their
             Cannon
             by
             a
             publick
             Proclamation
             by
             the
             Usurper
             ,
             
               that
               all
               Cannons
               taken
               off
               Ships
               should
               be
               Restored
               ,
               to
               enable
               the
               Shipping
               against
               the
            
             Spainard
             and
             Dutch.
             The
             Defender
             answered
             to
             the
             first
             alleadgeance
             ,
             that
             he
             did
             not
             deny
             but
             in
             
               commod●●●
               estimato
            
             ,
             the
             whole
             peril
             was
             upon
             the
             Borrower
             ,
             but
             denyed
             that
             this
             was
             
               commodatum
               estimatum
            
             ,
             for
             all
             Lawyers
             do
             define
             
             
               commodatum
               estimatum
            
             ,
             in
             the
             same
             way
             as
             
               dos
               estimata
            
             ,
             to
             be
             where
             the
             obligation
             is
             alternative
             ,
             either
             to
             Restore
             the
             thing
             borrowed
             ,
             or
             the
             price
             ,
             at
             the
             option
             of
             the
             Borrower
             ,
             so
             that
             the
             Lender
             is
             no
             more
             dominus
             ,
             nor
             can
             demand
             the
             thing
             borrowed
             ,
             which
             becomes
             the
             ●●●rowers
             ,
             unlesse
             he
             please
             to
             give
             it
             back
             ,
             &
             
               res
               perit
               s●o
               d●mino
            
             ,
             but
             where
             the
             value
             is
             only
             liquidat
             in
             case
             of
             deterioration
             ,
             or
             in
             case
             of
             failzie
             ,
             the
             Borrower
             cannot
             free
             himself
             by
             offering
             the
             price
             ,
             but
             the
             Lender
             may
             call
             for
             the
             thing
             ,
             although
             it
             were
             deteriorat
             ,
             but
             here
             the
             liquidation
             of
             the
             price
             is
             only
             in
             case
             of
             deterioration
             ,
             and
             the
             dominion
             is
             unquestionably
             in
             the
             Lender
             .
             To
             the
             second
             ,
             it
             was
             denyed
             that
             the
             Borrower
             had
             here
             undertaken
             the
             peril
             ,
             for
             the
             words
             of
             the
             Contract
             being
             (
             hurt
             ,
             skaith
             ,
             and
             damnage
             )
             in
             the
             proper
             and
             vulgar
             use
             ,
             do
             not
             signifie
             peril
             or
             hazard
             ,
             but
             only
             deterioration
             ,
             and
             have
             this
             equipollent
             positive
             to
             Restore
             the
             Guns
             in
             as
             good
             case
             as
             they
             Receive
             them
             ,
             which
             would
             never
             import
             force
             or
             accident
             ,
             and
             for
             the
             expressing
             of
             that
             Clause
             ,
             nothing
             is
             more
             ordinar
             then
             to
             express
             Clauses
             ,
             
               quae
               natura
               contractus
               insunt
            
             ,
             and
             the
             adjection
             of
             this
             Clause
             may
             have
             these
             uses
             ,
             First
             ,
             It
             liquidats
             the
             value
             ,
             in
             case
             the
             Borrower
             ●ailzie
             ,
             without
             putting
             the
             Lender
             to
             prove
             the
             same
             .
             2dly
             ,
             Whereas
             a
             simple
             Loan
             might
             only
             have
             obliged
             the
             Borrower
             to
             diligence
             ,
             so
             that
             if
             without
             his
             fault
             in
             making
             the
             use
             ,
             for
             which
             the
             thing
             was
             borrowed
             ,
             it
             had
             been
             deteriorat
             and
             lost
             ,
             the
             Borrower
             would
             not
             have
             been
             lyable
             ,
             as
             he
             that
             Lends
             Cloaths
             to
             be
             worn
             ,
             must
             not
             demand
             the
             deterioration
             by
             that
             ordinar
             wearing
             without
             fault
             ,
             or
             ●he
             who
             Lends
             a
             Horse
             to
             a
             Battel
             must
             not
             require
             Reparation
             if
             he
             be
             wounded
             or
             killed
             in
             the
             Battel
             ,
             unlesse
             he
             have
             a
             special
             obligement
             ,
             to
             have
             him
             Restored
             without
             hurt
             ,
             so
             in
             this
             case
             ,
             the
             Parties
             having
             foreseen
             the
             ordinary
             case
             of
             the
             Cannons
             ,
             being
             hurt
             in
             defending
             the
             Town
             ,
             by
             much
             shooting
             ,
             or
             by
             the
             shot
             of
             the
             Enemies
             ,
             hath
             provided
             that
             even
             the
             damnage
             in
             that
             use
             should
             be
             repaired
             ,
             which
             can
             never
             be
             extended
             to
             an
             accidental
             loss
             of
             the
             Cannon
             ,
             not
             in
             defence
             of
             the
             Town
             ,
             but
             after
             the
             Enemy
             had
             over-run
             the
             Nation
             ,
             and
             taken
             Dundee
             ,
             and
             Arbr●th
             was
             Dismantled
             ,
             the
             Cannons
             were
             taken
             out
             of
             the
             Sand.
             To
             the
             third
             ,
             
               casus
               fortuitus
            
             is
             not
             that
             which
             cannot
             be
             foreseen
             to
             be
             possible
             ,
             but
             that
             which
             cannot
             be
             foreseen
             to
             have
             a
             sufficient
             ,
             at
             least
             a
             very
             probable
             Cause
             ,
             otherwise
             there
             should
             be
             no
             
               casus
               fortuitus
            
             ,
             but
             this
             case
             which
             happened
             had
             been
             most
             ominous
             ,
             for
             any
             Scots-man
             to
             have
             supposed
             ,
             as
             most
             probable
             ,
             that
             before
             breaking
             of
             the
             Army
             ,
             or
             the
             English
             coming
             over
             Forth
             ,
             the
             Kingdom
             should
             have
             been
             lost
             .
             To
             the
             fourth
             ,
             the
             Defenders
             were
             no
             wayes
             in
             culpa
             ,
             or
             mora
             ,
             but
             did
             more
             then
             they
             were
             obliged
             ,
             for
             they
             were
             obliged
             to
             Restore
             but
             upon
             demand
             ,
             and
             before
             demand
             they
             endeavoured
             to
             have
             Restored
             ,
             and
             then
             they
             buried
             the
             Cannon
             within
             the
             Sea
             Mark
             in
             the
             night
             ,
             and
             though
             there
             was
             a
             Proclamation
             to
             give
             up
             all
             Armes
             under
             the
             pain
             of
             Death
             ,
             they
             did
             not
             discover
             their
             Cannon
             ,
             albeit
             upon
             their
             discovery
             otherwise
             ,
             one
             of
             their
             Magistrats
             run
             the
             hazard
             of
             his
             Life
             ▪
             and
             as
             for
             the
             Proclamation
             alleadged
             ,
             it
             meets
             not
             this
             case
             ,
             their
             Cannon
             not
             having
             been
             taken
             off
             Ships
             ,
             and
             if
             it
             was
             publick
             the
             Pursuer
             behoved
             equally
             to
             know
             it
             ,
             and
             should
             have
             made
             his
             address
             for
             his
             own
             Cannon
             ,
             neither
             would
             the
             Defenders
             have
             refused
             their
             concourse
             ,
             if
             it
             had
             been
             useful
             ,
             or
             desired
             .
             The
             Pursuer
             opponed
             his
             former
             
             Answers
             ,
             and
             added
             ,
             that
             the
             Law
             cited
             spoke
             expresly
             of
             
               commoda●um
               estimatum
            
             ,
             to
             Transfer
             the
             peril
             on
             the
             borrower
             ;
             and
             there
             is
             no
             Law
             adduced
             to
             restrict
             it
             ,
             not
             to
             take
             place
             in
             that
             which
             is
             estimat
             ,
             only
             in
             the
             case
             of
             Deterioration
             ,
             &
             
               ubi
               lex
               non
               distinguit
               nec
               nos
               :
            
             and
             as
             to
             the
             meaning
             of
             the
             Clause
             ,
             
               in
               dutiis
               interpretatio
               facienda
               est
               contra
               proferentem
               qui
               potuit
               legem
               sibi
               opertius
               dixisse
               .
            
             So
             this
             Bond
             being
             the
             Defenders
             words
             ,
             blame
             himself
             if
             he
             made
             not
             that
             clear
             .
             The
             Defender
             answered
             ,
             that
             albeit
             that
             be
             one
             Rule
             of
             Interpretation
             ,
             yet
             there
             are
             others
             stronger
             making
             for
             him
             ,
             
               viz.
               In
               dubiis
               respondendum
               pro
               reo
               ,
               in
               dubiis
               pars
               mitior
               &
               aequior
               sequenda
               :
            
             Now
             it
             cannot
             be
             thought
             ,
             that
             Parties
             would
             have
             been
             so
             unreasonable
             ,
             as
             to
             have
             demanded
             Restitution
             ,
             if
             the
             Kingdom
             were
             lost
             ,
             and
             the
             Cannon
             taken
             after
             all
             Diligence
             done
             to
             keep
             them
             :
             but
             this
             is
             the
             most
             special
             Rule
             ,
             
               In
               dubiis
               respondendum
               secundum
               naturam
               actus
               ant
               contractus
               .
            
          
           
             The
             Lords
             found
             that
             by
             the
             Nature
             and
             Tenor
             of
             this
             Contract
             ;
             the
             Defenders
             were
             not
             lyable
             for
             this
             Accident
             that
             happened
             ,
             and
             that
             they
             were
             not
             in
             mora
             ,
             nor
             culpa
             ;
             but
             had
             done
             all
             Diligence
             ,
             and
             therefore
             found
             the
             Cannon
             lost
             to
             the
             Pursuer
             and
             Lender
             ,
             and
             Suspended
             the
             Letters
             simpliciter
             .
          
           
             Thereafter
             upon
             pronuncing
             of
             the
             Interlocutor
             .
             The
             Pursuer
             offered
             to
             prove
             by
             the
             Writter
             and
             Witnesses
             insert
             in
             the
             Bond
             ,
             that
             it
             was
             expresly
             Treated
             and
             Agreed
             ,
             and
             that
             the
             meaning
             of
             the
             Clause
             was
             ,
             that
             the
             Defender
             should
             be
             lyable
             to
             all
             hazard
             ,
             and
             desired
             the
             Witnesses
             at
             least
             to
             be
             Examined
             
               ex
               officio
            
             .
             The
             Defender
             alleadged
             that
             the
             Pursuer
             having
             gotten
             a
             Term
             already
             to
             Examine
             Witnesses
             ,
             
               ex
               officio
            
             ;
             and
             the
             Parties
             being
             Examined
             ,
             he
             could
             not
             now
             demand
             a
             new
             Term
             ,
             neither
             could
             a
             clear
             Clause
             in
             a
             Bond
             be
             altered
             by
             Witnesses
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Clause
             was
             at
             best
             but
             dubious
             ;
             and
             so
             the
             meaning
             was
             not
             to
             prove
             against
             the
             Writ
             ,
             but
             to
             clear
             the
             same
             ,
             which
             is
             ordinar
             .
          
           
             The
             Lords
             would
             not
             give
             any
             further
             Term
             for
             leading
             Witnesses
             ,
             but
             found
             that
             alleadgance
             only
             probable
             by
             the
             Oath
             of
             the
             Party
             .
          
        
         
           
             Patrick
             Andrew
             contra
             Robert
             Carse
             .
             November
             25.
             1668.
             
          
           
             
               PAtrick
               Andrew
            
             having
             sold
             twelve
             piece
             of
             Wine
             to
             
               Margaret
               Henderson
            
             ,
             who
             keeped
             a
             Tavern
             after
             she
             was
             Proclaimed
             to
             be
             Married
             to
             
               Robert
               Carse
            
             Flesher
             ,
             a
             part
             of
             which
             Wines
             was
             vented
             before
             the
             Marriage
             ,
             and
             a
             part
             thereof
             vented
             after
             the
             Marriage
             ,
             but
             the
             Marriage
             Dissolving
             within
             three
             or
             four
             Moneths
             by
             the
             Wifes
             Death
             ;
             the
             most
             part
             of
             the
             Wine
             remained
             unsold
             at
             her
             Death
             ;
             the
             Merchand
             pursued
             the
             Wife
             for
             the
             Price
             ,
             and
             the
             Husband
             for
             his
             Interest
             ,
             some
             dayes
             before
             she
             dyed
             ;
             after
             her
             Death
             ,
             her
             Husband
             vented
             no
             more
             of
             the
             Wine
             ,
             but
             caused
             the
             Magistrates
             Inventar
             the
             same
             ,
             and
             delivered
             the
             Keys
             to
             them
             .
             
               Patrick
               Andrew
            
             who
             sold
             the
             Wine
             ,
             doth
             now
             pursue
             
               Robert
               Carse
            
             the
             Husband
             for
             the
             price
             of
             the
             Wines
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             there
             was
             no
             ground
             in
             Law
             to
             make
             him
             lyable
             for
             his
             umquhil
             Wife
             her
             Contract
             and
             Obligement
             
               ex
               Emp●o
            
             ,
             he
             being
             only
             lyable
             
               jure
               mariti
            
             ;
             which
             being
             Dissolved
             by
             her
             Death
             ,
             he
             is
             free
             ,
             for
             he
             is
             neither
             Heir
             nor
             Executor
             to
             her
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Husband
             having
             allowed
             the
             VVife
             to
             continue
             the
             Venting
             of
             the
             VVine
             ,
             she
             was
             thereby
             
               preposita
               negoliis
               mariti
            
             ,
             and
             thereby
             her
             medling
             must
             be
             the
             Husbands
             medling
             ,
             
             who
             must
             be
             lyable
             for
             the
             whole
             price
             ,
             especially
             seing
             he
             never
             made
             offer
             of
             the
             remaining
             VVine
             to
             the
             Pursuer
             ,
             though
             he
             knew
             his
             Interest
             ,
             and
             had
             pursued
             him
             for
             the
             price
             ;
             so
             that
             the
             VVines
             having
             perished
             ,
             it
             must
             be
             attribute
             to
             his
             fault
             ;
             and
             the
             Merchant
             who
             knew
             not
             the
             condition
             thereof
             ,
             cannot
             lose
             the
             same
             .
             2dly
             ,
             The
             Pursuer
             offered
             to
             prove
             that
             the
             Defender
             put
             in
             his
             own
             Nephew
             to
             be
             Taverner
             ,
             after
             he
             Married
             the
             VVoman
             .
             3dly
             ,
             The
             ground
             in
             Law
             that
             the
             Pursuer
             insists
             on
             against
             the
             Husband
             is
             ,
             
               in
               quantum
               lucratus
               est
            
             ,
             by
             his
             Intromission
             with
             the
             VVine
             ,
             and
             price
             thereof
             ,
             and
             any
             thing
             that
             has
             been
             lost
             through
             his
             fault
             ,
             is
             alike
             as
             he
             had
             been
             Profiter
             in
             the
             whole
             .
             The
             Defender
             answered
             ,
             that
             he
             declyned
             not
             to
             be
             lyable
             ,
             in
             so
             far
             as
             he
             was
             Profited
             ,
             viz.
             for
             the
             price
             of
             the
             VVine
             Vented
             during
             the
             Marriage
             ,
             which
             he
             was
             content
             to
             refer
             to
             the
             Pursuers
             Probation
             ,
             how
             much
             was
             Vented
             then
             ,
             but
             he
             could
             not
             be
             lyable
             for
             what
             was
             Vented
             before
             the
             Marriage
             ,
             though
             after
             the
             Proclamation
             ,
             much
             less
             for
             what
             remained
             unsold
             after
             the
             VVifes
             Death
             ;
             neither
             was
             he
             in
             any
             fault
             by
             not
             offering
             the
             VVine
             to
             the
             Pursuer
             ,
             nor
             might
             he
             lawfully
             do
             the
             same
             ,
             because
             the
             Marriage
             Dissolving
             within
             year
             and
             day
             ,
             the
             propertie
             of
             the
             whole
             VVines
             returned
             to
             the
             VVifes
             Executors
             ,
             and
             nearest
             of
             Kin
             ;
             and
             the
             Husband
             had
             no
             interest
             therein
             ,
             as
             he
             would
             have
             had
             if
             the
             Marriage
             had
             continued
             year
             and
             day
             ;
             neither
             had
             the
             Merchant
             any
             right
             to
             the
             Wines
             ,
             (
             the
             property
             whereof
             was
             in
             the
             Wife
             and
             her
             Executors
             )
             but
             had
             only
             a
             personal
             Obligation
             for
             the
             price
             ;
             and
             therefore
             he
             could
             not
             deliver
             the
             Wine
             ,
             nor
             medle
             therewith
             ,
             without
             vitious
             Intromission
             ,
             so
             that
             he
             did
             the
             most
             exact
             Diligence
             by
             Inventaring
             ,
             and
             Delivering
             the
             Keys
             to
             the
             Magistrates
             ;
             so
             that
             there
             being
             ten
             piece
             of
             Wine
             then
             in
             the
             Celler
             ,
             the
             Defender
             could
             only
             be
             lyable
             for
             so
             much
             of
             two
             Piece
             as
             the
             Pursuer
             should
             prove
             sold
             during
             the
             Marriage
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defender
             having
             once
             intrometted
             and
             medled
             with
             this
             parcel
             of
             Wine
             ,
             he
             is
             in
             so
             far
             lucratus
             ,
             and
             he
             can
             no
             more
             sever
             some
             Punsheons
             unspent
             from
             the
             rest
             ,
             nor
             one
             part
             of
             a
             Punsheon
             Vented
             from
             the
             remainder
             :
             so
             that
             he
             can
             offer
             nothing
             back
             of
             the
             parcel
             ,
             
               re
               non
               int●gra
            
             ,
             nor
             can
             he
             alleadge
             that
             the
             whole
             ten
             Piece
             was
             of
             the
             Pursuers
             Wine
             ,
             because
             the
             Pursuer
             offered
             to
             prove
             ,
             that
             this
             Deceast
             Wife
             bought
             other
             Wine
             from
             other
             persons
             at
             that
             time
             ;
             and
             it
             were
             against
             Law
             and
             Reason
             ,
             to
             put
             the
             Merchand
             (
             who
             is
             a
             stranger
             )
             to
             prove
             what
             was
             Vented
             during
             the
             Marriage
             ,
             and
             how
             much
             of
             the
             Pursuers
             Wine
             remained
             after
             the
             Marriage
             ,
             for
             that
             was
             the
             Defenders
             part
             to
             enquire
             ,
             and
             not
             the
             Pursuers
             part
             who
             is
             a
             stranger
             .
          
           
             The
             Lords
             found
             the
             Defender
             not
             lyable
             for
             that
             part
             of
             the
             Wine
             Vented
             before
             the
             Marriage
             ,
             nor
             yet
             for
             what
             remained
             unspent
             after
             the
             Wifes
             death
             ,
             seing
             he
             Inventared
             ,
             and
             abstained
             :
             but
             they
             found
             the
             Husband
             obliged
             to
             prove
             both
             wat
             was
             spent
             before
             the
             Marriage
             ,
             and
             what
             of
             this
             Wine
             remained
             after
             the
             Marriage
             :
             If
             the
             Pursuer
             proved
             there
             was
             other
             Wines
             in
             the
             Celler
             ,
             and
             so
             found
             the
             Defender
             lyable
             fo●
             the
             whole
             ,
             except
             in
             so
             far
             as
             he
             proved
             was
             sold
             before
             the
             Marriage
             ,
             and
             remained
             after
             the
             Wifes
             Death
             .
          
        
         
           
           
             The
             Daughters
             of
             Mr.
             James
             Mortoun
             Supplicant
             .
             November
             26.
             1668.
             
          
           
             THe
             Daughters
             and
             Heirs
             of
             Mr.
             
               Iames
               Mortoun
            
             ,
             gave
             in
             a
             Supplication
             to
             the
             Lords
             ,
             making
             mention
             that
             the
             Father
             being
             Infeft
             in
             an
             Annualrent
             ,
             effeirand
             to
             the
             principal
             sum
             ,
             due
             to
             him
             by
             the
             Lord
             Balcombie
             ,
             they
             did
             thereafter
             obtain
             Decreet
             for
             the
             principal
             sum
             ,
             and
             thereupon
             Appryzed
             the
             Property
             ,
             wherein
             they
             stand
             Infeft
             ,
             holden
             of
             the
             King
             :
             in
             which
             Appryzing
             there
             is
             a
             Reservation
             exprest
             ,
             but
             prejudice
             of
             the
             Infeftment
             of
             Annualrent
             ,
             and
             now
             being
             desirous
             to
             be
             Infeft
             in
             the
             Annualrent
             ,
             as
             Heirs
             to
             their
             Father
             ,
             and
             that
             themselves
             were
             Superiours
             by
             the
             Infeftment
             on
             the
             Appryzing
             ,
             and
             conceived
             it
             not
             proper
             for
             them
             to
             Infeft
             themselves
             ,
             did
             therefore
             desire
             the
             Lords
             to
             grant
             VVarrand
             to
             direct
             Precepts
             forth
             of
             the
             Chancellary
             ,
             for
             the
             King
             to
             Infeft
             them
             .
          
           
             The
             Lords
             having
             considered
             the
             case
             ,
             and
             argued
             the
             matter
             amongst
             themselves
             ,
             whether
             it
             were
             more
             secure
             and
             legal
             ,
             that
             they
             should
             be
             Infeft
             by
             the
             King
             upon
             their
             Supplication
             ;
             or
             that
             they
             as
             having
             Right
             to
             the
             Property
             by
             their
             Infeftment
             on
             the
             Appryzing
             ,
             should
             grant
             Precepts
             for
             Infefting
             themselves
             in
             the
             Annualrent
             ,
             as
             Heirs
             to
             the
             Annualrenter
             :
             or
             whether
             their
             Infeftment
             in
             the
             Superiority
             would
             consolidat
             the
             Annualrent
             without
             Infeftment
             :
             The
             difficulty
             against
             the
             Kings
             Infefting
             of
             them
             was
             ,
             that
             the
             King
             Infefts
             none
             but
             these
             that
             holds
             immediatly
             of
             Him
             ,
             or
             upon
             the
             disobedience
             of
             the
             immediat
             Superiour
             ,
             
               supplendo
               vices
            
             .
          
           
             To
             which
             it
             was
             answered
             ,
             that
             the
             King
             may
             supply
             the
             place
             of
             the
             immediat
             Superiour
             ,
             either
             when
             he
             will
             not
             ,
             or
             cannot
             Infeft
             his
             Vassal
             ,
             and
             the
             Petitioners
             conceive
             that
             in
             this
             case
             they
             cannot
             :
             and
             both
             being
             extraordinary
             Remeeds
             ,
             the
             Lords
             may
             do
             the
             same
             ,
             and
             have
             done
             it
             in
             former
             Cases
             .
             The
             difficulty
             as
             to
             Infefting
             themselves
             was
             ,
             that
             the
             Right
             of
             Property
             ,
             and
             
               jus
               nobilius
            
             ,
             did
             extinguish
             the
             Right
             of
             Annualrent
             ;
             and
             yet
             the
             Right
             of
             Property
             may
             be
             Reduced
             ,
             and
             then
             they
             would
             be
             necessitat
             to
             Defend
             themselves
             by
             the
             Annualrent
             ;
             and
             therefore
             it
             is
             not
             an
             absolute
             Extinction
             ,
             but
             
               in
               tali
               casu
            
             ;
             and
             therefore
             they
             have
             reserved
             the
             same
             in
             the
             Appryzing
             .
             The
             difficulty
             as
             to
             the
             third
             way
             was
             ,
             that
             if
             the
             Right
             of
             Superiority
             should
             be
             Reduced
             ,
             they
             should
             be
             without
             Infeftment
             at
             all
             .
          
           
             The
             Lords
             found
             that
             they
             might
             either
             Infeft
             themselves
             by
             their
             own
             Precept
             ,
             or
             might
             get
             Precepts
             from
             the
             King
             ,
             as
             was
             desired
             ,
             
               periculo
               petentium
            
             ,
             or
             they
             might
             make
             use
             of
             both
             together
             .
          
        
         
           
             Mr.
             Alexander
             Seaton
             contra
             George
             Seaton
             of
             Menzies
             .
             December
             2.
             1668.
             
          
           
             MR.
             
               Alexander
               Seaton
            
             ,
             Heir
             and
             Executor
             to
             
               Iames
               Seaton
            
             his
             Brother
             ,
             pursues
             
               George
               Seaton
            
             as
             Heir
             to
             his
             Father
             
               Iames
               Seaton
            
             ,
             for
             making
             his
             Fathers
             Tutor
             Accompts
             ,
             as
             being
             Tutor
             to
             the
             Pursuers
             Brother
             ,
             and
             for
             instructing
             that
             he
             was
             Tutor
             ,
             produced
             several
             Writs
             Subscribed
             by
             him
             ,
             as
             Tutor
             Testamentar
             .
             The
             Defender
             alleadged
             :
             First
             ,
             That
             the
             condescendence
             was
             not
             relevant
             to
             Instruct
             the
             Defenders
             Father
             Tutor
             ,
             unless
             the
             Testament
             whereby
             he
             was
             nominat
             were
             produced
             ;
             otherwayes
             his
             acknowledgement
             can
             only
             make
             him
             but
             
             Pro-tutor
             ,
             and
             so
             not
             lyable
             for
             all
             omissions
             ,
             and
             no
             sooner
             lyable
             ,
             then
             after
             the
             date
             of
             these
             Writs
             .
             2dly
             ,
             Albeit
             the
             Defenders
             Father
             had
             been
             Tutor
             ,
             yet
             by
             the
             Writs
             produced
             ,
             it
             is
             evident
             that
             he
             was
             but
             one
             of
             more
             Tutors
             ;
             and
             therefore
             no
             Process
             against
             him
             ,
             till
             they
             be
             all
             called
             .
             The
             Pursuer
             answered
             ,
             that
             the
             acknowledgement
             to
             have
             been
             Tutor
             was
             sufficient
             against
             him
             ,
             who
             Subscribed
             the
             same
             :
             and
             that
             there
             was
             no
             necessity
             to
             call
             all
             the
             rest
             ,
             seing
             the
             whole
             Tutors
             were
             lyable
             
               in
               solidum
            
             ,
             and
             as
             ordinarly
             parties
             bound
             conjunctly
             and
             severally
             ,
             may
             be
             conveened
             conjunctly
             or
             severally
             ,
             so
             may
             Tutors
             ,
             who
             as
             others
             may
             except
             upon
             the
             performance
             of
             other
             Tutors
             as
             well
             as
             their
             own
             ;
             neither
             is
             the
             case
             of
             Tutors
             alike
             with
             Cautioners
             ,
             who
             are
             not
             lyable
             
               in
               solidum
            
             ;
             for
             Tutors
             as
             they
             are
             lyable
             conjunctly
             and
             severally
             for
             the
             whole
             Office
             ,
             so
             are
             they
             conveenable
             conjunctly
             and
             severally
             for
             the
             same
             .
          
           
             The
             Lords
             Repelled
             the
             first
             alleadgance
             ,
             and
             found
             the
             Writs
             produced
             instructed
             the
             Defenders
             Father
             Tutor
             ,
             and
             not
             only
             Pro-tutor
             ;
             for
             if
             the
             Testament
             had
             been
             produced
             ,
             shewing
             other
             Tutors
             ,
             so
             that
             the
             Acknowledger
             could
             not
             have
             been
             
               tutor
               testamentar
            
             ,
             it
             would
             have
             made
             him
             but
             Pro-Tutor
             ,
             but
             that
             not
             being
             ,
             it
             instructed
             him
             Tutor
             .
             As
             to
             the
             other
             point
             ,
             in
             respect
             the
             Tutor
             was
             dead
             ,
             and
             his
             Heir
             only
             but
             conveened
             ,
             who
             could
             not
             know
             the
             Administration
             ,
             the
             Lords
             would
             not
             sustain
             Process
             ,
             till
             they
             were
             also
             called
             .
          
        
         
           
             Agnes
             Goodlat
             contra
             George
             Nairn
             .
             December
             8.
             1668.
             
          
           
             
               AGnes
               Goodlat
            
             as
             representing
             the
             umquhil
             Wife
             of
             
               George
               Nairn
            
             ,
             pursues
             for
             the
             third
             of
             the
             Moveables
             belonging
             to
             him
             the
             time
             of
             his
             Wifes
             Decease
             .
             It
             was
             alleadged
             for
             the
             Husband
             ,
             that
             before
             Division
             ,
             the
             Heirship
             moveable
             behoved
             to
             be
             drawn
             .
             It
             was
             answered
             ,
             that
             there
             could
             be
             no
             Heirship
             of
             a
             man
             that
             was
             living
             ,
             It
             was
             answered
             ,
             that
             albeit
             there
             was
             no
             actual
             Heirship
             ,
             yet
             the
             best
             of
             every
             kind
             was
             Heirship
             Moveable
             ,
             wherein
             the
             Wife
             had
             no
             Interest
             .
          
           
             Which
             the
             Lords
             sustained
             ;
             and
             Ordained
             the
             Heirship
             to
             be
             first
             drawn
             .
          
        
         
           
             Earl
             of
             Argile
             contra
             George
             Stirling
             .
             December
             9.
             1668.
             
          
           
             THe
             Earl
             of
             Argile
             having
             pursued
             
               George
               Stirling
            
             to
             Remove
             ,
             he
             alleadged
             Absolvitor
             ,
             because
             he
             stood
             Infeft
             on
             an
             Appryzing
             .
             It
             was
             Replyed
             ,
             that
             the
             Appryzing
             and
             Infeftment
             could
             not
             defend
             him
             ,
             because
             the
             Person
             from
             whom
             he
             Appryzed
             ,
             being
             a
             Vassal
             of
             the
             Earl
             of
             Argiles
             ,
             and
             his
             Right
             not
             being
             Confirmed
             by
             the
             King
             ,
             the
             same
             could
             not
             exclude
             the
             Pursuer
             ,
             the
             Kings
             Donator
             ,
             and
             the
             Appryzer
             could
             be
             in
             no
             better
             case
             then
             his
             Author
             .
             The
             Defender
             Duplyed
             ,
             that
             he
             was
             in
             better
             case
             ,
             because
             he
             being
             Infeft
             by
             the
             King
             before
             the
             Pursuers
             Gift
             ,
             when
             the
             King
             had
             both
             Superiority
             and
             Property
             ,
             it
             is
             equivalent
             to
             him
             ,
             as
             if
             the
             King
             had
             Confirmed
             his
             Authors
             Right
             .
             It
             was
             answered
             ,
             that
             Infeftments
             upon
             Appryzings
             that
             pass
             in
             Course
             ,
             and
             are
             not
             noticed
             in
             Exchequer
             ,
             cannot
             prejudge
             the
             King
             ,
             and
             take
             away
             the
             benefit
             of
             the
             Gift
             ,
             which
             must
             pass
             by
             a
             several
             Signature
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             Repelled
             the
             Defense
             and
             Duply
             ,
             and
             Decerned
             .
          
        
         
           
           
             Scot
             contra
             Aitoun
             .
             December
             11.
             1668.
             
          
           
             MR.
             
               Iames
               Aitoun
            
             having
             Disponed
             the
             Lands
             of
             Grainge
             ,
             with
             the
             burden
             of
             12000.
             
             Merks
             ,
             to
             be
             payed
             to
             his
             Daughters
             .
             
               Iohn
               Scot
            
             having
             Married
             one
             of
             the
             Daughters
             ,
             in
             their
             Contract
             of
             Marriage
             ,
             the
             Daughter
             
               Anna
               Aitoun
            
             Assigns
             her
             part
             of
             the
             12000.
             
             Merks
             to
             her
             future
             Spouse
             ,
             and
             in
             the
             same
             Contract
             he
             acknowledgeth
             the
             Receipt
             of
             the
             Money
             from
             Mr.
             
               Robert
               Aitoun
            
             the
             Debitor
             ;
             and
             therefore
             ,
             with
             consent
             of
             the
             said
             Anna
             ,
             Discharges
             the
             said
             Mr.
             Robert
             by
             a
             Contract
             of
             the
             same
             Date
             ,
             betwixt
             
               Iohn
               Scot
            
             and
             Mr.
             Robert
             ,
             relating
             the
             Contract
             of
             Marriage
             ,
             but
             acknowledges
             there
             was
             no
             Sums
             payed
             for
             the
             Discharge
             contained
             in
             the
             said
             Contract
             ,
             but
             that
             the
             Security
             contained
             in
             this
             Contract
             was
             granted
             therefore
             ;
             and
             therefore
             he
             gives
             a
             new
             Heretable
             Security
             to
             
               Iohn
               Scot
            
             ,
             the
             Marriage
             Dissolves
             within
             year
             and
             day
             ,
             by
             the
             Death
             of
             the
             said
             Anna
             ,
             without
             Children
             ;
             she
             in
             her
             Testament
             names
             the
             said
             
               Iohn
               Scot
            
             her
             Husband
             ,
             her
             Executor
             and
             universal
             Legator
             .
             
               George
               Scot
            
             as
             Representing
             his
             Father
             ,
             pursues
             Aitoun
             of
             Inchderne
             ,
             as
             Representing
             his
             Father
             ,
             for
             the
             Sum
             contained
             in
             the
             Contract
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuers
             ,
             and
             his
             Fathers
             Right
             flowing
             from
             the
             Marriage
             ,
             and
             it
             Dissolving
             within
             year
             and
             day
             ,
             his
             Right
             ceaseth
             ,
             and
             farther
             alleadged
             that
             all
             things
             were
             now
             in
             the
             same
             condition
             as
             before
             the
             Marriage
             ,
             so
             that
             the
             Contract
             of
             Marriage
             was
             void
             ,
             and
             the
             Discharge
             granted
             in
             the
             first
             Security
             was
             void
             ;
             and
             the
             first
             Security
             being
             Heretable
             ,
             belongs
             to
             Anna's
             Executors
             ,
             from
             whom
             the
             Defender
             has
             Right
             by
             Assignation
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defense
             is
             no
             wayes
             Relevant
             ;
             because
             though
             the
             Marriage
             Dissolved
             within
             year
             and
             day
             ,
             and
             that
             thereby
             the
             Tocher
             and
             Jointure
             became
             void
             ;
             yet
             what
             was
             Acted
             in
             Relation
             to
             Mr.
             
               Robert
               Aitoun
            
             ,
             who
             was
             a
             third
             Party
             ,
             viz.
             the
             Discharge
             and
             Renunciation
             of
             the
             first
             Security
             stands
             valid
             as
             to
             him
             :
             for
             if
             the
             Lands
             burdened
             had
             been
             sold
             to
             any
             other
             ,
             that
             burden
             being
             once
             Discharged
             and
             Renunced
             ,
             could
             never
             affect
             them
             ,
             so
             that
             whatever
             is
             in
             a
             Contract
             Matrimonial
             ,
             Extrinsick
             and
             relating
             to
             third
             Parties
             is
             valid
             ,
             and
             the
             acknowledgment
             of
             the
             Money
             contained
             in
             the
             Contract
             ,
             is
             at
             least
             acceptilatio
             ,
             which
             extinguisheth
             the
             first
             Security
             in
             the
             same
             way
             ,
             as
             if
             real
             payment
             had
             been
             made
             :
             in
             place
             of
             which
             payment
             standeth
             the
             new
             Security
             granted
             to
             the
             Husband
             ,
             so
             that
             now
             there
             is
             neither
             Debitum
             nor
             Creditum
             betwixt
             
               Anna
               Aitoun
            
             and
             umquhil
             Mr.
             
               Robert
               Aitoun
            
             ,
             or
             their
             Representatives
             :
             but
             by
             the
             Dissolution
             of
             the
             Marriage
             ,
             the
             Husband
             and
             his
             Heirs
             becomes
             lyable
             to
             pay
             the
             Tocher
             ,
             but
             not
             to
             the
             Wifes
             Heirs
             ,
             but
             to
             her
             Executors
             ,
             for
             the
             Tocher
             being
             payed
             or
             satisfied
             ,
             and
             the
             old
             Security
             taken
             away
             ,
             the
             Husbands
             obligement
             to
             pay
             ,
             is
             clearly
             moveable
             ,
             and
             so
             belongs
             to
             the
             Pursuer
             as
             Executor
             ,
             and
             universal
             Legator
             to
             his
             Wife
             ,
             and
             not
             to
             the
             Wifes
             Heirs
             ,
             or
             the
             Defender
             who
             has
             Right
             from
             them
             .
             The
             Defender
             answered
             ,
             that
             the
             Tocher
             never
             having
             been
             uplifted
             ,
             but
             remaining
             in
             the
             same
             Debitors
             hands
             as
             before
             the
             Marriage
             ,
             
               omnia
               redeunt
               in
               pristinum
               statum
            
             ,
             and
             the
             Discharge
             granted
             to
             the
             Debitor
             in
             Contemplation
             of
             the
             Marriage
             ,
             is
             also
             void
             ;
             so
             that
             if
             the
             Husband
             had
             Died
             and
             the
             Wife
             Survived
             ,
             if
             she
             had
             pursued
             Mr.
             
               Robert
               Aitoun
            
             upon
             the
             first
             Security
             ,
             and
             if
             he
             had
             Defended
             upon
             the
             Discharge
             contained
             in
             the
             Contract
             of
             Marriage
             ,
             he
             would
             have
             been
             Excluded
             by
             this
             Reply
             ,
             that
             that
             Discharge
             being
             granted
             in
             Contemplation
             of
             the
             Marriage
             ,
             is
             now
             void
             by
             the
             Dissolution
             thereof
             within
             year
             and
             day
             ;
             especially
             seing
             the
             Debt
             yet
             remains
             in
             the
             Debitors
             
             hand
             .
             2dly
             .
             The
             Defender
             alleadged
             that
             the
             Discharge
             ,
             though
             it
             were
             valide
             ,
             was
             not
             
               habilis
               modus
            
             ,
             to
             extinguish
             the
             first
             Security
             ,
             being
             a
             real
             Right
             .
             3dly
             ,
             That
             the
             new
             Security
             granted
             to
             the
             Husband
             being
             Heretable
             ,
             and
             the
             Husbands
             therein
             ceasing
             ,
             it
             accresceth
             to
             the
             Wife
             ,
             as
             if
             it
             had
             been
             granted
             to
             her
             ,
             and
             so
             can
             only
             belong
             to
             the
             Defender
             ,
             as
             having
             Right
             from
             her
             Heirs
             ,
             and
             not
             to
             the
             Pursuer
             ,
             as
             being
             her
             Executor
             .
             The
             Pursuer
             answered
             that
             the
             first
             Security
             was
             totally
             extinct
             by
             Acceptilation
             ,
             and
             by
             the
             Discharge
             thereof
             granted
             to
             the
             Debitor
             in
             the
             Contract
             of
             Marriage
             ;
             and
             though
             the
             Wife
             had
             Survived
             and
             pursued
             the
             Debitor
             ,
             and
             he
             had
             excepted
             upon
             the
             Discharge
             ,
             her
             Reply
             upon
             the
             Dissolution
             of
             the
             Marriage
             would
             not
             have
             been
             Sustained
             to
             annul
             the
             Discharge
             ;
             because
             whatever
             might
             have
             been
             done
             ,
             if
             the
             Debitor
             could
             pretend
             no
             Damnage
             or
             Interest
             ▪
             Yet
             where
             the
             Debitor
             had
             granted
             a
             new
             Security
             to
             the
             Husband
             ,
             which
             could
             never
             be
             taken
             away
             without
             the
             Discharge
             ,
             and
             Renunciation
             of
             the
             Husbands
             Heirs
             ,
             the
             Debitor
             could
             never
             be
             Decerned
             to
             pay
             the
             Wife
             ,
             so
             long
             as
             the
             Security
             to
             the
             Husband
             stood
             :
             which
             Security
             could
             never
             accresce
             to
             the
             Wife
             ,
             at
             least
             could
             never
             so
             accresce
             ,
             as
             to
             make
             it
             an
             Heretable
             Security
             to
             the
             Wife
             ,
             but
             she
             could
             only
             have
             Right
             of
             Repetition
             against
             the
             Husband
             :
             And
             the
             question
             being
             here
             concerning
             the
             changing
             of
             the
             condition
             of
             a
             Sum
             from
             Heretable
             to
             Moveable
             ,
             as
             a
             Requisition
             or
             Charge
             during
             the
             Marriage
             would
             have
             made
             the
             Sum
             Moveable
             ,
             
               multo
               magis
            
             ,
             an
             Innovation
             and
             Acceptilation
             by
             a
             Discharge
             and
             new
             Security
             :
             And
             whereas
             it
             was
             alleadged
             that
             the
             Discharge
             was
             not
             
               habilis
               modus
            
             .
             It
             was
             answered
             that
             this
             Sum
             not
             being
             secured
             by
             an
             Infeftment
             of
             Annualrent
             or
             Wodset
             ,
             but
             only
             by
             a
             Provision
             ,
             burdening
             another
             Infeftment
             of
             Property
             with
             the
             Sum
             ,
             there
             needed
             no
             Resignation
             but
             the
             Discharge
             and
             Renunciation
             is
             sufficient
             .
          
           
             The
             Lords
             found
             the
             first
             Security
             to
             be
             wholly
             taken
             away
             by
             the
             Discharge
             contained
             in
             the
             Contract
             of
             Marriage
             ,
             which
             they
             found
             valid
             as
             being
             granted
             to
             a
             third
             Party
             ,
             notwithstanding
             of
             the
             Dissolution
             of
             the
             Marriage
             ;
             and
             therefore
             found
             it
             to
             belong
             to
             the
             Husband
             ,
             as
             having
             Right
             to
             the
             new
             Security
             ,
             and
             as
             Executor
             to
             his
             Wife
             ,
             and
             not
             to
             the
             Defender
             as
             having
             Right
             from
             the
             Heirs
             .
          
        
         
           
             Mary
             Winrham
             contra
             Mr.
             Iames
             Eleis
             .
             December
             15.
             1668.
             
          
           
             
               JAmes
               Murray
            
             of
             Deuchar
             having
             Married
             his
             Daughter
             to
             
               Iames
               Eleis
            
             of
             Stenopmil●
             ,
             leaves
             to
             the
             seven
             Sons
             of
             the
             Marriage
             beside
             the
             Heir
             ,
             7000.
             
             Merks
             ,
             and
             the
             Portion
             of
             the
             Deceasing
             to
             accresce
             to
             the
             Surviving
             ;
             which
             Sum
             was
             uplifted
             by
             
               Iames
               Eleis
            
             who
             in
             his
             Testament
             nominats
             his
             eldest
             Son
             and
             Heir
             ,
             his
             Executor
             and
             universal
             Legator
             ,
             and
             ordains
             him
             to
             pay
             all
             his
             Debts
             out
             of
             the
             first
             end
             of
             his
             Moveables
             ,
             and
             then
             leaves
             9000.
             
             Merks
             to
             Patrick
             his
             second
             Son
             ,
             in
             satisfaction
             of
             all
             that
             he
             might
             succeed
             to
             by
             the
             Decease
             of
             the
             Testator
             his
             Father
             :
             
               Margaret
               Winrham
            
             ,
             Relict
             and
             Executrix
             Creditrix
             to
             her
             Husband
             ,
             obtained
             a
             Decreet
             before
             the
             Commissars
             ,
             against
             Mr.
             
               Iames
               Eleis
            
             ,
             who
             Suspends
             on
             this
             Reason
             ,
             that
             Patricks
             Legacy
             of
             9000.
             
             Merks
             ,
             being
             in
             full
             satisfaction
             of
             all
             he
             could
             demand
             by
             his
             Fathers
             Death
             ,
             must
             be
             understood
             in
             Satisfaction
             of
             the
             said
             Legacy
             ,
             left
             by
             
               Iames
               Murray
            
             ,
             which
             being
             lifted
             by
             
               Iames
               Eleis
            
             the
             Testator
             ,
             and
             so
             becomes
             his
             Debt
             ,
             
               debitor
               non
               praesumitur
               donare
               .
               2dly
               ,
            
             The
             Commissars
             Decreet
             is
             most
             unjust
             ,
             in
             Decerning
             Annualrent
             
             where
             there
             was
             none
             due
             by
             Paction
             ,
             the
             Sum
             being
             but
             a
             Legacy
             which
             never
             bears
             Annualrent
             .
             The
             Charger
             answered
             to
             the
             first
             ,
             that
             the
             Brokard
             
               debitor
               non
               praesumitur
               donare
            
             ,
             holds
             not
             in
             many
             cases
             ,
             especially
             in
             Provisions
             of
             Children
             by
             their
             Fathers
             ,
             who
             are
             obliged
             
               jure
               naturae
               &
               ex
               pletate
               pate●na
               ,
            
             to
             provide
             them
             .
             And
             in
             this
             Testament
             ,
             the
             Executor
             is
             appointed
             to
             pay
             all
             the
             Debts
             without
             any
             exception
             of
             this
             or
             any
             other
             ,
             and
             the
             Testator
             had
             a
             plentiful
             Estate
             ,
             it
             can
             no
             ways
             be
             thought
             that
             both
             the
             Legacy
             and
             this
             Sum
             in
             question
             ,
             was
             too
             great
             a
             Portion
             to
             his
             second
             Son
             ;
             as
             for
             the
             Annualrent
             ,
             the
             Father
             being
             Tutor
             ,
             and
             lawful
             Administrator
             to
             his
             Son
             ,
             ought
             to
             have
             imployed
             it
             profitably
             ,
             and
             no
             doubt
             did
             ,
             being
             a
             most
             provident
             man.
             It
             was
             answered
             ,
             that
             the
             Son
             never
             having
             insisted
             for
             this
             Sum
             ,
             nor
             having
             ever
             demanded
             Annualrent
             during
             his
             Fathers
             Life
             .
             It
             is
             an
             evidence
             he
             acquiesced
             to
             his
             Fathers
             Provision
             ,
             and
             cannot
             seek
             Annualrent
             against
             his
             Fathers
             Executors
             ,
             his
             Father
             having
             Alimented
             him
             ,
             neither
             is
             he
             lyable
             for
             that
             rigor
             that
             other
             Tutors
             are
             .
          
           
             The
             Lords
             Repelled
             the
             Reasons
             as
             to
             the
             principal
             Sum
             ,
             and
             found
             that
             the
             Fathers
             Legacy
             was
             not
             in
             satisfaction
             of
             the
             Grand-Fathers
             Legacy
             ;
             but
             found
             no
             Annualrent
             due
             ,
             but
             Suspended
             the
             Letters
             simpliciter
             as
             to
             Annualrent
             .
          
        
         
           
             Sir
             Alexander
             Frazer
             contra
             Alexander
             Keith
             .
             December
             16.
             1668.
             
          
           
             SIr
             
               Alexander
               Frazer
            
             Doctor
             of
             medecine
             having
             purchased
             the
             Lands
             of
             M●ekelty
             from
             
               Andrew
               Frazer
            
             ,
             who
             had
             Appryzed
             the
             same
             from
             
               Alexander
               Keith
            
             ,
             pursues
             a
             Declarator
             of
             the
             expiring
             of
             the
             Appryzing
             ,
             and
             of
             his
             Right
             of
             the
             Lands
             thereby
             .
             It
             was
             alleadged
             for
             
               Alexander
               Keith
            
             ,
             that
             he
             had
             Depending
             Actions
             of
             Reduction
             against
             the
             Grounds
             of
             the
             Appryzing
             ,
             and
             thereupon
             alleadged
             ,
             that
             the
             saids
             Sums
             were
             satisfied
             before
             the
             Appryzing
             ,
             at
             least
             by
             the
             Pursuer
             or
             his
             Authors
             Intromissions
             with
             the
             Rents
             of
             the
             Appryzed
             Lands
             within
             ten
             years
             after
             the
             Deducing
             thereof
             :
             During
             which
             time
             the
             Legal
             was
             unexpired
             by
             the
             late
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             whereby
             the
             Legal
             of
             Appryzings
             ,
             led
             since
             1652.
             are
             prorogat
             for
             three
             years
             .
             And
             as
             to
             the
             first
             point
             ,
             he
             alleadged
             that
             the
             ground
             of
             the
             Appryzing
             being
             a
             minut
             of
             Alienation
             betwixt
             the
             said
             
               Alexander
               Keith
            
             and
             
               Andrew
               Frazer
            
             ,
             whereby
             Andrew
             Dispones
             the
             Lands
             of
             Miekeltie
             and
             Stranduff
             to
             the
             Defender
             ,
             the
             Tenor
             of
             which
             minute
             is
             ,
             that
             the
             said
             Andrew
             obliges
             himself
             to
             Infeft
             and
             Secure
             the
             said
             Alexander
             in
             the
             said
             Lands
             ,
             and
             to
             purge
             all
             Incumberances
             thereupon
             ;
             and
             that
             the
             price
             shall
             not
             be
             payable
             till
             the
             said
             Alexander
             be
             put
             in
             Possession
             .
             There
             is
             also
             a
             Commission
             therein
             granted
             to
             the
             Defender
             ,
             to
             purchase
             two
             expired
             Appryzings
             ,
             and
             to
             satisfie
             any
             other
             Incumberances
             ,
             and
             to
             Serve
             the
             said
             Andrew
             Heir
             to
             
               Thomas
               Frazer
            
             his
             Father
             ,
             and
             to
             obtain
             the
             said
             Andrew
             Infeft
             as
             Heir
             to
             his
             Father
             ,
             and
             likewise
             the
             Defender
             himself
             in
             the
             Lands
             ;
             so
             that
             the
             Right
             the
             Disponer
             had
             ,
             being
             only
             a
             back
             Bond
             granted
             by
             Frazer
             to
             Staniwood
             ,
             thereafter
             Lord
             Frazer
             ,
             by
             which
             he
             obliged
             himself
             ,
             to
             Denude
             himself
             of
             the
             Lands
             of
             Mickeltie
             ,
             in
             favours
             of
             the
             said
             Andrew
             Disponer
             :
             Which
             back
             Bond
             was
             Appryzed
             by
             the
             two
             expired
             Appryzings
             ,
             but
             could
             not
             reach
             the
             Lands
             of
             Stranduff
             ,
             because
             Staniwood
             was
             not
             Infeft
             therein
             ,
             nor
             did
             the
             back
             Bond
             bear
             the
             same
             ,
             and
             therefore
             the
             Defender
             was
             necessitat
             to
             purchase
             the
             Right
             of
             a
             third
             Appryzing
             ,
             led
             at
             the
             Instance
             of
             Craigivar
             against
             
               Andrew
               Frazer
            
             the
             Disponer
             ,
             as
             lawfully
             Charged
             to
             Enter
             Heir
             to
             
               Thomas
               
               Frazer
            
             his
             Father
             ,
             who
             died
             last
             Infeft
             in
             the
             Lands
             of
             Stranduff
             ,
             and
             which
             would
             have
             excluded
             any
             Right
             that
             the
             Defender
             had
             from
             
               Andrew
               Frazer
            
             ,
             especially
             seing
             the
             Sum
             on
             which
             Craigivars
             Appryzing
             proceeded
             ,
             was
             a
             Debt
             due
             by
             the
             said
             
               Thomas
               Frazer
            
             to
             
               William
               Frazer
            
             ,
             which
             
               William
               Frazer
            
             raised
             a
             Pursuit
             thereupon
             ,
             against
             the
             said
             
               Andrew
               Frazer
            
             ,
             as
             Representing
             Thomas
             his
             Father
             ,
             and
             raised
             Inhibition
             upon
             a
             Dependence
             ;
             which
             Inhibition
             is
             Execute
             and
             Registrate
             against
             
               Andrew
               Frazer
            
             ,
             before
             he
             Disponed
             the
             Lands
             :
             after
             which
             Dependence
             ,
             the
             matter
             being
             referred
             to
             Arbiters
             ,
             they
             Decerned
             
               Andrew
               Frazer
            
             to
             pay
             to
             the
             said
             
               William
               Frazer
            
             two
             thousand
             merks
             out
             of
             the
             first
             and
             readiest
             of
             the
             price
             of
             Miekeltie
             ,
             due
             by
             the
             Defender
             
               Alexander
               Keith
            
             ,
             or
             out
             of
             any
             other
             Goods
             or
             Sums
             belonging
             to
             the
             said
             Andrew
             :
             so
             that
             the
             Decreet
             Arbitral
             upon
             the
             Submission
             being
             in
             the
             same
             Terms
             ,
             was
             equivalent
             to
             an
             Assignation
             or
             a
             Precept
             ;
             and
             the
             Defender
             
               Alexander
               Keith
            
             satisfying
             that
             Sum
             ,
             it
             is
             in
             effect
             payment
             of
             so
             much
             of
             the
             price
             ,
             and
             Craigivars
             Appryzing
             proceeding
             on
             that
             same
             Sum
             ,
             it
             was
             most
             necessar
             for
             the
             Defender
             to
             Acquire
             that
             Appryzing
             ,
             as
             proceeding
             upon
             a
             Right
             ,
             whereupon
             Inhibition
             was
             used
             before
             the
             Minute
             ,
             and
             upon
             a
             Decreet
             Arbitral
             ,
             in
             effect
             Assigning
             
               William
               Frazer
            
             to
             so
             much
             of
             the
             Sum
             ,
             due
             by
             
               Alexander
               Keith
            
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defenders
             alleadgence
             ought
             to
             be
             Repelled
             ;
             because
             the
             Acquiring
             of
             Craigivars
             Appryzing
             was
             altogether
             needless
             ,
             and
             no
             way
             warranted
             by
             the
             Minute
             ,
             and
             so
             cannot
             exhaust
             the
             price
             ,
             because
             that
             Appryzing
             was
             led
             10.
             years
             after
             the
             Minute
             ,
             and
             the
             Defender
             having
             accepted
             a
             Commission
             to
             do
             all
             things
             necessar
             for
             Establishing
             of
             his
             own
             Right
             ,
             he
             ought
             to
             have
             Served
             the
             Disponer
             Heir
             to
             his
             Father
             ,
             and
             to
             have
             Infeft
             him
             in
             
               Stranduff
               ▪
            
             and
             to
             have
             Infeft
             himself
             upon
             the
             Disponers
             Resignation
             :
             Or
             if
             he
             had
             found
             that
             the
             Lands
             were
             Disponed
             to
             Frazer
             of
             Staniwood
             upon
             Trust
             ,
             he
             ought
             to
             have
             procured
             the
             same
             ,
             to
             have
             been
             Established
             in
             his
             Person
             ,
             as
             coming
             in
             the
             place
             of
             
               Andrew
               Frazer
            
             ,
             to
             whose
             behove
             the
             Trust
             was
             ,
             which
             would
             for
             ever
             have
             Excluded
             Craigivars
             Appryzing
             ,
             being
             long
             posterior
             to
             the
             Defenders
             Commission
             contained
             in
             the
             Minute
             ;
             so
             that
             it
             was
             his
             own
             fault
             ,
             that
             he
             suffered
             another
             to
             Appryze
             :
             neither
             could
             the
             Inhibition
             have
             prejudged
             him
             ,
             though
             prior
             to
             the
             Minut
             ,
             in
             respect
             it
             was
             upon
             a
             Dependence
             ,
             upon
             which
             ,
             no
             Decreet
             in
             favours
             of
             the
             Inhibiter
             ,
             could
             ever
             follow
             ,
             the
             Cause
             being
             Extinct
             by
             Transaction
             and
             Decreet
             Arbitral
             ;
             neither
             is
             there
             any
             Process
             Extant
             ,
             neither
             is
             the
             Decreet
             Arbitral
             equivalent
             to
             an
             Assignation
             and
             Precept
             ,
             because
             it
             doth
             not
             Decern
             
               Andrew
               Frazer
            
             to
             Assign
             the
             Sum
             due
             by
             the
             Defender
             ,
             nor
             doth
             it
             declare
             that
             that
             Sum
             shall
             belong
             to
             him
             ,
             but
             only
             Decerns
             
               Andrew
               Frazer
            
             to
             pay
             out
             of
             Keiths
             Sum
             ,
             or
             any
             other
             ;
             so
             that
             thereupon
             no
             Action
             could
             have
             been
             effectual
             against
             Keith
             ,
             to
             pay
             the
             Sum
             ,
             but
             only
             against
             Frazer
             himself
             .
             The
             Defender
             answered
             ,
             that
             albeit
             no
             Sentence
             of
             a
             Judge
             proceeded
             upon
             the
             Dependence
             ,
             the
             Sentence
             of
             the
             Arbiters
             being
             
               in
               eadem
               causa
            
             ,
             was
             equivalent
             :
             and
             whereas
             it
             is
             alleadged
             ,
             that
             the
             Defender
             had
             a
             Commission
             to
             perfect
             his
             own
             Security
             by
             the
             price
             left
             in
             his
             hand
             .
             It
             was
             answered
             ,
             that
             the
             Commission
             being
             for
             his
             own
             behove
             ,
             and
             for
             his
             own
             Security
             ,
             he
             might
             make
             use
             of
             it
             ,
             or
             not
             make
             use
             of
             it
             as
             he
             pleased
             :
             especially
             seing
             the
             Disponer
             was
             obliged
             to
             perfect
             the
             Defenders
             Security
             .
             2dly
             ,
             In
             the
             Minute
             there
             was
             no
             Procuratory
             of
             Resignation
             ,
             neither
             were
             the
             old
             Evidents
             Delivered
             to
             the
             Defender
             ;
             so
             that
             he
             could
             neither
             obtain
             Frazer
             to
             be
             Infeft
             ,
             much
             less
             himself
             upon
             Frazers
             Resignation
             ,
             wanting
             a
             Procuratory
             .
             The
             Pursuer
             answered
             ,
             that
             the
             
             Commission
             being
             a
             Mandat
             accepted
             by
             the
             Defender
             ,
             did
             
               ex
               natura
               mandati
            
             ,
             bind
             the
             Accepter
             to
             do
             Diligence
             ;
             neither
             is
             it
             to
             his
             own
             behove
             ,
             but
             was
             also
             to
             the
             Disponers
             behove
             ,
             that
             his
             obligements
             might
             be
             fulfilled
             ,
             and
             his
             price
             not
             stopped
             :
             and
             although
             the
             Minute
             want
             a
             Procuratory
             of
             Resignation
             ,
             that
             is
             no
             way
             Relevant
             :
             for
             if
             the
             Defender
             had
             required
             a
             Procuratory
             of
             Resignation
             from
             the
             Disponer
             ,
             or
             had
             required
             the
             Writs
             to
             instruct
             the
             Service
             ,
             being
             in
             the
             Disponers
             hand
             ,
             and
             had
             been
             refused
             of
             either
             ,
             he
             had
             been
             in
             no
             fault
             :
             but
             without
             any
             Diligence
             ,
             to
             suffer
             another
             Appryzing
             to
             be
             led
             ten
             years
             after
             his
             Commission
             ,
             and
             now
             having
             taken
             Right
             to
             the
             Appryzing
             himself
             ,
             he
             cannot
             therewith
             Exhaust
             the
             price
             ,
             especially
             against
             this
             singular
             Successor
             ,
             having
             acquired
             
               bona
               fide
            
             ,
             after
             a
             Decreet
             of
             Suspension
             
               in
               foro
               contradictorio
            
             ,
             when
             the
             Defender
             had
             Right
             to
             the
             said
             third
             Appryzing
             ,
             and
             alleadged
             nothing
             thereupon
             .
             The
             Defender
             answered
             ,
             that
             he
             cannot
             be
             Excluded
             from
             his
             Defense
             by
             the
             Decreet
             of
             Suspension
             ,
             as
             being
             competent
             and
             omitted
             the
             time
             of
             that
             Decreet
             ,
             because
             (
             Competent
             )
             is
             only
             Relevant
             against
             Decreets
             in
             ordinary
             Actions
             :
             but
             neither
             in
             Reason
             nor
             Custom
             is
             the
             same
             Relevant
             against
             Decreets
             of
             Suspension
             ,
             there
             being
             this
             evident
             difference
             ,
             that
             in
             Decreets
             of
             Suspension
             the
             Reasons
             must
             be
             instantly
             verified
             :
             but
             in
             ordinary
             Actions
             ,
             there
             are
             Terms
             assigned
             for
             proving
             Defenses
             ,
             and
             so
             it
             hath
             ever
             been
             practised
             by
             the
             Lords
             .
             The
             Pursuer
             answered
             ,
             albeit
             it
             was
             anciently
             the
             Custom
             to
             admit
             Competent
             ,
             and
             omitted
             only
             against
             Decreets
             upon
             ordinary
             Actions
             :
             Yet
             by
             an
             Act
             of
             Sederunt
             in
             Anno
             1648.
             or
             1649.
             the
             same
             was
             extended
             to
             Decreets
             of
             Suspension
             ;
             and
             albeit
             through
             neglect
             of
             the
             Clerks
             ,
             the
             Act
             hath
             not
             been
             Booked
             :
             The
             Session
             being
             interrupted
             by
             the
             War
             shortly
             thereafter
             ensuing
             ,
             yet
             it
             is
             notorly
             known
             ,
             and
             was
             in
             practice
             Anno
             1653.
             when
             the
             Decreet
             was
             obtained
             against
             this
             Defender
             ,
             whereupon
             the
             Appryzing
             proceeds
             ,
             and
             that
             practice
             was
             both
             just
             and
             necessar
             ;
             for
             if
             Decreets
             might
             be
             Suspended
             as
             oft
             as
             the
             Suspender
             can
             produce
             another
             Writ
             ,
             the
             most
             solemn
             Sentences
             should
             be
             made
             Insignificant
             ;
             for
             the
             ground
             of
             Excluding
             things
             Competent
             ,
             and
             omitted
             ,
             is
             not
             only
             that
             publick
             Sentences
             upon
             compearance
             ,
             are
             as
             valid
             as
             Transactions
             ,
             which
             upon
             no
             pretence
             can
             be
             Rescinded
             ,
             that
             Pleas
             be
             not
             perpetual
             :
             but
             also
             because
             they
             are
             omitted
             ,
             
               dolo
               &
               animo
               protrahendi
               litem
            
             ,
             which
             is
             ever
             presumed
             ,
             unless
             another
             Cause
             be
             assigned
             ,
             wherefore
             they
             were
             omitted
             as
             ,
             
               noviter
               veniens
               ad
               notitiam
            
             ,
             which
             is
             Sustained
             ,
             even
             as
             to
             Decreets
             in
             ordinar
             Actions
             :
             and
             if
             in
             no
             case
             competent
             and
             omitted
             be
             allowed
             in
             Suspensions
             ,
             we
             shall
             have
             no
             more
             Decreets
             in
             ordinar
             Actions
             ;
             but
             the
             Defenders
             will
             still
             be
             absent
             ,
             and
             will
             Suspend
             as
             oft
             as
             they
             can
             find
             different
             Grounds
             ,
             as
             if
             of
             one
             Sum
             ,
             one
             have
             twenty
             or
             thirty
             several
             Receipts
             ,
             he
             will
             raise
             as
             many
             subsequent
             Suspensions
             ,
             which
             will
             at
             least
             serve
             for
             as
             many
             Sessions
             ;
             and
             though
             it
             should
             be
             alleadged
             
               quod
               dolo
               omisit
            
             ,
             it
             would
             not
             be
             Relevant
             :
             so
             that
             if
             the
             Suspender
             can
             purge
             his
             Fraud
             ▪
             either
             as
             not
             knowing
             of
             the
             Writ
             ,
             whereon
             he
             hath
             again
             Suspended
             ,
             or
             as
             not
             then
             having
             it
             presently
             in
             his
             power
             to
             instruct
             it
             ,
             would
             be
             sufficient
             ,
             which
             clears
             the
             difference
             betwixt
             Decreets
             of
             Suspension
             ,
             and
             other
             Decreets
             ,
             to
             operat
             no
             further
             than
             that
             in
             Suspensions
             ,
             the
             Fraud
             is
             purged
             ,
             by
             showing
             that
             the
             Writ
             was
             not
             
               ad
               manum
            
             ,
             which
             is
             not
             so
             in
             ordinar
             Actions
             ,
             where
             Terms
             would
             have
             been
             assigned
             to
             get
             the
             Writ
             :
             and
             albeit
             the
             Lords
             might
             by
             modifying
             great
             Expences
             bar
             the
             multitudes
             of
             Suspensions
             ,
             they
             could
             hardly
             do
             it
             justly
             ,
             if
             of
             the
             Law
             it
             were
             no
             fault
             ;
             
             and
             it
             is
             known
             ,
             the
             Lords
             are
             neither
             in
             use
             of
             ,
             nor
             have
             time
             for
             such
             modifications
             .
          
           
             The
             Lords
             superceeded
             to
             give
             answer
             as
             to
             this
             Point
             ,
             till
             the
             Compt
             proceeded
             as
             to
             the
             Particulars
             ,
             but
             the
             Lords
             had
             no
             respect
             to
             the
             alleadgance
             upon
             the
             Inhibition
             ,
             seing
             no
             Decreet
             followed
             ,
             nor
             upon
             the
             Decreet
             Arbitral
             ,
             which
             they
             found
             not
             Equivalent
             to
             an
             Assignation
             or
             Precept
             :
             but
             the
             Lords
             found
             the
             Commission
             contained
             in
             the
             minute
             ,
             not
             to
             oblige
             the
             Defender
             ,
             as
             to
             any
             Diligence
             ;
             and
             therefore
             found
             ,
             that
             as
             to
             that
             Point
             ,
             he
             might
             acquire
             the
             third
             Appryzing
             ,
             which
             would
             have
             excluded
             him
             ,
             albeit
             he
             might
             have
             prevented
             it
             by
             Diligence
             .
          
        
         
           
             Mr.
             Robert
             Swintoun
             contra
             Iohn
             Brown.
             December
             18.
             1668.
             
          
           
             
               MArgaret
               Adinstoun
            
             being
             Infeft
             in
             Liferent
             ,
             in
             certain
             Roods
             of
             Land
             near
             Hadingtoun
             ,
             she
             and
             her
             second
             Husband
             grants
             a
             Tack
             to
             
               Iohn
               Brown
            
             thereof
             ,
             for
             certain
             years
             ,
             and
             thereafter
             till
             he
             were
             payed
             of
             400.
             merks
             ,
             owing
             to
             him
             by
             the
             Husband
             ,
             after
             that
             Husbands
             Death
             ,
             she
             being
             Married
             to
             a
             third
             Husband
             ,
             there
             is
             a
             Decreet
             of
             Removing
             purchast
             at
             her
             and
             that
             Husbands
             Instance
             ,
             against
             
               Iohn
               Brown
            
             ,
             but
             the
             Husband
             did
             not
             proceed
             to
             obtain
             Possession
             by
             vertue
             thereof
             ,
             but
             
               brevi
               manu
            
             Ejected
             Brown
             ;
             whereupon
             Brown
             obtained
             a
             Decreet
             of
             Re-possession
             :
             now
             the
             said
             
               Margaret
               Adinstoun
            
             having
             assigned
             the
             Decreet
             of
             Removing
             to
             Mr.
             
               Robert
               Swintown
            
             ,
             he
             Charges
             
               Iohn
               Brown
            
             to
             Remove
             ,
             who
             Suspends
             on
             this
             Reason
             ,
             that
             he
             having
             obtained
             Decreet
             of
             Re-possession
             ,
             after
             the
             Decreet
             of
             Removing
             ,
             upon
             the
             Husbands
             violence
             ,
             cannot
             now
             be
             Removed
             ,
             without
             a
             new
             Warning
             .
             The
             Charger
             answered
             ,
             that
             the
             Decreet
             of
             Re-possession
             ,
             bearing
             to
             be
             ay
             and
             while
             this
             Suspender
             was
             legally
             Removed
             ,
             and
             that
             in
             respect
             he
             had
             been
             put
             out
             Summarly
             ▪
             and
             not
             by
             the
             preceeding
             Decreet
             of
             Removing
             ;
             which
             having
             now
             taken
             effect
             ,
             he
             being
             in
             Possession
             ,
             the
             Charger
             may
             very
             well
             Insist
             ,
             that
             he
             may
             now
             legally
             Remove
             ,
             by
             vertue
             of
             the
             Decreet
             of
             Removing
             .
          
           
             The
             Lords
             Repelled
             this
             Reason
             ,
             in
             respect
             of
             the
             answer
             ,
             and
             found
             no
             need
             of
             a
             new
             Warning
             .
          
           
             The
             Suspender
             further
             alleadged
             that
             he
             cannot
             Remove
             ,
             because
             he
             bruiks
             by
             vertue
             of
             a
             Tack
             granted
             by
             
               Margaret
               Adinstoun
            
             and
             her
             second
             Husband
             .
             The
             Charger
             answered
             :
             First
             ,
             That
             the
             Tack
             being
             only
             for
             four
             years
             specially
             ,
             and
             an
             obligement
             not
             to
             Remove
             the
             Tennent
             while
             the
             four
             hundred
             Merks
             were
             payed
             ,
             which
             is
             not
             a
             Tack
             ,
             but
             a
             personal
             obligement
             ,
             which
             cannot
             defend
             the
             Suspender
             against
             Mr.
             
               Robert
               Swintoun
            
             ,
             the
             singular
             Successor
             .
             2dly
             ,
             The
             Tack
             is
             null
             ,
             being
             Subscribed
             but
             by
             one
             Nottar
             .
             The
             Suspender
             answered
             ,
             that
             a
             Right
             of
             Liferent
             not
             being
             Transmissible
             by
             Infeftment
             ,
             but
             only
             by
             Assignation
             ,
             the
             Assigney
             is
             in
             no
             better
             case
             nor
             the
             Cedent
             ,
             except
             as
             to
             the
             Probation
             by
             the
             Cedents
             Oath
             .
             3dly
             ,
             The
             Tack
             is
             Ratified
             judicially
             by
             the
             Wife
             ,
             in
             the
             Court
             of
             Northberwick
             ,
             which
             is
             more
             nor
             the
             concourse
             of
             any
             Nottar
             .
             4ly
             ,
             If
             need
             beis
             ,
             it
             's
             offered
             to
             be
             proven
             by
             the
             Wifes
             Oath
             ,
             that
             the
             Subscription
             was
             truly
             done
             by
             the
             Nottar
             ,
             at
             her
             command
             .
             The
             Charger
             answered
             ,
             that
             the
             judicial
             Ratification
             cannot
             supply
             the
             other
             Nottar
             ;
             because
             the
             same
             Nottar
             ,
             who
             is
             Nottar
             in
             the
             Tack
             ,
             as
             also
             Nottar
             in
             the
             judicial
             Ratification
             ,
             which
             is
             but
             done
             in
             a
             Baron
             Court
             :
             So
             it
             is
             but
             
               assertio
               ejusdem
               notarij
            
             ,
             no
             stronger
             nor
             it
             was
             ,
             neither
             can
             it
             be
             supplyed
             by
             
               Margaret
               Ad●●stouns
            
             Oath
             ,
             
               de
               veritate
               facti
            
             ;
             because
             her
             Oath
             cannot
             be
             received
             in
             
             prejudice
             of
             her
             Assigney
             :
             and
             though
             her self
             were
             Charger
             ,
             the
             Law
             requiring
             two
             Not●ars
             ,
             till
             both
             Subscribe
             ,
             the
             Writ
             is
             an
             unsubscribed
             Writ
             ;
             and
             in
             all
             matters
             of
             this
             nature
             ,
             parties
             may
             resile
             before
             Subscription
             .
          
           
             The
             Lords
             found
             the
             Tack
             valid
             against
             the
             Wife
             ,
             Subscriber
             thereof
             ,
             and
             her
             assigney
             ,
             ay
             and
             while
             the
             sum
             thereof
             were
             payed
             :
             but
             found
             the
             Tack
             was
             null
             ,
             as
             being
             but
             by
             one
             Nottar
             ,
             notwithstanding
             of
             the
             judicial
             Ratification
             being
             by
             the
             same
             Nottar
             ;
             and
             found
             that
             the
             Cedents
             Oath
             could
             not
             be
             taken
             in
             prejudice
             of
             the
             Assigney
             ,
             to
             astruct
             the
             verity
             of
             the
             Subscription
             ,
             unless
             the
             Assignation
             had
             been
             gratuitous
             ,
             or
             the
             matter
             had
             been
             litigious
             before
             the
             same
             :
             In
             which
             case
             they
             found
             that
             there
             was
             no
             place
             to
             Resile
             after
             the
             Subscription
             of
             the
             first
             Nottar
             ,
             the
             verity
             and
             warrand
             of
             the
             Subscription
             being
             proven
             by
             the
             said
             Margarets
             Oath
             .
          
           
             The
             Suspender
             further
             alleadged
             ,
             that
             he
             could
             not
             Remove
             ,
             because
             the
             Liferenter
             being
             year
             and
             day
             at
             the
             Horn
             ,
             he
             had
             a
             Gift
             of
             her
             Liferent
             Escheat
             ,
             and
             thereby
             had
             right
             to
             possess
             her
             Liferent-Land
             .
             The
             Charger
             answered
             
               non
               relevat
            
             ,
             because
             the
             Gift
             was
             not
             declared
             :
             2dly
             ,
             It
             could
             not
             be
             declared
             ,
             because
             it
             proceeded
             upon
             a
             Horning
             ,
             against
             a
             VVife
             cled
             with
             a
             Husband
             ,
             who
             being
             
               sub
               potestate
               viri
            
             ,
             cannot
             be
             Contumacious
             ,
             or
             Denunced
             Rebel
             thereupon
             .
             The
             Suspender
             answered
             ,
             that
             he
             needed
             no
             Declarator
             himself
             ,
             being
             in
             possession
             of
             the
             only
             Right
             ,
             to
             which
             the
             Declarator
             could
             reach
             .
             3dly
             ,
             The
             Horning
             ,
             albeit
             against
             a
             VVife
             ,
             was
             valid
             unless
             it
             had
             been
             upon
             a
             Debt
             contracted
             during
             the
             Marriage
             ;
             but
             this
             Horning
             proceeding
             upon
             a
             Decreet
             against
             a
             VVife
             as
             Executrix
             and
             vitious
             Intromissatrix
             with
             her
             Husbands
             Goods
             ,
             a
             Horning
             upon
             her
             own
             Fact
             or
             Fault
             was
             alwayes
             effectual
             .
          
           
             The
             Lords
             would
             not
             sustain
             the
             Gift
             without
             a
             Declarator
             ,
             and
             superceeded
             any
             Extract
             at
             the
             Chargers
             Instance
             ,
             till
             a
             day
             ,
             betwixt
             and
             which
             he
             might
             insist
             in
             his
             Declarator
             ,
             and
             superceeded
             till
             that
             time
             to
             give
             answer
             ,
             in
             relation
             to
             the
             Horning
             ,
             because
             the
             Kings
             Officers
             behoved
             to
             be
             called
             .
          
        
         
           
             Mr.
             Alexander
             Seaton
             contra
             Menzies
             .
             December
             19.
             1668.
             
          
           
             MR.
             
               Alexander
               Seaton
            
             as
             Executor
             to
             his
             Brother
             .
             Pitmedden
             pursues
             Seaton
             of
             Menzies
             as
             Representing
             his
             Father
             ,
             who
             was
             one
             of
             the
             Pursuers
             Brothers
             Tutors
             ,
             for
             his
             Fathers
             Intromission
             with
             the
             Pupils
             Means
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Pupil
             after
             his
             Pupillarity
             ,
             had
             granted
             a
             Discharge
             to
             one
             of
             the
             Co-tutors
             ,
             which
             did
             extinguish
             the
             whole
             Debt
             of
             that
             Co-tutor
             ,
             and
             consequently
             of
             all
             the
             rest
             ,
             they
             being
             all
             
               correi
               delendi
               ▪
            
             ●yable
             by
             one
             individual
             Obligation
             ,
             which
             cannot
             be
             Discharged
             as
             to
             one
             ,
             and
             stand
             as
             to
             all
             the
             rest
             ;
             for
             albeit
             
               pactum
               de
               non
               petendo
            
             ,
             may
             be
             granted
             to
             one
             ,
             and
             not
             be
             profitable
             to
             the
             rest
             ,
             a
             simple
             Discharge
             ,
             which
             dissolveth
             the
             Obligation
             of
             the
             Bond
             ,
             must
             be
             profitable
             to
             all
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             ,
             unless
             the
             Discharge
             had
             born
             payment
             ,
             or
             satisfaction
             given
             ,
             and
             
               in
               tantum
            
             ,
             they
             found
             it
             would
             be
             Relevant
             ,
             but
             not
             a
             simple
             Discharge
             ,
             which
             could
             only
             be
             Relevant
             in
             so
             far
             as
             they
             by
             this
             Tutor
             would
             be
             excluded
             from
             the
             Co-tutors
             bearing
             a
             share
             with
             this
             Tutor
             ,
             
               in
               omissis
               &
               male
               administratis
            
             ;
             
             there
             being
             nothing
             here
             but
             this
             Tutors
             own
             proper
             Intromission
             ,
             now
             insisted
             for
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             simply
             .
          
        
         
           
             Margaret
             Mckenzie
             contra
             Robertsons
             .
             December
             23.
             1668.
             
          
           
             
               MArgaret
               Mckenzie
            
             pursues
             the
             Executors
             of
             her
             Husband
             ,
             to
             pay
             her
             share
             of
             the
             Moveables
             ,
             who
             alleaged
             Absolvitor
             ,
             because
             there
             was
             as
             much
             Debt
             as
             would
             exhaust
             the
             whole
             Moveables
             .
             It
             was
             answered
             ,
             
               non
               relevat
            
             ,
             unless
             it
             were
             alleadged
             that
             the
             Executors
             had
             payed
             the
             Debt
             ;
             for
             the
             Debts
             being
             yet
             due
             ,
             it
             is
             
               j●s
               tertij
            
             ,
             for
             them
             to
             alleadge
             thereupon
             :
             neither
             can
             this
             Pursuer
             propone
             alleadgances
             of
             payment
             ,
             Compensation
             ,
             or
             any
             other
             ,
             or
             the
             Defenders
             Reply
             upon
             the
             Debts
             belonging
             to
             third
             Parties
             ,
             unless
             they
             were
             pursuing
             themselves
             ;
             but
             the
             Pursuer
             is
             content
             to
             find
             Caution
             to
             repeat
             her
             share
             ,
             in
             case
             they
             were
             Distrest
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             but
             prejudice
             to
             the
             Executor
             ,
             to
             Suspend
             upon
             double
             Poinding
             ,
             calling
             the
             Creditors
             .
          
           
             It
             was
             further
             alleadged
             for
             the
             Defenders
             ,
             that
             they
             must
             have
             allowance
             of
             Sums
             ,
             bearing
             Annualrent
             since
             1641.
             
             It
             was
             answered
             ,
             that
             no
             such
             Sums
             can
             burden
             the
             Relict
             ,
             her
             part
             ,
             because
             by
             the
             Act
             of
             Parliament
             ,
             the
             Relict
             has
             no
             share
             of
             such
             Sums
             ,
             if
             they
             were
             due
             to
             the
             Defunct
             ;
             and
             therefore
             
               a
               pari
            
             ,
             she
             cannot
             be
             burdened
             with
             such
             Sums
             ,
             being
             due
             by
             the
             Defunct
             .
             The
             Defenders
             answered
             ,
             that
             the
             Act
             of
             Parliament
             excludes
             Relicts
             from
             such
             Sums
             as
             bear
             Annualrent
             ,
             being
             due
             to
             their
             Husbands
             ,
             but
             doth
             not
             bear
             ,
             that
             they
             shall
             be
             free
             of
             such
             Sums
             due
             by
             their
             Husbands
             :
             and
             Statutes
             being
             
               stricti
               juris
            
             ,
             the
             Lords
             cannot
             extend
             them
             beyond
             their
             Sense
             to
             like
             cases
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Lords
             always
             did
             ,
             and
             might
             Explain
             ,
             and
             Extend
             Acts
             of
             Parliament
             to
             Cases
             implyed
             ,
             and
             consequent
             ,
             albeit
             not
             verbatim
             exprest
             :
             and
             as
             to
             this
             Act
             of
             Parliament
             ,
             it
             bears
             expresly
             ,
             that
             all
             such
             Bonds
             shall
             remain
             in
             their
             condition
             as
             they
             were
             before
             the
             Act
             of
             
               Parliament
               1641.
               quoad
               fiscum
               &
               relictam
            
             ;
             before
             which
             ,
             the
             Bonds
             bearing
             Annualrent
             ,
             could
             not
             have
             burdened
             the
             Relict
             :
             for
             the
             word
             
               such
               Bonds
            
             ,
             may
             not
             only
             be
             extended
             to
             Bonds
             due
             to
             Defuncts
             ,
             but
             to
             Bonds
             due
             by
             Defuncts
             .
          
           
             The
             Lords
             Repelled
             also
             this
             Defense
             ,
             and
             found
             the
             Relicts
             part
             not
             to
             be
             burdened
             with
             any
             Bonds
             due
             by
             her
             Husband
             ,
             bearing
             Annualrent
             ,
             unless
             they
             had
             become
             Moveable
             by
             a
             Charge
             ,
             or
             that
             the
             Term
             of
             payment
             of
             the
             Annualrent
             was
             not
             come
             at
             the
             Defuncts
             death
             .
          
        
         
           
             Smith
             contra
             Muire
             .
             Eodem
             die
             .
          
           
             
               JEan
               Smith
            
             having
             pursued
             
               Margaret
               Muire
            
             as
             vitious
             Intromissatrix
             with
             the
             Goods
             of
             
               George
               Smith
            
             her
             Husband
             ,
             to
             pay
             the
             sum
             of
             110.
             pounds
             due
             by
             Bond
             ,
             by
             the
             said
             George
             to
             this
             Pursuer
             ;
             his
             Sister
             obtained
             Decreet
             thereupon
             ,
             and
             Appryzed
             the
             Liferent
             of
             the
             said
             
               Margaret
               Muire
            
             ,
             who
             Suspended
             ,
             and
             raised
             Reduction
             on
             this
             Ground
             ,
             that
             she
             could
             not
             be
             lyable
             as
             vitious
             Intromissatrix
             ,
             because
             she
             possest
             her
             Husbands
             Moveables
             by
             a
             Title
             ,
             in
             so
             far
             as
             by
             her
             Contract
             of
             Marriage
             she
             was
             provided
             to
             all
             the
             Goods
             and
             Gear
             acquired
             during
             the
             Marriage
             ,
             for
             her
             Liferent
             use
             ,
             and
             so
             she
             could
             only
             be
             lyable
             for
             making
             forthcoming
             the
             true
             value
             after
             her
             Death
             .
             The
             Charger
             answered
             :
             First
             ,
             That
             there
             could
             be
             no
             Liferent
             of
             
             Moveables
             ,
             
               quae
               usu
               consumuntur
            
             ,
             and
             all
             Liferents
             of
             
               usus
               fructus
            
             must
             be
             
               salvâ
               rei
               substantiâ
               .
               2dly
            
             ,
             Though
             a
             Liferent
             could
             consist
             in
             Moveables
             ;
             yet
             the
             meaning
             of
             such
             a
             Clause
             ,
             of
             all
             Moveables
             acquired
             during
             the
             Marriage
             ,
             must
             be
             understood
             the
             free
             Moveables
             ,
             deducing
             Moveable
             Debt
             ;
             and
             cannot
             be
             understood
             to
             exclude
             lawful
             Creditors
             .
          
           
             The
             Lords
             found
             the
             Clause
             to
             be
             understood
             only
             of
             free
             Gear
             ,
             and
             not
             to
             exclude
             the
             Pursuers
             Debt
             ;
             but
             found
             it
             a
             sufficient
             ground
             to
             free
             the
             Suspender
             from
             vitious
             Intromission
             ,
             and
             to
             Retrench
             the
             Decreet
             to
             the
             true
             value
             .
          
        
         
           
             Sir
             Iohn
             Weems
             contra
             Forbes
             of
             Toch●n
             .
             Ianuary
             2.
             1669.
             
          
           
             SIr
             
               Iohn
               Weems
            
             having
             Charged
             Tochon
             for
             Maintainance
             ,
             due
             in
             Anno
             1648.
             or
             1650.
             conform
             to
             Act
             of
             Parliament
             ,
             and
             Commission
             granted
             to
             him
             ,
             and
             Decreet
             of
             the
             Lords
             .
             Tochon
             Suspends
             on
             this
             Reason
             ,
             that
             singular
             Successors
             are
             free
             by
             the
             Act
             ,
             and
             he
             is
             a
             singular
             Successor
             by
             Appryzing
             .
             It
             was
             answered
             ,
             that
             the
             exception
             of
             the
             Act
             was
             only
             in
             favours
             of
             singular
             Successors
             ,
             who
             had
             bought
             the
             Lands
             ,
             which
             cannot
             be
             extended
             to
             Appryzers
             ,
             who
             oftimes
             have
             the
             Lands
             for
             far
             less
             then
             the
             true
             price
             ▪
          
           
             The
             Lords
             found
             the
             Act
             not
             to
             extend
             to
             Appryzers
             ,
             unless
             the
             sums
             were
             a
             competent
             price
             for
             the
             Land
             Appryzed
             ;
             and
             therefore
             found
             the
             Letters
             orderly
             proceeded
             .
          
        
         
           
             Isobel
             and
             Margaret
             Simes
             contra
             Marrion
             Brown.
             Ianuary
             5.
             1669.
             
          
           
             BY
             Contract
             of
             Marriage
             betwixt
             umquhil
             
               Thomas
               Sim
            
             and
             
               Marion
               Brown
               ,
               Iohn
               Flowan
               Marions
            
             Master
             ,
             is
             obliged
             to
             pay
             300.
             
             Merks
             of
             Tocher
             ,
             and
             
               Thomas
               Sim
            
             is
             obliged
             to
             imploy
             the
             said
             300.
             
             Merks
             ,
             and
             200.
             
             Merks
             further
             for
             the
             said
             Marion
             ,
             her
             Liferent
             use
             :
             the
             said
             Thomas
             having
             two
             Daughters
             ,
             Isobel
             and
             
               Margaret
               Sims
            
             ,
             he
             lends
             a
             sum
             of
             400.
             
             Merks
             to
             
               Thomas
               Brown
            
             ,
             and
             takes
             the
             Bond
             on
             these
             Terms
             ,
             to
             be
             payed
             to
             him
             and
             the
             said
             
               Marion
               Brown
            
             ,
             the
             longest
             liver
             of
             them
             two
             in
             Liferent
             ,
             and
             after
             their
             Decease
             ,
             to
             Margaret
             and
             
               Isobel
               Sims
            
             :
             The
             said
             Isobel
             and
             Margaret
             having
             pursued
             the
             said
             Marion
             before
             the
             Commissars
             ,
             for
             Delivery
             of
             this
             Bond
             ,
             as
             belonging
             to
             them
             after
             their
             Fathers
             Death
             .
             The
             Commissars
             Assoilzied
             the
             said
             Marion
             from
             Delivery
             of
             the
             Bond
             ,
             and
             found
             it
             did
             belong
             to
             the
             said
             Marion
             her self
             ,
             not
             only
             as
             to
             the
             Annualrent
             ,
             but
             as
             to
             the
             Stock
             ,
             because
             her
             Husband
             having
             no
             other
             Means
             but
             this
             Bond
             ,
             and
             not
             having
             fulfilled
             her
             Contract
             ,
             she
             had
             Confirmed
             her self
             Executrix
             Creditrix
             in
             this
             sum
             ,
             and
             behoved
             to
             Exclude
             her
             Husbands
             two
             Daughters
             of
             a
             former
             Marriage
             ,
             who
             were
             provided
             ,
             and
             Forisfamiliat
             before
             .
             Of
             this
             absolvitor
             the
             Daughters
             raised
             Reduction
             on
             this
             Reason
             ,
             that
             this
             Sum
             could
             not
             be
             Confirmed
             ,
             not
             being
             
               in
               bonis
               defuncti
            
             ,
             the
             Father
             being
             but
             Liferenter
             ,
             and
             the
             Daughters
             Feears
             ,
             and
             though
             they
             were
             but
             as
             heirs
             substitute
             ,
             they
             exclude
             Executors
             ,
             and
             need
             no
             Confirmation
             .
             2dly
             ,
             The
             Husband
             being
             but
             obliged
             to
             Employ
             this
             Tocher
             ,
             and
             200.
             merks
             more
             ,
             the
             Pursuer
             must
             instruct
             that
             the
             Tocher
             was
             payed
             .
             3dly
             ,
             The
             Wife
             intrometted
             with
             as
             much
             of
             her
             Husbands
             Goods
             as
             would
             satisfie
             her
             Provision
             .
             It
             was
             answered
             ,
             that
             the
             Wife
             not
             being
             obliged
             for
             her
             Tocher
             ▪
             but
             another
             Party
             who
             was
             solvendo
             ,
             and
             neither
             being
             obliged
             ,
             nor
             in
             capacity
             to
             pursue
             ,
             therefore
             could
             not
             now
             after
             so
             long
             a
             time
             ,
             be
             put
             to
             prove
             that
             the
             Tocher
             was
             payed
             ;
             and
             for
             her
             Intromission
             she
             had
             Confirmed
             
             and
             made
             Faith
             ,
             and
             the
             Pursuers
             might
             take
             
               a
               dative
               ad
               omissa
            
             ,
             if
             they
             pleased
             ,
             but
             could
             not
             ,
             
               hoc
               ordine
            
             ,
             Reduce
             or
             stop
             her
             Decreet
             upon
             compearance
             .
          
           
             The
             Lords
             found
             that
             albeit
             in
             Form
             the
             Bond
             should
             have
             been
             Reduced
             ,
             as
             being
             done
             
               in
               fraudem
            
             of
             the
             Wife
             ,
             as
             being
             a
             Creditor
             ,
             and
             thereafter
             ▪
             Confirmed
             ;
             yet
             now
             the
             matter
             being
             before
             the
             Lords
             ,
             and
             the
             Parties
             poor
             ,
             they
             found
             the
             Husbands
             Substitution
             of
             two
             provided
             Daughters
             by
             a
             former
             Marriage
             null
             ,
             as
             to
             the
             Wifes
             provision
             by
             the
             Act
             of
             Parliament
             1621.
             without
             necessity
             of
             Reduction
             ,
             the
             matter
             being
             but
             a
             personal
             Right
             ,
             and
             found
             the
             Wife
             not
             obliged
             to
             instruct
             the
             Tocher
             payed
             ,
             and
             therefore
             assoilzied
             from
             the
             Reduction
             ,
             but
             prejudice
             to
             the
             Pursuers
             to
             Confirm
             ,
             
               a
               dative
               ad
               omissa
            
             .
          
        
         
           
             William
             Zeoman
             contra
             Mr.
             Patrick
             Oliphant
             and
             Dam
             Giels
             Moncrief
             .
             Eodem
             die
             .
          
           
             IN
             a
             Compt
             and
             Reckoning
             betwixt
             these
             Parties
             ,
             anent
             the
             satisfaction
             of
             an
             Appryzing
             ,
             the
             Auditor
             ,
             in
             respect
             that
             Mr.
             
               Patrick
               Oliphant
            
             and
             Dam
             
               Giels
               ,
               Moncrief
            
             ,
             were
             Contumacious
             and
             compeared
             not
             ,
             did
             Decern
             conform
             to
             
               William
               Zeomans
            
             Summonds
             ,
             finding
             the
             Sum
             satisfied
             ,
             and
             ordained
             them
             to
             Remove
             ;
             whereupon
             
               William
               Zeoman
            
             obtained
             Possession
             ,
             and
             having
             been
             several
             years
             in
             Possession
             ,
             Mr.
             
               Patrick
               Oliphant
            
             obtained
             himself
             and
             the
             said
             Dam
             Giels
             to
             be
             Reponed
             against
             the
             said
             Decreet
             for
             his
             Contumacy
             ,
             and
             a
             Writer
             to
             the
             Signet
             past
             Letters
             of
             Possession
             in
             his
             favours
             ,
             against
             
               William
               Zeoman
            
             ,
             but
             without
             a
             Warrant
             from
             the
             Lords
             ,
             which
             were
             found
             null
             ,
             and
             this
             Writer
             Deposed
             ,
             but
             Mr.
             Patrick
             having
             attained
             Possession
             by
             these
             Letters
             ,
             
               William
               Zeoman
            
             insists
             against
             him
             as
             an
             Intruder
             to
             quite
             the
             Possession
             .
             It
             was
             alleadged
             for
             Mr.
             Patrick
             ,
             that
             William
             having
             obtained
             Possession
             unwarrantably
             by
             Decreet
             ,
             upon
             his
             pretended
             Contumacy
             ,
             and
             he
             being
             now
             restored
             there
             against
             ,
             he
             is
             
               in
               statu
               quo
               prius
            
             ,
             before
             that
             Decreet
             ,
             at
             which
             time
             he
             was
             in
             lawful
             peaceable
             Possession
             ,
             which
             only
             should
             stand
             ,
             and
             neither
             of
             the
             unwarrantable
             Possessions
             be
             regarded
             .
             It
             was
             answered
             that
             
               William
               Zeomans
            
             Possession
             was
             by
             vertue
             of
             a
             Decreet
             then
             standing
             ,
             
               autore
               pretore
            
             ,
             and
             so
             was
             not
             vitious
             ,
             but
             Mr
             Patricks
             was
             without
             Warrant
             of
             the
             Lords
             ,
             and
             so
             was
             most
             vitious
             .
             It
             was
             answered
             that
             Mr.
             Patrick
             was
             instantly
             content
             to
             Debate
             his
             Right
             ,
             
               &
               frustra
               petitur
               quod
               mox
               est
               restituendum
               .
            
             It
             was
             answered
             that
             
               spoliatus
               ante
               omnia
               est
               restit●endus
            
             ,
             and
             is
             not
             obliged
             to
             Dispute
             any
             Right
             ,
             till
             first
             he
             be
             Restored
             .
          
           
             Which
             the
             Lords
             Sustained
             ,
             and
             ordained
             
               William
               Zeoman
            
             instantly
             to
             be
             Restored
             to
             the
             Possession
             .
          
        
         
           
             My
             Lord
             Balmerino
             Supplicant
             .
             Ianuary
             7.
             1669.
             
          
           
             MY
             Lord
             gave
             in
             a
             Bill
             to
             the
             Lords
             ,
             Representing
             that
             his
             Uncle
             was
             Dead
             ,
             and
             that
             he
             is
             nearest
             Heir-male
             to
             him
             ,
             in
             whose
             favours
             his
             Estate
             is
             provided
             ;
             and
             therefore
             desired
             that
             Commission
             might
             be
             granted
             to
             certain
             Persons
             in
             the
             Countrey
             ,
             to
             Inventar
             ,
             Seal
             ,
             and
             Secure
             his
             Charter
             Chist
             ,
             and
             to
             make
             patent
             Doors
             in
             his
             Houses
             ,
             Coffers
             ,
             and
             Cabins
             ,
             for
             that
             effect
             ,
             and
             to
             take
             my
             Lady
             ,
             his
             Relicts
             Oath
             ,
             where
             the
             Evidents
             were
             ,
             to
             the
             effect
             foresaid
             :
             Compearance
             being
             made
             for
             my
             Lady
             ,
             desiring
             a
             sight
             of
             the
             Bill
             till
             the
             next
             day
             ,
             and
             alleadging
             that
             it
             was
             notour
             to
             the
             Lords
             ,
             that
             my
             Lady
             had
             a
             Disposition
             to
             the
             whole
             Estate
             ▪
             whereupon
             
             Resignation
             had
             past
             in
             Exchequer
             ,
             and
             that
             the
             Evidents
             ought
             to
             be
             left
             open
             ,
             to
             the
             effect
             my
             Lady
             may
             instruct
             her
             Charter
             ,
             conform
             to
             the
             Disposition
             .
          
           
             The
             Lords
             refused
             to
             give
             up
             the
             Bill
             ,
             it
             being
             their
             ordinar
             Course
             to
             grant
             such
             Commissions
             ,
             without
             calling
             or
             hearing
             Parties
             ,
             and
             that
             a
             short
             delay
             might
             prevent
             the
             effect
             of
             the
             Commission
             :
             and
             therefore
             granted
             Commission
             to
             certain
             Noblemen
             and
             Gentlemen
             ,
             or
             any
             one
             of
             them
             to
             Inventar
             ,
             Seal
             ,
             and
             Secure
             the
             Evidents
             ,
             and
             to
             open
             Doors
             ,
             Coffers
             ,
             and
             Cabinets
             for
             that
             effect
             ;
             but
             refused
             to
             give
             Warrant
             to
             take
             my
             Ladies
             Oath
             .
          
        
         
           
             Captain
             Newman
             contra
             Tennents
             of
             Whitehil
             ,
             and
             Mr.
             Iohn
             Prestoun
             .
             Ianuary
             8.
             1669.
             
          
           
             CAptain
             Newman
             having
             Appryzed
             the
             Lands
             of
             Whitehil
             from
             Prestoun
             of
             Craigmiller
             his
             Debitor
             ,
             and
             being
             thereupon
             Infeft
             ,
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             Mr.
             
               Iohn
               Prestoun
            
             ,
             who
             produces
             a
             Disposition
             from
             Craigmiller
             his
             Brother
             ,
             of
             the
             Baronies
             of
             
               Craigmiller
               ,
               Prestoun
            
             and
             Whitehil
             :
             Which
             Disposition
             ,
             relates
             this
             Debt
             of
             Captain
             Newmans
             ,
             and
             many
             other
             Debts
             ,
             and
             for
             satisfaction
             thereof
             Dispones
             these
             Lands
             to
             Mr.
             Iohn
             ,
             Reserving
             the
             Disponers
             and
             his
             Ladies
             Liferent
             ,
             containing
             a
             Reversion
             upon
             ten
             merks
             ,
             and
             containing
             a
             provision
             ,
             that
             it
             should
             be
             leisom
             to
             Craigmiller
             ,
             during
             his
             Life
             ,
             and
             after
             his
             Decease
             to
             Mr.
             Iohn
             to
             pay
             any
             of
             the
             Creditors
             contained
             in
             the
             Disposition
             they
             pleased
             ,
             without
             contributing
             the
             price
             proportionally
             to
             the
             rest
             of
             the
             Creditors
             :
             and
             also
             produces
             a
             Renunciation
             by
             Craigmiller
             ,
             whereby
             he
             Renunces
             the
             Reversion
             and
             the
             Liferents
             in
             favours
             of
             Mr.
             Iohn
             ,
             and
             also
             his
             own
             power
             of
             preference
             of
             the
             Creditors
             ,
             and
             Mr.
             Iohn
             his
             Infeftment
             upon
             the
             Disposition
             ,
             whereupon
             he
             alleadged
             that
             he
             ought
             to
             be
             preferred
             to
             the
             Mails
             and
             Duties
             ,
             because
             he
             stands
             publickly
             Infeft
             ,
             by
             vertue
             of
             the
             said
             Disposition
             ,
             before
             any
             Infeftment
             in
             the
             Person
             of
             the
             Pursuer
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             the
             Infeftment
             produced
             cannot
             Exclude
             him
             ,
             because
             it
             is
             expresly
             granted
             for
             satisfying
             of
             the
             Sum
             ,
             whereupon
             his
             Infeftment
             proceeds
             .
             It
             was
             answered
             for
             Mr.
             
               Iohn
               Prestoun
            
             that
             he
             having
             a
             power
             to
             prefer
             any
             Creditor
             he
             pleased
             ,
             he
             payed
             other
             Creditors
             to
             the
             value
             of
             the
             Estate
             ,
             whereby
             Newman
             is
             excluded
             .
             It
             was
             answered
             for
             Newman
             ,
             that
             this
             Disposition
             was
             fraudulent
             and
             fimulat
             ,
             in
             prejudice
             of
             lawful
             Creditors
             ,
             whereof
             he
             has
             Reduction
             upon
             the
             Act
             of
             Parliament
             1621.
             as
             being
             granted
             by
             a
             Brother
             to
             another
             ,
             with
             a
             power
             of
             preference
             of
             Creditors
             at
             the
             Purchasers
             option
             :
             which
             Clause
             is
             altogether
             null
             ;
             especially
             as
             to
             the
             preferences
             done
             ,
             since
             lawful
             Diligence
             was
             used
             by
             this
             Pursuer
             ,
             by
             Horning
             ,
             Inhibition
             ,
             Arrestment
             ,
             and
             Appryzing
             :
             and
             as
             no
             Debitor
             can
             so
             prefer
             himself
             ,
             so
             neither
             can
             he
             give
             such
             a
             power
             to
             any
             other
             :
             and
             therefore
             the
             Pursuer
             ought
             to
             be
             preferred
             to
             all
             the
             Creditors
             ,
             conform
             to
             his
             Diligence
             .
             It
             was
             answered
             for
             Mr.
             
               Iohn
               Prestoun
            
             ,
             that
             there
             being
             no
             Diligences
             done
             before
             the
             Disposition
             by
             any
             Creditor
             ,
             Craigmiller
             might
             Dispone
             ,
             being
             for
             an
             onerous
             Cause
             ,
             as
             he
             pleased
             ,
             and
             might
             prefer
             one
             Creditor
             to
             another
             .
             2dly
             ,
             Albeit
             this
             power
             of
             preference
             were
             not
             simply
             to
             be
             allowed
             after
             Diligence
             done
             by
             Creditors
             to
             prefer
             others
             to
             them
             :
             Yet
             it
             ought
             to
             be
             Sustained
             ,
             in
             so
             far
             as
             Craigmiller
             might
             lawfully
             have
             done
             ,
             viz.
             to
             prefer
             Mr.
             Iohn
             for
             the
             Sums
             due
             to
             himself
             ,
             and
             for
             his
             relief
             of
             such
             Sums
             as
             he
             was
             Cautioner
             in
             .
             The
             Pursuer
             answered
             ,
             that
             such
             a
             Disposition
             was
             not
             made
             ,
             nor
             doth
             this
             Disposition
             any
             way
             
             relate
             to
             Mr.
             Iohns
             Sum
             ,
             and
             his
             Relief
             ,
             but
             generally
             and
             equally
             to
             all
             ,
             and
             there
             is
             no
             difference
             but
             the
             unwarrantable
             power
             of
             preference
             ,
             which
             can
             have
             no
             effect
             after
             Diligence
             done
             .
          
           
             The
             Lords
             found
             the
             power
             of
             preference
             not
             to
             be
             Sustained
             as
             to
             any
             other
             Debts
             ,
             then
             to
             such
             as
             were
             due
             to
             Mr.
             Iohn
             himself
             ,
             and
             for
             which
             he
             was
             Cautioner
             before
             the
             Disposition
             ;
             and
             found
             as
             to
             these
             ,
             that
             the
             power
             of
             preference
             was
             lawful
             and
             valide
             ,
             and
             was
             equivalent
             to
             this
             Clause
             ,
             with
             power
             to
             Mr.
             Iohn
             to
             satisfie
             himself
             ,
             and
             those
             to
             whom
             he
             was
             Cautioner
             ,
             
               primo
               loco
            
             .
          
        
         
           
             Wallace
             of
             Galrigs
             contra
             Mckernel
             .
             Ianuary
             9.
             1669.
             
          
           
             UMquhil
             Wallac●
             of
             Galrigs
             being
             alleadged
             to
             have
             given
             a
             Seasine
             
               propriis
               manibus
            
             ,
             to
             his
             second
             Wife
             of
             two
             Chalders
             of
             Victual
             .
          
           
             The
             Lords
             Sustained
             the
             Seasine
             without
             any
             other
             Adminicle
             .
             But
             that
             the
             Wife
             had
             quite
             her
             former
             Liferent
             by
             a
             former
             Husband
             ,
             in
             favours
             of
             Galrigs
             ,
             whereupon
             Galrigs
             offered
             to
             improve
             the
             Seasine
             by
             the
             Witnesses
             insert
             ,
             which
             being
             four
             ,
             two
             Deponed
             positively
             that
             they
             were
             never
             Witnesses
             to
             a
             Seasine
             given
             by
             Galrigs
             to
             his
             Wife
             :
             and
             the
             third
             Deponed
             ,
             that
             he
             remembred
             not
             that
             he
             was
             Witness
             :
             the
             fourth
             Deponed
             ,
             that
             he
             was
             Witness
             ,
             but
             said
             that
             this
             Seasine
             was
             in
             Summer
             ,
             whereas
             it
             bore
             to
             be
             in
             Winter
             :
             the
             Nottar
             abode
             by
             the
             Seasine
             ,
             but
             was
             not
             Examined
             .
          
           
             The
             Lords
             found
             the
             Seasine
             improven
             ,
             but
             would
             not
             Examine
             the
             Nottar
             ,
             nor
             any
             other
             Person
             ,
             mainly
             in
             consideration
             that
             the
             Seasine
             was
             
               pr●priis
               manibus
            
             ,
             without
             any
             other
             Adminicle
             ;
             otherways
             the
             Nottar
             and
             one
             Witness
             affirming
             ,
             the
             Lords
             would
             have
             Examined
             the
             Nottar
             or
             any
             other
             persons
             or
             Evidences
             for
             astructing
             the
             verity
             of
             the
             Seasine
             .
          
        
         
           
             George
             Hume
             contra
             Seaton
             of
             Menzies
             .
             Ianuary
             13.
             1669.
             
          
           
             
               GEorge
               Hume
            
             as
             Assigney
             by
             the
             Earl
             of
             Wintoun
             to
             a
             Bond
             granted
             to
             the
             Earls
             Factor
             ,
             for
             his
             behove
             ,
             having
             Charged
             thereupon
             .
             The
             Creditor
             Suspends
             ,
             in
             Discussing
             whereof
             ,
             it
             was
             alleadged
             for
             
               George
               Hu●●
            
             ,
             that
             he
             ought
             to
             have
             Annualrent
             ,
             because
             the
             Suspender
             by
             a
             missive
             Letter
             produced
             written
             to
             the
             Umquhil
             Earl
             of
             Wintoun
             ,
             obliged
             him
             to
             pay
             Annualrent
             for
             the
             time
             by
             gone
             :
             and
             therefore
             ought
             to
             continue
             the
             same
             till
             payment
             .
             The
             Suspender
             answered
             ,
             it
             contained
             nothing
             as
             to
             the
             Annualrents
             in
             time
             coming
             .
          
           
             The
             Lords
             found
             Annualrents
             due
             from
             the
             beginning
             ,
             both
             before
             and
             after
             the
             Letter
             ,
             though
             they
             exceeded
             the
             Principal
             Sum
             ,
             seing
             once
             Annualrent
             was
             promised
             for
             some
             Terms
             .
          
        
         
           
             Alexander
             Mckenzie
             of
             Pitglasse
             contra
             Ross
             of
             Auchinleck
             ,
             Ianuary
             14.
             1669.
             
          
           
             
               ALexander
               Mckenzie
            
             having
             Right
             to
             two
             Compryzings
             of
             the
             Lands
             of
             Auchinleck
             ,
             one
             in
             Anno
             1644.
             and
             another
             in
             Anno
             1647.
             which
             being
             alleadged
             to
             have
             been
             satisfied
             within
             the
             Legals
             ,
             and
             the
             matter
             referred
             to
             an
             Auditor
             who
             reported
             these
             Points
             to
             the
             Lords
             .
             First
             ,
             Whether
             the
             Appryzer
             should
             Compt
             for
             the
             Mails
             and
             Duties
             ,
             so
             as
             
             to
             impute
             the
             same
             to
             both
             Appryzings
             ,
             as
             to
             years
             after
             the
             second
             Appryzing
             ,
             or
             to
             impute
             them
             wholly
             to
             the
             first
             Appryzing
             during
             its
             Legal
             ,
             and
             then
             to
             the
             second
             Appryzing
             during
             its
             Legal
             .
             It
             was
             alleadged
             for
             the
             Appryzer
             ,
             that
             he
             having
             two
             Titles
             in
             his
             Person
             ,
             it
             was
             free
             for
             him
             to
             impute
             his
             Possession
             to
             either
             of
             them
             ,
             and
             yet
             he
             was
             so
             favourable
             ,
             as
             not
             to
             crave
             his
             option
             ,
             but
             to
             impute
             proportionally
             to
             both
             ,
             albeit
             in
             Law
             ,
             when
             Receipts
             are
             not
             specially
             as
             to
             one
             Cause
             ,
             
               electio
               est
               Debitoris
               .
               2dly
            
             ,
             When
             any
             payment
             is
             made
             by
             a
             Debitor
             to
             his
             Creditor
             indefinitly
             ,
             it
             is
             still
             imputed
             to
             the
             Annualrents
             in
             the
             first
             place
             ,
             before
             it
             can
             satisfy
             any
             Stock
             ,
             so
             that
             any
             satisfaction
             gotten
             by
             him
             ,
             must
             first
             be
             imputed
             to
             the
             Annualrent
             of
             both
             the
             Sums
             ,
             and
             then
             to
             the
             Stock
             of
             the
             first
             .
             It
             was
             alleadged
             for
             Auchinleck
             ,
             that
             the
             Intromission
             could
             only
             be
             attribute
             to
             the
             first
             Appryzing
             .
             First
             ,
             Because
             by
             that
             Right
             the
             Appryzer
             entered
             in
             Possession
             ,
             and
             cannot
             invert
             his
             Possession
             to
             a
             third
             Parties
             prejudice
             .
             2dly
             ,
             The
             first
             Appryzing
             
               est
               potior
               jure
            
             ;
             for
             if
             the
             two
             Appryzings
             were
             in
             different
             Persons
             ,
             he
             that
             had
             the
             second
             ,
             could
             never
             attain
             Possession
             against
             the
             first
             .
             
               3dly
               ,
               In
               dubio
               solutio
               est
               imputanda
               in
               duriorem
               sortem
               ,
            
             and
             therefore
             to
             the
             first
             Appryzing
             ,
             for
             if
             imputation
             be
             made
             to
             both
             ,
             the
             first
             Appryzing
             will
             not
             be
             satisfied
             within
             the
             Legal
             ,
             and
             the
             Debitors
             Right
             will
             be
             taken
             away
             ,
             which
             is
             most
             infavourable
             .
             4thly
             ,
             The
             Appryzer
             as
             he
             did
             not
             Possess
             by
             the
             second
             Appryzing
             ,
             so
             he
             could
             not
             ,
             because
             the
             first
             Appryzing
             carries
             the
             Right
             of
             Property
             ,
             and
             the
             second
             carries
             only
             the
             Right
             of
             Reversion
             .
          
           
             The
             Lords
             found
             the
             Possession
             was
             only
             to
             be
             attribute
             to
             the
             first
             Appryzing
             ,
             and
             not
             to
             the
             second
             ,
             while
             the
             first
             were
             satisfied
             .
          
           
             The
             next
             point
             was
             ,
             that
             it
             was
             alleadged
             the
             Appryzer
             had
             sold
             a
             part
             of
             the
             Lands
             within
             the
             Legal
             ,
             and
             therefore
             the
             worth
             of
             these
             Lands
             ought
             to
             be
             allowed
             in
             satisfaction
             of
             the
             Sums
             .
             It
             was
             answered
             ,
             that
             the
             Appryzer
             could
             not
             Dispone
             the
             Lands
             simply
             ,
             but
             only
             his
             Right
             of
             Appryzing
             ,
             which
             would
             still
             be
             Redeemable
             from
             his
             Assigney
             ,
             as
             well
             as
             from
             himself
             .
          
           
             The
             Lords
             found
             that
             he
             was
             not
             Comptable
             for
             the
             whole
             value
             of
             the
             Lands
             Disponed
             ,
             but
             for
             what
             Sums
             he
             actually
             Received
             for
             the
             Lands
             Disponed
             ,
             to
             be
             proven
             
               scripto
               vel
               juramento
            
             .
          
           
             The
             next
             point
             was
             ,
             as
             to
             the
             prices
             of
             the
             Victual
             ,
             whether
             the
             Feers
             ,
             or
             greatest
             prices
             were
             due
             .
          
           
             The
             Lords
             allowed
             the
             Debitor
             to
             prove
             the
             greatest
             Prices
             ,
             and
             also
             to
             produce
             the
             Feers
             ,
             reserving
             to
             themselves
             the
             modification
             ;
             Next
             as
             to
             the
             Rental
             ,
             the
             Appryzer
             desired
             a
             joynt
             Probation
             ,
             especially
             it
             being
             in
             the
             Highlands
             ,
             where
             the
             Witnesses
             are
             suspect
             .
          
           
             The
             Lords
             would
             not
             grant
             a
             joynt
             Probation
             ,
             but
             ordained
             the
             Probation
             to
             be
             by
             Witnesses
             above
             exception
             .
          
        
         
           
             Hamiltoun
             contra
             Bain
             ,
             Ianuary
             15.
             1669.
             
          
           
             UMquhile
             
               Agnes
               Anderson
            
             having
             Disponed
             all
             her
             Goods
             and
             Moveables
             ,
             to
             Bains
             Bairns
             of
             the
             first
             Marriage
             ,
             and
             made
             Delivery
             thereof
             ,
             conform
             to
             an
             Instrument
             produced
             ;
             and
             having
             thereafter
             Married
             
               Iohn
               Hamiltoun
            
             ,
             he
             Ratified
             the
             former
             Deed
             done
             by
             his
             Wife
             in
             favours
             of
             her
             Bairns
             :
             she
             being
             now
             Dead
             ,
             both
             Parties
             give
             in
             Supplications
             ,
             desiring
             Possession
             of
             these
             Goods
             Disponed
             to
             the
             Bairns
             ,
             
             they
             alleadged
             upon
             the
             Mothers
             Disposition
             ,
             Ratified
             by
             her
             second
             Husband
             .
             And
             the
             Husband
             alleadging
             that
             it
             being
             but
             a
             fictitious
             Possession
             by
             an
             Instrument
             ,
             he
             as
             Husband
             being
             
               Dominus
               bon●rum
            
             ,
             is
             in
             the
             natural
             Possession
             ,
             seing
             his
             Wifes
             Liferent
             use
             was
             reserved
             ,
             and
             cannot
             summarly
             be
             put
             therefrom
             ,
             
               hoc
               ordine
            
             ,
             upon
             a
             Supplication
             without
             Process
             .
             2dly
             ,
             If
             he
             were
             in
             a
             Process
             ,
             he
             would
             exclude
             the
             Bairns
             ,
             because
             the
             Disposition
             being
             made
             after
             his
             Contract
             of
             Marriage
             and
             Proclamation
             ,
             no
             Deed
             of
             his
             Wifes
             could
             then
             prejudge
             him
             ;
             and
             as
             for
             his
             Ratification
             ,
             he
             did
             it
             to
             satisfie
             his
             Wifes
             importunity
             ,
             but
             being
             granted
             to
             a
             Wife
             during
             the
             Marriage
             ,
             he
             may
             and
             does
             recal
             it
             .
             It
             was
             answered
             ,
             that
             it
             was
             not
             a
             Donation
             to
             his
             Wife
             ,
             but
             to
             his
             Wifes
             Children
             ,
             which
             no
             Law
             makes
             Revockable
             .
          
           
             Which
             the
             Lords
             Sustained
             ,
             and
             found
             the
             Husband
             could
             not
             recal
             his
             Ratification
             ,
             not
             being
             in
             Favours
             of
             his
             Wife
             ,
             but
             in
             Favours
             of
             her
             Children
             ,
             at
             her
             desire
             .
          
        
         
           
             Earl
             of
             Athol
             contra
             Robertson
             of
             strowan
             ,
             Ianuary
             19.
             1669.
             
          
           
             MAster
             
               Walter
               Stuart
            
             as
             Parson
             of
             the
             Kirk
             of
             Blair
             in
             At●ol
             ,
             whereof
             Tillibairn
             was
             Patron
             ,
             gave
             a
             Tack
             to
             
             Tillibairn's
             Brother
             of
             the
             whole
             Teinds
             of
             the
             Paroch
             ;
             which
             Tack
             he
             (
             within
             a
             few
             days
             )
             Assigned
             to
             Tillibairn
             ,
             the
             Patron
             himself
             .
             
             Tillibairn's
             Escheet
             and
             Liferent
             having
             fallen
             ,
             the
             Viscount
             of
             Stormont
             obtained
             the
             Gift
             thereof
             ,
             and
             as
             Donator
             ,
             Assigned
             the
             Right
             of
             this
             Tack
             to
             the
             Earl
             of
             At●ol
             ,
             who
             now
             pursues
             
               Robertson
               of
               Strowan
            
             for
             the
             Teinds
             of
             his
             Lands
             ,
             for
             many
             more
             nor
             40.
             years
             ,
             from
             the
             Date
             of
             the
             Tack
             .
             The
             Defender
             alleadged
             ,
             First
             ,
             that
             the
             Tack
             is
             null
             ,
             being
             Set
             for
             more
             nor
             three
             years
             ,
             without
             consent
             of
             the
             Patron
             ,
             contrair
             to
             the
             Act
             of
             Parliament
             ,
             1594.
             
             The
             Pursuer
             answered
             ,
             that
             the
             alleadgeance
             was
             justertij
             to
             the
             Defender
             ,
             and
             was
             only
             competent
             to
             the
             Pursuer
             ,
             or
             some
             deriving
             Right
             from
             him
             ,
             for
             the
             Defender
             being
             lyable
             for
             his
             whole
             Teind
             ,
             had
             no
             Interest
             to
             quarrel
             the
             Pursuers
             Tack
             .
             2dly
             ,
             Albeit
             the
             consent
             of
             the
             Patron
             be
             necessar
             ,
             yet
             it
             is
             not
             necessar
             to
             be
             in
             the
             very
             Tack
             it self
             ,
             but
             a
             subsequent
             consent
             is
             sufficient
             ,
             and
             here
             the
             Patron
             has
             given
             a
             subsequent
             consent
             ,
             in
             so
             far
             as
             within
             a
             few
             dayes
             after
             the
             granting
             of
             the
             Tack
             ,
             he
             accepted
             an
             Assignation
             thereof
             himself
             ,
             and
             did
             obtain
             a
             Decreet
             of
             prorogation
             of
             the
             same
             .
             The
             Defender
             answered
             ,
             that
             the
             Patrons
             consent
             being
             a
             solemnity
             requisit
             in
             Law
             ,
             behoved
             to
             be
             in
             the
             Tack
             it self
             ,
             and
             not
             being
             then
             adhibit
             ,
             the
             Tack
             of
             it self
             was
             null
             
               ab
               initi●
            
             ,
             and
             a
             subsequent
             consent
             ,
             not
             by
             subscription
             ,
             but
             by
             acceptance
             ,
             or
             homologation
             ,
             was
             not
             sufficient
             ,
             and
             the
             Defender
             had
             good
             interest
             to
             propone
             the
             nullity
             ,
             not
             being
             founded
             
               super
               jure
               tertij
            
             ,
             but
             simply
             
               exclusive
               juris
               agentis
            
             ,
             as
             wanting
             the
             essential
             solemnities
             ,
             and
             also
             because
             the
             Defender
             has
             payed
             the
             Minister
             the
             accustomed
             Teind-duty
             for
             all
             years
             bygone
             ,
             and
             having
             his
             Discharge
             of
             the
             whole
             Teind-duty
             due
             by
             him
             eatenus
             he
             is
             in
             the
             Ministers
             place
             .
          
           
             The
             Lords
             found
             the
             Defender
             to
             have
             sufficient
             interest
             to
             alleadge
             the
             nullity
             upon
             the
             Discharges
             ,
             but
             found
             the
             Patrons
             acceptance
             of
             a
             Right
             to
             the
             ●ack
             ,
             a
             sufficient
             consent
             to
             validat
             the
             same
             ,
             and
             that
             it
             required
             no
             consent
             expresly
             by
             subscription
             of
             the
             Tack
             .
          
           
             The
             Defender
             further
             alleadged
             Absolvitor
             ,
             because
             this
             Tack
             never
             having
             attained
             Possession
             ,
             nor
             no
             action
             following
             thereupon
             ,
             for
             more
             then
             40.
             years
             it
             is
             
             prescribed
             and
             void
             ,
             and
             so
             likewise
             is
             the
             Decreet
             of
             prorogation
             ,
             being
             more
             then
             40.
             years
             since
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defender
             having
             no
             Right
             to
             his
             Teinds
             ,
             had
             no
             interest
             to
             quarrel
             his
             Right
             .
             2dly
             ,
             That
             a
             Tack
             being
             but
             a
             Right
             to
             an
             annual
             Prestation
             ,
             it
             is
             all
             one
             ,
             as
             if
             a
             Right
             had
             been
             granted
             to
             every
             year
             a
             part
             ,
             in
             which
             case
             39.
             years
             would
             be
             entire
             ,
             and
             the
             Pursuer
             insists
             for
             no
             further
             .
             The
             Defender
             answered
             ,
             that
             prescription
             being
             a
             total
             extinction
             of
             the
             Right
             ,
             and
             not
             a
             transmission
             thereof
             ,
             by
             vertue
             of
             an
             other
             Right
             ;
             It
             is
             not
             
               jus
               tertij
            
             to
             the
             Defender
             to
             alleadge
             the
             same
             ,
             and
             to
             exclude
             any
             from
             troubling
             him
             ,
             upon
             a
             null
             and
             prescribed
             Right
             ,
             and
             he
             is
             lyable
             only
             to
             the
             Minister
             ,
             to
             whom
             he
             has
             made
             payment
             ,
             and
             obtained
             his
             Discharge
             for
             bygones
             ,
             and
             for
             time
             coming
             ;
             likeas
             it
             is
             better
             to
             be
             in
             the
             hand
             of
             an
             Ecclesiastical
             Person
             ,
             th●n
             in
             the
             hand
             of
             a
             powerful
             secular
             Person
             .
             To
             the
             second
             ,
             that
             there
             is
             not
             here
             granted
             distinct
             Tacks
             ,
             of
             several
             years
             ,
             but
             one
             individual
             Tack
             for
             many
             years
             ,
             all
             which
             years
             are
             expired
             ;
             but
             it
             subsists
             only
             by
             the
             prorogation
             :
             and
             albeit
             it
             be
             true
             ,
             that
             if
             the
             Tack
             had
             been
             once
             cled
             with
             Possession
             ,
             and
             so
             become
             a
             real
             Right
             ,
             the
             Defender
             would
             only
             have
             been
             fred
             of
             the
             Duties
             before
             fourty
             years
             ,
             but
             the
             very
             Tack
             it self
             being
             never
             cled
             with
             Possession
             ,
             is
             singly
             expired
             and
             void
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             and
             competent
             to
             the
             Defender
             ,
             to
             Liberat
             him
             of
             all
             bygones
             payed
             to
             the
             Minister
             ,
             but
             not
             to
             exclude
             the
             Pursuer
             for
             time
             coming
             ,
             in
             respect
             ,
             that
             by
             the
             Decreet
             of
             Provision
             ,
             and
             prorogation
             of
             the
             Tack
             ,
             the
             benefice
             is
             no
             more
             a
             Parsonage
             ,
             but
             the
             Minister
             is
             a
             Stipendiary
             ,
             and
             is
             in
             Possession
             by
             vertue
             of
             a
             Modified
             Stipend
             ,
             the
             Right
             of
             the
             Teinds
             remaining
             by
             the
             Tack
             ,
             and
             prorogation
             forsaid
             in
             the
             Tacksman
             ,
             and
             in
             his
             Successors
             .
          
           
             But
             because
             the
             Pursuer
             alleadged
             Minority
             and
             Lesion
             ,
             the
             Defender
             proponed
             a
             third
             Defense
             ,
             viz.
             That
             he
             had
             made
             payment
             
               bona
               fide
            
             to
             the
             Minister
             ,
             and
             had
             received
             a
             Discharge
             for
             his
             whole
             Teind
             duty
             ,
             and
             could
             be
             lyable
             for
             no
             further
             ,
             for
             bygones
             ,
             till
             his
             use
             of
             payment
             was
             interrupted
             by
             Citation
             ,
             or
             Inhibition
             .
             The
             Pursuer
             answered
             ,
             that
             any
             payment
             the
             Defender
             made
             ,
             was
             but
             an
             inconsiderable
             Duty
             allocat
             out
             of
             his
             Teinds
             ,
             by
             vertue
             of
             the
             samine
             Decreet
             of
             modification
             ,
             and
             locality
             ;
             and
             albeit
             the
             Minister
             had
             Discharged
             his
             whole
             Teind
             ,
             yet
             as
             to
             the
             superplus
             ,
             which
             is
             the
             Tacksmans
             part
             ,
             the
             Discharge
             was
             meerly
             gratuitous
             ,
             and
             was
             not
             upon
             payment
             made
             ,
             and
             the
             Pursuer
             was
             willing
             to
             allow
             what
             he
             truely
             payed
             ;
             the
             Defender
             answered
             ,
             that
             in
             all
             Benefices
             and
             Tacks
             ,
             use
             of
             payment
             importing
             a
             verbal
             Tack
             ,
             is
             sufficient
             
               per
               tacitam
               relocationem
            
             ,
             till
             it
             be
             interrupted
             ,
             so
             that
             if
             the
             Minister
             had
             granted
             a
             Tack
             in
             Writ
             but
             for
             one
             year
             ,
             and
             the
             Defender
             had
             continued
             in
             Possession
             
               per
               tacitam
               relocationem
            
             ,
             he
             was
             
               bona
               fide
            
             Possessor
             ,
             &
             
               f●cit
               fructus
               consumptos
               suos
            
             ,
             even
             albeit
             the
             Minister
             had
             no
             Right
             ,
             so
             his
             use
             of
             payment
             for
             so
             long
             a
             time
             must
             work
             the
             same
             effect
             ,
             neither
             can
             it
             be
             made
             appear
             ,
             that
             the
             Defender
             or
             his
             Predecessors
             payed
             more
             ,
             then
             what
             they
             now
             pay
             .
          
           
             The
             Lords
             Sustained
             the
             Defense
             ,
             and
             found
             the
             Defender
             only
             lyable
             for
             use
             of
             payment
             ,
             until
             Citation
             or
             Inhibition
             .
          
        
         
           
           
             Mr.
             George
             Johnstoun
             contra
             Sir
             Charles
             Erskin
             Lord
             Lyon
             ,
             Eodem
             die
             .
          
           
             UMquhile
             
               Richard
               Irwing
            
             having
             Died
             Infeft
             in
             the
             ten
             Merk
             Land
             of
             Knok-hill
             ,
             his
             Son
             ,
             had
             a
             Son
             ,
             and
             four
             Daughters
             ,
             his
             Son
             being
             his
             appearand
             Heir
             ,
             and
             being
             Addebted
             a
             Sum
             to
             Mr.
             
               Iames
               Alexander
            
             ,
             he
             Charged
             him
             to
             enter
             Heir
             in
             special
             to
             Richard
             his
             Grand-father
             ,
             and
             Apprized
             the
             Lands
             from
             him
             ,
             whereunto
             Sir
             
               Charles
               Erskin
            
             has
             now
             Right
             ;
             the
             said
             Son
             being
             now
             Dead
             ,
             and
             never
             Infeft
             ,
             Mr.
             
               George
               Iohnstoun
            
             takes
             Right
             from
             the
             four
             Female
             Grand-children
             ,
             and
             Serves
             them
             Heirs
             to
             their
             Grand-father
             ,
             but
             before
             they
             were
             Infeft
             ,
             there
             was
             an
             Infeftment
             ,
             or
             Charge
             upon
             the
             Apprizing
             ,
             at
             the
             instance
             of
             Mr.
             
               Iames
               Alexander
            
             ,
             and
             in
             a
             former
             competition
             ,
             Sir
             Charles
             was
             preferred
             upon
             Mr.
             
               Iames
               Alexanders
            
             Right
             ,
             as
             denuding
             the
             Male
             Grand-child
             ,
             appearand
             Heir
             for
             the
             time
             ,
             in
             the
             same
             manner
             as
             if
             he
             had
             been
             Infeft
             ;
             now
             Mr.
             
               George
               Iohnstoun
            
             upon
             the
             Femals
             Right
             ,
             raises
             a
             Declarator
             ,
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             that
             Mr.
             
               Iames
               Alexanders
            
             Apprizing
             was
             satisfied
             ,
             and
             extinct
             by
             Intromission
             ,
             before
             the
             legal
             was
             expired
             .
             It
             was
             alleadged
             that
             the
             Pursuers
             ,
             as
             Heirs
             Served
             ,
             and
             entered
             to
             Richard
             their
             Grand-father
             ,
             had
             no
             interest
             to
             Redeem
             the
             Apprizing
             ,
             led
             against
             Robert
             their
             Brother
             ,
             unless
             they
             were
             also
             entered
             Heirs
             to
             their
             Brother
             ,
             which
             Robert
             ,
             if
             he
             were
             alive
             ,
             might
             Redeem
             the
             Apprizing
             against
             himself
             ,
             so
             that
             the
             legal
             Reversion
             being
             in
             his
             Person
             ,
             cannot
             belong
             to
             his
             Grand-fathers
             Heirs
             ,
             but
             to
             his
             own
             Heirs
             ,
             and
             as
             he
             ,
             or
             his
             Heirs
             could
             only
             Redeem
             ,
             so
             can
             they
             only
             declare
             the
             Apprizing
             to
             be
             satisfied
             by
             Intromission
             ,
             neither
             can
             the
             Reversion
             belong
             to
             two
             ,
             both
             to
             the
             Heirs
             of
             Robert
             ,
             who
             was
             Charged
             to
             enter
             Heir
             ,
             and
             to
             the
             Heirs
             of
             the
             Grand-father
             ,
             who
             Died
             last
             Infeft
             .
             It
             was
             answered
             ,
             that
             Robert
             never
             having
             in
             his
             Person
             any
             real
             Right
             ,
             as
             never
             being
             Infeft
             ,
             albeit
             
               fictione
               juris
            
             ,
             the
             Act
             of
             Parliament
             gives
             the
             Creditors
             like
             Right
             upon
             his
             disobedience
             to
             enter
             ,
             being
             Charged
             ,
             as
             if
             he
             had
             entered
             ,
             yet
             that
             is
             a
             meer
             passive
             Title
             ,
             and
             could
             give
             no
             active
             Title
             to
             Robert
             ,
             or
             any
             representing
             him
             ,
             either
             to
             Redeem
             ,
             or
             to
             call
             the
             Apprizer
             to
             an
             accompt
             ,
             till
             they
             were
             entered
             Heirs
             to
             the
             person
             last
             Infeft
             ;
             for
             albeit
             the
             Creditor
             Apprizer
             has
             a
             real
             Right
             ,
             yet
             the
             disobedient
             appearand
             Heir
             has
             none
             ;
             and
             albeit
             the
             Lords
             might
             suffer
             the
             disobedient
             appearand
             Heir
             ,
             or
             his
             Heirs
             to
             Redeem
             the
             Apprizing
             ,
             because
             the
             Apprizer
             had
             no
             interest
             to
             oppose
             the
             same
             ,
             being
             satisfied
             ,
             much
             less
             can
             the
             Apprizer
             now
             oppose
             the
             Pursuers
             ,
             who
             being
             Infeft
             as
             Heirs
             to
             Richard
             ,
             have
             the
             real
             Right
             of
             Fee
             in
             their
             Person
             ,
             and
             consequently
             the
             Right
             of
             the
             Reversion
             of
             the
             Apprizing
             led
             against
             Richards
             appearand
             Heir
             ,
             which
             being
             a
             minor
             Right
             ,
             is
             implyed
             ,
             and
             included
             in
             the
             Property
             .
          
           
             Which
             the
             Lords
             Sustained
             ,
             and
             found
             that
             the
             Heirs
             of
             the
             person
             last
             Infeft
             ,
             being
             Infeft
             ,
             might
             Redeem
             ,
             or
             declare
             against
             an
             Apprizer
             ,
             who
             Apprized
             from
             an
             appearand
             Heir
             ,
             lawfully
             Charged
             ,
             albeit
             they
             were
             not
             of
             that
             appearand
             Heir
             .
          
        
         
           
             The
             Creditors
             of
             James
             Masson
             contra
             Lord
             Tarphichan
             ,
             Eodem
             die
             .
          
           
             SEveral
             English-men
             Creditors
             to
             
               Iames
               Masson
            
             ,
             who
             lately
             broke
             ,
             being
             Infeft
             in
             several
             Annualrents
             ,
             out
             of
             Lands
             of
             his
             ,
             pursue
             Poinding
             of
             the
             Ground
             ;
             compearance
             is
             made
             for
             the
             Lord
             Tarphichan
             Superior
             ,
             and
             his
             Donator
             ,
             to
             the
             Liferent
             Escheet
             of
             
               James
               Masson
            
             ,
             who
             alleadged
             that
             
               James
               Masson
            
             being
             Ribel
             year
             and
             day
             before
             these
             Infeftments
             of
             Annualrent
             ,
             the
             
             Ground
             could
             not
             be
             Adjudged
             ,
             but
             the
             profits
             behoved
             to
             belong
             to
             the
             Superior
             ,
             and
             his
             Donator
             .
             It
             was
             answered
             ,
             that
             the
             Superior
             ,
             or
             Donator
             had
             no
             Interest
             by
             the
             Rebellion
             of
             
               James
               Masson
            
             ,
             because
             before
             the
             Rebellion
             ,
             
               James
               Masson
            
             was
             Denuded
             in
             favours
             of
             his
             Son
             ,
             and
             he
             Received
             as
             Vassal
             ,
             so
             that
             the
             Vassal
             for
             the
             time
             ,
             not
             having
             fallen
             in
             Rebellion
             ,
             the
             Superior
             can
             have
             no
             Liferent
             Escheat
             .
             The
             Superior
             answered
             ,
             that
             the
             Creditors
             of
             Masson
             having
             been
             once
             Vassal
             ,
             and
             as
             Vassal
             constituting
             their
             Annualrents
             ,
             they
             could
             not
             object
             upon
             the
             Right
             of
             his
             Son
             ,
             unless
             they
             had
             derived
             Right
             from
             his
             Son.
             2dly
             ,
             The
             Superior
             is
             also
             Creditor
             ,
             and
             hath
             Reduced
             the
             Sons
             Right
             as
             fraudulent
             ,
             in
             prejudice
             of
             him
             ,
             a
             lawful
             Creditor
             .
             It
             was
             answered
             ,
             that
             the
             Superiors
             Right
             ,
             as
             a
             Creditor
             upon
             the
             Reduction
             ,
             doth
             not
             simply
             annul
             the
             Sons
             Fee
             ,
             neither
             doth
             it
             at
             all
             restore
             the
             Father
             again
             ,
             because
             it
             being
             but
             a
             Reduction
             to
             a
             special
             effect
             ,
             viz.
             that
             the
             Creditor
             may
             affect
             the
             Lands
             ,
             by
             Apprizing
             upon
             his
             Debt
             ,
             anterior
             to
             the
             Sons
             Infeftment
             ,
             notwithstanding
             of
             his
             Infeftment
             ,
             the
             Sons
             Fee
             stands
             ,
             but
             burdened
             with
             that
             Apprizing
             ,
             so
             that
             upon
             neither
             ground
             ,
             the
             Superior
             can
             have
             the
             Right
             of
             a
             Liferent
             Escheat
             ,
             of
             him
             who
             once
             was
             his
             Vassal
             ,
             but
             was
             Denuded
             before
             Rebellion
             ▪
             and
             which
             is
             most
             competent
             to
             the
             Pursuers
             ,
             as
             well
             as
             if
             the
             Superior
             had
             been
             Denuded
             ,
             and
             another
             Superior
             Infeft
             ,
             if
             he
             or
             his
             Donator
             had
             been
             pursuing
             for
             a
             Liferent
             ,
             any
             person
             Infeft
             in
             the
             Land
             might
             well
             alleadge
             ,
             that
             he
             had
             no
             Interest
             as
             Superior
             ,
             being
             Denuded
             .
          
           
             The
             Lords
             found
             ,
             that
             in
             neither
             case
             the
             Superior
             ,
             or
             Donator
             ,
             could
             have
             interest
             in
             the
             Liferent
             Escheat
             .
          
        
         
           
             Mr.
             John
             Hay
             contra
             the
             Town
             of
             Peebles
             ,
             January
             20.
             1669.
             
          
           
             MAster
             
               John
               Hay
            
             the
             Clerk
             having
             pursued
             a
             Reduction
             ,
             and
             Improbation
             ,
             against
             the
             Town
             of
             Peebles
             ,
             of
             all
             Right
             of
             Ascheils
             belonging
             to
             him
             in
             Property
             ,
             containing
             also
             a
             Declarator
             of
             Property
             of
             the
             saids
             Lands
             of
             Ascheils
             ,
             and
             that
             certain
             Hills
             lying
             towards
             the
             Town-lands
             of
             Peebles
             ,
             are
             proper
             Part
             ,
             and
             Pertinent
             of
             Ascheils
             :
             He
             insists
             in
             his
             Reduction
             and
             Improbation
             ,
             for
             Certification
             ,
             or
             at
             least
             ,
             that
             the
             Defenders
             would
             take
             Terms
             to
             produce
             .
             The
             Defenders
             alleadged
             no
             Certification
             ,
             because
             they
             stand
             Infeft
             in
             these
             Hills
             in
             question
             ,
             
               per
               expressum
            
             ,
             and
             the
             Pursuer
             is
             not
             Infeft
             therein
             .
             The
             Pursuer
             answered
             ,
             that
             he
             offered
             to
             prove
             ,
             that
             they
             were
             proper
             Part
             ,
             and
             Pertinent
             of
             the
             Lands
             of
             Ascheils
             ,
             whereof
             he
             produces
             his
             Infeftment
             .
             The
             Defenders
             answered
             ,
             that
             till
             the
             samine
             were
             proven
             ,
             they
             were
             not
             obliged
             to
             take
             Terms
             to
             produce
             ,
             or
             otherwise
             ,
             upon
             this
             pretence
             of
             Part
             ,
             and
             Pertinent
             ,
             before
             the
             samine
             were
             instructed
             ,
             any
             party
             might
             necessitate
             all
             his
             Neighbours
             ,
             to
             make
             patent
             to
             him
             their
             Charter
             Chists
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defenders
             ought
             to
             take
             a
             Term
             to
             produce
             ,
             and
             that
             before
             Certification
             ,
             at
             that
             Term
             he
             would
             prove
             Part
             ,
             and
             Pertinent
             ,
             and
             alleadged
             the
             Practique
             in
             the
             Case
             of
             the
             Town
             of
             Sterling
             ,
             observed
             by
             Dury
             ,
             the
             24.
             of
             Iune
             1625.
             
          
           
             The
             Lords
             Sustained
             the
             Defense
             ,
             and
             would
             not
             put
             the
             Defenders
             to
             take
             Terms
             ,
             till
             the
             Lands
             in
             question
             were
             first
             proven
             to
             be
             Part
             ,
             and
             Pertinent
             ,
             and
             allowed
             the
             Pursuer
             to
             insist
             
               primo
               loco
            
             in
             this
             Declarator
             for
             that
             effect
             ;
             and
             as
             to
             the
             Practique
             alleadged
             ,
             they
             found
             in
             that
             Case
             ,
             the
             Defenders
             alleadged
             upon
             no
             Right
             ,
             whereas
             the
             Defenders
             propone
             here
             upon
             an
             expresse
             Infeftment
             .
          
        
         
           
           
             Laird
             Kilburny
             contra
             the
             Heirs
             of
             Tailzie
             of
             Kilburny
             ,
             and
             Schaw
             of
             Greinock
             ,
             Eodem
             die
             .
          
           
             UMquhile
             Sir
             
               Iohn
               Crawford
            
             of
             Kilburny
             ,
             having
             only
             two
             Daughters
             ,
             the
             eldest
             Married
             to
             Blackhal
             ,
             Dispones
             his
             Estate
             to
             Margaret
             the
             younger
             ,
             and
             to
             the
             Heirs-male
             of
             her
             Body
             ;
             which
             failing
             ,
             to
             the
             eldest
             Heir
             Female
             ,
             without
             division
             ,
             throughout
             all
             the
             Succession
             ;
             and
             failling
             the
             Issue
             of
             this
             Daughter
             ,
             his
             eldest
             Daughter
             ,
             and
             her
             Issue
             ;
             and
             failling
             of
             these
             ,
             Iordanhil
             and
             Kilburny
             ,
             their
             Issue
             ,
             all
             which
             failling
             his
             own
             Heirs
             ,
             and
             Assigneys
             whatsomever
             .
             In
             which
             Disposition
             there
             is
             a
             Clause
             ,
             that
             the
             said
             Margaret
             ,
             and
             the
             Heirs
             of
             Tailzie
             ,
             should
             not
             alter
             the
             Tailzie
             ,
             nor
             Dispone
             ,
             or
             burden
             the
             Lands
             '
             or
             contract
             Debts
             ,
             whereby
             they
             might
             be
             Apprized
             ,
             and
             carried
             from
             the
             Heirs
             of
             Tailzie
             ;
             otherwise
             the
             Contraveeners
             should
             lose
             their
             Right
             
               ipso
               facto
            
             ,
             and
             there
             should
             be
             place
             to
             the
             next
             Heir
             of
             Tailzie
             :
             but
             there
             is
             a
             Clause
             subjoined
             ,
             that
             the
             said
             Margaret
             ,
             and
             the
             Heirs
             of
             Tailzie
             might
             Sell
             ,
             Dispone
             ,
             and
             Wodset
             the
             Lands
             of
             Easter
             Greinock
             ,
             and
             Carsburn
             ,
             and
             might
             burden
             the
             same
             with
             Sums
             of
             Money
             ,
             for
             paying
             ,
             and
             satisfying
             of
             the
             Defuncts
             Debts
             .
             The
             said
             
               Margaret
               Crawford
            
             having
             Married
             the
             Earl
             of
             Crawfords
             Son
             Patrick
             ;
             they
             did
             Sell
             the
             Lands
             of
             Easter
             Crawford
             ,
             and
             Carsburn
             ,
             to
             Sir
             
               Iohn
               Schaw
            
             of
             Greinock
             ,
             at
             a
             Rate
             far
             above
             the
             ordinar
             Price
             ,
             having
             expected
             a
             Bargain
             with
             the
             Town
             of
             Glasgow
             ,
             for
             a
             Harbour
             there
             ;
             but
             the
             Town
             having
             made
             another
             Bargain
             with
             
               New-wark
               :
               Greinock
            
             pursued
             Kilburny
             ,
             either
             to
             annul
             the
             Minut
             ,
             or
             fulfil
             the
             same
             ,
             and
             to
             secure
             him
             ,
             in
             relation
             to
             the
             Clause
             
               de
               non
               alienando
            
             ;
             and
             to
             that
             effect
             ,
             Kilburny
             raises
             a
             Declarator
             against
             the
             Heirs
             of
             Tailzie
             ,
             to
             hear
             and
             see
             it
             found
             and
             Declared
             ,
             that
             by
             the
             Right
             granted
             to
             the
             Lady
             by
             her
             Father
             ,
             she
             might
             lawfully
             Sell
             the
             Lands
             of
             Easter
             Greinock
             ,
             and
             Carsburn
             .
             The
             Heirs
             of
             Tailzie
             compeared
             not
             ,
             but
             Greinock
             compeared
             ,
             and
             was
             admitted
             for
             his
             Interest
             ,
             which
             was
             ,
             that
             the
             Processe
             being
             for
             his
             security
             ,
             he
             might
             propone
             all
             the
             Defenses
             ,
             which
             he
             thought
             competent
             to
             the
             Heirs
             of
             Tailzie
             ,
             and
             alleadged
             that
             the
             Libel
             was
             no
             ways
             Relevant
             ,
             bearing
             a
             power
             to
             Sell
             simply
             ,
             but
             that
             it
             ought
             to
             have
             been
             conform
             to
             the
             Clause
             in
             the
             Disposition
             ,
             viz.
             to
             Sell
             ,
             Wodset
             ,
             or
             Burden
             ,
             for
             payment
             of
             the
             Defuncts
             Debts
             ,
             which
             did
             necessarly
             import
             ,
             that
             no
             further
             could
             be
             Sold
             ,
             then
             what
             was
             sufficient
             to
             pay
             the
             Debt
             ,
             and
             therefore
             no
             Processe
             ,
             till
             the
             Libel
             were
             so
             ordered
             ,
             and
             the
             Debts
             produced
             .
             The
             Pursuer
             answered
             ,
             that
             he
             opponed
             the
             Clause
             ,
             having
             two
             Members
             ,
             one
             bearing
             with
             full
             power
             to
             Dispone
             the
             Lands
             of
             Easter
             Grienock
             ,
             and
             Carsburn
             ,
             and
             the
             other
             bearing
             to
             affect
             the
             same
             with
             Sums
             ,
             for
             paying
             of
             the
             Defuncts
             Debts
             ;
             which
             payment
             of
             the
             Defuncts
             Debts
             ,
             was
             but
             the
             end
             ,
             motive
             ,
             and
             consideration
             for
             which
             the
             power
             was
             granted
             ,
             but
             was
             no
             restriction
             ,
             quality
             ,
             or
             limitation
             of
             the
             power
             .
             2dly
             ,
             It
             did
             only
             relate
             to
             the
             second
             Member
             of
             the
             Clause
             ,
             and
             not
             to
             the
             first
             Member
             ,
             which
             bore
             with
             full
             power
             to
             Sell
             ,
             and
             Wodset
             ,
             &c.
             which
             full
             power
             ,
             is
             directly
             opposit
             to
             a
             limited
             power
             .
             3dly
             ,
             Albeit
             the
             Pursuer
             were
             obliged
             to
             instruct
             the
             Debt
             ,
             and
             apply
             the
             price
             for
             satisfying
             thereof
             ,
             yet
             the
             Clause
             doth
             not
             limit
             him
             to
             Sell
             only
             so
             much
             as
             will
             be
             equivalent
             to
             the
             Debt
             ,
             but
             he
             satisfying
             the
             Debt
             ,
             more
             or
             lesse
             ,
             hath
             acted
             conform
             to
             the
             Clause
             ,
             which
             uses
             to
             be
             so
             exprest
             in
             Clauses
             of
             this
             nature
             ,
             as
             that
             the
             Heirs
             of
             Tailzie
             may
             Dispone
             so
             much
             as
             will
             be
             sufficient
             for
             payment
             of
             the
             Debt
             ,
             which
             not
             being
             exprest
             ,
             these
             restrictive
             Clauses
             being
             against
             common
             Law
             ,
             are
             
               strictissimi
               juris
            
             ,
             and
             not
             to
             be
             extended
             beyond
             
             what
             the
             words
             expresly
             bears
             .
             4thly
             ,
             Albeit
             the
             Pursuer
             were
             obliged
             to
             instruct
             that
             there
             were
             Debt
             ,
             which
             might
             be
             a
             price
             ,
             yet
             he
             were
             not
             obliged
             to
             instruct
             that
             they
             would
             be
             equivalent
             to
             this
             price
             ,
             but
             to
             such
             a
             price
             as
             were
             not
             a
             third
             part
             within
             the
             ordinar
             Rate
             ,
             in
             which
             latitude
             ,
             every
             Seller
             hath
             power
             ,
             and
             the
             alienation
             cannot
             be
             quarrelled
             ;
             and
             albeit
             that
             price
             would
             be
             more
             then
             the
             Debt
             ,
             yet
             these
             Lands
             being
             two
             intire
             Tenements
             ,
             which
             none
             would
             Buy
             by
             Parcels
             ,
             the
             Pursuer
             could
             only
             be
             comptable
             to
             the
             Heirs
             of
             Tailzie
             for
             the
             superplus
             .
             The
             Defender
             answered
             ,
             that
             he
             opponed
             the
             Clause
             ,
             being
             one
             and
             copulative
             ;
             and
             that
             these
             Lands
             being
             put
             
               per
               expressum
            
             in
             the
             Clause
             ,
             
               de
               non
               alienando
            
             ,
             It
             could
             not
             be
             thought
             that
             the
             immediat
             following
             Clause
             ,
             would
             give
             the
             Lady
             as
             much
             power
             ,
             as
             to
             these
             Lands
             ,
             as
             if
             they
             had
             not
             been
             in
             the
             former
             Clause
             ,
             but
             the
             intent
             to
             satisfie
             the
             Defuncts
             Debt
             ,
             being
             the
             last
             words
             in
             the
             Clause
             ,
             is
             relative
             to
             the
             whole
             Clause
             ,
             and
             natively
             resolves
             into
             an
             Restriction
             ,
             or
             Quality
             ,
             not
             bearing
             that
             they
             night
             be
             the
             more
             able
             to
             pay
             the
             Debts
             ,
             but
             for
             payment
             and
             satisfaction
             of
             the
             Debts
             .
          
           
             The
             Lords
             considering
             that
             Heirs
             of
             Tailzie
             were
             absent
             ,
             and
             that
             as
             to
             them
             ,
             the
             Interlocutor
             would
             be
             in
             absence
             ,
             found
             it
             most
             just
             ,
             and
             safe
             for
             both
             Parties
             to
             declare
             conform
             to
             the
             Clause
             ,
             that
             the
             Alienation
             was
             valide
             for
             satisfying
             the
             Defuncts
             Debts
             ,
             and
             found
             not
             that
             the
             Debts
             behoved
             to
             be
             equivalent
             to
             this
             price
             .
          
        
         
           
             The
             Creditors
             of
             John
             Pollock
             contra
             James
             Pollock
             his
             Son
             ,
             January
             21.
             1669.
             
          
           
             THe
             Creditors
             of
             
               John
               Pollock
            
             having
             Adjudged
             his
             Tenement
             for
             their
             Debt
             ,
             and
             
               James
               Pollock
            
             having
             gotten
             a
             Bond
             of
             5000.
             
             Merks
             from
             his
             Father
             ,
             payable
             after
             his
             Fathers
             death
             ,
             which
             was
             granted
             after
             he
             was
             Married
             ,
             he
             did
             also
             Apprize
             thereupon
             within
             year
             and
             day
             of
             the
             Adjudication
             .
             The
             Adjudgers
             raise
             a
             Reduction
             of
             this
             Bond
             ,
             and
             the
             Apprizing
             following
             thereupon
             ,
             upon
             these
             Reasons
             ;
             First
             ,
             Because
             the
             Bond
             was
             granted
             for
             Love
             and
             Favour
             ,
             and
             albeit
             it
             bear
             borrowed
             Money
             ,
             yet
             the
             said
             Iames
             has
             acknowledged
             by
             his
             Oath
             ,
             that
             it
             was
             for
             Love
             and
             Favour
             ,
             and
             so
             being
             granted
             betwixt
             most
             conjunct
             Persons
             ,
             after
             the
             contracting
             of
             their
             Debts
             ,
             it
             is
             null
             by
             the
             Act
             of
             Parliament
             ,
             1621.
             
             The
             Defender
             alleadged
             that
             the
             Reason
             was
             not
             Relevant
             as
             to
             such
             Debts
             as
             were
             not
             constitute
             by
             Writ
             ,
             anterior
             to
             the
             Defenders
             Bond
             ;
             and
             as
             to
             any
             constitute
             by
             Probation
             of
             Witnesses
             ,
             for
             proving
             Bargains
             ,
             Merchant
             Compts
             ,
             and
             Furnishing
             ,
             wherein
             the
             Probation
             ,
             and
             Decreet
             are
             both
             after
             the
             Bond
             ,
             they
             cannot
             be
             said
             to
             be
             anterior
             Debts
             ,
             because
             they
             are
             not
             constitute
             till
             Sentence
             ;
             and
             albeit
             the
             Sentence
             bear
             the
             Debt
             to
             have
             been
             contracted
             before
             this
             Bond
             ,
             yet
             that
             cannot
             make
             them
             anterior
             Debts
             ,
             because
             Writ
             cannot
             be
             taken
             away
             by
             Witnesses
             ,
             proving
             an
             anterior
             Debt
             ,
             which
             would
             be
             as
             effectual
             against
             the
             Writ
             ,
             as
             if
             the
             payment
             thereof
             had
             been
             proven
             by
             Witnesses
             ,
             and
             the
             time
             of
             Bargaining
             ,
             or
             Furnishing
             ,
             being
             a
             point
             in
             the
             Memory
             ,
             and
             not
             falling
             under
             the
             Sense
             ,
             no
             body
             would
             be
             secure
             who
             had
             Writ
             ,
             but
             that
             Bargains
             ,
             and
             Furniture
             might
             be
             proven
             anterior
             thereto
             .
             The
             Pursuer
             answered
             ,
             that
             his
             Reason
             was
             most
             Relevant
             ,
             and
             the
             constitution
             of
             the
             Debt
             is
             not
             by
             the
             Decreet
             ,
             or
             Probation
             ,
             but
             by
             the
             Bargain
             ,
             and
             Receipt
             of
             the
             Goods
             ,
             or
             Furniture
             ,
             after
             which
             no
             posterior
             Deed
             of
             the
             Debitor
             ,
             can
             prejudge
             the
             Creditors
             Furnishers
             ;
             and
             albeit
             in
             many
             cases
             Witnesses
             prove
             not
             ,
             and
             Witnesses
             are
             not
             admitted
             to
             prove
             ,
             where
             Writ
             may
             ,
             and
             uses
             to
             be
             interposed
             ,
             yet
             where
             the
             Probation
             is
             competent
             ,
             the
             Debt
             is
             as
             well
             proven
             thereby
             ,
             for
             the
             time
             of
             contracting
             
             as
             it
             is
             by
             Writ
             ,
             neither
             doth
             that
             ground
             ,
             that
             Writ
             cannot
             be
             taken
             away
             by
             Witnesses
             ,
             any
             way
             hinder
             ,
             for
             the
             meaning
             hereof
             ,
             is
             only
             that
             the
             Payment
             ,
             or
             Discharge
             of
             that
             Writ
             ,
             must
             be
             proven
             by
             Writ
             ,
             and
             it
             were
             a
             far
             greater
             inconvenience
             ,
             if
             after
             Bargain
             ,
             and
             Furniture
             ,
             any
             Writ
             granted
             by
             the
             Debitor
             ,
             though
             without
             an
             Onerous
             Cause
             ,
             should
             prejudge
             these
             Creditors
             .
          
           
             The
             Lords
             Sustained
             the
             Reason
             ,
             and
             Repelled
             the
             Defense
             ,
             and
             found
             Debts
             constitute
             by
             Witnesses
             to
             be
             effectual
             ,
             from
             the
             time
             of
             contracting
             ,
             and
             not
             from
             the
             time
             of
             Probation
             ,
             or
             Sentence
             ,
             to
             take
             away
             any
             posterior
             Deed
             of
             the
             Debitor
             ,
             done
             without
             a
             Cause
             Onerous
             .
          
           
             The
             Pursuer
             insisted
             in
             a
             second
             Reason
             of
             Reduction
             ,
             that
             albeit
             these
             Debts
             were
             posterior
             to
             this
             Bond
             ,
             yet
             the
             samine
             ought
             to
             be
             Reduced
             ,
             as
             being
             a
             fraudulent
             conveyance
             betwixt
             the
             Father
             and
             the
             Son
             ,
             kept
             up
             ,
             and
             latent
             in
             some
             of
             their
             Hands
             ,
             without
             any
             thing
             following
             thereupon
             ,
             to
             make
             it
             known
             and
             publick
             ,
             so
             that
             the
             Creditors
             having
             
               bona
               fide
            
             contracted
             with
             the
             Father
             ,
             having
             a
             visible
             Estate
             ,
             were
             deceived
             and
             defrauded
             by
             this
             latent
             Bond
             ,
             if
             it
             were
             preferred
             to
             them
             .
             2dly
             ,
             This
             Bond
             bears
             only
             to
             be
             payable
             after
             the
             Fathers
             Death
             ,
             and
             so
             is
             but
             
               donatio
               mortis
               causa
            
             ,
             and
             but
             a
             Legacy
             ;
             or
             if
             it
             be
             
               inter
               vivos
            
             ,
             it
             is
             much
             more
             fraudulent
             and
             latent
             .
             3dly
             ,
             Bonds
             of
             Provision
             ,
             for
             Love
             and
             Favour
             granted
             to
             children
             ,
             are
             accompted
             but
             as
             their
             legitime
             ,
             still
             Revockable
             by
             the
             Father
             ,
             and
             all
             Debts
             contracted
             by
             him
             are
             preferable
             to
             them
             .
             The
             Defender
             answered
             ,
             that
             there
             was
             neither
             Law
             ,
             Reason
             ,
             nor
             Custom
             to
             evacuat
             ,
             or
             exclude
             Bonds
             of
             Provision
             ,
             granted
             by
             Parents
             
               ex
               pietate
               paterna
            
             ,
             to
             their
             Children
             ,
             upon
             accompt
             of
             their
             Fathers
             posterior
             Debt
             ,
             especially
             if
             the
             Bonds
             were
             Delivered
             ,
             for
             there
             is
             no
             ground
             for
             any
             such
             thing
             by
             the
             Act
             of
             Parliament
             ,
             1621.
             which
             relates
             only
             to
             Deeds
             done
             after
             the
             Debt
             contracted
             ,
             neither
             is
             there
             any
             sufficient
             ground
             of
             fraud
             ,
             that
             the
             Bonds
             were
             not
             made
             publick
             or
             known
             ,
             there
             being
             no
             obligement
             upon
             Parties
             to
             publish
             the
             same
             ,
             and
             Creditors
             have
             less
             means
             to
             know
             the
             Debts
             of
             other
             anterior
             Creditors
             ,
             then
             of
             Children
             ,
             having
             a
             just
             ground
             to
             suspect
             that
             they
             may
             be
             provided
             ,
             and
             to
             enquire
             after
             the
             same
             ,
             neither
             doth
             the
             delay
             of
             the
             Term
             of
             payment
             import
             ,
             either
             fraud
             ,
             or
             that
             the
             Bonds
             were
             
               donationes
               mortis
               causa
            
             .
          
           
             The
             Lords
             would
             not
             Sustatin
             the
             Reasons
             of
             Reduction
             upon
             the
             Act
             of
             Parliament
             ,
             1621.
             or
             upon
             the
             general
             ground
             ,
             that
             posterior
             Debts
             were
             preferable
             to
             all
             Bonds
             of
             Provision
             ,
             but
             ordained
             the
             Pursuer
             to
             condescend
             upon
             the
             particular
             ground
             of
             fraud
             in
             the
             Case
             in
             question
             .
          
        
         
           
             The
             Collector-general
             of
             the
             Taxation
             contra
             the
             Director
             of
             the
             Chancellery
             ,
             Ianuary
             22.
             1669.
             
          
           
             THe
             Director
             of
             the
             Chancellery
             being
             Charged
             for
             the
             present
             Taxation
             ,
             imposed
             in
             Anno
             1665.
             by
             the
             Convention
             of
             Estates
             ,
             Suspend
             on
             this
             Reason
             ,
             that
             he
             is
             a
             Member
             of
             the
             Colledge
             of
             Justice
             ,
             which
             by
             the
             Act
             of
             Convention
             are
             exempted
             .
             It
             was
             answered
             ,
             that
             the
             Members
             of
             the
             Colledge
             of
             Justice
             were
             never
             further
             extended
             then
             to
             the
             Lords
             ,
             Advocates
             ,
             Clerks
             of
             Session
             ,
             and
             the
             Writters
             to
             the
             Signet
             .
             It
             was
             answered
             ,
             that
             as
             the
             Signet
             depends
             immediatly
             ,
             and
             chiefly
             upon
             the
             Lords
             of
             Session
             ,
             and
             Writters
             thereto
             ,
             are
             of
             the
             Colledge
             of
             Justice
             ,
             so
             the
             Chancellery
             depends
             in
             the
             same
             way
             upon
             the
             Lords
             ,
             who
             issue
             Orders
             thereto
             from
             time
             to
             time
             ,
             to
             give
             out
             
             Precepts
             direct
             to
             Superiours
             ,
             or
             to
             Bailliffs
             ,
             Sheriffs
             for
             Infefting
             of
             Supplicants
             ;
             and
             therefore
             the
             Director
             of
             the
             Chancellary
             ,
             being
             Writer
             in
             that
             Office
             ,
             must
             enjoy
             that
             Priviledge
             ,
             as
             well
             as
             the
             Writers
             to
             the
             Signet
             ;
             for
             albeit
             the
             Director
             gives
             out
             Precepts
             and
             Brieves
             of
             Course
             ,
             without
             the
             Lords
             Warrand
             ,
             so
             do
             the
             Writers
             to
             the
             Signet
             ,
             give
             out
             many
             Summons
             of
             course
             without
             Warrand
             .
          
           
             The
             Lords
             found
             the
             Director
             of
             the
             Chancellary
             to
             be
             a
             Member
             of
             the
             Colledge
             of
             Justice
             ,
             and
             therefore
             Suspended
             the
             Letters
             .
          
        
         
           
             The
             Collector
             general
             of
             the
             Taxations
             contra
             The
             Master
             and
             Servants
             of
             the
             Mint-house
             .
             Eodem
             die
             .
          
           
             THe
             Master
             of
             the
             Mint
             did
             also
             Suspend
             for
             him
             and
             his
             Servants
             on
             this
             Reason
             ,
             that
             it
             was
             their
             ancient
             Priviledge
             to
             be
             free
             of
             Taxations
             ,
             for
             which
             they
             produced
             certain
             Gifts
             ,
             by
             former
             Kings
             of
             Scotland
             ,
             and
             Decreets
             of
             the
             Lords
             .
             It
             was
             answered
             ,
             that
             the
             
               Act
               of
               Convention
            
             gives
             only
             Exemption
             to
             the
             Members
             of
             the
             Colledge
             of
             Justice
             ,
             and
             Discharges
             all
             former
             Priviledges
             and
             Exemptions
             .
             It
             was
             answered
             that
             
               Acts
               of
               the
               Convention
            
             must
             be
             understood
             
               salvo
               jure
            
             ,
             which
             takes
             place
             even
             in
             Acts
             of
             Parliament
             .
             2dly
             ,
             They
             produced
             a
             late
             Gift
             ,
             granted
             by
             the
             King
             in
             Anno
             1668.
             
             Exeeming
             the
             Master
             and
             Servants
             of
             the
             Mint
             from
             all
             Taxation
             ,
             Imposed
             or
             to
             be
             Imposed
             ,
             which
             is
             past
             the
             Exchequer
             and
             Privy
             Seal
             ,
             so
             that
             the
             King
             who
             hath
             Right
             to
             the
             Taxation
             ,
             might
             Discharge
             the
             same
             to
             whomsoever
             he
             pleased
             .
          
           
             The
             Lords
             in
             respect
             of
             the
             new
             Gift
             ,
             did
             Exeem
             the
             Officers
             of
             the
             Mint
             ,
             and
             Suspended
             the
             Letters
             .
          
        
         
           
             The
             Daughters
             of
             umquhil
             Chrichtoun
             of
             Crawfoordstoun
             contra
             Brown
             of
             Inglistoun
             .
             Eodem
             die
             .
          
           
             THe
             Daughters
             of
             umquhil
             Crichtoun
             of
             Crawfoordstoun
             ,
             as
             Heirs
             appearand
             to
             him
             immediatly
             after
             his
             Death
             ,
             gave
             in
             a
             Supplication
             to
             the
             Lords
             ,
             desiring
             his
             Charter-Chist
             to
             be
             Inventared
             and
             Sequestrat
             .
          
           
             Which
             the
             Lords
             granted
             .
          
           
             But
             before
             the
             Commission
             came
             to
             the
             House
             ,
             
               William
               Lowry
            
             the
             Ladies
             Nevoy
             ,
             upon
             notice
             of
             the
             Order
             ,
             Rode
             Night
             and
             Day
             ,
             and
             prevented
             the
             same
             :
             so
             that
             all
             the
             Writs
             were
             carried
             from
             Crawfoordstoun
             to
             Inglisstoun
             .
          
           
             Thereafter
             the
             appearand
             Heirs
             raised
             Exhibition
             ,
             
               ad
               deliberandum
            
             ,
             against
             the
             Lady
             and
             others
             ,
             who
             produced
             three
             Dispositions
             by
             Crawfordstoun
             ,
             in
             favours
             of
             Brown
             of
             Inglistoun
             ,
             who
             had
             Married
             one
             of
             his
             Daughters
             ,
             and
             the
             Heirs
             of
             that
             Marriage
             ,
             whereby
             he
             Disponed
             his
             Estate
             of
             Crawfoordstoun
             to
             them
             ,
             with
             a
             Bond
             of
             20000.
             pounds
             ,
             the
             intent
             whereof
             seems
             to
             have
             been
             ,
             that
             they
             might
             have
             Appryzed
             ,
             to
             make
             the
             Disposition
             effectual
             ,
             and
             she
             and
             
               William
               Lowrie
            
             having
             Deponed
             ,
             acknowledged
             that
             the
             Writs
             and
             Charter-Chist
             were
             carried
             out
             of
             Crawfoordstoun
             to
             Englistoun
             ,
             but
             Deponed
             that
             they
             knew
             not
             whether
             thir
             Writs
             were
             amongst
             them
             or
             not
             ,
             or
             whether
             they
             were
             formerly
             delivered
             to
             Inglistoun
             himself
             ,
             who
             is
             now
             dead
             :
             There
             was
             in
             the
             Exhibition
             Libelled
             a
             Declarator
             ,
             that
             the
             Writs
             were
             null
             ,
             as
             not
             delivered
             ,
             and
             that
             being
             unwarrantably
             taken
             out
             of
             the
             Defuncts
             Charter-Chist
             ,
             after
             the
             Lords
             Order
             to
             the
             contrair
             ,
             
             they
             ought
             to
             be
             put
             back
             and
             Sequestrat
             ,
             till
             the
             Rights
             of
             Parties
             were
             Discust
             .
             The
             Pursuers
             did
             now
             insist
             in
             this
             last
             member
             ,
             to
             the
             which
             it
             was
             answered
             ,
             that
             the
             Writs
             being
             Exhibit
             to
             the
             appearand
             Heirs
             
               ad
               deliberandum
            
             ,
             and
             they
             having
             seen
             them
             ,
             they
             could
             have
             no
             further
             interest
             ,
             but
             the
             Lady
             Crawfoordstoun
             Tutor
             to
             her
             Oy
             Inglistoun
             ,
             ought
             to
             have
             them
             up
             again
             ,
             who
             produced
             them
             ;
             neither
             is
             it
             ,
             nor
             can
             it
             be
             instructed
             ,
             that
             these
             Writs
             were
             unwarrantably
             taken
             out
             of
             the
             Charter-Chist
             ,
             after
             the
             Lords
             Warrand
             ,
             seing
             their
             Oaths
             bore
             ,
             that
             they
             knew
             not
             whether
             these
             were
             in
             the
             Charter-chist
             or
             not
             ;
             and
             therefore
             ,
             being
             a
             Pupils
             Writs
             ,
             in
             his
             favours
             produced
             by
             his
             Tutrix
             ,
             they
             cannot
             be
             taken
             from
             him
             or
             Sequestrat
             ,
             unless
             the
             unwarrantable
             medling
             therewith
             were
             proven
             .
             2dly
             .
             By
             a
             Disposition
             of
             the
             Moveables
             to
             the
             Lady
             produced
             ,
             granted
             by
             the
             Defunct
             ,
             it
             bears
             a
             Delivery
             of
             the
             Keys
             of
             the
             Charter-Chist
             to
             her
             ,
             to
             be
             Delivered
             to
             Inglistoun
             with
             the
             Charter-Chist
             ,
             which
             is
             equivalent
             as
             if
             they
             had
             been
             Delivered
             to
             Inglistoun
             himself
             ,
             and
             she
             was
             content
             to
             be
             Enacted
             to
             produce
             them
             when
             ever
             the
             Lords
             found
             cause
             .
             It
             was
             answered
             ,
             that
             the
             Lords
             Warrand
             being
             anticipat
             ,
             and
             the
             bulk
             of
             the
             Writs
             in
             the
             Charter-Chist
             carried
             away
             ,
             it
             must
             be
             presumed
             ,
             that
             these
             Dispositions
             ,
             and
             that
             Bond
             was
             amongst
             the
             rest
             ,
             and
             so
             must
             be
             returned
             
               in
               statu
               quo
            
             .
          
           
             The
             Lords
             found
             this
             alleadgance
             Relevant
             ,
             unless
             the
             Defenders
             would
             instruct
             that
             these
             Writs
             were
             not
             in
             the
             Charter-chist
             the
             time
             of
             the
             Order
             ,
             but
             out
             thereof
             in
             Inglistouns
             hands
             :
             and
             yet
             they
             allowed
             the
             Parties
             presently
             to
             Dispute
             whether
             ,
             albeit
             these
             Writs
             were
             in
             the
             Charter-Chist
             ,
             Inglistoun
             or
             his
             Tutrix
             should
             have
             them
             up
             ,
             or
             if
             they
             should
             remain
             Sequestrat
             .
          
        
         
           
             Mr.
             Iames
             Drummond
             contra
             Stirling
             of
             Ardoch
             .
             Ianuary
             23.
             1669.
             
          
           
             MR.
             
               Iames
               Drummond
            
             being
             Donator
             to
             the
             Escheat
             of
             the
             Laird
             of
             Glenegies
             ,
             pursues
             Exhibition
             and
             Delivery
             of
             a
             Bond
             granted
             by
             
               George
               Mushet
            
             to
             
               Iames
               Henderson
            
             ,
             containing
             2000.
             merks
             principal
             ,
             and
             by
             him
             Assigned
             to
             umquhil
             Glenegies
             ,
             and
             thereby
             falling
             under
             his
             Escheat
             ,
             and
             the
             Bond
             being
             produced
             by
             Ardoch
             ,
             the
             Donator
             craves
             the
             same
             to
             be
             Delivered
             to
             Ardoch
             .
             It
             was
             answered
             by
             Ardoch
             ,
             that
             the
             Bond
             ought
             not
             to
             be
             Delivered
             to
             the
             Donator
             ,
             because
             it
             cannot
             belong
             to
             him
             ,
             in
             respect
             that
             Mushet
             ,
             who
             by
             the
             Assignation
             became
             Debitor
             to
             Glenegies
             ,
             had
             two
             Bonds
             granted
             by
             him
             to
             Glenegies
             ,
             containing
             3000.
             merks
             ,
             wherein
             Ardoch
             is
             Cautioner
             ,
             whereby
             this
             Bond
             of
             2000.
             merks
             ,
             due
             to
             Glenegies
             ,
             was
             compensed
             long
             before
             Glenegies
             Rebellion
             .
             It
             was
             answered
             for
             the
             Pursuer
             .
             that
             Compensation
             is
             not
             Relevant
             ,
             unless
             it
             had
             been
             actuallie
             proponed
             in
             Judgement
             ,
             or
             Extrajudiciallie
             stated
             ,
             by
             the
             Parties
             offering
             and
             accepting
             the
             Compensation
             .
             2dly
             ,
             That
             the
             alleadgance
             is
             no
             wayes
             Relevant
             against
             the
             Donator
             ,
             who
             has
             Right
             to
             the
             Debts
             due
             by
             the
             Rebel
             .
             
               3dly
               ,
               Ardoch
            
             had
             no
             Interest
             to
             alleadge
             the
             Compensation
             ,
             which
             could
             only
             be
             proponed
             by
             Mushet
             the
             Creditor
             ,
             and
             not
             by
             Ardoch
             who
             is
             Cautioner
             to
             him
             .
             The
             Defender
             answered
             ,
             that
             Compensation
             is
             Competent
             
               ipso
               jure
            
             ,
             from
             the
             time
             that
             the
             sums
             be
             mutuallie
             due
             by
             the
             Debitor
             and
             Creditor
             ,
             in
             the
             same
             way
             as
             if
             they
             had
             granted
             mutual
             Discharges
             each
             to
             other
             ;
             and
             therefore
             when
             an
             Assigney
             Pursueth
             or
             Chargeth
             ,
             Compensation
             is
             always
             Sustained
             against
             him
             upon
             Debts
             due
             by
             the
             Cedent
             before
             the
             Assignation
             ,
             albeit
             the
             Compensation
             was
             not
             actually
             stated
             before
             the
             same
             ;
             neither
             is
             the
             Donator
             
             here
             in
             better
             case
             then
             an
             Assigney
             ,
             so
             that
             when
             he
             pursues
             Mushet
             Debitor
             to
             the
             Rebel
             ,
             Mushet
             may
             alleadge
             Compensation
             upon
             the
             like
             Debt
             due
             to
             him
             by
             the
             Rebel
             before
             the
             Rebellion
             ,
             and
             the
             Defender
             hath
             good
             Interest
             to
             propone
             the
             Compensation
             ,
             because
             he
             is
             Cautioner
             to
             Glenegies
             for
             Mushet
             ,
             and
             if
             Mushet
             be
             forced
             to
             pay
             the
             Donator
             ,
             without
             allowing
             Compensation
             ,
             Ardoch
             will
             be
             necessitat
             to
             pay
             Mushet
             ,
             to
             whom
             he
             is
             Cautioner
             ,
             and
             therefore
             hath
             good
             Interest
             to
             propone
             that
             by
             the
             concourse
             of
             the
             two
             Debts
             ,
             they
             are
             both
             extinct
             ,
             and
             he
             is
             not
             obliged
             to
             Deliver
             up
             to
             the
             Donator
             the
             Bond
             Constituting
             Mushets
             Debt
             .
          
           
             The
             Lords
             found
             the
             Alleadgance
             proponed
             for
             Ardoch
             Relevant
             and
             Competent
             ,
             and
             that
             Compensation
             was
             Relevant
             against
             the
             Donator
             upon
             Debts
             due
             by
             the
             Rebel
             before
             Rebellion
             .
          
        
         
           
             Sir
             Iohn
             Weims
             contra
             Farquhar
             of
             Towley
             .
             Eodem
             die
             .
          
           
             
               SIr
               Iohn
               Weims
            
             having
             Charged
             
               Farquhar
               of
               Towley
            
             for
             the
             maintainance
             of
             his
             Lands
             deu
             in
             Anno
             1648.
             
             He
             Suspends
             on
             this
             Reason
             ,
             that
             by
             the
             Act
             of
             Parliament
             1661.
             appointing
             this
             maintainance
             to
             be
             uplifted
             by
             Sir
             
               Iohn
               Weims
            
             ,
             singular
             Successors
             are
             exeemed
             
               ita
               est
            
             ,
             in
             one
             part
             of
             the
             Lands
             he
             is
             singular
             Successor
             to
             Sir
             
               Robert
               Farquhar
            
             ,
             of
             another
             part
             ,
             he
             has
             a
             Disposition
             from
             his
             Father
             ,
             for
             Sums
             of
             Money
             particularly
             exprest
             in
             the
             Disposition
             .
             It
             was
             answered
             to
             the
             first
             ,
             That
             the
             Exemption
             is
             onlie
             in
             favours
             of
             singular
             Successors
             ,
             who
             had
             bought
             Lands
             the
             time
             of
             the
             
               Act
               ,
               ita
               est
            
             ,
             Sir
             
               Robert
               Farquhars
            
             Disposition
             is
             after
             the
             Act
             :
             neither
             doth
             it
             appear
             that
             a
             competent
             price
             was
             payed
             therefore
             ,
             and
             as
             for
             his
             Fathers
             Disposition
             ,
             though
             prior
             to
             the
             Act
             ,
             yet
             the
             Narrative
             thereof
             ,
             betwixt
             Father
             and
             Son
             ,
             will
             not
             instruct
             the
             Debts
             ,
             unless
             it
             be
             otherways
             instructed
             ,
             nor
             can
             it
             be
             made
             appear
             to
             be
             a
             just
             price
             .
          
           
             The
             Lords
             found
             that
             the
             Exemption
             could
             not
             extend
             to
             singular
             Successessors
             ,
             acquiring
             after
             the
             Act
             ,
             for
             if
             at
             that
             time
             the
             Lands
             were
             in
             the
             hands
             of
             him
             who
             was
             Heretor
             in
             Anno
             1640
             ,
             or
             his
             Heirs
             ,
             nothing
             
               ex
               post
               facto
            
             done
             by
             them
             ,
             can
             prejudge
             the
             Right
             Constitute
             by
             the
             Act
             ,
             which
             doth
             not
             bear
             an
             exemption
             to
             singular
             Successors
             who
             should
             acquire
             ,
             but
             only
             to
             these
             who
             had
             acquired
             .
          
           
             They
             did
             also
             Ordain
             the
             Defender
             to
             instruct
             the
             Cause
             onerous
             of
             his
             Fathers
             Disposition
             ,
             but
             would
             not
             put
             the
             Suspender
             to
             Disput
             the
             Equivalence
             of
             the
             price
             ,
             unless
             it
             were
             instructed
             that
             the
             Dispositions
             were
             Simulat
             ,
             there
             being
             a
             great
             latitude
             in
             prices
             ,
             according
             to
             the
             pleasure
             of
             Parties
             .
          
        
         
           
             Alexander
             Chisholme
             contra
             Lady
             Brae
             .
             Ianuary
             26.
             1669.
             
          
           
             
               ALexander
               Chisholme
            
             having
             apprized
             certain
             Lands
             from
             the
             Heirs
             of
             Sir
             
               Alexander
               Frazer
            
             of
             Brae
             ,
             and
             thereupon
             insisting
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             the
             Lady
             Brae
             ,
             Sir
             Iames
             his
             Relict
             ,
             who
             being
             provided
             by
             her
             Contract
             of
             Marriage
             to
             certain
             Lands
             ,
             with
             an
             Obligement
             that
             they
             should
             be
             worth
             2400.
             merks
             yearly
             ,
             here
             Husband
             did
             thereafter
             ,
             during
             the
             Marriage
             ,
             grant
             her
             a
             Tack
             of
             the
             whole
             remanent
             Lands
             he
             had
             then
             ,
             with
             a
             general
             Assignation
             and
             Disposition
             
               omnium
               bonorum
            
             ,
             the
             Tack
             bears
             to
             be
             for
             
               Love
               and
               Favour
            
             ,
             and
             that
             the
             Lady
             may
             be
             in
             the
             better
             capacity
             to
             aliment
             his
             Children
             ,
             and
             bears
             20.
             pound
             of
             Tack
             Duty
             ,
             in
             case
             there
             be
             Children
             ,
             and
             a
             Duty
             equivalent
             to
             the
             Rent
             of
             the
             Land
             if
             there
             be
             none
             ,
             the
             entry
             to
             the
             Tack
             is
             at
             the
             next
             Term
             
             after
             the
             granting
             thereof
             ,
             and
             not
             at
             the
             Husbands
             Death
             .
             Upon
             this
             it
             was
             alleadged
             for
             the
             Lady
             ,
             that
             she
             ought
             to
             be
             preferred
             to
             the
             Mails
             and
             Duties
             of
             the
             Lands
             in
             question
             ,
             by
             her
             Tack
             cled
             with
             Possession
             by
             her
             Husbands
             Possession
             before
             contracting
             of
             thir
             Creditors
             Debt
             ,
             which
             must
             be
             understood
             her
             Possession
             
               stante
               matrimonio
            
             ,
             and
             by
             her
             own
             Possession
             ,
             after
             her
             Husbands
             Death
             ,
             before
             Chisholms
             Apprizing
             or
             Infeftment
             .
             It
             was
             alleadged
             for
             Chisholme
             ,
             that
             the
             alleadgance
             founded
             upon
             the
             Tack
             ,
             ought
             to
             be
             Repelled
             .
             First
             ,
             Because
             it
             is
             a
             Donation
             betwixt
             Man
             and
             Wife
             ,
             null
             of
             it self
             ,
             
               nisi
               morte
               confirmetur
            
             ,
             and
             so
             is
             still
             ambulatory
             ,
             and
             in
             the
             Husbands
             power
             ,
             during
             his
             Life
             ,
             and
             is
             in
             the
             same
             case
             as
             Bonds
             of
             Provision
             granted
             to
             Children
             ,
             and
             keeped
             by
             their
             Father
             ,
             which
             being
             still
             in
             his
             power
             ,
             any
             Debt
             Contracted
             after
             would
             be
             preferable
             thereto
             :
             So
             here
             this
             Tack
             being
             in
             the
             Husbands
             power
             ,
             the
             Contracting
             of
             a
             Debt
             thereafter
             is
             preferable
             thereto
             ,
             and
             is
             an
             Implicit
             Revocation
             thereof
             .
             2dly
             .
             This
             Tack
             being
             a
             most
             fraudulent
             ,
             latent
             and
             clandestine
             Deed
             betwixt
             Man
             and
             Wife
             ,
             whereupon
             nothing
             followed
             in
             her
             Husbands
             Life
             ,
             the
             Creditors
             having
             no
             way
             to
             know
             any
             such
             thing
             ,
             and
             having
             Contracted
             
               bona
               fide
            
             ,
             are
             Insnared
             and
             Defrauded
             thereby
             ;
             and
             the
             Lords
             having
             Declared
             ,
             that
             in
             regard
             they
             had
             Reponed
             the
             Lady
             against
             a
             former
             Decreet
             :
             She
             should
             now
             Dispute
             her
             Right
             of
             the
             Tack
             ,
             as
             in
             a
             Reduction
             ,
             against
             which
             ,
             this
             would
             be
             an
             unquestionable
             Reason
             ,
             that
             it
             is
             a
             latent
             ,
             fraudulent
             Contrivance
             ,
             containing
             a
             Disposition
             
               omnium
               bonorum
            
             .
             It
             was
             answered
             for
             the
             Lady
             to
             the
             first
             ,
             That
             Donations
             betwixt
             Man
             and
             Wife
             ,
             are
             not
             by
             Our
             Law
             and
             Custom
             null
             ,
             but
             are
             valid
             ,
             
               a
               principio
            
             ,
             unless
             they
             be
             actually
             Revocked
             :
             and
             albeit
             Implicit
             Revocations
             has
             been
             Sustained
             by
             Dispositions
             ,
             or
             Infeftments
             of
             the
             same
             Lands
             to
             others
             ,
             yet
             never
             by
             a
             Personal
             Bond
             or
             Contracting
             of
             a
             Debt
             ,
             posterior
             .
             To
             the
             second
             ,
             The
             Ladies
             Right
             can
             never
             be
             Interpret
             
               in
               fraudem
               creditorum
            
             ,
             there
             being
             no
             Creditors
             the
             time
             of
             the
             granting
             thereof
             ,
             and
             the
             Husband
             being
             free
             ,
             and
             Incapacitat
             by
             no
             Law
             ,
             an
             Infeftment
             of
             the
             remainder
             of
             his
             Estate
             to
             her
             ,
             so
             Cautioned
             as
             this
             is
             ,
             is
             both
             legal
             and
             favourable
             :
             and
             albeit
             in
             the
             same
             ,
             there
             be
             a
             Disposition
             
               omnium
               bonorum
            
             ,
             which
             cannot
             reach
             to
             Goods
             acquired
             after
             the
             Debts
             ,
             yet
             the
             Tack
             is
             valid
             
               &
               utile
               per
               inutile
               non
               vitiatur
               .
               3dly
               ,
            
             Albeit
             this
             Tack
             bear
             to
             be
             a
             Donation
             ,
             and
             for
             Love
             and
             Favour
             ;
             yet
             it
             is
             neither
             Fraudulent
             nor
             Revockable
             ,
             because
             it
             is
             
               donatio
               remuneratoria
            
             ,
             granted
             by
             the
             Husband
             ,
             who
             was
             obliged
             to
             make
             up
             the
             Joynture
             Lands
             ,
             contained
             in
             the
             Contract
             of
             Marriage
             ,
             to
             2400.
             merks
             ,
             of
             which
             they
             came
             short
             of
             four
             at
             the
             beginning
             ,
             and
             other
             four
             have
             been
             Evicted
             .
             It
             was
             answered
             for
             Chisholme
             the
             Creditor
             ,
             that
             this
             alleadgance
             was
             no
             ways
             Competent
             against
             him
             ,
             who
             is
             a
             Creditor
             ,
             contracting
             
               bona
               fide
            
             ;
             but
             the
             Lady
             ought
             to
             pursue
             her
             Son
             ,
             as
             Representing
             his
             Father
             ,
             for
             fulfilling
             her
             Contract
             ,
             or
             at
             least
             till
             that
             be
             declared
             against
             the
             Heir
             ,
             who
             is
             the
             only
             competent
             Party
             ,
             the
             Creditor
             must
             Possess
             conform
             to
             his
             Right
             .
             2dly
             ,
             Whatever
             was
             the
             Husbands
             Obligement
             ,
             the
             Husband
             hath
             not
             granted
             this
             Tack
             in
             Remuneration
             or
             Satisfaction
             thereof
             ,
             but
             expresly
             for
             Love
             and
             Favour
             ,
             without
             mention
             of
             any
             other
             Cause
             .
             It
             was
             answered
             ,
             that
             the
             expressing
             of
             Love
             and
             Favour
             ,
             which
             may
             relate
             to
             the
             general
             Disposition
             ,
             cannot
             exclude
             other
             Causes
             ;
             and
             albeit
             it
             make
             the
             Tack
             a
             Donation
             ,
             yet
             it
             is
             well
             consistent
             to
             be
             a
             Remuneratory
             Donation
             ,
             which
             is
             not
             Revockable
             .
          
           
             The
             Lords
             found
             the
             Alleadgance
             Relevant
             ,
             that
             this
             was
             a
             Remuneratory
             Donation
             ,
             and
             that
             there
             was
             also
             much
             wanting
             of
             the
             Contract
             of
             Marriage
             ,
             and
             found
             it
             competent
             against
             this
             Apprizer
             ,
             and
             superceeded
             
             to
             give
             answer
             to
             the
             other
             Points
             ,
             that
             if
             it
             were
             not
             proven
             Remuneratory
             ,
             whether
             it
             could
             be
             Reduced
             as
             latent
             and
             fraudulent
             ,
             at
             the
             Instance
             of
             posterior
             Creditors
             ,
             or
             as
             being
             in
             the
             Husbands
             power
             ,
             was
             indirectly
             Revocked
             ,
             by
             Contracting
             of
             the
             posterior
             Debt
             ,
             having
             no
             more
             Estate
             to
             burden
             with
             his
             Debt
             .
          
        
         
           
             Boil
             of
             Kelburn
             contra
             Mr.
             Iohn
             Wilkie
             .
             Eodem
             die
             .
          
           
             BOil
             of
             Kelburn
             having
             gotten
             a
             Commission
             from
             the
             Presbyterie
             of
             Irving
             ,
             to
             uplift
             some
             vaccand
             Stipends
             ,
             he
             gave
             Bond
             to
             pay
             to
             them
             850.
             pounds
             therefore
             ,
             and
             being
             thereafter
             Charged
             by
             Mr.
             
               Iohn
               Wilkie
            
             ,
             Collector
             of
             the
             vaccand
             Stipends
             ,
             Kelburn
             payed
             him
             600.
             merks
             ,
             whereupon
             Mr.
             Iohn
             gave
             Kelburn
             his
             Discharge
             of
             these
             vaccand
             Stipends
             ,
             and
             of
             his
             Bond
             to
             t●e
             Presbyterie
             ,
             with
             absolute
             Warrandice
             of
             the
             Discharge
             ,
             especially
             bearing
             to
             relieve
             and
             free
             him
             of
             the
             Bond
             to
             the
             Presbyterie
             ,
             thereafter
             Kelburn
             was
             Decerned
             to
             make
             payment
             of
             that
             Bond
             ,
             after
             a
             long
             Debate
             Mr.
             
               Iohn
               Wilkie
            
             compeared
             ,
             whereupon
             Kelburn
             Charged
             Mr.
             Iohn
             to
             pay
             him
             the
             850.
             pounds
             ,
             with
             Annualrent
             and
             Expences●
             upon
             the
             Clause
             of
             Warrandice
             ,
             Mr.
             Iohn
             Suspends
             on
             these
             Reasons
             .
             First
             ,
             That
             he
             was
             Circumveened
             ,
             never
             having
             read
             the
             Discharge
             .
             2dly
             ,
             That
             Clauses
             of
             Warrandice
             (
             however
             conceived
             )
             are
             never
             extended
             further
             by
             the
             Lords
             ,
             then
             to
             the
             Skaith
             and
             Damnage
             of
             the
             Party
             Warranted
             ,
             which
             if
             it
             be
             Componed
             for
             never
             so
             little
             ,
             the
             Warrandice
             reacheth
             no
             further
             then
             the
             Composition
             ,
             and
             it
             can
             never
             be
             extended
             
               ad
               captandum
               lucrum
               ex
               alterius
               damno
               ,
               so
               Kelburn
            
             having
             gotten
             Stipend
             worth
             850.
             pounds
             ,
             he
             cannot
             seek
             the
             same
             back
             again
             ,
             but
             only
             the
             400.
             pound
             he
             payed
             out
             .
             It
             was
             answered
             ,
             that
             albeit
             general
             Clauses
             of
             Warrandice
             be
             so
             Interpret
             ,
             yet
             this
             is
             an
             express
             and
             special
             ●action
             ,
             to
             relieve
             Kelburn
             of
             this
             Bond
             ,
             which
             ,
             if
             it
             had
             been
             
               per
               se
            
             ,
             would
             have
             been
             valide
             ,
             although
             without
             an
             onerous
             Cause
             ,
             and
             cannot
             be
             lesse
             valide
             ,
             having
             so
             much
             of
             an
             onerous
             Cause
             .
          
           
             The
             Lords
             did
             take
             no
             notice
             of
             the
             Reason
             of
             Circumvention
             ,
             Mr.
             Iohn
             being
             known
             to
             be
             a
             provident
             Person
             ,
             but
             Restricted
             the
             Warrandice
             to
             the
             400.
             pounds
             received
             by
             the
             Suspender
             ,
             and
             Annualrents
             thereof
             ,
             and
             the
             Expences
             of
             Plea
             against
             the
             Presbyterie
             ,
             and
             found
             it
             no
             ways
             alike
             ,
             as
             if
             it
             had
             been
             a
             Paction
             apart
             ,
             but
             being
             a
             speciality
             in
             a
             Clause
             of
             Warrandice
             ,
             it
             was
             to
             be
             Interpret
             accordingly
             ,
             
               pro
               damno
               &
               interesse
            
             only
             .
          
        
         
           
             Lady
             Braid
             contra
             Earl
             of
             Kinghorne
             .
             Eodem
             die
             .
          
           
             THere
             is
             a
             Bond
             10000.
             pounds
             granted
             to
             the
             Earl
             of
             Buchan
             Principal
             ,
             and
             the
             Earl
             of
             Kinghorne
             Cautioner
             to
             umquhil
             
               Mo●ison
               of
               Darsie
            
             ,
             and
             Dam
             
               Nicolas
               Bruce
            
             ,
             now
             Lady
             Braid
             ,
             then
             his
             Spouse
             ,
             bearing
             Annualrent
             ,
             and
             a
             Clause
             stating
             the
             Principal
             Sum
             after
             ilk
             Term
             ,
             as
             a
             Stock
             to
             bear
             Annualrent
             ,
             and
             Termly
             Penalties
             in
             case
             of
             failzie
             .
             This
             being
             called
             
               in
               praesentia
            
             ,
             It
             was
             alleadged
             for
             Kinghorne
             ,
             that
             Annual
             of
             Annual
             was
             a
             most
             Usurary
             Paction
             ,
             rejected
             by
             all
             Law
             ,
             and
             our
             Custom
             ,
             and
             cannot
             subsist
             in
             whatever
             Terms
             it
             be
             conceived
             ,
             otherwise
             by
             the
             like
             Paction
             ,
             the
             Annual
             of
             that
             Annual
             might
             bear
             Annual
             ,
             and
             so
             perpetually
             multiply
             ;
             and
             if
             this
             were
             Sustained
             ,
             there
             would
             never
             be
             a
             Bond
             hereafter
             in
             other
             Terms
             .
             It
             was
             answered
             ,
             that
             Bonds
             of
             Corroboration
             ,
             stating
             Annualrents
             into
             Principals
             by
             Accumulation
             ,
             have
             
             ever
             been
             allowed
             ,
             and
             though
             that
             be
             done
             after
             the
             Annualrent
             is
             become
             due
             ,
             making
             it
             then
             to
             bear
             Annualrent
             ,
             there
             is
             no
             material
             difference
             to
             make
             it
             bear
             Annualrent
             by
             a
             paction
             
               ab
               ante
            
             ,
             but
             not
             to
             take
             Effect
             till
             the
             Annualrent
             be
             effectually
             due
             .
             It
             was
             answered
             ,
             that
             Custom
             had
             allowed
             the
             stating
             of
             Annualrents
             after
             they
             were
             due
             ,
             into
             a
             Principal
             ,
             because
             then
             being
             presently
             due
             ,
             they
             might
             instantly
             be
             Exacted
             ;
             but
             Law
             and
             Custom
             hath
             rejected
             the
             other
             Case
             .
             The
             Pursuer
             further
             alleadged
             ,
             that
             she
             being
             a
             Widow
             ,
             and
             this
             her
             Liveliehood
             ,
             Annualrent
             at
             least
             should
             be
             due
             for
             the
             Annualrents
             ,
             seing
             she
             is
             ready
             to
             Depone
             ,
             that
             she
             borrowed
             money
             to
             live
             upon
             ,
             and
             payed
             Annualrent
             therefore
             ,
             or
             otherwise
             the
             Termly
             Failzies
             ought
             to
             be
             Sustained
             .
          
           
             The
             Lords
             Sustained
             the
             Defense
             ,
             and
             found
             no
             Annualrent
             due
             of
             the
             Annual
             ,
             nor
             Termly
             Failzies
             ,
             seing
             there
             was
             no
             Charge
             at
             the
             Pursuers
             Instance
             against
             this
             Defender
             ,
             and
             that
             he
             was
             a
             Cautioner
             ,
             but
             modified
             for
             all
             100.
             pound
             of
             Expences
             .
          
        
         
           
             Bell
             of
             Belfoord
             contra
             L.
             Rutherfoord
             .
             Ianuary
             27.
             1669.
             
          
           
             BEll
             of
             Belfoord
             being
             Infeft
             in
             an
             Annualrent
             by
             the
             Deceast
             Lord
             Rutherfoord
             ,
             out
             of
             certain
             Lands
             ,
             pursues
             a
             poinding
             of
             the
             ground
             .
             Compearance
             is
             made
             for
             my
             Lady
             Rutherfoord
             ,
             who
             alleadged
             she
             ought
             to
             be
             preferred
             ,
             as
             being
             Infeft
             in
             an
             Annualrent
             of
             2000.
             merks
             yearly
             ,
             upon
             her
             Contract
             of
             Marriage
             ,
             before
             this
             Pursuer
             .
             2dly
             ,
             That
             she
             ought
             to
             be
             preferred
             ,
             for
             an
             Annualrent
             of
             2000.
             merks
             yearly
             of
             additional
             Joynture
             ,
             wherein
             she
             stands
             also
             Infeft
             publickly
             ;
             and
             albeit
             her
             Infeftment
             be
             posterior
             to
             the
             Pursuers
             ,
             yet
             his
             Infeftment
             being
             base
             ,
             not
             cled
             with
             Possession
             ,
             before
             her
             publick
             Infeftment
             ,
             she
             is
             preferable
             .
             The
             Pursuer
             answered
             ,
             that
             before
             the
             Ladies
             Infeftment
             on
             her
             additional
             Jointure
             ,
             he
             had
             used
             a
             Citation
             for
             poinding
             of
             the
             Ground
             ,
             and
             is
             now
             Insisting
             for
             a
             Decreet
             thereupon
             ,
             which
             must
             be
             drawn
             back
             to
             the
             Citation
             ,
             and
             is
             sufficient
             to
             validat
             the
             base
             Infeftment
             ,
             that
             it
             be
             no
             more
             from
             that
             time
             forth
             repute
             Clandestine
             .
          
           
             Which
             alleadgance
             the
             Lords
             found
             Relevant
             ,
             and
             preferred
             the
             Pursuer
             to
             the
             Ladies
             additional
             Jointure
             .
          
           
             It
             was
             further
             alleadged
             for
             the
             Lady
             ,
             that
             she
             was
             Served
             ,
             and
             kenned
             to
             a
             Terce
             of
             the
             Lands
             in
             question
             ,
             and
             must
             be
             preferred
             ,
             as
             to
             a
             third
             part
             of
             the
             profits
             of
             the
             Lands
             ,
             conform
             to
             her
             Infeftment
             upon
             her
             Terce
             .
             The
             Pursuer
             answered
             ,
             that
             her
             Service
             ,
             Kenning
             and
             Infeftment
             of
             Terce
             ,
             are
             posteriour
             to
             his
             Infeftment
             of
             Annualrent
             ,
             and
             posterior
             to
             his
             Citation
             foresaid
             thereupon
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             her
             Terce
             being
             a
             Right
             Constitute
             by
             Law
             ,
             by
             the
             Death
             of
             her
             Husband
             ,
             albeit
             it
             be
             Served
             and
             Kenned
             after
             ,
             these
             Acts
             are
             but
             Declaratory
             of
             her
             Right
             ,
             by
             her
             Husbands
             Death
             ,
             and
             do
             Constitute
             her
             Right
             ▪
             not
             from
             the
             date
             of
             the
             Service
             ,
             but
             from
             her
             Husbands
             Death
             ,
             which
             is
             before
             the
             Pursuers
             Citation
             ,
             so
             that
             his
             Infeftment
             ,
             granted
             by
             her
             Husband
             ,
             before
             his
             Death
             ,
             not
             having
             been
             cled
             with
             Possession
             in
             the
             Husbands
             Life
             ,
             it
             remained
             at
             his
             Death
             as
             an
             incompleat
             Right
             ,
             which
             cannot
             exclude
             her
             from
             her
             Terce
             .
             It
             was
             answered
             ,
             that
             a
             base
             Infeftment
             is
             of
             it self
             a
             valid
             Right
             ,
             although
             by
             a
             special
             Act
             of
             Parliament
             posterior
             ,
             publick
             Infeftments
             are
             preferred
             thereto
             ,
             unless
             the
             base
             Infeftment
             hath
             been
             cled
             with
             Possession
             ,
             which
             cannot
             be
             extended
             beyond
             the
             Terms
             of
             the
             Act
             of
             Parliament
             ,
             and
             so
             cannot
             be
             extended
             to
             a
             Terce
             ,
             but
             as
             the
             base
             Infeftment
             
             would
             have
             been
             a
             sufficient
             Right
             ,
             against
             the
             Husband
             and
             his
             Heirs
             ,
             so
             it
             must
             be
             esteemed
             as
             
               debitum
               reale
            
             ,
             affecting
             the
             Ground
             ,
             and
             his
             Lady
             can
             have
             no
             more
             by
             her
             Terce
             then
             the
             third
             of
             what
             was
             free
             unaffected
             before
             his
             Death
             .
          
           
             The
             Lords
             found
             the
             base
             Infeftment
             sufficient
             to
             exclude
             the
             Terce
             
               pro
               tanto
            
             ,
             and
             that
             as
             to
             the
             Husbands
             Heir
             or
             Relict
             ,
             it
             was
             a
             sufficient
             Right
             .
          
        
         
           
             Stirling
             contra
             Heriot
             .
             Eodem
             die
             .
          
           
             Stirling
             Son
             to
             Commissar
             Stirling
             ,
             pursues
             for
             a
             modification
             of
             an
             Aliment
             out
             of
             the
             Liferent
             of
             
               Helen
               Heriot
            
             ,
             his
             Fathers
             Wife
             ,
             as
             having
             the
             Liferent
             of
             the
             whole
             Estate
             .
          
           
             The
             Lords
             Sustained
             not
             the
             Aliment
             ,
             in
             respect
             the
             Defenders
             Liferent
             was
             very
             mean
             ,
             and
             the
             Pursuer
             was
             major
             ,
             and
             keeped
             a
             Brewary
             ,
             and
             she
             kept
             one
             of
             his
             Children
             ,
             and
             that
             he
             was
             not
             
               frugi
               aut
               bonae
               famae
            
             .
          
        
         
           
             Robert
             Brown
             contra
             Iohnstoun
             of
             Clacherie
             .
             February
             1.
             1669.
             
          
           
             
               RObert
               Brown
            
             pursues
             Iohnstoun
             of
             Clacherie
             ,
             for
             payment
             of
             1200.
             pounds
             contained
             in
             a
             Bill
             of
             Exchange
             ,
             subscribed
             before
             two
             subscribing
             Witnesses
             ,
             and
             marked
             with
             Clacheries
             hand
             ,
             there
             was
             several
             other
             Bills
             for
             greater
             Sums
             produced
             ,
             marked
             with
             the
             like
             mark
             ,
             and
             none
             compearing
             for
             Clacherie
             .
          
           
             The
             Lords
             caused
             Examine
             the
             Witnesses
             insert
             ,
             who
             Deponed
             that
             Clacherie
             was
             accustomed
             so
             to
             Subscribe
             ,
             and
             one
             of
             them
             Deponed
             ,
             that
             he
             saw
             him
             put
             to
             this
             mark
             to
             the
             Bill
             in
             question
             ▪
             several
             others
             Deponed
             ,
             that
             they
             had
             accepted
             such
             Bills
             in
             regard
             of
             his
             Custom
             ,
             and
             had
             obtained
             payment
             from
             him
             ,
             without
             any
             Debate
             thereupon
             .
          
           
             The
             question
             arose
             to
             the
             Lords
             ,
             whether
             a
             Sum
             above
             an
             hundred
             pound
             could
             be
             proven
             by
             such
             a
             Writ
             ,
             that
             had
             only
             a
             mark
             ,
             and
             having
             demured
             upon
             it
             before
             ,
             till
             they
             should
             try
             if
             any
             such
             case
             had
             been
             Sustained
             formerly
             ,
             and
             none
             having
             been
             found
             Sustaining
             any
             Writ
             not
             being
             Subscribed
             with
             the
             whole
             Name
             ,
             or
             at
             least
             the
             Initial
             Letters
             of
             the
             Debitors
             whole
             Name
             .
             It
             was
             offered
             by
             some
             ,
             that
             Clacheries
             Oath
             might
             be
             taken
             
               ex
               officio
            
             ,
             or
             
               de
               calumni●
            
             ,
             not
             simply
             to
             refer
             the
             Debt
             to
             his
             Oath
             ,
             but
             whether
             that
             truly
             he
             set
             to
             this
             mark
             ,
             before
             these
             Witnesses
             ,
             but
             
               Robert
               Brown
            
             being
             a
             dying
             ,
             the
             Lords
             would
             not
             defer
             ,
             but
             decided
             the
             Case
             ,
             and
             found
             that
             this
             Writ
             being
             a
             Bill
             of
             Exchange
             among
             Merchants
             ,
             and
             Clacheries
             custom
             so
             to
             grant
             Bills
             of
             greater
             importance
             then
             this
             ,
             being
             clearly
             proven
             ,
             and
             none
             appearing
             for
             him
             ,
             they
             decerned
             against
             him
             upon
             the
             Bill
             and
             Testimonies
             ,
             many
             of
             the
             Lords
             being
             of
             different
             Judgement
             ,
             and
             that
             it
             was
             of
             dangerous
             preparative
             to
             encourage
             Forgerie
             ,
             but
             it
             was
             Sustained
             only
             in
             all
             the
             particular
             Circumstances
             aforesaid
             ,
             and
             not
             to
             be
             a
             general
             Rule
             .
          
        
         
           
             Iohn
             Boswel
             contra
             Town
             of
             Kirkaldie
             .
             Eodem
             die
             .
          
           
             THe
             Town
             of
             Kirkaldie
             having
             given
             a
             in
             Bill
             to
             stop
             the
             Interlocutor
             of
             the
             22.
             of
             Iuly
             1668.
             of
             the
             Process
             against
             them
             ,
             and
             having
             objected
             against
             that
             Article
             of
             the
             Libel
             ,
             whereby
             
               Iohn
               Bosewel
            
             craved
             Repetition
             of
             what
             he
             was
             stented
             for
             ,
             for
             Charges
             of
             Commissions
             to
             the
             Convention
             of
             Burrows
             ,
             upon
             this
             Ground
             ,
             that
             the
             Convention
             of
             Burrows
             
             was
             authorized
             by
             Acts
             of
             Parliament
             ,
             and
             Commissioners
             is
             ordained
             to
             meet
             yearly
             thereat
             ,
             which
             being
             a
             burden
             arising
             from
             the
             Authority
             of
             Parliament
             ,
             these
             who
             have
             Tenements
             in
             the
             Town
             ,
             or
             Lands
             in
             the
             Burghs
             Lands
             are
             lyable
             
               pro
               rata
            
             ,
             and
             did
             again
             resume
             the
             Debate
             anent
             the
             second
             Ministers
             Stipend
             ,
             and
             being
             heard
             thereupon
             
               in
               presentia
            
             .
          
           
             The
             Lords
             adhered
             to
             their
             former
             Interlocutor
             anent
             the
             Teinds
             ,
             and
             found
             nothing
             could
             make
             
               Iohn
               Bosewel
            
             lyable
             for
             any
             part
             of
             the
             second
             Ministers
             Stipend
             ,
             except
             what
             was
             due
             by
             Law
             out
             of
             his
             Teinds
             ,
             or
             what
             was
             due
             by
             his
             own
             consent
             ,
             or
             by
             custom
             of
             40.
             years
             ,
             and
             found
             him
             not
             lyable
             for
             Charges
             of
             Commissioners
             of
             Burrows
             ,
             which
             though
             authorized
             by
             Parliament
             ,
             yet
             the
             intent
             thereof
             was
             Trading
             ;
             and
             though
             the
             Convention
             might
             equalise
             the
             proportion
             of
             Taxations
             amongst
             Burghs
             ,
             which
             did
             concern
             all
             having
             Land
             therein
             :
             Yet
             that
             being
             a
             case
             meerly
             contingent
             ,
             they
             would
             not
             upon
             consideration
             thereof
             ,
             put
             any
             part
             of
             the
             burden
             upon
             these
             who
             had
             no
             Trade
             .
          
        
         
           
             Iohn
             Boswel
             contra
             Lindsay
             of
             Wormistoun
             .
             February
             3.
             1669.
             
          
           
             
               John
               Bosewel
            
             being
             appointed
             Commissar
             of
             St.
             Andrews
             by
             the
             King
             ,
             and
             before
             the
             Restitution
             of
             Bishops
             ,
             after
             their
             Restitution
             ,
             the
             Arch-bishop
             named
             Lindsay
             of
             Wormistoun
             Commissar
             ,
             and
             agreed
             him
             and
             
               Iohn
               Bosewel
            
             ,
             on
             these
             Terms
             ,
             that
             Iohn
             should
             have
             the
             half
             of
             the
             profit
             of
             the
             place
             ,
             whereupon
             Wormistoun
             grants
             a
             Bond
             to
             
               Iohn
               Bosewel
            
             ,
             to
             Compt
             and
             Reckon
             for
             the
             Profits
             of
             the
             half
             ,
             and
             to
             pay
             the
             same
             to
             
               Iohn
               Bosewel
            
             termly
             ,
             and
             quarterly
             ,
             and
             if
             any
             question
             should
             arise
             betwixt
             them
             in
             the
             Accompt
             ,
             that
             he
             should
             submit
             himself
             to
             the
             Arch-bishops
             determination
             ,
             and
             acquiesce
             therein
             .
             
               Iohn
               Bosewel
            
             Charges
             upon
             his
             Bond.
             Wormistoun
             Suspends
             .
             It
             was
             alleadged
             for
             Wormistoun
             ,
             that
             his
             Bond
             did
             contain
             a
             Submission
             to
             the
             Arch-bishop
             ,
             who
             is
             thereby
             the
             only
             Judge
             Constitute
             in
             these
             Accompts
             .
             It
             was
             answered
             ,
             that
             this
             Bond
             was
             only
             Subscribed
             by
             Wormistoun
             himself
             ,
             and
             a
             Submission
             must
             be
             Subscribed
             by
             both
             Parties
             ,
             and
             that
             it
             behoved
             to
             be
             understood
             to
             last
             but
             for
             a
             year
             ,
             and
             not
             to
             import
             a
             Liferent
             Submission
             ,
             neither
             could
             it
             be
             exclusive
             of
             the
             Lords
             to
             decline
             their
             Authority
             .
             The
             Suspender
             answered
             ,
             that
             this
             Submission
             being
             a
             provision
             in
             the
             Bond
             Charged
             on
             :
             Which
             Bond
             being
             accepted
             by
             the
             Charger
             ,
             his
             acceptance
             makes
             his
             consent
             to
             the
             Submission
             ,
             in
             the
             same
             way
             as
             if
             he
             had
             Subscribed
             the
             same
             :
             And
             there
             is
             no
             Law
             to
             exclude
             a
             Submission
             for
             two
             years
             ,
             or
             a
             Lifetime
             ,
             more
             then
             for
             one
             ;
             and
             it
             is
             not
             a
             declining
             of
             the
             Lords
             Jurisdiction
             ,
             it
             being
             most
             ordinarly
             sustained
             ,
             no
             Process
             ,
             because
             there
             is
             a
             Submission
             standing
             .
          
           
             The
             Lords
             found
             that
             there
             is
             here
             a
             Submission
             ,
             not
             ending
             by
             a
             year
             ,
             and
             accepted
             by
             the
             Charger
             ,
             and
             that
             thereby
             the
             Arch-bishop
             in
             the
             first
             place
             ,
             ought
             to
             give
             his
             Sentence
             ,
             which
             if
             he
             refused
             ,
             or
             if
             it
             was
             iniquous
             ,
             the
             Lords
             would
             cognosce
             thereupon
             ,
             as
             in
             the
             case
             of
             other
             Arbiters
             ,
             and
             Assigned
             therefore
             to
             the
             Arch-bishop
             ,
             the
             first
             of
             Iune
             to
             determine
             thereupon
             .
          
        
         
           
             Kilburnie
             contra
             Heirs
             of
             Tailzie
             of
             Kilburnie
             .
             Eodem
             die
             .
          
           
             THe
             Laird
             and
             Lady
             Kiburny
             did
             insist
             in
             the
             Declarator
             against
             the
             Heirs
             of
             Tailzie
             ,
             Dispute
             the
             20.
             of
             Ianuary
             ,
             and
             according
             to
             the
             Interlocutor
             then
             given
             ,
             gave
             in
             a
             condescendence
             of
             Kilburnies
             Debt
             ,
             amounting
             to
             fifty
             one
             thousand
             pound
             ,
             and
             that
             the
             Rent
             of
             the
             Land
             did
             not
             exceed
             thirty
             six
             hundred
             merks
             .
             It
             was
             alleadged
             ,
             that
             the
             Annualrents
             were
             here
             accumulate
             for
             five
             years
             after
             
             Kilburnies
             Death
             ,
             which
             ought
             not
             to
             be
             ,
             the
             Lady
             having
             Possession
             of
             the
             Lands
             ,
             and
             ought
             to
             have
             payed
             the
             Annualrent
             ,
             and
             the
             Clause
             impowering
             her
             to
             Sell
             ,
             is
             only
             for
             satisfying
             Kilburnies
             Debt
             ,
             due
             the
             time
             of
             his
             Death
             ,
             which
             cannot
             extend
             to
             Annualrents
             ,
             due
             after
             his
             Death
             ,
             and
             that
             these
             Annualrents
             were
             truly
             payed
             by
             the
             Lady
             ,
             and
             so
             could
             not
             come
             in
             as
             a
             Debt
             upon
             the
             Estate
             .
             2dly
             .
             The
             Moveable
             Debts
             ought
             to
             be
             satisfied
             by
             the
             Executory
             ,
             which
             must
             first
             be
             Exhausted
             ,
             the
             Lady
             her self
             being
             Executrix
             ,
             and
             so
             cannot
             burden
             the
             Heirs
             of
             Tailzie
             ,
             or
             the
             Estate
             ;
             for
             if
             they
             ,
             had
             been
             Distrest
             ,
             they
             could
             have
             craved
             payment
             from
             her
             ,
             
               quoad
               vires
               inventarij
            
             ,
             so
             that
             the
             principal
             Sums
             not
             extending
             to
             40000.
             
             Pounds
             ,
             and
             the
             Lands
             being
             Bought
             by
             Greinock
             ,
             at
             the
             Rental
             of
             4000.
             
             Merks
             ,
             and
             20000.
             
             Merks
             being
             gotten
             more
             for
             the
             Lands
             then
             the
             Debt
             ,
             the
             power
             of
             Selling
             granted
             to
             the
             Lady
             in
             the
             Disposition
             ,
             can
             never
             extend
             to
             so
             vast
             a
             difference
             ,
             albeit
             a
             small
             difference
             of
             the
             price
             would
             not
             be
             noticed
             :
             and
             lastly
             it
             was
             offered
             to
             find
             a
             Party
             ,
             who
             would
             take
             a
             Wodset
             of
             the
             Lands
             ,
             in
             satisfaction
             of
             all
             the
             Defuncts
             Debts
             ,
             so
             that
             the
             Lady
             cannot
             ,
             in
             prejudice
             of
             the
             Heirs
             of
             Tailzie
             Sell
             ,
             where
             Wodsetting
             may
             do
             the
             turn
             ,
             and
             the
             Wodset
             should
             contain
             a
             Reversion
             ,
             and
             no
             Requisition
             ;
             and
             whereas
             it
             might
             be
             pretended
             that
             the
             matter
             was
             not
             intire
             ,
             because
             the
             Lands
             were
             actually
             Sold
             to
             Greinock
             ,
             he
             offered
             to
             Consent
             ,
             and
             Renunce
             his
             Bargain
             .
             It
             was
             answered
             ,
             that
             this
             Clause
             
               de
               non
               alienando
            
             ,
             being
             against
             the
             nature
             of
             Property
             ,
             was
             odious
             ,
             and
             not
             to
             be
             extended
             ,
             and
             the
             faculty
             of
             Selling
             ,
             or
             affecting
             ,
             being
             suitable
             to
             the
             nature
             of
             Property
             was
             favourable
             ,
             and
             not
             to
             be
             restricted
             further
             then
             the
             Defuncts
             own
             Words
             ,
             and
             Termes
             ,
             who
             having
             given
             full
             power
             to
             his
             Daughter
             to
             Sell
             ,
             or
             affect
             the
             Lands
             named
             ,
             for
             payment
             of
             his
             Debts
             ,
             and
             not
             having
             said
             (
             to
             Sell
             ,
             or
             burden
             so
             much
             of
             the
             Land
             as
             were
             equivalent
             to
             the
             Debt
             ;
             neither
             having
             said
             so
             much
             of
             the
             Debt
             ,
             as
             exceeded
             his
             Moveables
             ,
             or
             his
             Moveables
             being
             first
             exhausted
             )
             it
             is
             most
             rational
             ,
             and
             to
             be
             presumed
             to
             be
             his
             meaning
             ,
             that
             as
             to
             his
             Moveables
             he
             did
             not
             burden
             her
             at
             all
             ;
             and
             that
             this
             part
             of
             his
             Lands
             he
             set
             apart
             for
             his
             Debt
             ,
             for
             he
             understood
             his
             Debt
             to
             be
             about
             the
             value
             of
             it
             ,
             otherwise
             he
             could
             have
             set
             apart
             less
             Land
             ,
             or
             could
             have
             more
             limited
             the
             Faculty
             〈◊〉
             Disposing
             ;
             but
             the
             principal
             Sums
             of
             this
             Debt
             being
             40000.
             
             Pounds
             ,
             and
             the
             Rental
             not
             being
             pretended
             to
             have
             been
             above
             4000.
             
             Merks
             ,
             the
             principal
             would
             amount
             to
             the
             value
             of
             the
             Land
             at
             15.
             years
             Purchase
             ,
             and
             there
             being
             unquestionably
             a
             latitude
             to
             the
             Feear
             to
             Sell
             at
             such
             a
             Price
             ,
             as
             in
             discretion
             he
             thought
             fit
             ,
             though
             he
             had
             sold
             at
             twelve
             years
             purchase
             ,
             or
             not
             under
             the
             lowest
             Rate
             of
             Land
             ;
             neither
             could
             the
             Buyer
             be
             quarrelled
             ,
             nor
             the
             Seller
             ,
             as
             incurring
             the
             Clause
             irritant
             ,
             and
             therefore
             the
             Lady
             having
             Sold
             at
             a
             far
             greater
             Rate
             then
             the
             ordinar
             ,
             Greinock
             and
             the
             Town
             of
             Glasgow
             being
             both
             dealling
             for
             the
             Land
             ,
             they
             to
             make
             a
             Harbour
             there
             ,
             and
             he
             not
             to
             suffer
             them
             ,
             in
             prejudice
             of
             his
             Town
             ,
             and
             Harbour
             in
             Greinock
             ,
             there
             is
             no
             reason
             to
             exclude
             the
             Lady
             from
             the
             benefit
             of
             her
             Bargain
             ,
             or
             to
             necessitat
             her
             to
             quite
             the
             same
             ,
             and
             give
             only
             a
             Wodset
             ,
             seing
             the
             Clause
             gives
             her
             power
             both
             to
             Sell
             ,
             and
             Affect
             ,
             and
             does
             not
             limit
             her
             to
             either
             of
             them
             .
          
           
             The
             Lords
             Repelled
             the
             Defenses
             ,
             a●d
             declared
             that
             the
             Lady
             had
             warrantably
             Sold
             these
             Lands
             ,
             and
             that
             the
             principal
             Sums
             being
             so
             considerable
             ,
             although
             the
             Rental
             had
             been
             more
             ,
             they
             were
             sufficient
             ▪
             and
             found
             that
             the
             Clause
             laid
             no
             necessity
             upon
             her
             to
             exhaust
             the
             Moveables
             ,
             and
             that
             she
             might
             thereby
             Wodset
             ,
             or
             Sell
             at
             her
             pleasure
             ,
          
        
         
           
           
             Iames
             Deanes
             contra
             Alexander
             Bothwel
             ,
             February
             5.
             1669.
             
          
           
             
               ALexander
               Bothwel
            
             of
             Glencorsse
             being
             conveened
             before
             the
             Commissars
             of
             Edinburgh
             ,
             for
             Slandering
             
               Iames
               Deanes
            
             Procurator
             before
             the
             Commissars
             ,
             in
             calling
             him
             a
             false
             knave
             ,
             publickly
             in
             the
             Parliament
             House
             ,
             and
             at
             the
             Crosse
             ;
             the
             samine
             being
             proven
             by
             Witnesses
             ,
             he
             was
             Decerned
             to
             stand
             at
             the
             Kirk
             Door
             of
             Glencorsse
             where
             both
             Parties
             dwelt
             ,
             and
             acknowledge
             his
             Fault
             ,
             and
             to
             pay
             100.
             pound
             to
             the
             Poor
             ,
             and
             100.
             pound
             to
             the
             Party
             .
             Bothwel
             Suspends
             on
             these
             Reasons
             ,
             first
             ,
             That
             the
             Commissars
             could
             not
             ordain
             him
             to
             stand
             at
             an
             Congregation
             ,
             which
             is
             an
             Ecclesiastical
             Censure
             .
             2dly
             ,
             That
             they
             could
             not
             also
             Fyne
             him
             to
             the
             Poor
             ,
             nor
             Decern
             any
             thing
             to
             the
             Party
             ,
             but
             the
             Expences
             of
             Plae
             ,
             seing
             there
             was
             no
             other
             Damnage
             Lybelled
             nor
             proven
             .
             3dly
             ,
             That
             the
             Witnesses
             were
             not
             habile
             ,
             being
             the
             Pursuers
             own
             Servants
             .
             The
             Charger
             opponed
             the
             Decreet
             wherein
             the
             Suspender
             was
             compearing
             ,
             and
             objected
             nothing
             against
             the
             hability
             of
             the
             Witnesses
             then
             ,
             and
             therefore
             cannot
             now
             quarrel
             their
             Testimonies
             ,
             and
             that
             it
             was
             most
             proper
             for
             the
             Commissars
             to
             cognosce
             upon
             Slander
             or
             Defamation
             ,
             neither
             was
             his
             standing
             in
             order
             to
             Repentance
             but
             in
             order
             to
             restoring
             the
             party
             to
             his
             Fame
             .
          
           
             The
             Lords
             Repelled
             the
             Reasons
             ,
             and
             Sustained
             the
             Decreet
             in
             all
             Points
             .
          
        
         
           
             Cleiland
             contra
             Stevinson
             .
             Eodem
             die
             .
          
           
             
               William
               Cleiland
            
             Charges
             
               Iohn
               Stevinson
            
             upon
             a
             Bond
             of
             400.
             
             Merks
             ,
             bearing
             Annualrent
             ,
             he
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Charger
             was
             owing
             him
             more
             for
             Victual
             ,
             being
             his
             Tennent
             ,
             which
             was
             now
             liquidat
             before
             this
             time
             ,
             but
             after
             the
             Date
             of
             this
             Bond
             ,
             and
             craved
             compensation
             thereupon
             ,
             not
             only
             from
             the
             Date
             of
             the
             liquidation
             ,
             but
             from
             the
             time
             the
             Victualrent
             was
             due
             .
          
           
             Which
             the
             Lords
             Sustained
             .
          
        
         
           
             Rule
             contra
             Rule
             ,
             February
             6.
             1669.
             
          
           
             
               MArgaret
               Rule
            
             having
             made
             a
             Consignation
             of
             certain
             Bonds
             ,
             and
             in
             general
             of
             all
             other
             Rights
             ,
             with
             a
             Disposition
             of
             all
             her
             Goods
             to
             Umquhile
             Robert
             Rule
             her
             Brother
             ,
             who
             having
             named
             Mr.
             
               David
               Rule
            
             his
             Executor
             ,
             and
             universal
             Legator
             ,
             did
             upon
             his
             Death-bed
             acknowledge
             ,
             that
             his
             Sisters
             Disposition
             was
             in
             trust
             to
             her
             own
             behove
             ,
             granted
             upon
             that
             consideration
             ,
             that
             she
             being
             a
             Bastard
             ,
             unless
             she
             Disponed
             in
             her
             
               leige
               poustie
            
             ,
             her
             Means
             would
             be
             Confiscat
             by
             her
             Bastardy
             ,
             she
             thereupon
             pursues
             the
             said
             Mr.
             
               David
               Rule
            
             to
             deliver
             back
             her
             Assignation
             ,
             with
             her
             own
             Writs
             .
             The
             Defender
             alleadged
             the
             Lybel
             was
             no
             way
             Relevant
             ▪
             there
             being
             nothing
             Libelled
             but
             the
             Defuncts
             acknowledgement
             of
             a
             Trust
             upon
             Death-bed
             ,
             and
             that
             offered
             to
             be
             proven
             by
             Witnesses
             only
             ,
             but
             First
             ,
             The
             Trust
             behoved
             to
             be
             declared
             by
             a
             Declarator
             ,
             and
             not
             thus
             by
             an
             Exhibition
             .
             2dly
             ,
             Trust
             is
             only
             probabable
             
               scripto
               vel
               juramento
            
             ,
             being
             a
             matter
             of
             so
             great
             importance
             .
             3dly
             ,
             Some
             of
             the
             Rights
             Assigned
             ,
             and
             Disponed
             ,
             are
             Heretable
             ,
             and
             nothing
             done
             upon
             Death-bed
             can
             prejudge
             the
             Defuncts
             Heir
             thereof
             .
             4thly
             ,
             An
             extrajudicial
             Confession
             without
             Writ
             ,
             albeit
             it
             were
             acknowledged
             ,
             hath
             no
             effect
             ,
             for
             it
             cannot
             be
             known
             
               quo
               animo
            
             ,
             such
             words
             might
             have
             been
             exprest
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Trust
             might
             
             be
             very
             well
             Lybelled
             ,
             with
             the
             Exhibition
             ,
             and
             albeit
             the
             Defuncts
             Confession
             would
             not
             alone
             be
             sufficient
             to
             prejudge
             his
             Heir
             ,
             yet
             it
             may
             very
             well
             stand
             as
             an
             evidence
             of
             Trust
             ,
             which
             cannot
             be
             astricted
             to
             probation
             by
             Witnesses
             ,
             but
             hath
             ever
             been
             found
             probable
             by
             other
             evidences
             ,
             especially
             where
             the
             Person
             trusted
             is
             Dead
             ,
             and
             the
             Pursuer
             condescends
             upon
             these
             evidences
             and
             adminicles
             of
             Trust.
             
               First
               ,
               Communis
               fama
               .
               2dly
               ,
            
             The
             Assignation
             and
             Disposition
             bears
             no
             Reservation
             of
             the
             Disponers
             Liferent
             ,
             and
             yet
             she
             continued
             still
             in
             Possession
             ,
             and
             her
             Brother
             (
             whom
             she
             Entrusted
             )
             never
             medled
             ,
             which
             he
             would
             not
             have
             done
             ,
             if
             the
             Disposition
             had
             been
             for
             a
             Cause
             Onerous
             ,
             or
             to
             his
             own
             behove
             .
             3dly
             ,
             He
             did
             solemnly
             ,
             in
             presence
             of
             Witnesses
             above
             exception
             ,
             acknowledge
             the
             Trust
             on
             his
             Death-bed
             .
          
           
             The
             Lords
             Sustained
             the
             Summons
             ,
             and
             would
             not
             astrict
             the
             Pursuer
             to
             prove
             by
             Write
             ,
             or
             Oath
             of
             Party
             ,
             but
             ordained
             Witnesses
             to
             be
             Examined
             
               ex
               officio
            
             ,
             anent
             the
             evidences
             and
             adminicles
             condescended
             on
             by
             the
             Pursuer
             .
          
        
         
           
             Black
             contra
             Dawid
             French
             ▪
             February
             9.
             1669.
             
          
           
             THe
             Lands
             of
             Miln-burn
             being
             holden
             Waird
             of
             the
             Dutchess
             of
             Hamiltoun
             ,
             after
             
               Miln
               burns
            
             Death
             the
             Duke
             and
             Dutchess
             grants
             a
             Gift
             of
             the
             Waird
             to
             Mr.
             
               ●o●ert
               Black
            
             ,
             who
             pursued
             for
             Mails
             and
             Duties
             ;
             and
             likewise
             
               David
               French
            
             having
             Appryzed
             from
             
               Miln
               burn
            
             ,
             and
             having
             Charged
             the
             Dutchess
             before
             Miln-burns
             Death
             to
             Receive
             him
             ,
             he
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             ,
             who
             Suspend
             upon
             double
             Poynding
             .
             In
             the
             Competition
             it
             was
             alleadged
             for
             the
             Appryzer
             ,
             First
             ,
             That
             his
             Appryzing
             being
             a
             Judicial
             Sentence
             ,
             did
             Denude
             Miln-burn
             the
             Vassal
             ,
             in
             the
             same
             way
             as
             if
             Miln-burn
             had
             Resigned
             in
             the
             Dukes
             Hands
             ,
             in
             favours
             of
             
               David
               French
            
             ,
             after
             which
             
               Miln
               burn
            
             was
             totally
             Divested
             ,
             and
             no
             Casualty
             could
             befall
             to
             the
             Superior
             by
             his
             Death
             ,
             
               Ita
               est
            
             that
             Law
             hath
             stated
             a
             Decreet
             of
             Appryzing
             in
             the
             same
             Case
             as
             an
             Resignation
             accepted
             ,
             for
             though
             the
             Vassal
             ,
             against
             whom
             the
             Appryzing
             was
             led
             should
             Die
             ,
             the
             Appryzer
             will
             summarly
             upon
             a
             Charge
             obtain
             himself
             Infeft
             ,
             so
             that
             the
             former
             Vassal
             was
             totally
             Denuded
             .
             2dly
             ,
             Here
             not
             only
             there
             is
             Appryzing
             ,
             but
             a
             Charge
             against
             the
             Superior
             ,
             which
             
               fictione
               juris
            
             is
             in
             all
             points
             ,
             as
             if
             the
             Appryzer
             were
             actually
             Infeft
             ,
             and
             therefore
             the
             Appryzer
             ,
             who
             first
             Charges
             ,
             albeit
             he
             in●i●t
             not
             to
             use
             any
             further
             Diligence
             ,
             is
             ever
             preferred
             to
             all
             other
             Appryzers
             Infeft
             after
             .
             It
             was
             answered
             for
             Black
             the
             Donator
             ,
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             the
             Superior
             ,
             who
             gave
             his
             Gi●t
             ,
             could
             not
             want
             a
             Vassal
             ,
             nor
             loss
             the
             Casualty
             of
             his
             Superiority
             without
             his
             own
             fault
             ,
             but
             the
             Appryzer
             did
             not
             become
             Vassal
             ,
             neither
             by
             the
             Appryzing
             ,
             nor
             by
             the
             Charge
             ,
             nor
             was
             it
             ever
             found
             that
             the
             Liferent
             ,
             or
             Waird
             of
             an
             Appryzer
             fell
             ,
             unless
             he
             had
             been
             actually
             Infeft
             ,
             and
             it
             would
             be
             of
             very
             great
             disadvantage
             to
             Creditors
             ,
             if
             the
             naked
             Charge
             should
             make
             their
             VVaird
             to
             fall
             ,
             which
             they
             may
             pass
             from
             at
             their
             pleasure
             ,
             therefore
             seing
             the
             Appryzer
             could
             not
             be
             Vassal
             ,
             the
             former
             Vassal
             behoved
             to
             remain
             Vassal
             ;
             and
             seing
             the
             Superior
             could
             not
             have
             a
             Waird
             by
             the
             Appryzers
             Death
             ,
             he
             behoved
             to
             have
             it
             by
             the
             former
             Vassels
             Death
             ;
             and
             albeit
             the
             Charge
             be
             ●qulparat
             to
             an
             Infeftment
             ,
             as
             to
             the
             Competition
             of
             Appryzers
             ,
             whom
             the
             Superior
             may
             not
             prefer
             ,
             but
             according
             to
             their
             Diligences
             ,
             yet
             it
             is
             not
             holden
             as
             an
             Infeftment
             to
             any
             other
             Case
             ,
             for
             thereupon
             the
             Appryzer
             cannot
             remove
             the
             Tennents
             ,
             neither
             is
             the
             Appryzing
             
             equivalent
             to
             an
             Resignation
             accepted
             ,
             albeit
             it
             being
             an
             incompleat
             legal
             Diligence
             ,
             it
             may
             be
             compleated
             against
             the
             Superior
             after
             the
             Vassals
             Death
             ,
             yet
             not
             so
             as
             if
             the
             Superior
             had
             Received
             a
             Resignation
             from
             the
             Appryzer
             ,
             which
             is
             the
             Superiors
             voluntar
             Deed
             ,
             but
             there
             is
             nothing
             upon
             the
             Appryzing
             to
             force
             him
             to
             give
             Infeftment
             to
             the
             Appryzer
             ,
             until
             conform
             to
             the
             Act
             of
             Parliament
             ,
             a
             years
             Rent
             of
             the
             Appryzed
             Lands
             be
             offered
             to
             him
             ,
             and
             therewith
             a
             Charter
             offered
             to
             Subscrive
             ,
             which
             being
             done
             ,
             upon
             his
             Delay
             ,
             Fault
             ,
             or
             Contumacy
             ,
             he
             may
             be
             excluded
             from
             the
             subsequent
             Casualties
             ,
             and
             cannot
             thereby
             be
             gainer
             ,
             in
             prejudice
             of
             the
             Appryzer
             ,
             but
             otherwi●e
             without
             his
             Fault
             ,
             he
             cannot
             loss
             the
             Casualties
             .
             It
             was
             answered
             for
             the
             Appryzer
             ,
             that
             the
             Appryzing
             ,
             and
             Charge
             did
             state
             the
             Appryzer
             as
             Vassal
             ,
             and
             there
             was
             no
             inconvenience
             thereupon
             to
             Creditors
             ,
             more
             then
             if
             they
             had
             been
             actually
             Infeft
             .
             2dly
             ,
             Our
             Statute
             hath
             provided
             contrair
             to
             the
             Common
             Feudal
             Customs
             ,
             that
             Superiors
             must
             Receive
             Strangers
             ,
             being
             Creditors
             Appryzing
             ,
             for
             payment
             of
             a
             years
             Rent
             ,
             so
             that
             the
             Superior
             can
             have
             no
             more
             but
             the
             years
             Rent
             ,
             and
             not
             the
             subsequent
             Waird
             also
             ,
             and
             there
             being
             mutual
             Obligations
             between
             the
             Superior
             and
             the
             Appryzer
             ,
             introduced
             by
             the
             Statute
             ,
             viz.
             that
             the
             Superior
             should
             Receive
             the
             Appryzer
             ,
             and
             that
             the
             Appryzer
             should
             pay
             to
             the
             Superior
             a
             years
             Rent
             ,
             as
             in
             all
             mutual
             Obligations
             ,
             so
             in
             these
             ,
             the
             Delay
             of
             the
             one
             Party
             in
             performance
             of
             his
             Obligation
             ,
             doth
             stop
             the
             Execution
             ,
             and
             Effect
             of
             the
             other
             Obligation
             to
             him
             ,
             ay
             and
             while
             he
             perform
             ,
             but
             
               quando
               mora
               purgatur
            
             ,
             by
             performance
             of
             the
             one
             Party
             ,
             both
             Obligations
             are
             effectual
             as
             a
             principio
             ,
             and
             therefore
             ,
             albeit
             the
             Appryzer
             had
             been
             obliged
             to
             pay
             a
             years
             Rent
             when
             he
             were
             In●eft
             and
             did
             it
             not
             the
             time
             of
             the
             Charge
             ,
             yet
             now
             he
             offers
             to
             do
             it
             at
             the
             Bar
             ,
             
               unde
               purgatur
               mora
            
             ,
             and
             the
             Superior
             must
             Receive
             him
             in
             obedience
             to
             the
             Charge
             ,
             which
             must
             be
             drawen
             back
             to
             the
             Charge
             ,
             and
             the
             Lords
             cannot
             but
             find
             the
             Le●●ers
             ,
             that
             is
             to
             say
             the
             Charge
             orderly
             proceeded
             ,
             neither
             can
             there
             be
             any
             fault
             in
             the
             Appryzer
             ,
             that
             he
             did
             not
             then
             offer
             a
             years
             Duty
             when
             he
             Charged
             ▪
             because
             it
             was
             not
             liquid
             nor
             constant
             what
             the
             years
             Duty
             was
             ,
             and
             therefore
             he
             was
             only
             obliged
             to
             do
             it
             after
             the
             liquidation
             ,
             and
             modification
             of
             the
             Lords
             ;
             and
             lastly
             he
             having
             proceeded
             as
             all
             other
             Appyzers
             have
             done
             by
             perpetual
             Custom
             ,
             he
             was
             in
             
               bona
               fide
            
             to
             acquiesce
             .
             It
             was
             answered
             for
             the
             Donator
             ,
             that
             this
             former
             ground
             holds
             still
             good
             ,
             that
             the
             Casualties
             of
             his
             Superiority
             cannot
             be
             lost
             to
             him
             ,
             without
             his
             Delay
             or
             Fault
             ;
             and
             the
             Case
             is
             no
             way
             here
             as
             in
             mutual
             Obligations
             ,
             but
             as
             in
             a
             Conditional
             Obligation
             ,
             for
             the
             Statute
             obliges
             the
             Superior
             to
             Receive
             the
             Appryzer
             ,
             he
             paying
             a
             years
             Rent
             ,
             which
             being
             
               per
               ablativum
               absolute
               positum
            
             ,
             is
             ever
             interpret
             as
             Condition
             ,
             as
             if
             it
             had
             said
             ,
             the
             Superior
             shall
             Receive
             him
             if
             he
             pay
             a
             years
             Rent
             ;
             but
             by
             the
             Statue
             there
             is
             no
             obligation
             put
             upon
             the
             Appryzer
             to
             pay
             the
             years
             Rent
             ,
             for
             the
             payment
             is
             in
             Condition
             and
             not
             in
             Obligation
             ,
             and
             the
             Appryzer
             may
             ever
             forbear
             to
             seek
             the
             Infeftment
             ,
             and
             yet
             will
             obtain
             Malls
             and
             Duties
             ,
             and
             so
             will
             Possess
             ,
             and
             exclude
             the
             Superior
             ,
             both
             from
             the
             Casualities
             of
             his
             Superiority
             ,
             and
             his
             years
             Rent
             ,
             therefore
             by
             the
             Statute
             there
             is
             only
             a
             Conditional
             Obligation
             upon
             the
             Superior
             ,
             to
             Receive
             the
             Appryzer
             upon
             payment
             of
             a
             years
             Rent
             ;
             now
             the
             nature
             of
             all
             Conditional
             Obligations
             is
             ,
             that
             
               pendente
               conditione
               &
               ante
               purificationem
               nulla
               obligatio
               ,
            
             so
             that
             till
             that
             time
             whatever
             occurs
             is
             freely
             the
             Superiors
             :
             And
             albeit
             the
             Lords
             will
             now
             ,
             upon
             offer
             of
             a
             Charter
             ,
             and
             the
             years
             Duty
             ,
             give
             a
             Sentence
             ,
             the
             ordinar
             Stile
             whereof
             ,
             is
             finding
             the
             Letters
             orderly
             proceeded
             ,
             without
             putting
             the
             Appryzer
             to
             a
             new
             Charge
             ,
             yet
             they
             do
             not
             thereby
             find
             ,
             that
             at
             the
             beginning
             the
             Charge
             was
             orderly
             without
             the
             offer
             ,
             but
             
             that
             now
             it
             becomes
             orderly
             by
             the
             offer
             ,
             and
             therefore
             hath
             only
             effect
             from
             the
             offer
             ▪
             and
             not
             from
             the
             Charge
             ,
             and
             prejudges
             not
             the
             Superior
             of
             the
             Waird
             falling
             before
             the
             offer
             .
             
               2dly
               ▪
            
             The
             Superior
             at
             the
             time
             of
             the
             Charge
             offered
             obedience
             ,
             upon
             production
             of
             a
             Charter
             ,
             and
             a
             years
             Duty
             to
             the
             Messenger
             who
             Charged
             him
             ,
             conform
             to
             an
             Instrument
             produced
             ,
             the
             Appryzer
             himself
             not
             having
             Appeared
             .
             The
             Appryzer
             answered
             ,
             that
             the
             Superior
             ought
             to
             have
             drawen
             up
             a
             Charter
             ,
             and
             Suspended
             ,
             Consigning
             the
             Charter
             in
             the
             Clerks
             Hands
             in
             obedience
             ,
             to
             b●
             given
             up
             to
             the
             Appryzer
             after
             payment
             of
             the
             years
             Rent
             ,
             conform
             to
             the
             Lords
             modification
             ;
             and
             it
             was
             not
             enough
             to
             offer
             obedience
             to
             a
             Messenger
             ,
             or
             to
             require
             a
             years
             Rent
             ,
             which
             is
             not
             liquid
             but
             by
             the
             Lords
             Sentence
             ;
             and
             further
             alleadged
             that
             it
             was
             lately
             found
             ,
             that
             a
             Liferent
             Escheat
             falling
             after
             a
             Charge
             ,
             did
             not
             exclude
             the
             Appryzer
             ,
             and
             there
             can
             be
             no
             Reason
             ,
             but
             the
             same
             should
             be
             in
             a
             Waird
             .
             It
             was
             answered
             ,
             that
             no
             such
             Practique
             was
             produced
             ,
             nor
             acknowledged
             ,
             and
             that
             in
             a
             Liferent
             Escheat
             ,
             the
             Vassal
             (
             against
             whom
             the
             Appryzing
             was
             led
             )
             might
             collude
             ,
             and
             might
             let
             himself
             go
             year
             and
             day
             at
             the
             Horn
             ,
             of
             purpose
             to
             prejudge
             the
             Appryzer
             ,
             but
             the
             Waird
             falling
             by
             his
             De●th
             ,
             there
             is
             no
             suspition
             of
             collusion
             ,
             and
             the
             Waird
             is
             due
             by
             the
             reddendo
             of
             the
             Charter
             ,
             but
             the
             Liferent
             is
             only
             due
             by
             an
             extrinsick
             Law
             ,
             and
             Custom
             .
          
           
             The
             Lords
             found
             that
             the
             Charge
             did
             no●
             st●●e
             the
             Appryzer
             as
             Vassal
             ,
             so
             that
             the
             Waird
             would
             have
             fallen
             by
             his
             Death
             ;
             neither
             did
             they
             consider
             the
             inconveniency
             of
             the
             Superior
             ,
             as
             wanting
             the
             Superiorities
             by
             both
             Parties
             ,
             if
             he
             were
             Contumacious
             ,
             
               aut
               in
               culpa
            
             :
             But
             they
             found
             that
             the
             Superior
             was
             not
             in
             culpa
             ,
             or
             in
             mora
             ,
             until
             the
             Appryzer
             presented
             to
             him
             a
             Charter
             upon
             obedience
             ,
             and
             offered
             some
             Money
             for
             his
             Entry
             ,
             and
             Caution
             for
             what
             further
             the
             Lords
             should
             Decern
             ,
             and
             did
             not
             find
             the
             Superior
             obliged
             to
             require
             the
             Vassal
             so
             to
             do
             ,
             and
             therefore
             found
             the
             Superior
             here
             ,
             not
             in
             
               mora
               aut
               :
               culpa
            
             ,
             and
             found
             the
             Waird
             to
             belong
             to
             him
             ,
             and
             preferred
             the
             Donator
             ,
             and
             declared
             they
             would
             follow
             it
             as
             a
             Rule
             in
             all
             time
             coming
             .
          
        
         
           
             Thomas
             Cowan
             contra
             Young
             and
             Reid
             ,
             Eodem
             die
             .
          
           
             
               ADam
               Young
            
             having
             Married
             his
             Daughter
             by
             the
             first
             Marriage
             ,
             to
             
               Thomas
               Cowan
               ▪
            
             and
             given
             him
             two
             thousand
             Merks
             of
             Tocher
             ,
             in
             satisfaction
             of
             all
             she
             could
             claim
             ;
             did
             by
             a
             second
             Contract
             of
             Marriage
             ,
             provide
             a
             thousand
             Merks
             to
             the
             Heirs
             of
             that
             Marriage
             ,
             and
             all
             his
             Conquest
             during
             the
             Marriage
             ,
             after
             which
             Contract
             ,
             he
             gave
             a
             Bond
             of
             400.
             
             Pound
             to
             his
             Daughter
             of
             the
             first
             Marriage
             ,
             bearing
             to
             be
             payed
             in
             parcels
             as
             he
             was
             able
             ,
             and
             after
             the
             Bond
             ,
             he
             Disponed
             his
             Goods
             and
             Gear
             to
             his
             Daughter
             of
             the
             second
             Marriage
             :
             Now
             the
             Daughter
             of
             the
             first
             Marriage
             ,
             pursues
             the
             Daughter
             of
             the
             second
             Marriage
             to
             pay
             the
             Bond
             ,
             as
             she
             who
             Intrometted
             with
             the
             Defuncts
             Goods
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             this
             Bond
             being
             granted
             without
             an
             Onerous
             Cause
             ,
             after
             the
             Provision
             of
             the
             second
             Contract
             of
             Marriage
             ,
             Providing
             all
             the
             Goods
             Conquest
             to
             the
             Heirs
             of
             the
             second
             Marriage
             ,
             who
             were
             thereby
             their
             Fathers
             Creditors
             ,
             for
             fulfilling
             of
             that
             Provision
             ,
             no
             voluntar
             D●ed
             done
             without
             a
             Cause
             Onerous
             by
             their
             Father
             ,
             in
             Favours
             of
             his
             Daughter
             ,
             of
             a
             former
             Marriage
             could
             prejudge
             them
             ,
             or
             burden
             the
             Moveables
             acquired
             in
             that
             Marriage
             .
             It
             was
             answered
             ,
             First
             ,
             That
             the
             Provision
             being
             to
             the
             Heirs
             of
             the
             second
             Marriage
             ,
             they
             being
             Heirs
             ,
             could
             not
             quarrel
             ,
             but
             were
             obliged
             to
             fulfil
             their
             Fathers
             Obligation
             ,
             whether
             for
             
             a
             Cause
             Onerous
             or
             not
             .
             2dly
             ,
             Such
             Clauses
             of
             Conquest
             are
             ever
             understood
             ,
             as
             the
             Conquest
             is
             at
             the
             Acquirers
             Death
             ,
             but
             does
             not
             hinder
             him
             any
             time
             of
             his
             Life
             to
             Dispose
             ,
             or
             Gift
             at
             his
             pleasure
             ,
             which
             if
             he
             might
             do
             to
             any
             Stranger
             ,
             there
             is
             neither
             Law
             or
             Reason
             to
             exclude
             him
             to
             do
             it
             to
             his
             Daughter
             :
             And
             albeit
             it
             might
             be
             interpret
             Fraud
             ,
             if
             nothing
             were
             left
             to
             the
             Daughters
             of
             the
             second
             Marriage
             ,
             yet
             where
             they
             have
             a
             special
             Provision
             ,
             and
             something
             also
             of
             the
             Conquest
             ,
             with
             this
             burden
             ,
             their
             Father
             could
             not
             be
             found
             thereby
             to
             Defraud
             them
             ,
             or
             to
             hinder
             him
             to
             use
             his
             Liberty
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             Sustained
             the
             Bond.
             
          
        
         
           
             Buohan
             contra
             Taits
             .
             February
             .
             11.
             1669.
             
          
           
             IN
             
               Anno
               1623.
               
               George
               Tait
            
             of
             Pirn
             gave
             a
             seisine
             
               propriis
               m●nibus
            
             to
             
               George
               Tait
            
             his
             eldest
             Son
             ,
             and
             a
             Bond
             of
             that
             same
             Date
             ,
             bearing
             that
             he
             had
             given
             Seisine
             ,
             and
             obliging
             him
             to
             Warrand
             the
             same
             ,
             Reserving
             his
             own
             Liferent
             :
             Thereafter
             in
             Anno
             1640.
             he
             Contracts
             in
             Marriage
             with
             
               Ianet
               Buchan
            
             ,
             and
             for
             two
             thousand
             and
             five
             hundreth
             Merks
             of
             Tocher
             ,
             obliges
             him
             to
             Infeft
             her
             in
             the
             same
             Lands
             of
             Pi●n
             ,
             wh●rein
             his
             Son
             was
             Infeft
             ,
             whereupon
             she
             now
             pursues
             Reduction
             of
             
               George
               Tait
            
             youngers
             Infeftment
             against
             his
             Daughters
             ,
             upon
             these
             Reasons
             .
             First
             ,
             That
             the
             Seisine
             
               propriis
               m●nibus
            
             ,
             was
             only
             the
             assertion
             of
             a
             Nottar
             without
             a
             Warrand
             .
             2dly
             ,
             That
             the
             Seisine
             had
             not
             four
             Witnesses
             .
             3dly
             ,
             That
             this
             was
             a
             clandestine
             latent
             Right
             ,
             most
             fraudulent
             betwixt
             a
             Father
             and
             his
             appearand
             Heir
             ,
             never
             having
             been
             published
             ,
             or
             taken
             effect
             by
             any
             Possession
             ,
             and
             cannot
             prejudge
             this
             Pursuer
             ,
             who
             is
             a
             most
             priviledged
             Creditor
             ,
             and
             brought
             a
             competent
             Tocher
             with
             her
             .
             4thly
             ,
             That
             this
             being
             an
             Infeftment
             by
             a
             Father
             to
             his
             appearand
             Heir
             ,
             then
             in
             his
             Family
             ,
             it
             was
             but
             as
             the
             legittime
             of
             Children
             ,
             which
             is
             still
             ambulatory
             at
             their
             Parents
             Disposal
             ,
             and
             so
             must
             be
             affected
             with
             this
             posterior
             burden
             of
             the
             Fathers
             Marriage
             .
             It
             was
             answered
             to
             the
             first
             ,
             that
             the
             Bond
             of
             the
             same
             Date
             with
             the
             Seisine
             ,
             acknowledging
             the
             same
             is
             a
             sufficient
             adminicle
             ,
             and
             is
             equivalent
             ,
             as
             if
             the
             Father
             had
             Subscribed
             the
             Seisine
             .
             To
             the
             second
             ,
             there
             is
             no
             Law
             requiring
             ●our
             Witnesses
             to
             a
             Seisine
             ,
             for
             that
             Act
             of
             Parliament
             is
             only
             where
             a
             Party
             Subscribes
             by
             a
             Nottar
             ,
             but
             relates
             not
             to
             Nottars
             Instruments
             Subscribed
             by
             themselves
             ,
             upon
             warrands
             ,
             or
             adminicles
             ,
             without
             which
             they
             are
             not
             valid
             with
             40.
             
             Witnesses
             ,
             and
             without
             which
             two
             Witnesses
             are
             sufficient
             .
             To
             the
             third
             ,
             this
             Infeftment
             is
             no
             ways
             Fraudulent
             ,
             or
             Latent
             ,
             seing
             it
             is
             Registrat
             in
             the
             Register
             of
             Seisines
             ,
             and
             Reserves
             the
             Fathers
             Liferent
             ,
             whose
             Possession
             is
             the
             Sons
             Possession
             ,
             and
             cannot
             be
             pejudged
             by
             a
             Deed
             so
             long
             posterior
             thereto
             .
             To
             the
             last
             ,
             Infeftments
             taken
             to
             Children
             by
             Parents
             being
             Registrat
             by
             Parents
             ,
             can
             never
             be
             Recalled
             .
          
           
             The
             Lords
             Assoilzi●d
             from
             all
             the
             Reasons
             of
             Reduction
             ,
             and
             Sustained
             the
             Defenders
             Seisine
             .
          
        
         
           
             Pot
             contra
             Pollock
             ,
             February
             12.
             1669.
             
          
           
             UMquhile
             
               Iohn
               Pollock
            
             having
             granted
             a
             Bond
             of
             5000.
             
             Merks
             to
             
               Iames
               Pollock
            
             his
             second
             Son
             of
             the
             first
             Marriage
             ,
             and
             he
             having
             Adjudged
             thereupon
             ;
             Pot
             as
             Assigney
             by
             his
             Wife
             to
             her
             Provision
             ,
             and
             the
             Creditors
             Debts
             ,
             having
             also
             Appryzed
             ,
             raises
             Reduction
             of
             
               Iames.
               Pollocks
            
             Bond
             ,
             and
             Adjudication
             on
             this
             Reason
             ,
             that
             the
             said
             Bond
             was
             without
             
             a
             Cause
             Onerous
             ,
             given
             by
             a
             Father
             to
             a
             Son
             ,
             as
             is
             clear
             by
             the
             Sons
             Oath
             ,
             taken
             thereupon
             ,
             and
             therefore
             a
             posterior
             Debt
             Lent
             by
             Creditors
             ,
             
               bona
               fide
            
             to
             the
             Father
             ,
             is
             in
             Law
             preferable
             thereto
             .
             2dly
             ,
             This
             Bond
             to
             a
             Son
             can
             be
             but
             
               de
               natura
               legittimae
            
             having
             no
             Cause
             Onerous
             ,
             as
             if
             it
             had
             born
             for
             his
             Portion
             Natural
             ,
             and
             Bairns
             part
             :
             In
             which
             Case
             it
             is
             Revockable
             by
             the
             Father
             ,
             and
             the
             Fathers
             Creditors
             (
             though
             posterior
             )
             are
             preferable
             thereto
             .
             3dly
             ,
             This
             Bond
             is
             Reduceable
             ,
             
               super
               capite
               doli
            
             ,
             as
             being
             a
             contrivance
             betwixt
             a
             Father
             and
             a
             Son
             ,
             to
             insnare
             Creditors
             to
             Lend
             to
             the
             Father
             ,
             who
             then
             drove
             a
             great
             Trade
             ,
             which
             must
             be
             inferred
             from
             these
             circumstances
             .
             First
             ,
             The
             Son
             was
             
               fori●
               familiat
            
             and
             sufficiently
             provided
             before
             .
             2dly
             ,
             The
             Bond
             bears
             no
             Annualrent
             ,
             and
             the
             Term
             of
             payment
             is
             after
             the
             Fathers
             Death
             ,
             and
             remained
             ever
             latent
             betwixt
             the
             Parties
             ,
             without
             any
             thing
             following
             thereupon
             ,
             and
             these
             Debts
             were
             all
             Contracted
             within
             a
             very
             little
             after
             this
             Bond
             ,
             which
             was
             only
             a
             year
             before
             the
             Defuncts
             Death
             .
             The
             Defender
             answered
             ,
             that
             the
             Reasons
             are
             no
             ways
             Relevant
             ,
             for
             there
             is
             neither
             Law
             nor
             Reason
             to
             hinder
             any
             person
             to
             give
             Bonds
             or
             Gifts
             freely
             ,
             there
             being
             no
             Impediment
             the
             time
             of
             the
             granting
             ,
             neither
             hath
             the
             Law
             any
             regard
             to
             posterior
             Creditors
             ,
             but
             in
             personal
             Debts
             ,
             whether
             for
             Causes
             Onerous
             or
             not
             ,
             the
             first
             Diligence
             was
             ever
             preferable
             ;
             nor
             was
             it
             ever
             heard
             that
             a
             posterior
             Onerous
             Obligation
             did
             Reduce
             ,
             or
             was
             preferred
             to
             a
             prior
             gratuitous
             obligation
             ,
             upon
             that
             ground
             that
             the
             prior
             was
             gratuitous
             .
             And
             to
             the
             second
             ,
             Albeit
             this
             Bond
             were
             in
             satisfaction
             of
             a
             Portion
             Natural
             ,
             as
             it
             is
             not
             yet
             ,
             being
             Delivered
             to
             the
             Son
             ,
             who
             i●
             forisfamili●t
             ,
             he
             can
             be
             in
             no
             other
             case
             then
             any
             other
             person
             to
             whom
             a
             bond
             were
             granted
             ,
             without
             an
             Onerous
             Cause
             .
             As
             to
             the
             third
             ,
             
               Dolus
               non
               presum●tur
            
             ,
             and
             all
             machinations
             being
             only
             animi
             ,
             are
             only
             probable
             
               scripto
               vel
               juramento
            
             ,
             and
             can
             be
             inferred
             by
             no
             circumstances
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             in
             
               dubio
               dolus
               aut
               c●lpa
               non
               pre●umitur
               ,
            
             yet
             it
             is
             doubtless
             probable
             otherwise
             then
             by
             the
             Oaths
             of
             the
             Parties
             ,
             whereunto
             Tru●●
             is
             never
             to
             be
             given
             ,
             in
             relation
             to
             their
             own
             shame
             ,
             contrivance
             ,
             or
             fraud
             ,
             and
             therefore
             mat●ers
             of
             fact
             do
             neces●arly
             infer
             ,
             and
             presume
             fraud
             in
             many
             cases
             ,
             and
             in
             none
             more
             then
             this
             ,
             where
             the
             Deed
             was
             clandestine
             ,
             and
             latent
             betwixt
             Father
             and
             Son
             ,
             and
             where
             the
             Fathers
             Estate
             was
             thereby
             rendred
             insuffi●ient
             to
             pay
             both
             his
             D●bt
             ,
             and
             the
             others
             contracted
             shortly
             therea●ter
             ▪
             and
             if
             it
             were
             sustained
             that
             such
             latent
             Rights
             betwixt
             conjunct
             persons
             were
             valide
             in
             prejudice
             of
             posterior
             Creditors
             ,
             contracting
             
               bona
               fide
            
             ,
             and
             not
             knowing
             the
             same
             ,
             all
             Commerce
             behoved
             to
             cease
             ,
             for
             every
             man
             might
             give
             such
             Bonds
             to
             his
             Children
             ,
             and
             continue
             to
             Trade
             ,
             and
             to
             borrow
             Money
             ,
             and
             upon
             the
             Childrens
             anterior
             Bonds
             be
             totally
             excluded
             .
             The
             Defender
             answered
             ,
             that
             our
             Law
             by
             a
             special
             Statute
             ,
             in
             Anno
             1621.
             having
             determined
             the
             cases
             of
             presumptive
             fraud
             ,
             and
             extended
             the
             same
             only
             to
             anterior
             Creditors
             ,
             without
             mention
             of
             posterior
             Creditors
             ,
             the
             same
             might
             be
             thought
             to
             be
             of
             purpose
             omitted
             ,
             and
             cannot
             be
             extended
             by
             the
             Lords
             .
          
           
             The
             Lords
             found
             the
             matter
             of
             fact
             ,
             and
             circumstances
             ,
             alleadged
             Relevant
             to
             infer
             a
             presumptive
             fraud
             ,
             and
             contrivance
             betwixt
             the
             Father
             and
             the
             Son
             ,
             which
             did
             insnare
             the
             Creditors
             who
             continued
             to
             Trade
             ,
             and
             therefore
             Reduced
             the
             same
             as
             to
             the
             Creditors
             ,
             and
             preferred
             them
             ,
             and
             the
             Relict
             in
             so
             far
             as
             she
             was
             a
             Creditor
             ,
             but
             not
             for
             any
             posterior
             or
             gratuitous
             Provision
             to
             her
             ,
             or
             to
             her
             Children
             ,
             but
             they
             did
             not
             find
             the
             two
             first
             grounds
             Relevant
             to
             prefer
             a
             posterior
             onerous
             obligation
             to
             a
             prior
             gratuitous
             ,
             or
             that
             this
             Bond
             was
             as
             a
             ●egit●ime
             Revockable
             ;
             and
             the
             Lords
             were
             chiefly
             moved
             because
             of
             the
             inconvenience
             to
             Creditors
             ,
             acting
             
               bona
               
               fide
            
             with
             a
             person
             Trading
             ,
             and
             repute
             in
             a
             good
             Condition
             :
             And
             where
             in
             eventu
             his
             Estate
             is
             not
             sufficient
             ,
             both
             to
             pay
             his
             Creditors
             ,
             and
             this
             Bond
             ,
             for
             if
             it
             had
             been
             sufficient
             for
             both
             ,
             they
             would
             have
             come
             in
             
               pa●●
               passu
            
             ,
             having
             both
             done
             Diligence
             within
             the
             year
             .
          
        
         
           
             Iohn
             Brown
             contra
             Robert
             Sibbald
             ,
             Eodem
             die
             .
          
           
             
               IOhn
               Brown
            
             having
             taken
             a
             Feu
             of
             some
             Aikers
             of
             Land
             ,
             at
             a
             great
             Rent
             in
             Victual
             and
             Money
             ,
             pursue
             
               Robert
               Sibbald
            
             (
             now
             his
             Superior
             )
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             that
             he
             might
             Renunce
             ,
             and
             be
             free
             of
             the
             Feu
             Duty
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             this
             Feu
             was
             by
             a
             mutual
             Con●ract
             ,
             by
             which
             the
             Vassal
             had
             bound
             him
             and
             his
             Heirs
             to
             pay
             the
             Feu
             Duty
             yearly
             ,
             and
             which
             obligation
             he
             could
             not
             louse
             at
             his
             pleasure
             ;
             for
             albeit
             Feues
             which
             are
             proper
             and
             gratuirously
             given
             without
             any
             obligement
             on
             the
             Vassals
             part
             ,
             but
             given
             by
             a
             Charter
             ,
             or
             Disposition
             ,
             as
             being
             presumed
             to
             be
             in
             favorem
             of
             the
             Vassal
             ,
             he
             might
             Renunce
             the
             same
             ,
             
               nam
               cuivis
               licet
               favori
               pro
               se
               introducto
               renunciare
               ,
            
             but
             here
             the
             Vassal
             being
             expresly
             obliged
             for
             the
             Feu
             Duty
             ,
             cannot
             take
             off
             his
             own
             obligation
             ,
             this
             case
             being
             like
             unto
             that
             of
             a
             Tack
             ,
             which
             being
             by
             mutual
             Contract
             ,
             cannot
             be
             Renunced
             ,
             though
             by
             a
             Tack
             only
             granted
             and
             Subscribed
             by
             the
             Setter
             it
             may
             .
             The
             Pursuer
             answered
             ,
             that
             he
             opponed
             the
             common
             opinion
             of
             all
             Feudists
             ,
             
               de
               feudo
               refutando
            
             ,
             wherein
             there
             is
             no
             exception
             ,
             whether
             the
             Feudal
             Contract
             be
             Subscrived
             by
             both
             Parties
             ,
             for
             every
             Contract
             must
             necessarly
             import
             the
             Consent
             of
             both
             Parties
             ,
             and
             the
             acceptance
             of
             a
             Vassal
             to
             a
             Feu
             by
             way
             of
             Dispo●ition
             is
             all
             one
             with
             his
             express
             obligation
             in
             a
             mutual
             Contract
             .
             2dly
             ,
             Though
             such
             a
             Contract
             could
             not
             be
             Renunced
             ,
             yet
             this
             Pursuer
             may
             Renunce
             ,
             because
             by
             a
             Back-bond
             by
             the
             Superior
             ,
             who
             granted
             the
             Feu
             under
             his
             Hand
             ,
             he
             has
             liberty
             to
             Renunce
             when
             he
             plea●es
             .
             The
             Defender
             answered
             ,
             that
             this
             Back-bond
             not
             being
             in
             
               corpore
               juris
            
             ,
             nor
             any
             part
             of
             the
             Investiture
             ,
             it
             was
             only
             personal
             against
             that
             Superior
             who
             granted
             the
             same
             ,
             but
             not
             against
             the
             Defender
             ,
             who
             is
             a
             singular
             Successor
             .
             It
             was
             answered
             ,
             that
             the
             mutual
             Contract
             not
             being
             
               de
               natura
               feudi
            
             ,
             but
             at
             most
             importing
             an
             obligement
             not
             to
             Renunce
             the
             Feu
             ,
             any
             personal
             Deed
             before
             this
             Superiors
             Right
             ,
             under
             the
             Hand
             of
             his
             Author
             ,
             is
             Relevant
             against
             him
             ,
             as
             well
             as
             his
             Author
             .
          
           
             The
             Lords
             found
             the
             alleadgeances
             upon
             the
             Back-bond
             Relevant
             against
             the
             Supe●●or
             ,
             though
             singular
             Successor
             ,
             it
             being
             granted
             of
             the
             same
             Date
             with
             the
             Feudal
             Contract
             ,
             and
             relating
             to
             a
             matter
             extrinsick
             to
             the
             nature
             of
             the
             Feu
             ,
             and
             so
             suffered
             the
             Pursuer
             to
             Renunce
             the
             same
             .
          
        
         
           
             Gilbert
             Mcclellan
             contra
             Lady
             Kirkcudbright
             ,
             February
             13.
             1669.
             
          
           
             
               GIlbert
               Mcclellan
            
             being
             Infeft
             by
             the
             Lord
             Kirkcudbright
             in
             an
             Annualrent
             ,
             effeirand
             to
             four
             thousand
             Merks
             ,
             out
             of
             the
             Lands
             of
             Auchin●lour
             ,
             thereafter
             my
             Lady
             was
             Infeft
             in
             Property
             ,
             or
             an
             Annualrent
             out
             of
             the
             Lands
             ,
             at
             her
             pleasure
             ,
             for
             her
             Liferent
             use
             ;
             and
             after
             my
             Ladies
             Infeftment
             ,
             my
             Lord
             gave
             a
             Corroborative
             Security
             of
             the
             Property
             of
             Auchinflour
             ,
             and
             stated
             the
             four
             thousand
             Merks
             of
             principal
             ,
             and
             the
             two
             thousand
             and
             five
             hundreth
             Merks
             of
             Annualrent
             in
             one
             principal
             ,
             and
             Infeft
             him
             thereupon
             in
             Property
             wherein
             Gilbert
             was
             many
             years
             in
             Possession
             before
             my
             Lords
             Death
             :
             In
             the
             Competition
             betwixt
             my
             Lady
             
             and
             him
             ,
             he
             craved
             preference
             ,
             because
             he
             was
             seven
             years
             in
             Possession
             .
             2dlie
             ,
             Because
             his
             first
             Right
             of
             Annualrent
             still
             stands
             ,
             and
             was
             Corroborat
             ;
             and
             therefore
             ,
             as
             he
             would
             undoubtedly
             have
             been
             preferred
             to
             my
             Lady
             ,
             for
             all
             his
             Annualrents
             ,
             for
             the
             sum
             of
             four
             thousand
             merks
             by
             his
             first
             Infeftment
             ,
             which
             is
             prior
             to
             my
             Ladies
             ,
             and
             as
             an
             appryzing
             by
             poinding
             of
             the
             Ground
             for
             these
             annualrents
             ,
             though
             posterior
             to
             my
             Ladies
             Infeftment
             ,
             would
             be
             drawen
             back
             
               ad
               suam
               causam
            
             to
             his
             Infeftment
             of
             annualrent
             ,
             and
             be
             preferred
             ,
             so
             my
             Lord
             having
             voluntarly
             granted-this
             Corroborative
             Security
             to
             prevent
             an
             appryzing
             ,
             it
             should
             work
             the
             same
             effect
             ,
             as
             if
             an
             appryzing
             had
             been
             then
             led
             ,
             and
             an
             Infeftment
             thereupon
             ,
             which
             would
             have
             accumulat
             the
             annualrents
             then
             past
             ,
             and
             made
             them
             bear
             annualrent
             in
             the
             same
             manner
             as
             this
             Corroborative
             security
             does
             .
          
           
             The
             Lords
             preferred
             Gilbert
             for
             the
             whole
             annualrents
             of
             his
             four
             thousand
             Merks
             ,
             conform
             to
             his
             first
             Infeftment
             :
             but
             would
             not
             Sustain
             the
             Corroborative
             Security
             ,
             being
             posterior
             to
             my
             Ladies
             Infeftment
             ,
             as
             if
             it
             had
             been
             upon
             an
             appryzing
             ,
             to
             give
             him
             annualrent
             for
             2500.
             merks
             ,
             then
             accumulate
             :
             but
             found
             no
             moment
             in
             his
             alleadgance
             of
             the
             Possessory
             Judgement
             ,
             unless
             it
             had
             been
             seven
             years
             after
             my
             Lords
             death
             ,
             when
             my
             Lady
             might
             have
             preferred
             her
             Right
             ,
             and
             not
             
               contra
               non
               valentem
               agere
            
             .
          
        
         
           
             The
             Creditors
             of
             Balmerino
             and
             Couper
             contra
             my
             Lady
             Couper
             .
             Februarie
             16.
             1669.
             
          
           
             THe
             Deceased
             Lord
             Cowper
             having
             Disponed
             his
             Estate
             to
             his
             Lady
             ,
             some
             of
             his
             Creditors
             ,
             and
             some
             of
             
             Balmerino's
             Creditors
             ,
             who
             was
             his
             Heir
             appearand
             ,
             did
             raise
             Reduction
             of
             the
             said
             Disposition
             ,
             as
             done
             on
             Death-bed
             ,
             and
             before
             the
             day
             of
             Compearance
             they
             give
             in
             a
             Supplication
             ,
             desiring
             Witnesses
             to
             be
             Examined
             ,
             and
             to
             remain
             
               in
               retentis
            
             ,
             that
             Cowper
             had
             Contracted
             his
             Disease
             ,
             whereof
             he
             died
             before
             the
             Subscribing
             of
             this
             Disposition
             ,
             and
             that
             he
             never
             went
             out
             thereafter
             ,
             but
             once
             to
             the
             Kirk
             and
             Mercat
             of
             Cowper
             ,
             which
             times
             he
             was
             supported
             and
             fell
             down
             Dead
             ,
             a
             Swoon
             ,
             before
             he
             was
             gotten
             home
             .
             It
             was
             answered
             for
             the
             Lady
             
               Cowper
               :
               First
            
             .
             That
             Witnesses
             ought
             not
             to
             be
             Examined
             until
             the
             Relevancy
             of
             the
             Libel
             were
             Discust
             ,
             unless
             they
             were
             old
             or
             Valetudinary
             ,
             or
             penury
             of
             Witnesses
             ,
             whereas
             there
             are
             here
             fourty
             Witnesses
             ctaved
             to
             be
             Examined
             ,
             and
             the
             coming
             to
             Kirk
             and
             Mercat
             being
             publick
             Deeds
             ,
             there
             would
             be
             no
             hazard
             of
             wanting
             Witnesses
             .
             2dly
             ,
             The
             Creditors
             ,
             or
             appearand
             Heir
             have
             no
             interest
             ,
             unless
             the
             Heir
             were
             Entered
             ,
             or
             they
             had
             appryzed
             ,
             or
             had
             a
             real
             Right
             ;
             neither
             can
             the
             Creditors
             be
             prejudged
             by
             the
             Disposition
             ,
             as
             being
             on
             Death-bed
             ,
             because
             they
             may
             Reduce
             the
             same
             ,
             as
             being
             posterior
             to
             their
             Debts
             ,
             upon
             the
             Act
             of
             Parliament
             1621.
             and
             the
             reason
             of
             Death-bed
             is
             only
             competent
             to
             Heirs
             ,
             and
             to
             these
             having
             real
             Rights
             from
             the
             Heir
             ,
             and
             not
             to
             their
             personal
             Creditors
             .
          
           
             The
             Lords
             ordained
             the
             Witnesses
             to
             be
             Examined
             ,
             to
             remain
             
               in
               retentis
            
             ,
             concerning
             my
             Lord
             Cowpers
             condition
             ,
             the
             time
             of
             Subscribing
             the
             Disposition
             ,
             and
             of
             his
             coming
             abroad
             ;
             and
             allowed
             my
             Lady
             also
             Witnesses
             if
             she
             pleased
             ,
             for
             proving
             what
             his
             condition
             was
             at
             these
             times
             ,
             reserving
             all
             the
             Defenses
             and
             Alleadgances
             of
             either
             Party
             in
             the
             Cause
             ,
             for
             they
             found
             that
             the
             Creditors
             of
             Balmerino
             ,
             as
             appearand
             Heir
             had
             interest
             to
             Declare
             that
             their
             Debts
             might
             by
             legal
             Diligences
             affect
             the
             Estate
             of
             Cowper
             ,
             unprejudged
             by
             this
             Disposition
             ,
             as
             being
             made
             by
             Cowper
             on
             Death-bed
             ,
             and
             that
             the
             Reduction
             in
             so
             far
             as
             might
             contain
             such
             a
             Declarator
             ,
             would
             be
             Sustained
             ,
             for
             no
             Party
             can
             be
             hindered
             to
             Declare
             any
             point
             of
             Right
             competent
             
             to
             them
             ,
             and
             it
             was
             also
             thought
             ,
             that
             though
             there
             were
             many
             Witnesses
             called
             to
             find
             out
             who
             truely
             knew
             the
             Defuncts
             condition
             ,
             yet
             there
             might
             be
             few
             ,
             who
             truly
             knew
             the
             same
             ,
             and
             these
             might
             be
             removed
             out
             of
             the
             way
             ,
             either
             by
             Death
             ,
             or
             by
             Collusion
             .
          
        
         
           
             Alexander
             Hamiltoun
             contra
             Harper
             .
             Eodem
             die
             .
          
           
             UMquhil
             
               Iohn
               Hamiltoun
            
             Apothecarie
             ,
             having
             purchased
             a
             Tenement
             in
             Edinburgh
             ,
             to
             himself
             in
             Liferent
             ,
             and
             his
             Son
             Alexander
             in
             Fee
             ,
             thereafter
             he
             borrowed
             1000.
             merks
             from
             
               Thomas
               Harper
            
             ,
             and
             gave
             him
             a
             Tack
             of
             a
             Shop
             in
             the
             Tenement
             ,
             for
             the
             Annualrent
             of
             the
             Money
             .
             After
             his
             Death
             Alexander
             his
             Son
             used
             a
             Warning
             by
             Chalking
             of
             the
             Doors
             by
             an
             Officer
             in
             the
             ordinary
             Form
             ,
             and
             he
             being
             Removed
             ,
             Alexander
             pursues
             now
             for
             the
             Mails
             and
             Duties
             of
             the
             Shop
             from
             his
             Fathers
             Death
             ,
             till
             the
             Defenders
             Removal
             ,
             who
             alleadged
             Absolviture
             ,
             because
             he
             bruiked
             the
             Tenement
             by
             vertue
             of
             his
             Tack
             ,
             
               &
               bona
               fide
               possessor
               facit
               fructus
               perceptos
               suos
               .
            
             It
             was
             answered
             ,
             that
             the
             Tack
             being
             but
             granted
             by
             a
             Liferenter
             ,
             could
             not
             Defend
             after
             the
             Liferenters
             Death
             ,
             and
             could
             not
             be
             so
             much
             as
             a
             colourable
             Title
             of
             his
             Possession
             .
             2dly
             ,
             That
             he
             could
             not
             pretend
             
               bona
               fides●
            
             because
             he
             was
             Interrupted
             by
             the
             Warning
             .
             It
             was
             answered
             by
             the
             Defender
             ,
             that
             the
             Tack
             was
             not
             set
             to
             him
             by
             
               Iohn
               Hamiltoun
            
             as
             Liferenter
             ,
             nor
             did
             he
             know
             but
             he
             was
             Feear
             ,
             being
             commonly
             so
             repute
             ,
             neither
             could
             the
             Warning
             put
             him
             in
             
               mala
               fide●
            
             because
             there
             was
             no
             Intimation
             made
             thereof
             to
             him
             ,
             either
             Personally
             ,
             or
             at
             his
             Dwelling-house
             ,
             but
             only
             a
             Chalking
             of
             the
             Shop-door
             .
          
           
             The
             Lords
             Sustained
             the
             Defense
             and
             Duply
             ,
             and
             found
             him
             free
             of
             any
             Mails
             or
             Duties
             ,
             till
             Intimation
             or
             Citation
             upon
             the
             Pursuers
             Right
             :
             here
             the
             Pursuer
             did
             not
             alleadge
             that
             the
             Warning
             by
             Chalking
             of
             the
             Shop-door
             came
             to
             the
             Defenders
             knowledge
             ,
             as
             done
             by
             the
             Pursue
             .
          
        
         
           
             Sarah
             Cockburn
             and
             Mr.
             Patrick
             Gillespie
             contra
             Iohn
             Stewart
             and
             the
             Tennents
             of
             Lintone
             .
             February
             18.
             1669.
             
          
           
             
               SArah
               Cockb●rn
            
             being
             Infeft
             in
             Liferent
             in
             an
             Annualrent
             of
             1200.
             merks
             yearly
             ,
             out
             of
             the
             Barony
             of
             Lintone
             ,
             She
             and
             Mr.
             
               Patrick
               Gillespie
            
             her
             Husband
             ,
             insisting
             for
             her
             Annualrent
             ,
             in
             Anno
             1657.
             obtained
             payment
             from
             
               Iohn
               Stewart
            
             ,
             and
             gave
             him
             a
             power
             to
             uplift
             the
             same
             from
             the
             Tennents
             ,
             and
             delivered
             to
             him
             the
             Letters
             of
             Poinding
             ,
             to
             be
             put
             in
             Execution
             .
             Thereafter
             Mr.
             Patrick
             obtained
             a
             second
             Decreet
             against
             some
             Wodsetters
             ,
             whose
             Rights
             were
             posterior
             to
             the
             Annualrent
             ,
             for
             the
             years
             1658
             ,
             1659
             ,
             and
             1660.
             and
             upon
             payment
             of
             these
             three
             years
             ,
             did
             acknowledge
             payment
             made
             of
             the
             saids
             three
             years
             Annualrent
             ,
             and
             all
             bygones
             whereunto
             he
             had
             Right
             .
             Mr.
             Patrick
             having
             granted
             
               Iohn
               Stewart
            
             a
             Bond
             to
             warrand
             him
             anent
             the
             year
             1657.
             and
             that
             he
             had
             given
             no
             Discharges
             that
             might
             exclude
             him
             .
             The
             Tennents
             of
             Lintoun
             Suspends
             the
             Charge
             for
             the
             year
             1657.
             upon
             that
             Reason
             ,
             that
             Mr.
             Patrick
             had
             Discharged
             the
             Annualrent
             for
             the
             years
             1658
             ,
             1659
             ,
             1660.
             and
             all
             preceeding
             whereunto
             he
             had
             right
             :
             Whereupon
             
               Iohn
               Stewart
            
             Charged
             M.
             Patrick
             upon
             his
             Bond
             of
             Warrandice
             ,
             who
             Suspended
             upon
             this
             Reason
             ,
             that
             the
             Discharge
             could
             not
             exclude
             
               John
               Stewart
            
             ,
             albeit
             it
             bare
             all
             preceedings
             to
             which
             he
             had
             Right
             ,
             because
             when
             he
             granted
             the
             Discharge
             ,
             he
             had
             no
             right
             to
             the
             year
             1657.
             which
             he
             had
             received
             from
             
               John
               Stewart
            
             ,
             and
             given
             him
             Warrand
             ,
             and
             his
             Letters
             to
             Poind
             for
             Mr.
             
               Johns
               Stewarts
            
             own
             use
             .
             It
             was
             answered
             ,
             that
             unless
             that
             Order
             had
             been
             intimat
             ,
             the
             Right
             remained
             with
             Mr.
             Patrick
             ,
             and
             so
             his
             general
             Discharge
             
             extended
             thereto
             .
             It
             was
             answered
             ,
             that
             albeit
             Intimation
             was
             necessar
             ,
             as
             to
             establish
             the
             Right
             in
             the
             Assigneys
             Person
             :
             yet
             Mr.
             Patricks
             Warrand
             was
             sufficient
             to
             exclude
             him
             ,
             at
             least
             ,
             the
             matter
             of
             his
             Right
             being
             thereby
             dubious
             ,
             the
             general
             Discharge
             cannot
             be
             effectual
             against
             him
             ,
             if
             by
             the
             Oaths
             of
             the
             Wodsetters
             that
             got
             the
             Discharge
             ,
             it
             appeared
             that
             they
             paid
             him
             not
             the
             year
             1657.
             and
             some
             of
             their
             Oaths
             being
             taken
             ,
             he
             who
             paid
             the
             Mony
             for
             himself
             ,
             and
             the
             rest
             D●poned
             ,
             that
             the
             year
             1657.
             was
             not
             paid
             ,
             and
             that
             there
             was
             no
             Decreet
             against
             the
             Wodsetters
             for
             1657.
             but
             only
             against
             the
             Moveable
             Tennents
             ,
             to
             whom
             the
             Discharge
             ,
             containing
             the
             said
             general
             Clause
             ,
             was
             not
             granted
             .
          
           
             The
             Lords
             found
             that
             in
             respect
             of
             the
             Oath
             ,
             the
             general
             Discharge
             extended
             not
             to
             the
             year
             1657.
             and
             therefore
             Suspended
             the
             Letters
             against
             the
             said
             Mr.
             Patrick
             upon
             his
             Bond
             of
             Warrandice
             ,
             and
             found
             the
             Letters
             orderly
             proceeded
             at
             
               Iohn
               Stewarts
            
             Instance
             ,
             against
             the
             moveable
             Tennents
             of
             Lintoun
             ,
             for
             the
             year
             1657.
             
             The
             Tennents
             further
             alleadged
             ,
             that
             since
             the
             year
             1660.
             they
             did
             produce
             three
             Consecutive
             Discharges
             from
             Mr.
             Patrick
             ,
             which
             imports
             a
             Liberation
             of
             all
             years
             preceeding
             ,
             specially
             seing
             
               Mr.
               Patrick
            
             was
             never
             denuded
             of
             the
             year
             1657.
             nor
             no
             Intimation
             made
             .
             It
             was
             answered
             ,
             that
             such
             a
             Liberation
             is
             but
             presumptive
             ,
             
               presumptione
               juris
            
             ,
             and
             admits
             contrary
             Probation
             ,
             and
             is
             sufficiently
             taken
             away
             by
             the
             Oath
             of
             the
             Party
             ,
             acknowledging
             that
             year
             unpaid●
             and
             the
             Warrand
             given
             to
             
               Iohn
               Stewart
            
             ,
             to
             lift
             it
             for
             his
             own
             use
             ,
             before
             these
             Discharges
             .
          
           
             The
             Lords
             Repelled
             also
             this
             Defense
             upon
             the
             three
             Discharges
             ,
             in
             respect
             of
             the
             Reply
             .
          
        
         
           
             Trinch
             contra
             Watson
             .
             Eodem
             die
             .
          
           
             
               John
               Watson
            
             being
             Curator
             to
             
               Margaret
               Trinch
            
             ,
             and
             having
             Contracted
             her
             in
             Marriage
             with
             his
             own
             Sister
             Son
             ,
             there
             is
             a
             Disposition
             granted
             by
             her
             to
             the
             said
             
               Iohn
               Watson
            
             ,
             of
             all
             her
             Means
             ,
             and
             in
             the
             Contract
             ,
             he
             Contracts
             with
             her
             1000.
             pounds
             ,
             whereunto
             the
             Heirs
             of
             the
             Marriage
             are
             to
             succeed
             ,
             and
             failing
             these
             ,
             to
             return
             to
             the
             said
             Iohn
             himself
             ,
             she
             died
             before
             the
             Marriage
             ,
             and
             
               David
               Trinch
            
             Stationer
             being
             Served
             Heir
             to
             her
             ,
             raises
             Reduction
             of
             the
             Disposition
             ,
             and
             Substitution
             in
             the
             Contract
             of
             Marriage
             ,
             upon
             two
             Reasons
             .
             First
             ,
             That
             albeit
             the
             Disposition
             contain
             Sums
             of
             Money
             ,
             yet
             being
             of
             the
             same
             date
             with
             the
             Contract
             of
             Marriage
             ,
             in
             which
             
               Iohn
               Watson
            
             Contracts
             1000.
             pound
             with
             the
             said
             
               Margaret
               Trinch
            
             ,
             which
             unquestionably
             has
             been
             all
             that
             has
             been
             gotten
             for
             the
             Disposition
             ,
             the
             said
             Disposition
             is
             a
             part
             of
             the
             Agreement
             ,
             in
             relation
             to
             the
             Marriage
             ,
             and
             must
             be
             understood
             ,
             as
             granted
             in
             Contemplation
             of
             the
             Marriage
             ,
             as
             if
             it
             had
             been
             Contracted
             in
             the
             Contract
             of
             Marriage
             ;
             so
             that
             the
             Marriage
             not
             having
             followed
             ,
             the
             Disposition
             is
             void
             ,
             as
             being
             
               causa
               data
               causanon
               secuta
               .
               2dly
               ,
            
             Both
             the
             Disposition
             and
             Provision
             in
             the
             Contract
             ,
             that
             failing
             Heirs
             of
             the
             Marriage
             ,
             the
             1000.
             pound
             should
             return
             to
             
               Iohn
               VVatson
            
             ,
             were
             obtained
             by
             Fraud
             and
             Circumvention
             ,
             being
             granted
             to
             a
             Curator
             ,
             
               ante
               reddi●as
               rationes
            
             ,
             by
             a
             Person
             who
             lately
             was
             his
             Minor
             ,
             and
             who
             was
             of
             a
             weak
             capacity
             ,
             Stupide
             and
             halfe
             Deaf
             ,
             and
             upon
             such
             unequal
             Terms
             ,
             her
             Means
             being
             worth
             3000.
             pounds
             ,
             as
             appears
             by
             a
             Decreet
             obtained
             at
             her
             Instance
             ,
             and
             all
             she
             got
             being
             but
             1000.
             pounds
             ,
             to
             return
             to
             Watson
             ,
             in
             case
             there
             were
             no
             Children
             ,
             and
             nothing
             secured
             on
             the
             Husbands
             part
             .
             The
             Defender
             answered
             to
             the
             first
             ,
             that
             albeit
             the
             Disposition
             was
             of
             the
             same
             date
             with
             the
             Contract
             of
             Marriage
             ,
             it
             did
             not
             conclude
             ,
             that
             it
             was
             in
             Contemplation
             of
             the
             Marriage
             ,
             and
             might
             be
             ,
             and
             truly
             was
             an
             absolute
             
             Bargain
             .
             As
             to
             the
             Reason
             of
             Circumvention
             ,
             it
             is
             not
             Relevant
             ,
             although
             the
             Terms
             had
             been
             as
             unequal
             as
             they
             are
             alleadged
             ,
             for
             the
             said
             
               Margaret
               Trench
            
             ,
             might
             freely
             Dispose
             of
             her
             own
             ,
             at
             her
             pleasure
             ,
             and
             leave
             it
             to
             
               Iohn
               VVatson
            
             ,
             who
             was
             her
             Mothers
             Brother
             ,
             if
             she
             had
             no
             Children
             ,
             especially
             seing
             
               David
               Trinch
            
             ,
             the
             nearest
             on
             the
             Fathers
             side
             ,
             is
             but
             her
             Goodsires
             Brothers
             Oy
             ,
             and
             never
             took
             notice
             of
             her
             ,
             whereas
             
               Iohn
               Watson
            
             Alimented
             her
             from
             her
             Infancy
             ,
             and
             obtained
             Decreets
             for
             her
             Means
             ,
             and
             never
             received
             a
             Groat
             thereof
             ;
             neither
             was
             there
             any
             inequality
             betwixt
             the
             1000.
             pound
             ,
             and
             her
             means
             ,
             for
             which
             ,
             albeit
             there
             be
             a
             Decreet
             in
             absence
             of
             a
             greater
             sum
             ;
             yet
             there
             are
             unquestionable
             Defalcations
             ,
             which
             being
             Deduced
             with
             her
             Aliment
             ,
             there
             will
             not
             be
             1000.
             pounds
             free
             .
          
           
             The
             Lords
             conceiving
             the
             Matter
             to
             be
             very
             unwarrantable
             on
             the
             Curators
             part
             ,
             in
             taking
             this
             Disposition
             and
             Substitution
             ,
             before
             his
             Accompts
             with
             his
             Minor
             were
             given
             up
             ,
             did
             reduce
             both
             the
             Disposition
             and
             Substitution
             ,
             not
             only
             as
             done
             in
             Contemplation
             of
             Marriage
             ,
             but
             as
             being
             presumed
             fraudulent
             and
             unwarrantable
             .
          
        
         
           
             Mr.
             Iohn
             Hay
             contra
             the
             Town
             of
             Peebles
             .
             February
             19.
             1669.
             
          
           
             MR.
             
               Iohn
               Hay
            
             Insisting
             in
             his
             Declarator
             ,
             that
             certain
             
               Hills
               Libeled
            
             were
             proper
             Part
             and
             Pertinent
             of
             his
             Lands
             Libelled
             ,
             wherein
             he
             stands
             Infeft
             in
             Property
             .
             It
             was
             alleadged
             for
             the
             Town
             of
             Peebles
             ,
             that
             they
             do
             not
             acknowledge
             his
             Right
             of
             Property
             ,
             but
             they
             alleadge
             that
             they
             are
             Infeft
             by
             King
             Iames
             the
             second
             ,
             in
             their
             Burgage
             Lands
             with
             the
             Commonty
             of
             Priest-shiels
             ,
             and
             likewise
             by
             King
             Iames
             the
             fourth
             ,
             and
             that
             Queen
             Mary
             having
             directed
             a
             Commission
             for
             Perambulation
             to
             the
             Sheriff
             of
             Edinburgh
             ,
             he
             Perambulate
             their
             Commonty
             ,
             and
             hath
             set
             down
             Meithes
             and
             Marches
             thereof
             ,
             which
             are
             exprest
             in
             their
             Decreet
             of
             Perambulation
             ,
             within
             which
             their
             Meithes
             lie
             ,
             and
             that
             in
             Anno
             1621.
             they
             have
             a
             Charter
             from
             King
             Iames
             the
             sixth
             ,
             of
             their
             Burgage
             and
             Commonty
             of
             Priest-shiels
             ,
             comprehending
             expresly
             thir
             Hills
             ;
             by
             vertue
             whereof
             ,
             they
             have
             been
             in
             peaceable
             Possession
             thereof
             ,
             as
             their
             proper
             Commonty
             by
             Pasturage
             ,
             Feuel
             ,
             Fail
             and
             Divot
             ,
             and
             by
             debarting
             all
             others
             therefrom
             .
             The
             Pursuer
             answered
             ,
             that
             their
             Charters
             was
             but
             
               periculo
               petentis
            
             ,
             the
             King
             having
             formerly
             granted
             the
             Right
             of
             thir
             Lands
             to
             his
             Authors
             ,
             and
             the
             Decreet
             of
             Perambulation
             by
             the
             Sheriff
             of
             Edinburgh
             ,
             was
             a
             
               non
               suo
               judice
            
             ,
             the
             Lands
             not
             being
             within
             the
             Shire
             ,
             and
             for
             any
             Possession
             they
             had
             ,
             it
             was
             not
             constantly
             over
             all
             the
             year
             ,
             but
             only
             a
             while
             about
             Lambas
             of
             late
             ,
             and
             was
             still
             interrupted
             by
             him
             and
             his
             Authors
             ,
             and
             offered
             him
             to
             prove
             that
             they
             have
             been
             in
             immemorial
             Possession
             ,
             by
             Teiling
             ,
             Sowing
             and
             all
             other
             Deeds
             of
             Property
             ,
             and
             that
             thir
             Hills
             cannot
             be
             part
             of
             their
             Commonty
             ,
             there
             being
             other
             Heretors
             Lands
             interjected
             between
             the
             same
             and
             the
             Commonty
             of
             Priest-shiels
             ,
             so
             that
             the
             Pursuer
             ought
             to
             be
             preferred
             ,
             being
             
               in
               libello
            
             ,
             and
             far
             more
             Pregnant
             and
             specially
             alleadging
             Acts
             of
             Property
             by
             Tillage
             ,
             and
             the
             Defenders
             having
             Declarator
             depending
             of
             their
             Commonty
             ,
             and
             alleadged
             a
             Practique
             at
             the
             Instance
             of
             Sir
             
               George
               Kinnaird
            
             ,
             where
             he
             alleadging
             upon
             Property
             more
             pregnantly
             ,
             was
             preferred
             to
             an
             other
             in
             Probation
             ,
             alleadging
             Pasturage
             .
          
           
             The
             Lords
             preferred
             neither
             Party
             to
             Probation
             ,
             but
             before
             answer
             Ordained
             a
             Perambulation
             to
             be
             ,
             and
             Witnesses
             adduced
             ,
             
               hinc
               inde
            
             ,
             anent
             the
             Situation
             of
             the
             Bounds
             ,
             and
             either
             Parties
             Possession
             and
             Interruption
             .
          
        
         
           
           
             Lord
             Elphingstoun
             contra
             Lady
             Quarrel
             .
             Eodem
             die
             .
          
           
             THe
             Lord
             Elphingstoun
             pursuing
             Quarrel
             in
             a
             Tutor
             Compt
             anent
             the
             Profits
             of
             the
             Coal
             of
             Elphingstoun
             ,
             this
             Q●ere
             came
             in
             from
             the
             Auditors
             ,
             how
             the
             small
             Articles
             of
             uncost
             should
             be
             proven
             .
             It
             was
             alleadged
             for
             Quarrel
             ,
             that
             such
             Articles
             could
             be
             proven
             no
             other
             way
             but
             by
             his
             Oath
             ,
             seing
             it
             was
             impossible
             either
             to
             use
             Witnesses
             ,
             or
             for
             them
             to
             remember
             such
             small
             particulars
             ,
             occurring
             every
             day
             ,
             especially
             seing
             it
             was
             known
             to
             all
             Coal-masters
             ,
             that
             such
             particulars
             were
             ordinarly
             incident
             .
             It
             was
             answered
             for
             the
             Lord
             Elphingstoun
             ,
             though
             these
             Particulars
             were
             small
             ,
             yet
             they
             amounted
             in
             whole
             to
             2000.
             merks
             ,
             and
             that
             the
             Tutors
             ought
             to
             have
             keeped
             the
             Coal-Grieves
             weekly
             Books
             ,
             wherein
             every
             particular
             was
             set
             down
             dayly
             as
             they
             were
             expeded
             ▪
             which
             if
             they
             were
             produced
             ,
             and
             both
             the
             Tutors
             and
             Coal-Grieves
             Oathes
             were
             taken
             thereupon
             ,
             that
             they
             were
             truly
             so
             payed
             ,
             as
             they
             were
             recently
             set
             down
             ,
             they
             might
             be
             allowed
             :
             but
             no
             such
             Book
             being
             produced
             ,
             the
             Tutor
             could
             not
             give
             a
             Compt
             thereof
             at
             random
             ,
             nor
             could
             his
             Oath
             in
             Astruction
             thereof
             be
             received
             ;
             because
             it
             were
             impossible
             for
             him
             to
             remember
             these
             small
             particulars
             without
             the
             Books
             .
             It
             was
             answered
             for
             the
             Tutor
             ,
             that
             during
             the
             Dependence
             of
             this
             Process
             ,
             the
             Books
             were
             lost●
             which
             were
             made
             up
             by
             the
             Coal
             Grieves
             weekly
             :
             but
             that
             he
             produced
             a
             Book
             made
             up
             of
             these
             Books
             ,
             and
             was
             willing
             to
             give
             his
             Oath
             that
             the
             first
             Books
             were
             lost
             ,
             and
             that
             thir
             Books
             ,
             albeit
             they
             be
             not
             direct
             Copies
             of
             the
             former
             Books
             ,
             yet
             that
             they
             were
             made
             up
             of
             the
             former
             ,
             and
             did
             agree
             in
             the
             matter
             with
             them
             ,
             and
             contained
             no
             more
             then
             they
             did
             .
          
           
             The
             Lords
             refused
             to
             Sustain
             this
             manner
             of
             Probation
             ,
             but
             ordained
             Quarrel
             to
             condescend
             
               de
               casu
               ommissionis
            
             ,
             of
             the
             first
             Books
             ,
             and
             adduce
             such
             Proofs
             and
             Evidence
             thereof
             as
             he
             could
             ,
             and
             also
             to
             condescend
             who
             was
             the
             Writer
             of
             the
             latter
             Books
             ,
             that
             he
             might
             be
             Examined
             how
             he
             made
             up
             the
             one
             from
             of
             the
             other
             .
          
        
         
           
             Kings
             Advocat
             contra
             Craw.
             Eodem
             die
             .
          
           
             THe
             Kings
             Advocat
             pursues
             a
             Declarator
             of
             the
             Bastardy
             of
             one
             Craw.
             It
             was
             Alleadged
             for
             the
             Defenders
             ,
             that
             the
             Libel
             was
             not
             Relevant
             ,
             unless
             it
             had
             been
             condescended
             who
             was
             the
             Bastards
             Mother
             ,
             and
             offered
             to
             be
             proven
             ,
             that
             she
             was
             never
             married
             to
             his
             Father
             .
             It
             was
             answered
             ,
             that
             not
             being
             married
             was
             a
             Negative
             ,
             and
             proved
             it self
             ,
             unless
             the
             Defenders
             condescended
             upon
             the
             Father
             ,
             and
             offered
             to
             prove
             married
             .
             The
             Defender
             answered
             ,
             if
             that
             was
             Relevant●
             the
             most
             of
             all
             Scotland
             might
             be
             declared
             Bastards
             ,
             it
             being
             impossible
             after
             a
             considerable
             time
             to
             instruct
             the
             Solemnizing
             of
             a
             Marriage
             ,
             but
             Law
             and
             Custom
             doth
             require
             ,
             that
             at
             least
             it
             must
             be
             condescended
             on
             and
             instructed
             ,
             that
             the
             Defunct
             was
             holden
             and
             reputed
             Bastard
             at
             the
             time
             of
             his
             Death
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
           
             And
             it
             being
             further
             alleadged
             ,
             that
             there
             was
             produced
             a
             Legittimation
             taken
             by
             the
             Bastard
             from
             the
             King
             ,
             which
             did
             import
             his
             acknowledgement
             of
             being
             Bastard
             ,
             and
             was
             stronger
             then
             being
             holden
             and
             repute
             Bastard
             .
             It
             was
             answered
             ,
             
               non
               constat
            
             ,
             that
             the
             Defunct
             took
             this
             Legittimation
             ,
             but
             some
             other
             might
             have
             done
             it
             in
             his
             Name
             ,
             without
             his
             warrand
             .
          
           
           
             The
             Lords
             found
             the
             Legitimation
             sufficient
             to
             Instruct
             the
             Bastardy
             .
          
           
             It
             was
             then
             alleadged
             ,
             that
             the
             Legitimation
             Denuded
             and
             Excluded
             ,
             the
             King
             not
             only
             giving
             power
             to
             the
             Bastard
             to
             make
             Testament
             ,
             but
             to
             Dispone
             of
             his
             Heretable
             Rights
             ,
             even
             on
             Death-bed
             .
             It
             was
             answered
             ,
             that
             whatever
             the
             Stile
             of
             such
             Gifts
             be
             ,
             they
             are
             never
             extended
             to
             Heretable
             Rights
             ,
             but
             only
             to
             a
             Faculty
             ,
             to
             make
             Testament
             ,
             which
             Bastards
             want
             by
             the
             Law
             :
             but
             if
             the
             Bastard
             made
             no
             Testament
             ,
             and
             did
             Exhaust
             his
             Moveables
             by
             universal
             or
             particular
             Legacies
             ,
             the
             Executor
             nominat
             could
             only
             have
             the
             third
             ,
             which
             follows
             the
             Office
             ,
             and
             the
             King
             would
             have
             the
             rest
             of
             the
             Inventar
             ,
             not
             Exhausted
             .
             2dlie
             ,
             All
             general
             Declarators
             being
             summar
             ,
             these
             Debates
             are
             only
             competent
             in
             the
             special
             Declarator
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             
               hoc
               loco
            
             ,
             and
             reserved
             the
             same
             to
             the
             special
             Declarator
             .
          
        
         
           
             Relict
             of
             Skink
             contra
             Earl
             of
             Roxburgh
             .
             Eodem
             die
             .
          
           
             UMquhil
             
               Cornelius
               Skink
            
             pursues
             the
             Earl
             of
             Roxburgh
             upon
             a
             Bond
             ,
             and
             the
             Earl
             having
             alleadged
             that
             the
             Bond
             was
             partly
             paid
             by
             Skinks
             Intromission
             with
             the
             Earls
             Pay
             in
             Holland
             ,
             and
             partly
             made
             up
             of
             exorbitant
             Usurary
             ,
             of
             16.
             
               per
               cent
            
             Monethly
             ,
             as
             appears
             by
             a
             Compt
             of
             the
             same
             date
             ,
             with
             the
             Bond
             subscribed
             by
             Skink
             ,
             and
             whereunto
             the
             Bond
             relates
             ,
             there
             was
             an
             Act
             of
             Litiscontestation
             in
             Anno
             1659.
             sustaining
             the
             alleadgance
             as
             to
             the
             Intromission
             and
             Usury
             after
             the
             Bond
             ,
             but
             repelling
             the
             same
             ,
             as
             to
             what
             preceeded
             the
             Bond
             ,
             and
             appointed
             a
             Compt
             and
             Reckoning
             .
             Skink
             being
             dead
             ,
             his
             Relict
             as
             Executrix
             having
             Transferred
             the
             Act
             ,
             craves
             now
             the
             Compt
             to
             proceed
             conform
             thereto
             .
             The
             Defender
             answered
             ,
             that
             he
             ought
             to
             be
             Reponed
             against
             the
             Act
             ,
             in
             so
             far
             as
             it
             Repelled
             the
             Alleadgance
             ,
             upon
             the
             Usury
             preceeding
             the
             Bond
             ,
             as
             being
             unjust
             .
             The
             Pursuer
             answered
             ,
             that
             the
             opponed
             the
             Act
             of
             Parliament
             ,
             Confirming
             the
             Judicial
             preceedings
             in
             the
             time
             of
             the
             Usurpation
             ,
             and
             specially
             Ratifying
             Acts
             and
             Interlocutors
             of
             the
             Judges
             .
             The
             Defender
             answered
             ,
             that
             this
             Act
             was
             unwarrantably
             Extracted
             ,
             there
             being
             a
             posterior
             Interlocutor
             ,
             which
             is
             now
             produced
             under
             the
             hand
             of
             the
             President
             ,
             at
             that
             time
             ,
             ordaining
             the
             Compt
             to
             be
             not
             only
             upon
             the
             exorbitant
             Usurary
             after
             the
             Bond
             ,
             but-also
             before
             the
             same
             .
          
           
             The
             Lords
             ordained
             a
             new
             Act
             of
             Compt
             and
             Reckoning
             to
             be
             Extracted
             ,
             allowing
             the
             Defender
             to
             be
             heard
             upon
             the
             exorbitant
             Usury
             before
             the
             Bond
             ,
             also
             before
             the
             Auditor
             ,
             in
             respect
             of
             the
             said
             posterior
             Interlocutor
             .
          
        
         
           
             Andrew
             Bruce
             contra
             Laird
             and
             Ladie
             Stenhope
             .
             February
             20.
             1669.
             
          
           
             
               ANdrew
               Bruce
            
             Merchant
             in
             Edinburgh
             ,
             pursues
             the
             Laird
             of
             Stenhope
             for
             payment
             of
             a
             continued
             Tract
             of
             Merchant
             Compts
             ,
             insert
             at
             several
             times
             in
             his
             Compt
             Book
             ,
             as
             being
             taken
             off
             by
             
               Margaret
               Sinclar
            
             ,
             in
             the
             name
             and
             for
             the
             behove
             of
             the
             Laird
             of
             Stenhope
             ,
             upon
             these
             Grounds
             .
             First
             ,
             That
             the
             Ware
             was
             worn
             and
             made
             use
             of
             by
             the
             Laird
             of
             Stenhope
             and
             his
             Lady
             ,
             and
             so
             was
             converted
             to
             their
             use
             .
             2dlie
             ,
             That
             
               Margaret
               Sinclar
            
             was
             entrusted
             by
             the
             Laird
             of
             Stenhope
             and
             his
             Lady
             ,
             to
             take
             off
             Ware
             for
             them
             from
             time
             to
             time
             ,
             as
             appears
             by
             several
             Missive
             Letters
             of
             theirs
             to
             the
             said
             Margaret
             :
             so
             that
             Margaret
             having
             taken
             off
             the
             Ware
             ,
             and
             being
             entrusted
             so
             to
             do
             ,
             they
             must
             pay
             the
             same
             .
             3dlie
             ,
             Not
             only
             was
             
               Margaret
               Sinclar
            
             trusted
             to
             take
             off
             Merchant
             Ware
             in
             general
             ,
             but
             particularly
             to
             
             take
             off
             the
             same
             from
             
               Andrew
               Bruce
            
             ,
             upon
             these
             Grounds
             :
             First
             ,
             Because
             there
             is
             produced
             an
             Compt
             in
             the
             Pursuers
             Books
             ,
             before
             the
             Accompts
             in
             question
             ,
             which
             is
             not
             contraverted
             ;
             so
             that
             
               Andrew
               Bruce
            
             was
             Stenhops
             Merchant
             ,
             when
             
               Margaret
               Sinclar
            
             began
             to
             be
             Imployed
             .
             2dlie
             ,
             By
             one
             of
             the
             Ladie
             Stenhops
             Letters
             ,
             it
             appears
             that
             a
             Satine
             Petticot
             and
             Lace
             was
             taken
             off
             from
             
               Andrew
               Bruce
            
             ,
             by
             Margaret
             upon
             Trust
             of
             Stenhope
             ,
             and
             the
             Lady
             desires
             that
             Margaret
             may
             endeavour
             to
             get
             the
             Lace
             taken
             back
             ,
             and
             their
             Names
             put
             out
             of
             the
             Compt
             Book
             .
             3dlie
             ,
             The
             Laird
             and
             Ladies
             Oathes
             being
             taken
             ,
             
               ex
               offi●●o
            
             ,
             the
             Lady
             acknowledges
             that
             she
             was
             several
             times
             in
             
               Andrew
               Bruces
            
             Shop
             with
             
               Margaret
               Sinclar
            
             ,
             and
             that
             she
             was
             present
             with
             
               Margaret
               Sinclar
            
             ,
             when
             the
             last
             part
             of
             the
             Accompt
             of
             114.
             pounds
             was
             taken
             off
             ,
             all
             which
             are
             sufficient
             Evidences
             of
             a
             Warrand
             or
             Commission
             to
             Margaret
             ,
             to
             take
             off
             the
             Ware
             in
             question
             from
             the
             Pursuer
             .
             The
             Defender
             answered
             ,
             that
             none
             of
             these
             Grounds
             were
             Relevant
             to
             oblige
             him
             ;
             for
             albeit
             he
             acknowledge
             the
             Goods
             to
             be
             Converted
             to
             his
             use
             ,
             there
             is
             nothing
             to
             make
             it
             appear
             that
             he
             had
             any
             medling
             with
             the
             Pursuer
             ,
             but
             by
             the
             Letters
             written
             by
             him
             and
             his
             Lady
             to
             
               Margaret
               Sinclar
            
             ,
             made
             use
             of
             by
             the
             Pursuer
             ,
             it
             is
             evident
             that
             he
             only
             imployed
             
               Margaret
               Sinclar
            
             to
             furnish
             him
             upon
             her
             Credite
             ,
             and
             did
             prohibite
             to
             put
             him
             in
             any
             Merchants
             Accompt
             ,
             saying
             that
             he
             would
             be
             only
             her
             Debitor
             and
             no
             others
             ,
             so
             that
             it
             were
             of
             most
             dangerous
             consequence
             ,
             if
             the
             making
             use
             of
             Good
             sh●uld
             infer
             an
             obligement
             to
             pay
             the
             Merchant
             ,
             whose
             they
             were
             at
             first
             ,
             though
             payment
             were
             made
             to
             the
             Person
             intrusted
             ,
             as
             in
             this
             case
             the
             Letters
             to
             
               Margaret
               Sinclar
            
             bears
             ,
             
               that
               she
               was
               paid
               of
               what
               was
               taken
               off
               formerlie
               by
               her
               ,
            
             and
             there
             are
             severals
             also
             subscribed
             by
             her
             Hand
             for
             a
             part
             of
             the
             Particulars
             contained
             in
             these
             Accompts
             ;
             neither
             can
             any
             Trust
             put
             upon
             
               Margaret
               Sinclar
            
             ,
             to
             take
             off
             Ware
             in
             general
             ,
             Oblige
             the
             Defender
             ,
             unless
             it
             had
             born
             
               To
               take
               off
               the
               same
               upon
               his
               Faith
               and
               Credite
               ,
            
             and
             not
             to
             take
             off
             the
             same
             upon
             
               Margaret
               Sinclars
            
             own
             Credite
             :
             Neither
             doth
             the
             Circumstances
             adduced
             ,
             infer
             a
             special
             Commission
             ,
             to
             take
             off
             from
             
               Andrew
               Bruce
            
             ,
             or
             prove
             that
             he
             was
             ordinary
             Merchant
             ,
             or
             so
             much
             as
             that
             Stenhope
             knew
             that
             the
             Particulars
             in
             the
             Accompt
             were
             taken
             off
             upon
             his
             Credite
             ,
             and
             were
             put
             in
             his
             Name
             in
             the
             Book
             ,
             except
             that
             which
             concerns
             the
             Petticoat
             and
             th●
             last
             articles
             of
             the
             114.
             pounds
             ,
             especially
             seing
             his
             Letters
             prohibits
             her
             to
             put
             his
             Name
             in
             a
             Merchants
             Accompt
             :
             and
             seing
             
               Andrew
               Bruce
            
             for
             several
             years
             ▪
             never
             so
             much
             as
             intimate
             the
             Accompt
             to
             Stenhope
             ,
             till
             
               Margaret
               Sinclar
            
             was
             dead
             .
             The
             Pursuer
             answered
             ,
             that
             
               in
               rem
               versam
            
             ,
             is
             an
             unquestionable
             Obligation
             in
             Law
             ,
             albeit
             nothing
             of
             a
             Commission
             were
             instructed
             ,
             unless
             the
             Defender
             can
             alleadge
             that
             he
             made
             payment
             to
             
               Margaret
               Sinclar
            
             ,
             and
             proved
             by
             her
             Hand
             Writ
             ,
             and
             not
             by
             his
             own
             Letters
             .
             2dlie
             ,
             There
             is
             nothing
             more
             ordinar
             ,
             then
             to
             take
             off
             Ware
             from
             Merchants
             by
             Taylors
             and
             Servants
             ,
             who
             cannot
             be
             thought
             to
             have
             the
             Ware
             of
             their
             own
             ,
             but
             that
             they
             must
             take
             them
             off
             from
             some
             Merchant
             ,
             and
             therefore
             payment
             should
             not
             be
             made
             to
             such
             Persons
             ,
             till
             they
             produce
             the
             Merchants
             Accompt
             ,
             and
             his
             Discharge
             ,
             or
             if
             it
             be
             ,
             and
             if
             these
             Persons
             interposed
             pay
             not
             the
             Merchant
             ,
             as
             in
             this
             case
             ,
             the
             loss
             must
             not
             be
             to
             the
             Merchant
             ,
             but
             to
             these
             who
             payed
             to
             the
             interposed
             Persons
             ,
             upon
             their
             hazard
             ,
             and
             if
             this
             were
             not
             ,
             all
             Merchants
             would
             be
             ruined
             ,
             for
             no
             Persons
             of
             quality
             do
             immediatly
             take
             off
             from
             the
             Merchants
             themselves
             .
          
           
           
             The
             Lords
             found
             that
             these
             Articles
             in
             the
             Accompt
             ,
             in
             relation
             to
             the
             Petticoat
             and
             the
             114.
             pounds
             ,
             which
             were
             known
             by
             the
             Defender
             or
             his
             Lady
             ,
             to
             be
             taken
             off
             in
             their
             Name
             ,
             and
             put
             in
             
               Andrew
               Bruce
            
             ,
             his
             Book
             ,
             were
             due
             by
             them
             ,
             and
             that
             though
             the
             same
             had
             been
             paid
             to
             
               Margaret
               Sinclar
            
             ,
             it
             was
             upon
             the
             Defenders
             peril
             ,
             if
             she
             paid
             not
             the
             Merchant
             :
             They
             did
             also
             find
             that
             the
             Goods
             being
             acknowledged
             to
             be
             converted
             to
             the
             Defenders
             use
             ,
             they
             were
             lyable
             to
             the
             Pursuer
             ,
             in
             so
             far
             as
             they
             proved
             not
             they
             paid
             
               Margaret
               Sinclar
            
             ,
             and
             found
             the
             same
             probable
             by
             Margarets
             Writ
             ,
             or
             by
             Witnesses
             :
             but
             found
             not
             that
             Ground
             Relevant
             ,
             that
             
               Margaret
               Sinclar
            
             was
             intrusted
             generally
             to
             take
             off
             Ware
             ;
             or
             that
             the
             Grounds
             alleadged
             did
             instruct
             a
             particular
             Warrand
             to
             take
             off
             from
             the
             Pursuer
             ;
             and
             therefore
             did
             not
             find
             the
             payment
             made
             to
             
               Margaret
               Sinclar
            
             ,
             which
             she
             failed
             to
             pay
             the
             Merchant
             ,
             to
             be
             upon
             the
             Defenders
             peril
             ,
             except
             as
             to
             the
             two
             parcels
             of
             Accompt
             aforesaid
             ,
             which
             the
             Defenders
             knew
             to
             be
             in
             their
             Name
             in
             the
             Pursuers
             Book
             .
          
        
         
           
             Countess
             of
             Dundee
             contra
             Strait●un
             .
             February
             24.
             1669.
             
          
           
             THe
             Countess
             of
             Dundee
             as
             Donatrix
             to
             her
             Husbands
             Escheat
             ,
             pursues
             Straitoun
             for
             a
             Sum
             due
             to
             her
             Husband
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             that
             same
             day
             this
             Bond
             was
             granted
             by
             him
             to
             the
             Earl
             ,
             a
             Creditor
             of
             the
             Earls
             arrested
             ,
             to
             whom
             the
             Defender
             had
             made
             payment
             ,
             and
             obtained
             his
             Assignation
             ;
             and
             therefore
             as
             Assigney
             craves
             compensation
             and
             preference
             as
             Arrester
             .
             It
             was
             answered
             that
             this
             Debt
             being
             contracted
             by
             the
             late
             Earl
             ,
             after
             he
             was
             Rebel
             ,
             it
             cannot
             burden
             his
             Escheat
             ,
             in
             prejudice
             of
             the
             King
             and
             his
             Donator
             ;
             for
             though
             Creditors
             ,
             whose
             Debts
             were
             due
             before
             Rebellion
             ,
             arresting
             after
             Rebellion
             ,
             may
             be
             preferred
             :
             yet
             no
             Debt
             contracted
             by
             the
             Rebel
             after
             Rebellion
             ,
             can
             burden
             his
             Escheat
             ,
             neither
             by
             arrestment
             nor
             compensation
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             preferred
             the
             Donatrix
             ,
             except
             as
             to
             what
             was
             due
             to
             the
             Defender
             by
             herself
             ,
             or
             for
             Drogs
             to
             her
             Husband
             ,
             which
             she
             was
             content
             to
             allow
             .
          
        
         
           
             The
             Earl
             of
             Kincardin
             contra
             The
             Laird
             of
             Rosyth
             .
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Kincardin
             pursues
             the
             Laird
             of
             Rosyth
             for
             the
             Teinds
             of
             his
             Lands
             ,
             to
             which
             the
             Pursuer
             has
             Right
             .
             The
             Defender
             alleadged
             ,
             that
             he
             had
             obtained
             a
             Decreet
             of
             the
             high
             Commission
             for
             Plantations
             against
             the
             Earl
             ,
             whereby
             they
             Decerned
             the
             Earl
             to
             Sell
             and
             Dispone
             these
             Teinds
             for
             a
             price
             mentioned
             in
             the
             Decreet
             ,
             being
             about
             nine
             years
             Purchase
             thereof
             ,
             and
             therefore
             the
             Pursuer
             cannot
             have
             Right
             to
             the
             Teinds
             themselves
             ,
             but
             only
             to
             the
             Annualrent
             of
             that
             Sum
             ,
             which
             was
             the
             price
             .
             The
             Pursuer
             answered
             that
             he
             opponed
             the
             Decreet
             produced
             ,
             which
             did
             not
             ,
             
               de
               presenti
            
             ,
             adjudge
             the
             Teinds
             to
             the
             Defender
             ,
             but
             Decerned
             the
             Pursuer
             to
             sell
             them
             to
             him
             ,
             upon
             payment
             of
             the
             said
             price
             ,
             which
             can
             give
             no
             Right
             to
             the
             Teinds
             till
             the
             price
             be
             payed
             ,
             or
             at
             least
             offered
             ,
             which
             was
             never
             done
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             in
             respect
             of
             the
             Reply
             .
          
        
         
           
             The
             Earl
             of
             Annandail
             contra
             Young
             and
             other
             Creditors
             of
             Hume●
             Eodem
             die
             .
          
           
             THe
             Earl
             of
             Annandail
             having
             obtained
             Assignation
             from
             
               Iohn
               Ioussie
            
             to
             a
             Sum
             of
             Money
             due
             by
             the
             Earl
             of
             Hume
             ,
             whereupon
             Inhibition
             was
             used
             Anno.
             1634.
             and
             shortly
             thereafter
             an
             Appryzing
             upon
             which
             Aunandail
             
             was
             lately
             infeft
             .
             whereupon
             he
             now
             pursues
             Reduction
             of
             the
             Infeftment
             granted
             by
             the
             Earl
             of
             Hume
             to
             Young
             ,
             as
             being
             after
             his
             Inhibition
             ,
             which
             Inhibition
             being
             auterior
             to
             the
             most
             part
             of
             the
             Debs
             ,
             Wodsets
             ,
             and
             Apprizings
             of
             the
             Estate
             of
             Hume
             ,
             and
             being
             supposed
             to
             be
             the
             leading
             Case
             ,
             that
             the
             Decision
             thereon
             might
             rule
             all
             the
             rest
             ,
             many
             of
             the
             Creditors
             did
             concur
             with
             Young
             ,
             and
             produced
             their
             Interests
             ,
             and
             craved
             to
             see
             the
             Process
             .
             It
             was
             answered
             ,
             that
             they
             had
             no
             Interest
             in
             Youngs
             Right
             ,
             and
             so
             could
             not
             crave
             a
             sight
             of
             the
             Process
             .
             It
             was
             replyed
             that
             albeit
             the
             Sentence
             against
             Young
             could
             not
             directly
             operate
             against
             them
             ,
             yet
             indirectly
             it
             would
             ,
             as
             being
             a
             Dicision
             ,
             and
             Practique
             in
             the
             like
             case
             .
          
           
             The
             Lords
             found
             this
             no
             Interest
             to
             stop
             Process
             ,
             but
             allowed
             any
             Creditors
             that
             pleased
             to
             concur
             in
             the
             Dispute
             .
             It
             was
             then
             alleadged
             Absolvitor
             ,
             because
             this
             Assignation
             ,
             Inhibition
             ,
             and
             Apprizing
             ,
             albeit
             standing
             in
             the
             Person
             of
             the
             Earl
             of
             Annandail
             ,
             yet
             it
             was
             truely
             on
             Trust
             to
             the
             behove
             of
             the
             Earl
             of
             Hume
             ,
             and
             if
             to
             his
             behove
             ,
             it
             did
             accresce
             to
             the
             Defenders
             ,
             as
             having
             Right
             from
             him
             ,
             and
             for
             evidence
             of
             the
             Trust
             they
             condescended
             upon
             these
             grounds
             .
             First
             ,
             That
             the
             Debt
             was
             contracted
             35.
             years
             since
             ,
             and
             no
             Diligence
             ever
             used
             thereupon
             till
             now
             ,
             except
             an
             Apprizing
             ,
             whereupon
             no
             Infeftment
             was
             taken
             till
             of
             late
             ,
             albeit
             Infeftments
             were
             taken
             of
             the
             Estate
             of
             Hume
             ,
             upon
             many
             posterior
             Apprizings
             ,
             which
             are
             now
             expired
             ,
             and
             will
             exclude
             this
             Apprizing
             .
             2dly
             ,
             The
             Assignation
             granted
             by
             Iousie
             to
             Annandails
             Father
             ,
             was
             immediatly
             after
             the
             Lands
             of
             Dunglasse
             was
             Sold
             by
             the
             Earl
             of
             Hume
             ,
             to
             the
             Laird
             of
             Dunglass
             ,
             by
             whom
             Ioussie
             was
             payed
             ,
             as
             a
             part
             of
             the
             price
             ,
             by
             Sir
             
               William
               Gray
            
             ,
             who
             was
             then
             Debitor
             to
             Dunglasse
             ,
             likeas
             Ioussies
             Oath
             being
             taken
             
               ex
               officio
            
             upon
             his
             Death-bed
             ,
             Depones
             that
             Sir
             
               William
               Gray
            
             payed
             him
             the
             Money
             ,
             albeit
             he
             knew
             not
             by
             whose
             Means
             ,
             or
             to
             whose
             use
             ,
             yet
             he
             knew
             nothing
             of
             any
             payment
             made
             by
             the
             Earl
             of
             Annandails
             Father●
             3dly
             ,
             This
             Inhibition
             and
             Apprizing
             was
             never
             in
             Annandails
             ,
             or
             his
             Fathers
             Possession
             ,
             but
             still
             in
             the
             Possession
             of
             the
             Earl
             of
             Hume
             ,
             and
             his
             Agents
             ,
             and
             still
             in
             his
             Charter
             Chist
             .
             4dly
             ,
             The
             Earl
             of
             Annandail
             took
             a
             Security
             from
             the
             Earl
             of
             Hume
             for
             all
             Sums
             due
             to
             him
             ,
             or
             for
             which
             he
             was
             Cautioner
             ,
             wherein
             there
             is
             neither
             mention
             nor
             reservation
             of
             this
             Sum
             ,
             or
             Apprizing
             .
             5thly
             ,
             The
             Earl
             of
             Annandail
             has
             consented
             to
             many
             of
             the
             Creditors
             Rights
             ,
             which
             he
             would
             never
             have
             done
             ,
             if
             this
             Apprizing
             had
             been
             to
             his
             own
             behove
             ,
             thereby
             preferring
             others
             to
             himself
             ,
             the
             Creditors
             therefore
             craved
             Witnesses
             to
             be
             Examined
             
               ex
               officio
            
             ,
             upon
             all
             these
             points
             for
             clearing
             of
             the
             Trust
             ,
             which
             being
             an
             obscure
             contrivance
             ,
             can
             be
             no
             otherwise
             probable
             ,
             all
             the
             Actors
             being
             now
             Dead
             ,
             and
             is
             most
             favourable
             in
             the
             behalf
             of
             Creditors
             ,
             who
             if
             this
             pursute
             take
             effect
             ,
             will
             be
             utterly
             excluded
             ,
             for
             if
             the
             Inhibition
             Reduce
             their
             Rights
             ,
             the
             Pursuers
             Apprizing
             supervenient
             upon
             that
             same
             Sum
             ,
             is
             now
             expired
             ,
             and
             irredeemable
             .
             The
             Pursuer
             answered
             ;
             he
             did
             declare
             he
             would
             make
             only
             use
             of
             this
             Right
             ,
             for
             satisfaction
             of
             the
             Debts
             due
             to
             him
             ,
             and
             for
             which
             he
             was
             Cautioner
             for
             the
             Earl
             of
             Hume
             ,
             and
             was
             content
             that
             Witnesses
             should
             be
             Examined
             anent
             the
             Inhibition
             ,
             and
             Apprizings
             being
             still
             in
             the
             Possession
             of
             the
             Earl
             of
             Hume
             in
             his
             Charter
             Chist
             ,
             but
             not
             upon
             any
             other
             ground
             to
             take
             away
             his
             Assignation
             and
             solemne
             Right
             ,
             which
             cannot
             be
             taken
             away
             by
             Witnesses
             ,
             but
             
               scripto
               vel
               juramento
            
             ,
             and
             most
             of
             these
             presumptions
             are
             but
             weak
             conjectures
             ,
             no
             wayes
             inferring
             that
             Ioussie
             was
             payed
             by
             the
             Earl
             of
             Humes
             Means
             ,
             and
             the
             great
             friendship
             that
             was
             betwixt
             Annandail
             and
             Hume
             alleviats
             the
             same
             ,
             it
             being
             the
             cause
             for
             which
             Annandail
             forbore
             to
             take
             Infeftment
             ,
             or
             do
             Diligence
             ,
             thereby
             to
             allarum
             
             Humes
             Creditors
             ,
             that
             his
             Inhibition
             would
             always
             work
             his
             preference
             ,
             and
             on
             that
             same
             ground
             did
             consent
             to
             several
             Creditors
             Rights
             ,
             there
             being
             enough
             remaining
             for
             him
             ,
             and
             which
             was
             an
             evidence
             that
             this
             Right
             was
             generally
             known
             ,
             and
             that
             without
             it
             Hume
             could
             not
             give
             Security
             .
          
           
             The
             Lords
             ordained
             Witnesse
             
               sex●
               officio
            
             to
             be
             Examined
             upon
             all
             the
             points
             alleadged
             for
             ●learing
             of
             the
             Trust.
             
          
        
         
           
             The
             Kings
             Advocat
             contra
             the
             Earl
             of
             Mortoun
             and
             Viscount
             of
             Grandison
             ,
             February
             29.
             1669.
             
          
           
             THe
             Kings
             Advocat
             pursues
             a
             Reduction
             of
             the
             Rights
             of
             the
             Earldom
             of
             Orkney
             and
             Zetland
             ,
             granted
             by
             the
             Deceast
             King
             Charles
             the
             first
             ,
             or
             by
             this
             King
             himself
             to
             the
             Earl
             of
             Mortoun
             ,
             or
             Viscount
             of
             Grandison
             ,
             and
             produces
             a
             Contract
             betwixt
             the
             King
             ▪
             and
             the
             Earl
             of
             Mortoun
             ,
             in
             Anno
             1643.
             and
             a
             Charter
             following
             thereupon
             ,
             whereby
             the
             Lands
             are
             granted
             ,
             and
             Disponed
             blench
             ,
             with
             several
             extraordina●
             Priviledg●s
             ,
             as
             having
             right
             to
             the
             Bullion
             ,
             and
             other
             Customs
             of
             Goods
             Imported
             there
             ▪
             and
             also
             a
             Charter
             ,
             in
             Anno
             1646.
             by
             the
             King
             to
             the
             said
             Earl
             ,
             relating
             to
             a
             Dissolution
             in
             the
             Parliament
             1644.
             containing
             
               nova
               da●tus
            
             ,
             and
             bearing
             also
             blench
             ;
             there
             is
             also
             produced
             an
             Infeftment
             ,
             granted
             to
             the
             Viscount
             of
             Grandison
             ,
             and
             after
             the
             said
             Infeftment
             ,
             a
             Ratification
             by
             the
             Parliament
             1661.
             
             In
             the
             which
             Ratification
             ,
             there
             is
             contained
             a
             Dissolution
             of
             the
             Earldom
             of
             Orkney
             and
             Zetland
             ,
             in
             favours
             of
             Grandison
             ,
             wherein
             also
             the
             Dissolution
             ,
             formerly
             made
             in
             favours
             of
             Mortoun
             ,
             in
             Anno
             1644.
             is
             particularly
             Rescinded
             upon
             this
             consideration
             ,
             that
             neither
             the
             King
             ,
             nor
             his
             Commissioner
             were
             present
             in
             the
             Parliament
             1644.
             and
             that
             his
             annexed
             Property
             could
             not
             be
             Disponed
             ,
             nor
             Dilapidat
             ,
             without
             an
             express
             a●t
             of
             his
             own
             Ratified
             by
             Parliament
             .
             After
             this
             Dissolution
             in
             favour●
             of
             Grandison
             ,
             the
             King
             granted
             no
             new
             Infeftment
             to
             Grandison
             ;
             The
             Advocat
             having
             holden
             the
             production
             satisfied
             with
             the
             Writs
             produced
             ▪
             M●●toun
             and
             Grandison
             compeared
             not
             at
             all
             ,
             and
             some
             others
             having
             publick
             Rights
             from
             them
             being
             called
             ,
             did
             also
             pass
             from
             their
             compearance
             ,
             and
             submitted
             to
             the
             Kings
             favour
             ,
             and
             compearance
             being
             made
             for
             some
             of
             the
             Vassals
             holding
             of
             Mortoun
             ,
             they
             were
             not
             admitted
             ,
             because
             they
             produced
             no
             W●its
             to
             instruct
             there
             Interest
             ,
             so
             the
             Lords
             proceeded
             to
             Advise
             the
             Reasons
             of
             Reduction
             ,
             which
             were
             upon
             these
             points
             .
             First
             ,
             That
             by
             the
             Law
             ,
             and
             several
             particular
             Acts
             of
             Parl●ament
             ,
             the
             Patrimony
             of
             the
             Crown
             being
             the
             Lands
             ,
             and
             Customs
             annexed
             to
             the
             Crown
             ,
             might
             not
             be
             Disponed
             by
             the
             King
             ,
             unless
             the
             samine
             (
             upon
             weighty
             Motives
             ,
             and
             Considerations
             )
             had
             been
             Dissolved
             by
             his
             Majesty
             ,
             and
             the
             Parliament
             ,
             and
             Dissolutions●
             made
             after
             Infeftments
             are
             not
             valide
             ,
             
               Parliament
               1597.
               cap.
            
             236.
             and
             by
             the
             234.
             
             Act
             of
             that
             same
             Parliament
             ,
             the
             annexed
             Property
             can
             not
             be
             Se●
             otherwise
             ,
             but
             in
             Feu
             Ferm
             ,
             so
             that
             the
             Earldom
             of
             Orkney
             ,
             being
             annexed
             to
             the
             Crown
             ,
             by
             the
             annexation
             produced
             in
             Process
             ,
             and
             the
             Contract
             and
             Charter
             ,
             1643.
             being
             before
             any
             Dissolution
             ,
             is
             absolutely
             null
             ;
             and
             the
             Infeftment
             in
             Anno
             1646.
             albeit
             relating
             to
             a
             Dissolution
             in
             Anno
             1644.
             yet
             no
             such
             Dissolution
             is
             found
             in
             the
             Records
             ;
             and
             though
             it
             were
             ,
             it
             is
             Rescinded
             in
             the
             Ratification
             in
             favours
             of
             Grandison
             ,
             in
             the
             Parliament
             1661.
             upon
             so
             weighty
             a
             Reason
             ,
             as
             the
             King
             ,
             or
             his
             Commissioner
             not
             being
             present
             :
             And
             because
             the
             Parliament
             1644.
             is
             Rescinded
             by
             the
             Parliament
             1661.
             wherein
             albeit
             there
             be
             a
             salvo
             of
             privat
             Rights
             ,
             yet
             that
             cannot
             reach
             to
             the
             Patrimony
             of
             the
             Crown
             ,
             especially
             seing
             in
             that
             same
             Parliament●
             1661.
             
             His
             Majesty
             having
             Revocked
             all
             Deeds
             done
             
             by
             Him
             or
             his
             Father
             since
             1637.
             which
             by
             the
             Laws
             of
             the
             Nation
             ,
             he
             might
             not
             do
             to
             the
             Derogation
             of
             his
             Honour
             ,
             or
             Crown
             ,
             the
             Parliament
             has
             Ratified
             the
             same
             Revocation
             ,
             as
             to
             all
             Rights
             granted
             since
             .
             1637.
             
             Contrair
             to
             the
             Laws
             ,
             and
             Acts
             of
             Parliament
             preceeding
             1637.
             and
             likewise
             by
             an
             express
             Act
             of
             Parliament
             ,
             it
             is
             provided
             ,
             that
             no
             Ratification
             in
             Parliament
             shall
             prejudge
             the
             Crown●
             or
             supply
             a
             Dissolution
             ,
             and
             that
             none
             of
             the
             Kings
             Customs
             (
             which
             are
             also
             annexed
             )
             can
             be
             effectually
             Gifted
             .
          
           
             The
             Lords
             found
             these
             Reasons
             Relevant
             ,
             and
             proven
             ,
             and
             Reduced
             all
             the
             Rights
             produced
             before
             the
             Dissolution
             in
             Anno
             1661.
             since
             which
             there
             is
             no
             Infeftment
             granted
             .
          
        
         
           
             Pargilleis
             contra
             Pargilleis
             ,
             February
             26.
             1669.
             
          
           
             UMquhile
             
               Abraham
               Pargilleis
            
             having
             no
             Children
             but
             one
             Bastard
             Daughter
             ,
             Dispones
             some
             Lands
             acquired
             by
             him
             to
             
               Abraham
               Pargilleis
            
             ,
             eldest
             lawful
             Son
             of
             that
             Daughter
             .
             
               Iohn
               Pargilleis
            
             his
             Brother
             Son
             ,
             and
             nearest
             Heir
             ,
             pursues
             a
             Reduction
             of
             that
             Disposition
             ,
             as
             being
             done
             in
             lecto
             ,
             and
             the
             Defender
             alleadged
             that
             the
             Defunct
             went
             abroad
             to
             Kirk
             and
             Mercat
             thereafter
             unsupported
             ,
             and
             the
             Pursuer
             replying
             that
             he
             was
             supported
             ,
             and
             either
             Party
             contending
             for
             Preference
             ,
             the
             one
             that
             he
             walked
             free
             of
             himself
             ,
             and
             the
             other
             that
             he
             was
             supported
             .
          
           
             The
             Lords
             considering
             the
             advantage
             to
             the
             Party
             that
             had
             the
             sole
             Probation
             ,
             would
             prefer
             neither
             ,
             but
             before
             answer
             ordained
             Witnesses
             to
             be
             adduced
             for
             either
             Party
             ,
             concerning
             the
             Condition
             the
             Defunct
             was
             in
             ,
             as
             to
             Sicknesse
             or
             Health
             when
             he
             Subscribed
             the
             Disposition
             ,
             and
             the
             manner
             of
             his
             going
             abroad
             ,
             whether
             free
             ,
             or
             supported
             :
             and
             now
             the
             Lords
             having
             Advised
             the
             Testimonies
             ,
             by
             which
             it
             was
             proven
             that
             the
             Defunct
             was
             Sick
             the
             time
             of
             the
             Subscribing
             of
             the
             Disposition
             ,
             and
             that
             he
             continued
             Sick
             till
             his
             Death
             .
             It
             was
             also
             proven
             that
             he
             went
             unsupported
             a
             quarter
             of
             a
             Mile
             when
             the
             Seisine
             was
             taken
             ,
             six
             days
             after
             the
             Disposition
             ,
             and
             that
             after
             the
             same
             he
             went
             three
             times
             to
             Calder
             ,
             and
             about
             three
             quarters
             of
             a
             Mile
             off
             ,
             and
             that
             he
             was
             helped
             to
             his
             Horse
             ,
             and
             from
             his
             Horse
             ,
             and
             that
             he
             was
             helped
             up
             Stairs
             ,
             and
             down
             Stairs
             ,
             but
             that
             he
             walked
             a
             foot
             unsupported
             in
             the
             Mercat
             of
             Calder
             ,
             and
             up
             and
             down
             from
             my
             Lords
             House
             ;
             being
             three
             pair
             of
             Buts
             of
             rising
             Ground
             .
             It
             occurred
             to
             the
             Lords
             to
             consider
             whether
             the
             Sickness
             proven
             would
             have
             been
             sufficient
             ,
             not
             being
             
               ●●orbus
               sonticus
            
             ,
             or
             
               in
               extremis
            
             ,
             or
             whether
             the
             presumption
             of
             Health
             sufficient
             to
             
               leige
               poustie
            
             was
             enough
             that
             he
             came
             out
             to
             Kirk
             and
             Mercat
             ,
             albeit
             the
             Sickness
             remained
             ,
             and
             whether
             the
             probation
             of
             the
             Sickness
             remaining
             could
             take
             away
             that
             presumption
             ;
             and
             whether
             his
             being
             helped
             to
             his
             Horse
             ,
             and
             from
             his
             Horse
             ,
             or
             up
             and
             down
             Stairs
             ,
             and
             his
             Man
             holding
             his
             Bridle
             as
             he
             Rode
             to
             ,
             and
             returned
             from
             Calder
             ,
             did
             infer
             that
             supportation
             ,
             which
             eleids
             the
             presumption
             of
             Health
             by
             going
             abroad
             ,
             or
             whether
             the
             going
             freely
             on
             foot
             (
             having
             only
             a
             Staff
             in
             his
             hand
             the
             rest
             of
             the
             way
             )
             was
             sufficient
             to
             prove
             that
             he
             went
             abroad
             in
             
               leige
               poustie
            
             .
          
           
             The
             Lords
             found
             that
             the
             Defuncts
             going
             abroad
             after
             the
             Disposition
             ,
             as
             is
             before
             exprest
             ,
             was
             Relevant
             to
             eleid
             the
             Reasons
             of
             Reduction
             on
             Death-bed
             ,
             notwithstanding
             of
             the
             Defuncts
             being
             helped
             up
             and
             down
             Stairs
             ,
             and
             to
             ,
             and
             from
             his
             Horse
             ,
             and
             by
             leading
             his
             Bridle
             ,
             and
             that
             notwithstanding
             that
             he
             continued
             Sickly
             to
             his
             Death
             .
          
        
         
           
           
             William
             Street
             contra
             Hume
             and
             Bruntfield
             ,
             Iune
             9.
             1669.
             
          
           
             
               William
               Street
            
             Merchant
             at
             London
             ,
             having
             sent
             down
             a
             parcel
             of
             Skins
             to
             
               Arthure
               Lyel
            
             his
             Factor
             at
             
               Edinburgh
               ,
               Lyel
            
             Sells
             the
             Skins
             to
             
               Hume
               and
               Bruntfield
            
             ,
             and
             takes
             the
             Bond
             for
             the
             price
             thereof
             ,
             in
             his
             own
             Name
             ,
             payable
             to
             himself
             ,
             without
             mention
             of
             
               Street
               ,
               Lyel
            
             being
             Dead
             Bankrupt
             ,
             and
             Street
             finding
             that
             if
             he
             should
             Confirm
             the
             value
             of
             the
             Skins
             as
             Executor
             Creditor
             to
             Lyel
             ,
             the
             rest
             of
             Lyels
             Creditors
             would
             come
             in
             with
             him
             ,
             and
             share
             in
             this
             Sum
             which
             was
             the
             price
             of
             his
             Skins
             ,
             therefore
             he
             raised
             a
             Declarator
             against
             the
             nearest
             of
             kin
             of
             Lyel
             ,
             that
             the
             sum
             due
             by
             Bruntfield
             and
             Hume
             ,
             albeit
             the
             Bond
             was
             taken
             in
             the
             Name
             of
             Lyel
             ,
             yet
             the
             same
             was
             for
             streets
             Goods
             ,
             and
             to
             Streets
             behove
             ,
             and
             none
             compearing
             ,
             he
             obtains
             Decreet
             of
             Declarator
             to
             that
             effect
             ;
             and
             now
             he
             pursues
             Bruntfield
             and
             Hume
             for
             payment
             of
             the
             Sum
             ,
             who
             alleadged
             they
             cannot
             be
             in
             tuto
             to
             pay
             to
             any
             but
             these
             who
             represent
             Lyel
             ,
             to
             whom
             they
             were
             Debitors
             ,
             and
             therefore
             the
             Pursuer
             must
             first
             Confirm
             as
             Executor
             to
             Lyel
             ;
             and
             as
             for
             the
             Declarator
             obtained
             ,
             it
             was
             in
             absence
             ,
             and
             they
             not
             called
             ,
             and
             whenever
             the
             Executors
             Confirms
             ,
             they
             cannot
             exclude
             them
             .
             The
             Pursuer
             answered
             ,
             that
             he
             needed
             not
             Confirm
             as
             Executor
             to
             Lyel
             ,
             because
             this
             Debt
             ,
             albeit
             in
             the
             name
             of
             Lyel
             ,
             yet
             was
             not
             in
             bonis
             of
             Lyel
             in
             so
             far
             ,
             as
             it
             was
             the
             price
             of
             the
             Pursuers
             Skins
             ,
             which
             were
             in
             the
             Custody●
             and
             Management
             of
             Lyel
             ,
             but
             never
             in
             his
             Property
             ,
             but
             specially
             ,
             by
             Lyels
             Missive
             produced
             ,
             he
             acknowledges
             the
             Receipt
             of
             the
             Skins
             ,
             and
             that
             he
             had
             Sold
             them
             to
             these
             Defenders
             ,
             that
             he
             was
             to
             take
             Bond
             for
             them
             ;
             which
             is
             the
             same
             Bond
             ,
             and
             in
             his
             Compt-book
             produced
             ,
             he
             states
             himself
             only
             Debitor
             to
             Street
             for
             ten
             pound
             Sterling
             ,
             that
             he
             had
             reserved
             of
             his
             Bond
             ,
             and
             not
             for
             the
             whole
             Sum
             ,
             which
             therefore
             must
             import
             that
             the
             remainder
             remainded
             Streets
             ;
             and
             yet
             for
             the
             further
             assurance
             of
             the
             Defenders
             ,
             he
             offered
             Caution
             to
             warrand
             them
             .
             The
             Defenders
             answered
             ,
             that
             the
             Pursuer
             having
             intrusted
             Lyel
             with
             the
             Skins
             ,
             he
             had
             followed
             Lyels
             faith
             ,
             and
             could
             not
             quarrel
             what
             Lyel
             had
             done
             with
             any
             third
             Party
             ,
             so
             that
             Lyel
             taking
             the
             Bond
             in
             his
             own
             Name
             did
             alter
             the
             Condition
             of
             the
             Affair
             ,
             and
             stated
             himself
             Debitor
             to
             Street
             ,
             and
             the
             Merchants
             Debitors
             to
             him
             ,
             and
             as
             he
             might
             have
             Received
             payment
             from
             the
             Merchants
             ,
             and
             applyed
             the
             Sum
             to
             his
             own
             use
             ,
             so
             he
             might
             Discharge
             them
             ,
             and
             this
             sum
             might
             have
             been
             Arrested
             ,
             and
             affected
             for
             Lyels
             Debt
             ,
             and
             therefore
             was
             in
             bonis
             of
             Lyel
             ,
             and
             behoved
             to
             be
             Confirmed
             ,
             and
             seing
             the
             Defenders
             cannot
             be
             secure
             ,
             they
             were
             not
             obliged
             to
             accept
             of
             Caution
             to
             put
             themselves
             to
             two
             Actions
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             payment
             made
             to
             Lyel
             would
             have
             been
             sufficient
             ,
             as
             being
             made
             
               bona
               fide
            
             ,
             yet
             if
             Lyel
             had
             Discharged
             without
             payment
             ,
             his
             Discharge
             would
             not
             have
             excluded
             Street
             the
             Pursuer
             ,
             neither
             would
             Arrestments
             for
             Lyels
             Debt
             have
             excluded
             him
             ,
             especially
             the
             same
             having
             been
             posterior
             to
             the
             Missive
             produced
             .
          
           
             The
             Lords
             Repelled
             the
             Defenses
             ,
             and
             found
             the
             same
             not
             to
             be
             in
             bonis
             of
             Lyel
             ,
             nor
             to
             be
             Confirmable
             as
             his
             Goods
             ,
             but
             to
             belong
             to
             the
             Pursuer
             street
             ;
             and
             seing
             Street
             offered
             Caution
             to
             warrand
             the
             Defenders
             ,
             they
             ordained
             him
             to
             grant
             the
             same
             accordingly
             .
          
        
         
           
           
             Countess
             of
             Dundee
             contra
             Mr.
             Iames
             Birsbin
             ,
             Eodem
             die
             .
          
           
             THe
             Countess
             of
             Dundee
             being
             possest
             in
             an
             Annualrent
             out
             of
             the
             Maines
             of
             
               Dudhop
               ,
               Anno
            
             1650.
             and
             having
             consented
             to
             the
             Infeftments
             of
             other
             Creditors
             in
             the
             said
             Mains
             ,
             in
             Anno
             1659.
             she
             is
             provided
             to
             ten
             Chalder
             of
             Victual
             out
             of
             the
             said
             Mains
             ,
             and
             to
             certain
             other
             Lands
             ,
             and
             the
             provision
             bears
             expresly
             in
             satisfaction
             of
             the
             Contract
             of
             Marriage
             ,
             and
             any
             prior
             Infeftments
             ,
             whereupon
             she
             pursues
             a
             poinding
             of
             the
             Ground
             .
             Compearance
             is
             made
             for
             Mr.
             
               Iames
               Birsbin
            
             ,
             who
             produces
             an
             Infeftment
             of
             an
             Annualrent
             ,
             in
             Anno
             1648.
             and
             offers
             to
             prove
             Possession
             conform
             ,
             prior
             to
             the
             Ladies
             Infeftment
             in
             Anno
             1659
             ,
             whereupon
             she
             how
             pursues
             ,
             and
             which
             Infeftment
             she
             has
             accepted
             in
             satisfaction
             of
             all
             that
             can
             befall
             to
             her
             by
             her
             Husbands
             Death
             .
             The
             Pursuer
             answered
             ,
             that
             she
             was
             infest
             in
             an
             Annualrent
             out
             of
             the
             Mains
             in
             Anno
             1650.
             which
             doth
             exclude
             Birsbin
             ,
             unless
             he
             had
             attained
             Possession
             before
             that
             time
             ;
             and
             albeit
             this
             Infeftment
             in
             Anno
             1659.
             being
             in
             satisfaction
             &c.
             yet
             that
             Right
             whereby
             she
             accepts
             the
             same
             ,
             is
             not
             in
             favours
             of
             Birsbin
             ,
             but
             of
             other
             Rights
             to
             whom
             the
             Lady
             consented
             ,
             and
             not
             to
             Birsbins
             to
             which
             she
             never
             consented
             ,
             and
             therefore
             it
             must
             be
             limited
             to
             be
             only
             in
             so
             far
             as
             concerns
             these
             Rights
             related
             therein
             .
             Birsbin
             answered
             ,
             that
             be
             the
             Motive
             or
             Narrative
             what
             it
             would
             ,
             my
             Lady
             having
             simply
             and
             absolutely
             accepted
             this
             Infeftment
             in
             satisfaction
             of
             her
             former
             Infeftments
             ,
             the
             former
             Infeftments
             were
             thereby
             extinct
             in
             the
             same
             way
             ,
             as
             if
             she
             had
             Renunced
             them
             simply
             to
             my
             Lord
             ,
             whence
             there
             is
             
               jus
               acquisitum
            
             to
             Birsbin
             ,
             deriving
             Right
             from
             my
             Lord.
             
          
           
             The
             Lords
             having
             considered
             the
             last
             provision
             ,
             found
             that
             albe●t
             the
             Narrative
             related
             to
             Rights
             consented
             to
             by
             my
             Lady
             ,
             yet
             the
             Dispositive
             words
             were
             absolute
             ,
             and
             so
             did
             extend
             to
             Birsbin
             .
             It
             was
             also
             alleadged
             ,
             that
             this
             last
             security
             in
             so
             far
             as
             it
             bears
             to
             be
             in
             satisfaction
             of
             all
             others
             ,
             the
             acceptance
             thereof
             was
             a
             Donation
             betwixt
             Man
             and
             Wife
             Revockable
             ,
             and
             my
             Lady
             did
             now
             recal
             it
             .
             It
             was
             answered
             ,
             my
             Lady
             had
             Homologat
             the
             same
             after
             my
             Lords
             Death
             ,
             by
             pursuing
             now
             thereupon
             ,
             in
             which
             it
             occurred
             to
             the
             Lords
             ,
             whether
             my
             Lady
             might
             recal
             any
             part
             of
             this
             last
             provision
             ,
             and
             make
             use
             of
             it
             in
             so
             far
             as
             it
             quadrat
             with
             the
             former
             Infeftments
             ,
             or
             whether
             she
             might
             recal
             it
             after
             she
             had
             made
             use
             of
             it
             after
             her
             Husbands
             Death
             ,
             which
             not
             being
             Debated
             fully
             ,
             the
             Lords
             did
             not
             decide
             therein
             .
          
        
         
           
             Evart
             Loyson
             contra
             Laird
             of
             Ludquharn
             and
             Captain
             Wilson
             ,
             Iune
             15.
             1669.
             
          
           
             CAptain
             Wilson
             a
             Privateer
             ,
             whereof
             Ludquharn
             was
             Owner
             ,
             having
             taken
             
               Evart
               Loyson
            
             and
             his
             ship
             ,
             obtained
             the
             same
             to
             be
             adjudged
             Prize
             by
             the
             Admiral
             ,
             as
             carrying
             Flax
             and
             Hards
             ,
             which
             were
             Counterband
             ;
             which
             Decreet
             the
             Strangers
             Suspend
             ,
             and
             raised
             Reduction
             upon
             these
             Reasons
             ,
             that
             this
             Ship
             and
             Goods
             belonged
             to
             one
             Clepan
             in
             Bruges
             ,
             the
             King
             of
             Spains
             Subject
             ,
             and
             was
             declared
             Prize
             upon
             no
             other
             ground
             ,
             but
             because
             she
             carried
             Tow
             and
             Hards
             ,
             which
             are
             not
             Counterband
             ,
             but
             are
             necessary
             in
             some
             quantity
             in
             every
             Ship
             for
             Calsing
             ;
             and
             by
             the
             Treaty
             betwixt
             the
             King
             ,
             and
             the
             King
             of
             Spain
             ,
             there
             is
             an
             express
             Article
             ,
             that
             though
             Counterband
             be
             deprehended
             in
             Spainish
             Ships
             ,
             only
             the
             Counterband
             shall
             be
             Prize
             ,
             and
             not
             the
             Ship
             and
             Goods
             .
             It
             was
             
             answered
             ,
             that
             this
             alleadgeance
             was
             competent
             ,
             and
             Omitted
             before
             the
             Admiral
             .
             It
             was
             answered
             ,
             that
             these
             cases
             with
             Strangers
             are
             to
             be
             Ruled
             by
             the
             Law
             of
             Nations
             ,
             and
             not
             by
             peculiar
             Statutes
             and
             Customs
             .
          
           
             The
             Lords
             reponed
             the
             Strangers
             to
             their
             Defenses
             ,
             as
             in
             the
             first
             instance
             ,
             and
             also
             allowed
             the
             Privateer
             to
             insist
             on
             any
             grounds
             for
             making
             of
             the
             Ship
             Prize
             ,
             which
             he
             did
             not
             formerly
             insist
             on
             ,
             whereupon
             the
             Privateer
             insisted
             upon
             two
             grounds
             .
             First
             ,
             Because
             by
             the
             Law
             of
             Nations
             ,
             and
             the
             Kings
             Proclamation
             of
             War
             ,
             Allies
             and
             Neuters
             must
             not
             make
             use
             of
             the
             Kings
             Enemies
             to
             sail
             their
             Ships
             ,
             and
             therefore
             the
             Proclamation
             of
             War
             bears
             expresly
             ,
             that
             all
             Ships
             shall
             be
             seised
             ,
             bearing
             any
             number
             of
             Men
             of
             the
             Kings
             Enemies
             ,
             and
             this
             Ship
             had
             the
             major
             part
             of
             her
             Company
             of
             Hollanders
             ,
             then
             the
             Kings
             Enemies
             ,
             as
             is
             evident
             by
             their
             own
             Depositions
             taken
             before
             the
             Admiral
             .
             2dly
             ,
             This
             Ship
             was
             not
             only
             sailed
             by
             Hollanders
             ,
             but
             the
             Ship
             ,
             or
             major
             part
             thereof
             ,
             and
             the
             Loadning
             belonged
             to
             Hollanders
             ,
             and
             any
             pretext
             that
             the
             same
             belonged
             to
             the
             King
             of
             Spains
             Subjects
             is
             a
             meer
             Contrivance
             ,
             it
             being
             most
             ordinar
             the
             time
             of
             the
             War
             for
             the
             Hollanders
             to
             Trade
             under
             the
             name
             and
             covert
             of
             the
             Flemish
             ,
             the
             King
             of
             Spains
             Subjects
             ,
             which
             appears
             in
             this
             Case
             by
             many
             evidences
             .
             First
             ,
             Both
             the
             Merchant
             and
             major
             part
             of
             the
             sailers
             ,
             by
             their
             own
             confession
             are
             Hollanders
             ,
             and
             they
             have
             adduced
             nothing
             to
             be
             a
             sufficient
             probation
             that
             the
             whole
             ship
             and
             Goods
             belonged
             to
             Clepan
             in
             Bruges
             ;
             but
             on
             the
             contrair
             the
             Skippers
             first
             Testimonie
             at
             Linlithgow
             bears
             ,
             that
             this
             Ship
             and
             Goods
             belongs
             to
             Clepan
             and
             Revier
             ,
             which
             Revier
             being
             taken
             Aboard
             ,
             acknowledges
             that
             he
             was
             born
             in
             Holland
             ,
             but
             says
             that
             two
             or
             three
             years
             before
             the
             seisure
             he
             dwelt
             in
             Gent
             ,
             and
             Brussels
             ,
             under
             the
             King
             of
             Spain
             ;
             and
             having
             a
             Diligence
             granted
             to
             prove
             his
             Domicil
             the
             time
             of
             the
             War
             ,
             and
             Capture
             ,
             all
             that
             he
             proves
             ,
             is
             that
             in
             March
             1667.
             he
             hired
             a
             House
             in
             Brussels
             ,
             and
             began
             to
             set
             up
             there
             ,
             and
             that
             sometime
             before
             he
             had
             lived
             with
             his
             Mother
             in
             Gent
             ,
             but
             proves
             not
             how
             long
             ,
             or
             that
             it
             was
             his
             constant
             Domicil
             ,
             for
             that
             was
             an
             ordinar
             contrivance
             for
             Hollanders
             to
             hire
             Houses
             in
             the
             Spainish
             Netherlands
             ,
             and
             to
             pretend
             to
             be
             Subjects
             there
             ,
             but
             they
             being
             Hollanders
             at
             the
             beginning
             of
             the
             War
             ,
             concurring
             ,
             and
             contributing
             to
             the
             War
             ,
             albeit
             they
             had
             truely
             removed
             
               tempore
               belli
            
             ,
             they
             continued
             to
             be
             the
             Kings
             Enemies
             ;
             much
             less
             can
             their
             taking
             a
             House
             else
             where
             ,
             sufficiently
             prove
             that
             they
             totally
             deserted
             the
             Hollanders
             ,
             and
             concurred
             not
             with
             them
             in
             the
             War
             ,
             it
             being
             easie
             to
             have
             Domicils
             in
             diverse
             places
             .
             2dly
             ,
             The
             contrivance
             is
             yet
             more
             evident
             ,
             in
             that
             the
             Goods
             were
             Shipped
             by
             Rivier
             at
             Fleck
             in
             Holland
             ,
             and
             sailing
             from
             thence
             to
             Copperwil
             in
             Norway
             ,
             and
             was
             taken
             ,
             having
             no
             Pass
             from
             the
             King
             of
             Spain
             for
             this
             Voyage
             ,
             but
             had
             a
             pretended
             Pass
             from
             the
             Duke
             of
             York
             ,
             which
             albeit
             it
             bears
             relation
             to
             the
             same
             Ship
             called
             Charles
             the
             second
             ,
             yet
             by
             the
             Testimonies
             of
             the
             Witnesses
             ,
             it
             is
             evident
             to
             have
             been
             granted
             two
             years
             before
             this
             Ship
             was
             Built
             ,
             which
             is
             an
             evident
             cheat
             ;
             and
             for
             the
             Pass
             from
             the
             Governour
             of
             the
             Netherlands
             ,
             it
             bears
             but
             to
             last
             for
             a
             year
             ,
             and
             was
             expired
             before
             this
             Voyage
             ;
             and
             as
             for
             the
             Pass
             from
             the
             Chamber
             of
             Commerce
             ,
             it
             was
             granted
             for
             a
             former
             Voyage
             ,
             from
             Ostend
             to
             France
             ,
             which
             is
             clear
             by
             the
             Testimonies
             ,
             which
             bear
             also
             that
             there
             could
             be
             no
             Pass
             gotten
             for
             this
             Voyage
             ,
             because
             this
             Ship
             was
             lying
             in
             Fleck
             ,
             and
             not
             in
             the
             King
             of
             Spains
             Ports
             ,
             and
             so
             the
             Loading
             could
             not
             be
             their
             lying
             ,
             and
             wanted
             Oath
             taken
             thereupon
             that
             it
             belonged
             not
             to
             the
             Kings
             Enemies
             ,
             as
             is
             requisite
             in
             such
             Cases
             .
             It
             was
             answered
             for
             the
             Strangers
             ,
             to
             the
             first
             ground
             of
             Adjudication
             ▪
             that
             it
             was
             no
             way
             sufficient
             .
             First
             ,
             
             Because
             the
             King
             of
             Spain
             being
             an
             Allie
             by
             a
             perpetual
             League
             ,
             his
             Subjects
             were
             not
             to
             be
             regulat
             by
             the
             Kings
             Proclamations
             ,
             but
             by
             the
             solemn
             Treaties
             betwixt
             both
             Kings
             ,
             which
             setting
             down
             the
             causes
             of
             Seisure
             ,
             must
             necessarly
             import
             that
             seisure
             should
             be
             for
             no
             other
             cause
             then
             is
             therein
             exprest
             .
             2dly
             ,
             The
             Articles
             bear
             expresly
             ,
             that
             any
             of
             the
             Spainish
             Subjects
             having
             a
             Pass
             conform
             to
             the
             formula
             set
             down
             in
             the
             Articles
             ,
             should
             be
             no
             further
             troubled
             ,
             which
             formula
             requires
             nothing
             as
             to
             what
             Countrey
             the
             Sailers
             are
             of
             ,
             and
             therefore
             there
             can
             be
             no
             seisure
             upon
             the
             account
             of
             the
             Sailers
             ;
             for
             albeit
             by
             the
             Swedish
             Treaty
             ,
             the
             Swedes
             are
             allowed
             to
             have
             a
             Dutch
             skipper
             ●
             〈◊〉
             becoming
             a
             sworn
             Burgess
             of
             some
             Town
             in
             Sweden
             ,
             and
             he
             residing
             there
             ,
             from
             whence
             the
             Lords
             have
             inferred
             that
             the
             Swedes
             may
             not
             sail
             with
             Hollanders
             ,
             and
             have
             declared
             some
             of
             them
             Prize
             upon
             that
             account
             ,
             yet
             this
             cannot
             be
             exended
             to
             the
             Spanish
             Subjects
             ,
             in
             whose
             Treaty
             there
             is
             〈◊〉
             such
             thing
             .
             3dly
             ,
             By
             an
             Act
             of
             the
             Council
             of
             England
             produced
             ,
             it
             appears
             that
             his
             Majesty
             gave
             Order
             that
             all
             Flandrian
             Ships
             that
             were
             taken
             should
             be
             dismist
             ,
             if
             there
             were
             no
             other
             ground
             of
             seisure
             ,
             but
             that
             they
             were
             sailed
             by
             Hollanders
             ,
             until
             his
             Majesty
             review
             the
             Flandrian
             Concessions
             ,
             and
             give
             further
             Order
             ,
             and
             there
             is
             a
             particular
             Concession
             to
             the
             Flandrians
             beside
             this
             Treaty
             ,
             in
             regard
             their
             Language
             and
             the
             Hollanders
             is
             one●
             they
             should
             not
             be
             seised
             upon
             the
             account
             of
             being
             sailed
             with
             Hollanders
             ;
             and
             〈◊〉
             to
             the
             other
             ground
             ,
             the
             Passes
             and
             Testimonies
             prove
             sufficiently
             that
             the
             Goods
             belong
             to
             Clepan
             in
             Bruges
             ,
             and
             there
             is
             but
             one
             Testimony
             of
             the
             Skipper
             ,
             that
             Revier
             is
             Owner
             ,
             which
             Testimony
             was
             taken
             at
             Linlithgow
             ,
             the
             Clerk
             or
             Interpreter
             having
             Interest
             in
             the
             Caper
             ,
             and
             the
             Skippers
             Testimony
             being
             again
             taken
             by
             the
             Admiral
             at
             Leith
             ,
             says
             nothing
             of
             Revier
             ,
             and
             albeit
             it
             did
             he
             is
             but
             one
             Witness
             ,
             and
             any
             Hollander
             deserting
             Holland
             the
             time
             of
             the
             War
             ,
             ceases
             to
             be
             an
             Enemie
             ,
             because
             the
             King
             invited
             such
             as
             would
             desert
             his
             Enemies
             ,
             to
             come
             live
             in
             England●
             so
             that
             it
             is
             both
             his
             Majesties
             Interest
             and
             Intention
             in
             any
             way
             to
             weake●
             his
             Enemies
             ,
             by
             causing
             their
             Subjects
             desert
             them
             .
             It
             was
             answered
             for
             the
             Privateer
             ,
             that
             the
             Strangers
             could
             not
             pretend
             Right
             to
             the
             Spainish
             Treaty
             ,
             seing
             they
             wanted
             a
             Pass
             conform
             thereto
             ,
             and
             that
             it
             could
             not
             be
             inferred
             negative
             from
             the
             Spainish
             Treaty
             ,
             that
             seisures
             should
             only
             be
             for
             the
             Causes
             therein
             exprest
             ,
             there
             being
             no
             such
             Article
             in
             the
             Treaty
             ,
             and
             the
             Law
             of
             Nations
             ,
             and
             the
             Kings
             Proclamation
             being
             the
             Rule
             of
             War
             the
             Treaties
             with
             Allies
             do
             only
             explain
             or
             restrain
             the
             same
             ,
             and
             gives
             exceptions
             from
             the
             Rules
             ▪
             for
             instance
             the
             Spainish
             Treaty
             makes
             Counterband
             not
             to
             in●er
             seasure
             of
             the
             Ship
             and
             Goods
             ,
             which
             is
             valide
             ,
             though
             a
             Priviledge
             derogator
             to
             the
             Law
             of
             Nations
             ,
             but
             speakes
             nothing
             whether
             the
             carrying
             of
             Enemies
             Goods
             shall
             make
             the
             Ship
             Prize
             ,
             so
             that
             that
             Priviledge
             ,
             not
             being
             granted
             by
             the
             Articles
             ,
             the
             Law
             of
             Nations
             takes
             place
             ,
             and
             the
             Ship
             may
             be
             declared
             Prize
             ;
             likeas
             in
             the
             case
             of
             Overvails
             Ship
             Decided
             in
             the
             last
             Session
             ,
             all
             that
             is
             there
             alieadged
             ,
             being
             here
             alleadged
             ,
             Overvail
             not
             instructing
             any
             Flandrian
             Concession
             to
             sail
             with
             Hollanders
             ,
             his
             Ship
             was
             Declared
             Prize
             upon
             that
             same
             very
             ground
             ,
             and
             the
             Testimony
             of
             the
             Skipper
             at
             Linlithgow
             is
             most
             unsuspect
             ,
             it
             being
             taken
             before
             the
             Skipper
             was
             otherwise
             prompted
             to
             Depone
             ,
             neither
             had
             the
             Clerk
             any
             interest
             ,
             but
             the
             most
             that
             can
             be
             pretended
             is
             that
             he
             had
             relation
             to
             some
             of
             the
             Owners
             ,
             which
             signifies
             nothing
             ,
             and
             the
             Skipper
             by
             his
             Office
             ,
             being
             the
             person
             Commissionat
             by
             the
             Owners
             ,
             who
             by
             his
             Office
             ,
             may
             Sell
             or
             Burden
             the
             Ship
             ,
             without
             a
             special
             Commission
             ,
             his
             Oath
             makes
             a
             full
             probation
             against
             the
             Owners
             who
             Intrusted
             him
             ,
             especially
             here
             where
             the
             Merchant
             ,
             and
             most
             part
             of
             the
             Company
             by
             their
             
             own
             confession
             are
             Hollanders
             ,
             which
             proves
             sufficiently
             for
             the
             Privateer
             ,
             unless
             they
             instruct
             that
             the
             Ship
             and
             Goods
             belonged
             to
             free
             men
             ,
             and
             them
             only
             ,
             which
             they
             have
             not
             done
             evidently
             and
             surely
             ,
             by
             all
             that
             they
             have
             produced
             ,
             but
             the
             Skipper
             (
             who
             is
             the
             main
             Man
             to
             be
             trusted
             )
             is
             contrary
             ,
             therefore
             it
             may
             be
             ,
             and
             is
             presumed
             to
             be
             a
             Contrivance
             ,
             to
             carry
             on
             the
             Trade
             of
             de
             Rivier
             a
             Hollander
             ,
             under
             the
             name
             of
             Clepa●
             in
             Bruges
             his
             Brother
             in
             Law.
             
          
           
             The
             Lords
             upon
             the
             whole
             matter
             declared
             the
             Ship
             and
             Goods
             Prize
             ,
             but●
             found
             not
             that
             the
             want
             of
             a
             Passe
             alone
             was
             sufficient
             ,
             neither
             did
             they
             put
             it
             to
             the
             Vote
             by
             it self
             ,
             whether
             the
             sailing
             by
             Hollanders
             alone
             would
             have
             been
             sufficient
             ,
             notwithstanding
             of
             the
             Treaty
             ,
             and
             the
             Kings
             Order
             ,
             Extracted
             out
             of
             the
             Council
             of
             England
             ,
             which
             though
             it
             related
             not
             to
             Scotland
             ,
             some
             of
             the
             Lords
             thought
             it
             was
             sufficient
             ,
             unless
             it
             did
             appear
             that
             the
             King
             had
             given
             contrair
             Order
             ,
             others
             thought
             not
             ,
             unlesse
             that
             Concession
             could
             be
             otherwise
             showen
             .
             Thereafter
             the
             Srangers
             offered
             to
             prove
             positively
             that
             there
             was
             a
             Concession
             ,
             which
             the
             Lords
             would
             not
             Sustain
             ,
             in
             regard
             that
             the
             last
             Session
             ,
             the
             first
             of
             Iune
             ,
             was
             given
             (
             before
             answer
             )
             to
             prove
             the
             Concession
             ,
             and
             the
             Term
             was
             now
             circumduced
             for
             not
             proving
             thereof
             .
          
        
         
           
             Scot
             contra
             Langtoun
             ,
             Iune
             19.
             1669.
             
          
           
             
               IOhn
               Graham
            
             of
             Gillesby
             having
             Wodset
             certain
             Lands
             to
             
               Iames
               Langtoun
            
             ,
             he
             did
             thereafter
             (
             with
             consent
             of
             Earl
             of
             Annandail
             Superior
             )
             Eike
             twelve
             hundreth
             Merks
             to
             the
             Reversion
             ,
             and
             the
             Earl
             Ratified
             the
             former
             Wodset
             ,
             and
             Graham
             with
             his
             Consent
             of
             new
             Disponed
             again
             the
             Lands
             for
             the
             Sums
             in
             the
             first
             Wodset
             and
             Eike
             ,
             and
             Added
             some
             other
             Clauses
             ,
             the
             first
             Wodset
             was
             before
             the
             Act
             between
             Debitor
             and
             Creditor
             ,
             and
             by
             vertue
             thereof
             the
             Wodsetter
             was
             in
             Possession
             ;
             the
             second
             Wodset
             was
             after
             the
             said
             Act
             ,
             the
             Superior
             Consented
             only
             to
             the
             second
             wodset
             ,
             and
             of
             the
             same
             Date
             gave
             a
             Gift
             of
             Grahams
             Liferent
             to
             
               Robert
               Scot
            
             ,
             whereupon
             Robert
             having
             obtained
             general
             Declarator
             ,
             pursues
             now
             special
             Declarator
             for
             the
             Mails
             and
             Duties
             of
             the
             Wodset
             Lands
             ,
             as
             falling
             under
             the
             Liferent
             of
             Graham
             ,
             the
             Granter
             of
             the
             Wodset
             .
             It
             was
             alleadged
             for
             Langtoun
             the
             Wodsetter
             ,
             that
             he
             ought
             to
             be
             preferred
             to
             the
             Donator
             ,
             not
             only
             for
             the
             first
             Wodset
             ,
             which
             was
             constitute
             before
             the
             Rebellion
             ,
             but
             for
             the
             second
             Wodset
             ,
             comprehending
             the
             Bike
             ,
             because
             the
             Superior
             by
             his
             Consent
             to
             the
             second
             Wodset
             ,
             without
             any
             Reservation
             ,
             had
             Communicat
             all
             Right
             in
             his
             Person
             ;
             and
             consequently
             the
             Liferent
             Escheat
             of
             Graham
             ;
             the
             granter
             of
             the
             Wodset
             ,
             in
             the
             same
             manner
             as
             if
             he
             had
             given
             the
             Wodsetter
             a
             Gift
             thereof
             ,
             and
             so
             no
             Gift
             ,
             no
             being
             anterior
             to
             the
             other
             could
             prejudge
             the
             Wodsetter
             .
             It
             was
             answered
             for
             Scot
             the
             Donator
             ,
             that
             the
             alleadgeance
             is
             no
             way
             Relevant
             to
             exclude
             his
             Gift
             ,
             unlesse
             the
             Wodsetter
             could
             alleadge
             a
             Deed
             Denuding
             the
             Superior
             ,
             anterior
             to
             the
             Pursuers
             Gift
             ;
             but
             here
             the
             Superiors
             Consent
             is
             not
             anterior
             ,
             but
             of
             the
             same
             days
             Date
             ,
             and
             may
             be
             posterior
             ,
             and
             therefore
             the
             Gift
             which
             is
             the
             
               habilis
               modus
            
             ,
             must
             be
             preferred
             unto
             the
             Superiors
             Consent
             to
             the
             Wodset
             ,
             which
             is
             but
             indirect
             ,
             and
             consequential
             to
             infer
             the
             Right
             ,
             as
             Liferent
             ,
             at
             least
             both
             must
             be
             conjoined
             ,
             and
             have
             equal
             Right
             ,
             as
             done
             
               simul
               &
               semel
            
             .
             It
             was
             answered
             for
             the
             Wodsetter
             ,
             that
             the
             Superiors
             Gift
             must
             not
             be
             preferred
             to
             the
             Consent
             ,
             though
             of
             the
             same
             Date
             ,
             because
             he
             was
             then
             in
             Possession
             of
             the
             Wodset
             Lands
             ,
             and
             needed
             no
             Declarator
             ,
             and
             the
             Gift
             is
             but
             imperfect
             ,
             until
             a
             general
             
             Declarator
             ,
             which
             is
             the
             Intimation
             thereof
             ,
             no
             Declarator
             being
             requisite
             to
             the
             consent
             of
             the
             Superiour
             to
             the
             Wodsetter
             ,
             and
             so
             is
             preferable
             .
          
           
             The
             Lords
             preferred
             the
             Wodsetter
             .
          
           
             It
             was
             further
             alleadged
             for
             the
             Donator
             ,
             that
             the
             Wodsetter
             must
             restrict
             himself
             to
             his
             Annualrent
             ,
             and
             be
             countable
             to
             him
             for
             the
             superplus
             ,
             seing
             now
             he
             makes
             an
             offer
             to
             find
             the
             Wodsetter
             Caution
             ,
             and
             so
             he
             must
             either
             quite
             his
             Possession
             ,
             or
             restrict
             conform
             to
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             .
             The
             Wodsetter
             answered
             ,
             that
             his
             second
             Wodset
             bearing
             ,
             not
             only
             a
             Ratification
             of
             the
             first
             Wodset
             in
             all
             points
             ,
             but
             a
             Disposition
             of
             the
             same
             Lands
             ,
             falls
             not
             within
             that
             Clause
             of
             the
             said
             Act
             of
             Parliament
             ,
             which
             Regulates
             only
             Wodsets
             prior
             to
             that
             Act
             ;
             and
             the
             new
             Disposition
             makes
             the
             old
             Wodset
             as
             extinct
             and
             innovat
             .
             The
             Donator
             answered
             ,
             that
             there
             being
             
               a
               jus
               quaesitum
            
             ,
             conform
             to
             the
             Act
             ,
             as
             to
             the
             former
             Wodset
             ,
             the
             posterior
             Ratification
             cannot
             derogat
             therefrom
             ,
             or
             take
             it
             away
             ,
             unless
             it
             had
             been
             exprest
             ,
             and
             
               in
               meritis
               causa
            
             ,
             it
             was
             alleadged
             that
             the
             Wodsetter
             had
             near
             the
             double
             of
             his
             Annualrent
             .
          
           
             The
             Lords
             preferred
             the
             Donator
             as
             to
             the
             Superplus
             ,
             more
             nor
             the
             Annualrent
             of
             the
             first
             Wodset
             ,
             and
             ordained
             the
             Wodsetter
             to
             Restrict
             .
          
           
             The
             Wodsetter
             further
             alleadged
             ,
             that
             the
             Gift
             was
             Antidated
             and
             Simulate
             to
             the
             Rebels
             behove
             ,
             and
             so
             accresced
             to
             the
             Wodsetter
             .
             Which
             the
             Lords
             Sustained
             ,
             and
             found
             the
             Simulation
             probable
             by
             the
             Oath
             of
             the
             Superiour
             ,
             and
             the
             Witnesses
             insert
             in
             the
             Gift
             .
          
        
         
           
             Hamiltoun
             of
             Corse
             contra
             Hamiltoun
             and
             Viscount
             of
             Frendraught
             .
             Iune
             22.
             1669.
             
          
           
             WIshart
             of
             Cowbardie
             having
             Wodset
             his
             Lands
             of
             Bogheads
             and
             others
             ,
             to
             
               George
               Hamiltoun
            
             ,
             from
             whom
             the
             Viscount
             of
             Frendraught
             has
             now
             Right
             ,
             he
             did
             thereafter
             sell
             the
             same
             Lands
             to
             
               Iohn
               Hamiltoun
            
             of
             Corse
             ,
             who
             took
             the
             Gift
             of
             Wisharts
             Fischeat
             ,
             and
             having
             thereupon
             obtained
             general
             Declarator
             ,
             pursues
             now
             in
             a
             special
             Declarator
             for
             the
             Mails
             and
             Duties
             of
             the
             Wodset
             Lands
             .
             Compears
             
               George
               Hamiltoun
            
             and
             the
             Viscount
             of
             Frendraught
             ,
             and
             produced
             the
             Wodset
             Right
             ,
             and
             alleadged
             that
             the
             Liferent
             Right
             cannot
             reach
             the
             VVodset
             Lands
             ,
             because
             the
             Gift
             is
             Simulate
             to
             the
             behove
             of
             Wishart
             the
             Rebel
             and
             common
             Author
             ,
             and
             so
             is
             
               jus
               supervenient
               author●
               ,
               accrescens
               successori
               ,
            
             to
             defend
             this
             VVodset
             Right
             ,
             and
             condescends
             that
             it
             is
             Simulate
             ,
             in
             so
             far
             as
             it
             is
             offered
             to
             be
             proven
             ,
             that
             Wishart
             the
             common
             Author
             did
             allow
             to
             the
             Donator
             in
             the
             price
             of
             the
             Lands
             ,
             not
             only
             the
             sum
             whereupon
             the
             Horning
             procceded
             ,
             but
             also
             the
             Expences
             of
             the
             Gift
             ;
             so
             that
             it
             is
             purchased
             by
             the
             Rebels
             Means
             ,
             whence
             the
             Law
             presumes
             it
             to
             be
             to
             his
             behove
             .
             It
             was
             answered
             ,
             that
             this
             Condescendence
             cannot
             infer
             Simulation
             to
             the
             Rebels
             behove
             ,
             because
             it
             was
             lawful
             to
             Hamiltoun
             of
             Corse
             ,
             finding
             that
             his
             Right
             was
             not
             secure
             to
             fortifie
             the
             same
             by
             this
             Gift
             ,
             and
             in
             his
             account
             of
             the
             price
             of
             the
             Land
             upon
             the
             Warrandice
             ,
             he
             might
             require
             Retention
             ,
             not
             only
             of
             the
             sum
             in
             the
             Horning
             ;
             but
             of
             his
             Expenses
             in
             necessarly
             purchasing
             the
             Gift
             ,
             and
             might
             apply
             the
             same
             for
             the
             Security
             of
             the
             Lands
             bought
             from
             the
             Rebel
             only
             ,
             which
             is
             to
             his
             own
             behove
             :
             but
             if
             he
             were
             extending
             the
             Gift
             to
             other
             Lands
             of
             the
             Rebels
             ,
             that
             might
             be
             presumed
             to
             the
             Rebels
             behove
             ,
             because
             the
             Donator
             had
             no
             anterior
             interest
             of
             his
             own
             to
             these
             Lands
             .
             It
             was
             answered
             ,
             that
             if
             the
             Rebel
             had
             given
             the
             Mony
             to
             purchase
             the
             Right
             ,
             before
             it
             was
             purchased
             ,
             it
             would
             infer
             unquestionable
             Simulation
             ;
             and
             it
             is
             wholly
             
             equivalent
             ,
             that
             having
             then
             the
             Rebels
             Mony
             in
             his
             Hand
             ,
             the
             Rebel
             
               ex
               post
               facte
            
             ,
             allowed
             the
             Expences
             of
             the
             Gift
             .
             2dly
             ,
             Albeit
             such
             an
             allowance
             
               ex
               post
               facto
            
             ,
             would
             not
             be
             sufficient
             ,
             where
             the
             Donator
             acquired
             the
             Right
             to
             the
             Lands
             
               bona
               fide
            
             ,
             and
             then
             
               ex
               necessitate
            
             ,
             behoved
             to
             purchase
             the
             Gift
             to
             maintain
             his
             Right
             :
             but
             here
             the
             Donator
             was
             
               in
               pessima
               fide
            
             ,
             and
             most
             unfavourable
             ,
             because
             if
             need
             beis
             ,
             it
             is
             offered
             to
             be
             proven
             by
             his
             Oath
             or
             Writ
             ,
             that
             he
             knew
             of
             
               George
               Hamiltouns
            
             Right
             ,
             and
             that
             the
             same
             was
             compleat
             before
             he
             bought
             from
             the
             common
             Author
             ,
             and
             so
             is
             
               particeps
               frandi●
            
             with
             his
             Author
             ,
             in
             granting
             double
             Rights
             contrary
             to
             Law
             :
             and
             therefore
             the
             presumption
             of
             Simulation
             and
             Fraud
             ,
             ought
             to
             proceed
             against
             him
             upon
             the
             more
             light
             Evidence
             .
          
           
             The
             Lords
             found
             the
             Ground
             of
             Simulation
             not
             Relevant
             ,
             upon
             taking
             allowance
             from
             the
             Rebel
             of
             the
             price
             ,
             if
             it
             was
             done
             for
             the
             maintaining
             of
             a
             Right
             
               bona
               fide
            
             acquired
             :
             but
             found
             that
             it
             was
             sufficient
             to
             infer
             Simulation
             ,
             if
             the
             Right
             was
             
               mala
               fide
            
             acquired
             ;
             and
             that
             the
             Donator
             ,
             at
             ,
             or
             before
             he
             bought
             the
             Land
             ,
             knew
             of
             the
             other
             Parties
             Right
             .
          
        
         
           
             Pearson
             of
             Balmadies
             contra
             The
             Town
             of
             Montross
             .
             Iune
             23.
             1669.
             
          
           
             PEarson
             of
             Balmadies
             being
             Collector
             of
             two
             of
             ten
             ,
             and
             the
             sixteen
             penny
             imposed
             by
             Parliament
             anno
             1633.
             and
             the
             Magistrates
             of
             the
             Town
             of
             Montross
             ,
             having
             Written
             a
             Letter
             to
             him
             ,
             promising
             Compt
             and
             Payment
             in
             anno
             1637.
             
             Some
             few
             dayes
             after
             the
             Letter
             ,
             he
             made
             Compt
             with
             Orbistoun
             ,
             general
             Collector
             ,
             and
             Charged
             himself
             with
             the
             whole
             Taxation
             of
             Montross
             ,
             as
             received
             .
             And
             in
             anno
             1654.
             obtains
             a
             Decreet
             against
             the
             then
             Magistrates
             ,
             holding
             them
             as
             confest
             upon
             the
             quantities
             of
             Taxation
             of
             their
             Burgh
             .
             They
             now
             Suspend
             on
             this
             Reason
             ,
             that
             the
             Decreet
             was
             in
             absence
             ,
             and
             the
             Magistrates
             only
             holden
             as
             confest
             ,
             and
             they
             are
             now
             content
             to
             Depone
             ,
             that
             they
             never
             had
             any
             Stent
             Roll
             of
             the
             said
             Taxation
             ;
             and
             by
             the
             Chargers
             Compt
             produced
             ,
             he
             acknowledges
             the
             proportion
             of
             Montross
             received
             .
             And
             further
             alleadges
             ,
             that
             there
             being
             neither
             Warrand
             from
             King
             nor
             Parliament
             ,
             there
             should
             be
             no
             Charge
             or
             Pursuit
             Sustained
             for
             these
             old
             Taxations
             ,
             especially
             of
             Mony
             ,
             where
             the
             most
             part
             of
             the
             Monyed
             Persons
             lyable
             then
             ,
             are
             now
             insolvent
             ;
             and
             the
             Town
             cannot
             get
             their
             Relief
             .
             But
             as
             for
             the
             Land
             Taxation
             ,
             the
             King
             has
             given
             Warrand
             to
             lift
             it
             ,
             and
             it
             is
             still
             secure
             ,
             being
             
               debitum
               fundi
            
             .
             The
             Charger
             answered
             ,
             that
             he
             being
             neighbour
             to
             the
             Town
             ,
             did
             upon
             their
             desire
             ,
             delay
             to
             distress
             them
             ,
             and
             held
             Compt
             for
             them
             ,
             as
             appears
             by
             their
             Letters
             produced
             :
             and
             therefore
             it
             will
             not
             infer
             that
             Charges
             may
             be
             used
             upon
             the
             Act
             of
             Parliament
             only
             ,
             unless
             Parties
             had
             given
             Writ
             therefore
             ,
             and
             the
             Magistrates
             were
             obliged
             by
             the
             Act
             of
             Parliament
             ,
             to
             have
             uplifted
             the
             Taxation
             
               debito
               tempore
            
             ,
             and
             payed
             it
             to
             the
             Collectors
             ;
             and
             it
             must
             be
             presumed
             they
             did
             so
             ,
             or
             if
             they
             did
             not
             ,
             it
             was
             their
             fault
             ,
             in
             the
             Discussing
             of
             this
             Cause
             .
             It
             occurred
             to
             the
             Lords
             ,
             that
             this
             Taxation
             not
             being
             imposed
             upon
             the
             Towns
             Common-good
             ,
             but
             upon
             the
             Inhabitants
             severally
             ,
             for
             their
             Mony
             ,
             and
             that
             the
             Magistrates
             were
             not
             countable
             to
             the
             Town
             for
             the
             Taxation
             of
             Mony
             ,
             nor
             were
             they
             lyable
             for
             their
             Magistrates
             ,
             who
             had
             not
             this
             power
             of
             Collection
             by
             their
             Office
             ,
             but
             by
             the
             Commission
             of
             Parliament
             therefore
             .
          
           
           
             The
             Lords
             found
             the
             Town
             and
             present
             Magistrates
             not
             lyable
             ,
             but
             prejudice
             to
             the
             Pursuer
             to
             insist
             aganist
             the
             then
             Magistrates
             ,
             their
             Heirs
             and
             Executors
             .
          
        
         
           
             Robert
             Fairie
             contra
             Iames
             Inglis
             .
             Eodem
             die
             .
          
           
             
               RObert
               Fairie
            
             having
             Charged
             
               Iames
               Inglis
            
             younger
             of
             Mordistoun
             for
             1000.
             merks
             due
             by
             Bond
             ,
             he
             did
             Suspend
             and
             raised
             Reduction
             upon
             Minority
             ,
             Lesion
             and
             Circumvention
             ,
             Litiscontestation
             was
             made
             upon
             the
             Reason
             of
             Minority
             ,
             and
             the
             Term
             was
             Circumduced
             ;
             and
             he
             Decerned
             .
             He
             Suspends
             again
             ,
             and
             insists
             upon
             the
             second
             Reason
             of
             Reduction
             ,
             upon
             Circumvention
             ,
             and
             qualified
             it
             thus
             ,
             That
             albeit
             the
             Bond
             bear
             ,
             borrowed
             Money
             ,
             yet
             he
             offers
             to
             prove
             by
             Fairies
             Oath
             ,
             that
             the
             true
             Cause
             was
             the
             Boot
             between
             a
             Horse
             and
             a
             Mare
             interchanged
             betwixt
             the
             Parties
             :
             and
             albeit
             the
             Suspender
             gave
             as
             good
             as
             he
             got
             ,
             yet
             he
             was
             induced
             to
             give
             this
             Bond
             of
             1000.
             merks
             to
             Boot
             ,
             so
             that
             he
             is
             lesed
             
               ultra
               dimidium
               justi
               pretij
            
             ,
             which
             in
             Law
             is
             a
             sufficient
             Ground
             alone
             to
             dissolve
             the
             Bargain
             ,
             and
             restore
             either
             Party
             ,
             
               actione
               redibitoria
               &
               quanti
               minoris
            
             :
             and
             next
             in
             so
             gross
             inequality
             ,
             
               ex
               re
               praesumitur
               dolus
            
             .
             The
             Charger
             answered
             ,
             that
             the
             Reason
             is
             no
             way
             Relevant
             ,
             because
             our
             Law
             and
             Custom
             acknowledges
             not
             that
             Ground
             of
             the
             Civil
             Law
             ,
             of
             annulling
             Bargains
             ,
             made
             without
             Cheat
             or
             Fraud
             upon
             the
             inequality
             of
             the
             Price
             ;
             neither
             can
             there
             be
             any
             Fraud
             inferred
             ,
             upon
             the
             account
             of
             the
             Price
             of
             an
             Horse
             ,
             which
             is
             not
             quantitas
             but
             corpus
             ,
             and
             has
             not
             a
             common
             Rate
             ,
             but
             is
             regulat
             
               secundum
               praetium
               affectionis
            
             ,
             and
             now
             the
             Horse
             and
             the
             Mare
             not
             being
             to
             be
             shown
             in
             the
             condition
             they
             were
             in
             ;
             the
             Suspender
             cannot
             recal
             the
             Bargain
             .
             2dly
             ,
             The
             Reason
             ought
             to
             be
             Repelled
             ,
             because
             by
             a
             Ticket
             apart
             with
             the
             same
             Date
             of
             the
             Bond
             ,
             the
             Suspender
             declares
             upon
             his
             Soul
             and
             Conscience
             ,
             that
             he
             should
             never
             Impugn
             the
             Bond
             ;
             and
             thereafter
             by
             his
             second
             Bond
             produced
             ,
             he
             Ratifies
             the
             same
             ,
             and
             passes
             from
             any
             Revocation
             thereof
             ,
             or
             quarrel
             against
             the
             same
             .
             The
             Suspender
             answered
             ,
             that
             he
             was
             content
             to
             refer
             to
             the
             Chargers
             own
             Oath
             ,
             whether
             in
             the
             Chargers
             own
             esteem
             of
             the
             Rate
             ,
             the
             Suspender
             was
             not
             lesed
             above
             the
             half
             :
             and
             as
             for
             the
             two
             Tickets
             ,
             the
             first
             was
             obtained
             when
             he
             was
             Minor
             ,
             and
             both
             
               laborant
               eodem
               vitio
            
             ,
             the
             inequality
             still
             remaining
             without
             satisfaction
             .
          
           
             The
             Lords
             in
             respect
             of
             the
             Tickets
             ,
             and
             Ratification
             after
             Majority
             ,
             and
             that
             there
             was
             no
             Fraud
             or
             Deceit
             qualified
             ,
             they
             repelled
             the
             Reasons
             and
             Decerned
             .
          
        
         
           
             Fairie
             contra
             Inglis
             .
             Iune
             24.
             1669.
             
          
           
             AT
             the
             Reporting
             of
             the
             former
             Interlocutor
             yesterday
             ,
             Fairie
             against
             Inglis
             .
             It
             was
             further
             alleadged
             for
             Inglis
             ,
             that
             he
             offered
             him
             to
             prove
             by
             Fairies
             Oath
             ,
             that
             he
             was
             Circumveened
             ,
             in
             granting
             of
             the
             Ratification
             ,
             because
             Fairie
             upon
             that
             same
             Design
             drank
             him
             drunk
             .
          
           
             Which
             Alleadgance
             the
             Lords
             Repelled
             in
             respect
             of
             the
             Bond
             and
             first
             Ticket
             ,
             wherein
             he
             Declared
             upon
             his
             Soul
             and
             Conscience
             never
             to
             come
             in
             the
             contrary
             .
          
        
         
           
           
             Steuart
             of
             Gairntilly
             contra
             Sir
             William
             Steuart
             Eodem
             die
             .
          
           
             SIr
             
               William
               Steuart
            
             having
             granted
             a
             Bond
             upon
             thir
             Terms
             ,
             that
             whereas
             he
             had
             obtained
             Disposition
             of
             the
             Lands
             of
             Innernytie
             ,
             partly
             by
             his
             Fathers
             Means
             ,
             and
             partly
             by
             his
             own
             ,
             and
             partly
             for
             granting
             the
             Bond
             underwritten
             ;
             and
             therefore
             he
             obliges
             himself
             to
             Infeft
             
               Iean
               Steuart
            
             his
             Sister
             and
             the
             Heirs
             of
             her
             Body
             ,
             which
             failzying
             ,
             ocertain
             Persons
             Substitute
             ,
             his
             Brethren
             and
             Nephews
             ,
             and
             a
             part
             of
             it
             t●
             return
             to
             himself
             ,
             and
             obliges
             himself
             to
             pay
             the
             Annualrent
             yearly
             to
             the
             said
             Iean
             ,
             and
             the
             Heirs
             of
             her
             Body
             ,
             and
             other
             Heirs
             of
             Tailzie
             foresaid
             ,
             during
             the
             not
             Redemption
             of
             the
             said
             Annualrent
             ,
             then
             there
             is
             insert
             a
             Reversion
             of
             the
             Annualrent
             ,
             from
             the
             said
             Jean
             and
             her
             foresaids
             ,
             by
             the
             said
             Sir
             William
             upon
             the
             payment
             of
             20000.
             
             Merks
             ,
             and
             then
             a
             Clause
             of
             Requisition
             ,
             that
             if
             Jean
             after
             her
             Marriage
             desire
             the
             Money
             ,
             she
             or
             her
             foresaids
             might
             require
             the
             same
             to
             be
             paid
             after
             her
             Fathers
             Death
             ,
             and
             then
             a
             Clause
             that
             the
             said
             sum
             of
             20000.
             should
             not
             be
             payable
             till
             five
             years
             after
             her
             Fathers
             Death
             ,
             and
             after
             her
             own
             Marriage
             .
             The
             said
             Jean
             Assigns
             this
             Bond
             to
             her
             Brother
             Sir
             Thomas
             ,
             and
             he
             Charges
             Sir
             William
             ,
             who
             ,
             and
             some
             of
             the
             other
             Substitutes
             Suspends
             on
             these
             Reasons
             :
             First
             ,
             That
             by
             the
             Conception
             of
             the
             Bond
             ,
             it
             was
             clear
             the
             principal
             Sum
             was
             not
             payable
             till
             Jeans
             Marriage
             ,
             and
             she
             being
             Dead
             unmarried
             ,
             is
             not
             now
             payable
             at
             all
             ,
             whereupon
             the
             Charger
             insisted
             for
             the
             bygone
             Annualrents
             ,
             and
             for
             granting
             an
             Infeftment
             of
             annualrent
             to
             him
             as
             Assigney
             ,
             conform
             to
             the
             Bond
             :
             The
             Suspenders
             Reasons
             against
             the
             annualrent
             ,
             were
             first
             ,
             That
             this
             being
             an
             annualrent
             accessory
             to
             a
             principal
             Sum
             ,
             
               ablato
               principali
               tollitur
               accessorium
            
             ,
             so
             that
             the
             principal
             Sum
             being
             now
             not
             due
             to
             any
             by
             Ieans
             Death
             ,
             Dying
             unmarried
             ,
             the
             annualrent
             also
             must
             cease
             from
             her
             Death
             .
             2dly
             ,
             The
             annualrent
             is
             conceived
             payable
             to
             Iean
             and
             her
             Heirs
             ▪
             but
             no
             mention
             of
             Assigneys
             .
             3dly
             ,
             Albeit
             ordinarly
             in
             such
             Obligations
             or
             Infeftments
             following
             thereon
             ,
             the
             first
             Person
             is
             Feear
             ,
             and
             the
             Substitutes
             are
             but
             Heirs
             ,
             who
             cannot
             come
             against
             the
             Feears
             Deed
             by
             Assignation
             ,
             or
             otherwayes
             ;
             yet
             where
             the
             Obligation
             is
             gratuitous
             ,
             and
             proceeds
             not
             upon
             sums
             of
             Mony
             belonging
             to
             the
             Creditor
             :
             but
             upon
             the
             free
             Gift
             of
             a
             Parent
             bestowing
             the
             Sum
             ,
             there
             the
             Substitution
             implys
             a
             Substitution
             and
             Obligation
             upon
             the
             first
             Person
             ,
             and
             the
             Heirs
             of
             their
             Body
             ,
             to
             do
             no
             voluntar
             Deed
             to
             evacuat
             the
             Substitution
             ;
             so
             that
             albeit
             a
             Creditor
             or
             Successor
             ,
             for
             a
             Cause
             onerous
             ,
             might
             exclude
             the
             Substitutes
             ;
             yet
             another
             Heir
             appointed
             by
             the
             first
             person
             or
             a
             Donator
             ,
             or
             gratuitous
             Assigney
             cannot
             evacuat
             the
             Tailzie
             ,
             and
             exclude
             the
             Substitutes
             ,
             because
             in
             such
             Contracts
             ,
             
               uberrima
               fidei
            
             ,
             the
             mind
             of
             the
             Party
             who
             Gifted
             ,
             and
             freely
             granted
             the
             sum
             ,
             is
             chiefly
             to
             be
             considered
             :
             so
             that
             it
             cannot
             be
             thought
             to
             be
             old
             Gairntillies
             mind
             ,
             that
             his
             Daughter
             might
             Change
             the
             Substitution
             ,
             and
             elude
             the
             Conditions
             of
             the
             Bond
             ,
             for
             the
             Suspending
             of
             the
             Requisition
             of
             the
             principal
             Sum
             ,
             till
             Iean
             were
             married
             ,
             must
             import
             that
             his
             meaning
             was
             ,
             to
             give
             her
             the
             Annualrent
             only
             till
             that
             time
             ,
             and
             the
             principal
             Sum
             to
             be
             a
             Tocher
             if
             she
             married
             ,
             which
             was
             to
             no
             purpose
             ,
             if
             the
             Annualrent
             remained
             perpetual
             ;
             for
             then
             the
             Heretor
             would
             certainly
             Redeem
             to
             purge
             his
             Land
             ,
             as
             he
             had
             done
             ,
             and
             the
             Sums
             Consigned
             would
             belong
             to
             the
             Assigney
             ,
             and
             the
             Clause
             Suspending
             the
             payment
             thereof
             ,
             if
             Iean
             married
             not
             ,
             signified
             nothing
             ,
             
               sed
               verba
               sumenda
               sunt
               cum
               effectu
            
             ;
             and
             the
             meaning
             of
             the
             Parties
             ,
             and
             conception
             of
             the
             Condition
             Suspensive
             must
             be
             preserved
             .
             The
             Charger
             answered
             ,
             that
             he
             opponed
             the
             Bond
             ,
             wherein
             ,
             without
             all
             question
             Jean
             was
             Feear
             ,
             
             and
             the
             Substitutes
             being
             the
             Heirs
             of
             Tailzie
             ,
             cannot
             quarrel
             her
             Deed
             ,
             but
             are
             bound
             as
             Representing
             her
             to
             fulfil
             the
             same
             ;
             and
             albeit
             Ieans
             Assigneys
             be
             not
             exprest
             ,
             yet
             they
             are
             ever
             included
             ,
             where
             they
             are
             not
             expresly
             excluded
             ;
             neither
             is
             this
             Annualrent
             stated
             as
             a
             meer
             accessory
             ,
             because
             the
             Requisition
             of
             the
             principal
             Sum
             may
             be
             Discharged
             ,
             or
             may
             become
             by
             the
             Suspensive
             Clause
             ineffectual
             ,
             as
             now
             it
             does
             ;
             and
             yet
             the
             Obligement
             or
             Infeftment
             of
             Annualrent
             remains
             a
             perpetual
             Right
             ,
             though
             Redeemable
             at
             the
             Debitors
             option
             ;
             neither
             is
             there
             by
             Law
             or
             Custom
             any
             difference
             or
             exception
             ,
             whether
             the
             Annualrent
             be
             gratuitous
             ,
             or
             for
             a
             Cause
             onerous
             :
             and
             for
             the
             meaning
             of
             the
             Father
             ,
             procurer
             of
             the
             Bond
             ,
             it
             must
             be
             understood
             as
             it
             is
             exprest
             ,
             only
             to
             exclude
             the
             lifting
             of
             the
             principal
             Sum
             by
             Iean
             ,
             upon
             the
             Clause
             of
             Requisition
             ,
             if
             she
             were
             not
             married
             :
             and
             if
             his
             mind
             had
             been
             otherways
             ,
             it
             had
             been
             easie
             to
             have
             adjected
             a
             restrictive
             Clause
             ,
             or
             in
             stead
             of
             the
             Substitution
             ,
             to
             have
             set
             down
             a
             Provision
             ,
             that
             if
             Iean
             died
             unmarried
             ,
             the
             annualrent
             should
             belong
             to
             her
             Brothers
             and
             Sisters
             nominat
             :
             but
             this
             being
             an
             ordinar
             single
             Substitution
             ,
             hath
             neither
             expresly
             nor
             implicitely
             any
             Condition
             or
             Obligation
             upon
             the
             Feear
             ,
             not
             to
             Dispone
             .
          
           
             The
             Lords
             Repelled
             the
             Reasons
             of
             Suspension
             ,
             and
             found
             Iean
             to
             be
             Feear
             of
             the
             Annualrent
             ,
             and
             that
             she
             might
             assign
             the
             same
             ,
             and
             that
             the
             Substitutes
             could
             not
             quarrel
             the
             same
             .
          
        
         
           
             Kennedy
             and
             Muir
             contra
             Iaffray
             .
             Eodem
             die
             .
          
           
             MR.
             
               Iohn
               Iaffray
            
             being
             presented
             to
             the
             Parsonage
             and
             Viccarage
             ,
             Teinds
             of
             Maybol
             ,
             and
             having
             obtained
             Decreet
             conform
             ,
             there
             is
             a
             double
             Poinding
             raised
             by
             the
             Heretors
             and
             Possessors
             of
             Fishartoun
             :
             Mr.
             
               Iohn
               Iaffray
            
             craves
             preference
             as
             Parson
             ,
             and
             so
             having
             Right
             to
             the
             whole
             Benefice
             :
             the
             other
             party
             called
             is
             
               Grange
               Kennedy
            
             ,
             and
             Muire
             of
             Mank-wood
             ,
             who
             craved
             preference
             on
             this
             Ground
             ,
             that
             the
             Teinds
             of
             Maybol
             was
             of
             old
             ,
             a
             part
             of
             the
             Patrimony
             of
             the
             Nunry
             of
             North-Berwick
             ,
             and
             the
             Prioress
             for
             the
             time
             ,
             with
             the
             consent
             of
             one
             Nune
             ,
             who
             was
             then
             only
             alive
             ,
             set
             a
             Tack
             thereof
             ,
             to
             
               Thomas
               Kennedy
            
             of
             Bargany
             ,
             and
             
               Gilbert
               Kennedy
            
             his
             Son
             ,
             and
             to
             Gilberts
             first
             Heir
             ,
             and
             after
             all
             their
             Deaths
             for
             three
             nineteen
             years
             :
             The
             Prioress
             having
             thereafter
             ,
             at
             the
             Kings
             Desire
             ,
             Resigned
             the
             Teinds
             of
             Maybol
             to
             be
             a
             Parsonage
             ,
             did
             in
             her
             Resignation
             ,
             except
             the
             Tack
             set
             to
             Barganie
             ,
             which
             was
             alwayes
             cled
             with
             Possession
             ,
             and
             was
             assigned
             to
             
               David
               Kennedy
            
             of
             Ballimore
             ,
             and
             Transferred
             to
             Mr.
             
               Iohn
               Hutcheson
            
             ,
             and
             by
             him
             to
             Kennedy
             and
             Muir
             ,
             as
             to
             the
             Teinds
             of
             Fishartoun
             ,
             whereupon
             they
             crave
             preference
             .
             It
             was
             answered
             for
             Iaffray
             ,
             that
             by
             their
             Right
             produced
             ,
             there
             is
             related
             another
             Tack
             granted
             by
             Mr.
             
               James
               Bonar
            
             ,
             Parson
             of
             Maybol
             for
             the
             time
             ,
             to
             the
             Lord
             Ochiltrie
             ,
             which
             came
             by
             progress
             in
             the
             Person
             of
             Ballimore
             ,
             having
             then
             in
             his
             Person
             ,
             Barganies
             Tack
             ,
             so
             that
             Ballimores
             taking
             that
             Right
             ,
             acknowledges
             the
             Parsons
             Right
             ,
             and
             passes
             from
             his
             former
             Tack
             ,
             unless
             in
             his
             Right
             he
             had
             expresly
             reserved
             his
             former
             Tack
             ;
             so
             that
             neither
             Ballimore
             nor
             these
             Assigneys
             can
             now
             make
             use
             of
             Barganies
             Tack
             ,
             it
             being
             a
             certain
             Ground
             ,
             that
             the
             taking
             of
             a
             posterior
             Tack
             ,
             having
             a
             greater
             Tack
             Duty
             ,
             or
             a
             shorter
             Term
             evacuats
             a
             prior
             Tack
             in
             that
             same
             Person
             .
             It
             was
             answered
             ,
             that
             the
             alleadgance
             is
             no
             wayes
             Relevant
             ,
             Ballimore
             not
             having
             immediatly
             taken
             a
             second
             Tack
             ,
             but
             only
             finding
             another
             Tack
             by
             progress
             in
             the
             Person
             of
             the
             Lord
             Binnie
             ,
             to
             remove
             that
             impediment
             ,
             and
             
             shun
             his
             trouble
             ,
             he
             purchased
             Right
             thereto
             ,
             but
             never
             brooked
             thereby
             .
          
           
             The
             Lords
             found
             that
             the
             taking
             Right
             to
             another
             Tack
             ,
             did
             not
             infer
             a
             passing
             from
             the
             former
             Tack
             ,
             unless
             it
             were
             proven
             ,
             that
             the
             posterior
             Tack
             had
             a
             greater
             Duty
             ,
             or
             shorter
             durance
             ,
             and
             that
             Ballimore
             had
             paid
             the
             said
             greater
             Duty
             to
             Bonar
             ,
             or
             bruiked
             expresly
             by
             the
             later
             Tack
             .
          
        
         
           
             June
             29.
             1669.
             
          
           
             CAptain
             having
             taken
             at
             Sea
             ,
             obtained
             him
             to
             be
             declared
             Pryze
             ,
             upon
             this
             ground
             ,
             that
             he
             carried
             Clapboard
             ,
             which
             is
             expresly
             mentioned
             as
             Counterband
             in
             the
             Commission
             of
             the
             Admiral
             of
             Scotland
             ,
             given
             to
             the
             Caper
             ,
             and
             was
             the
             same
             Stile
             with
             the
             Commission
             Recorded
             in
             the
             Books
             of
             Admirality
             ,
             given
             in
             the
             time
             of
             War
             ,
             in
             the
             year
             1628.
             
             The
             Strangers
             raised
             Reduction
             of
             the
             Admirals
             Decreet
             ,
             on
             this
             Reason
             ,
             that
             Clapboard
             being
             a
             general
             Name
             ,
             comprehending
             many
             kinds
             of
             Boards
             ,
             that
             Clapboard
             could
             be
             only
             understood
             Counterband
             ,
             which
             had
             not
             a
             promiscuous
             use
             in
             Peace
             and
             War
             ,
             but
             was
             
               instrumentum
               bellicum
            
             ,
             carried
             by
             the
             Kings
             Allies
             to
             his
             Enemies
             ,
             to
             be
             Sold
             to
             them
             for
             assisting
             of
             the
             War
             ,
             which
             this
             Loading
             could
             not
             be
             ,
             because
             it
             consisted
             all
             of
             Knappel
             ,
             cutted
             all
             at
             three
             Foot
             and
             an
             half
             length
             ,
             the
             proper
             use
             whereof
             is
             for
             Barrelis
             ,
             and
             is
             no
             wayes
             
               instrumentum
               bellicum
            
             .
          
           
             The
             Lords
             having
             given
             Commission
             to
             some
             of
             their
             number
             to
             visite
             the
             Knappel
             ,
             and
             to
             Examine
             Sea-wrights
             ,
             whereupon
             they
             did
             Examine
             a
             number
             ,
             whether
             this
             Timber
             in
             question
             was
             useful
             for
             War
             or
             Shipping
             ,
             and
             most
             Deponed
             ,
             that
             it
             was
             not
             ,
             and
             some
             Deponed
             ,
             that
             it
             might
             be
             made
             use
             of
             to
             be
             Pins
             or
             Tubs
             ;
             but
             that
             it
             was
             not
             ordinarly
             made
             use
             of
             for
             Shipping
             ,
             but
             common
             Oak
             ,
             which
             was
             far
             cheaper
             .
          
           
             The
             Lords
             did
             also
             before
             answer
             ,
             ordain
             either
             Party
             to
             adduce
             such
             Testificats
             and
             Evidences
             ,
             as
             they
             could
             from
             the
             Admiralties
             of
             Neighbouring
             Nations
             ,
             what
             was
             the
             Custom
             of
             Nations
             ,
             whether
             upon
             such
             Timber
             as
             this
             ,
             the
             Ships
             of
             Neuters
             or
             Allies
             were
             made
             Prize
             .
          
           
             The
             strangers
             produced
             several
             Testificats
             ▪
             one
             from
             the
             Custom-House
             of
             Amsterdame
             ,
             bearing
             ,
             that
             such
             Timber
             was
             not
             accounted
             Counterband
             in
             Holland
             ,
             and
             one
             from
             the
             Spanish
             Admiralty
             at
             Ostend
             ,
             bearing
             ,
             that
             they
             knew
             not
             that
             by
             their
             Custom
             ,
             and
             the
             Custom
             of
             other
             Admiralties
             such
             Timber
             was
             Counterband
             ,
             one
             from
             a
             Deputy
             ,
             who
             served
             in
             the
             French
             Admiralty
             at
             Dunkirk
             ,
             declaring
             that
             in
             that
             Admiralty
             ,
             such
             Timber
             was
             not
             accounted
             Counterband
             ;
             one
             from
             the
             Kings
             Auctorney
             ,
             and
             another
             Lawer
             ,
             who
             served
             in
             the
             Court
             of
             Admiralty
             of
             England
             ,
             bearing
             ,
             that
             during
             the
             War
             ,
             none
             had
             been
             declared
             Prize
             upon
             that
             account
             .
             The
             Privateer
             produced
             no
             Testificats
             ,
             but
             alleadged
             that
             there
             ought
             no
             respect
             to
             be
             had
             to
             the
             Testificats
             produced
             ,
             it
             being
             easie
             to
             impetrat
             such
             ,
             and
             there
             should
             a
             Commission
             been
             direct
             by
             the
             Lords
             ,
             to
             the
             several
             Chief
             Admiralties
             of
             the
             Neighbouring
             Nations
             ,
             to
             express
             what
             was
             their
             Custom
             in
             this
             Point
             .
          
           
             Notwithstanding
             the
             Lords
             found
             the
             Ship
             Prize
             ,
             as
             carrying
             this
             Clapboard
             ,
             being
             contained
             in
             the
             Admirals
             Commission
             ,
             a
             great
             part
             of
             the
             most
             able
             of
             the
             Lords
             being
             of
             the
             contrary
             Judgement
             .
          
        
         
           
           
             Earl
             of
             Argile
             contra
             His
             Vassals
             .
             Iune
             30.
             1669.
             
          
           
             THe
             Earl
             of
             Argile
             being
             Donator
             to
             the
             Forefaulture
             of
             the
             late
             Marquess
             of
             Argile
             ,
             his
             Father
             ,
             Pursues
             an
             Improbation
             of
             the
             Vassals
             Rights
             ,
             and
             craved
             Certification
             .
             The
             Vassals
             alleadged
             no
             Certification
             against
             their
             Rights
             ,
             because
             any
             Right
             the
             Earl
             had
             was
             qualified
             by
             the
             Kings
             Gift
             ,
             that
             he
             should
             only
             have
             Lands
             paying
             15000.
             pounds
             ,
             and
             that
             the
             rest
             should
             be
             conveyed
             to
             the
             Creditors
             ,
             and
             the
             Creditors
             thereupon
             claiming
             the
             Property
             of
             the
             Vassals
             ,
             as
             falling
             within
             the
             Forefaulture
             ,
             His
             Majesty
             Wrot
             a
             Letter
             ,
             Declaring
             that
             it
             was
             not
             His
             meaning
             by
             the
             Gift
             ,
             that
             the
             Creditors
             should
             have
             any
             more
             Lands
             conveyed
             to
             them
             then
             the
             remainder
             of
             the
             Property
             belonging
             to
             the
             late
             Marquess
             ,
             over
             and
             above
             this
             Earls
             part
             ,
             and
             that
             the
             Superiority
             should
             entirely
             belong
             to
             the
             Earl
             and
             his
             Successors
             ,
             by
             which
             His
             Majesties
             Mind
             and
             Pleasure
             is
             evident
             ,
             that
             the
             Earl
             should
             only
             have
             the
             Superiority
             ,
             and
             not
             the
             Property
             of
             the
             Vassals
             .
             2dly
             ,
             The
             Vassals
             offered
             to
             produce
             what
             Rights
             they
             had
             flowing
             from
             the
             House
             of
             Argile
             ,
             but
             there
             could
             be
             no
             Certification
             ,
             as
             to
             what
             they
             had
             not
             ,
             in
             respect
             of
             the
             Troubles
             ,
             especially
             no
             Certification
             ,
             for
             want
             of
             Confirmation
             of
             the
             Vassals
             Rights
             by
             the
             King
             ,
             because
             several
             of
             the
             Vassals
             continued
             Loyal
             to
             His
             Majesty
             ,
             during
             all
             the
             Troubles
             ,
             and
             some
             of
             them
             losed
             their
             lives
             in
             His
             Service
             ,
             opposing
             the
             said
             late
             Marquess
             himself
             :
             So
             that
             it
             can
             never
             be
             thought
             to
             be
             His
             Majesties
             purpose
             or
             pleasure
             ,
             so
             to
             restore
             this
             Earl
             the
             Marquess
             Heir
             appearand
             ,
             as
             thereby
             to
             Forefault
             the
             Vassals
             ,
             who
             adhered
             to
             His
             Majesty
             ,
             and
             who
             durst
             not
             in
             time
             of
             these
             Troubles
             have
             fought
             Confirmations
             ,
             His
             Majesties
             Exchequer
             being
             then
             in
             the
             manadgement
             of
             these
             who
             were
             in
             opposition
             to
             Him.
             It
             was
             answered
             for
             the
             Pursuer
             to
             the
             first
             ,
             that
             neither
             by
             the
             Pursuers
             Gift
             from
             His
             Majesty
             ,
             nor
             by
             the
             foresaid
             Letter
             ,
             there
             is
             nothing
             granted
             to
             the
             Vassals
             in
             opposition
             to
             the
             Earls
             Right
             ,
             but
             in
             opposition
             to
             the
             Creditors
             ,
             that
             they
             should
             have
             no
             hand
             in
             the
             Vassals
             Estates
             .
             Likeas
             ,
             His
             Majesty
             by
             His
             last
             Ratification
             and
             Charter
             under
             the
             Great
             Seal
             produced
             ,
             hath
             most
             distinctly
             and
             clearly
             exprest
             His
             meaning
             and
             pleasure
             ,
             that
             by
             the
             foresaid
             Gift
             or
             Letter
             ,
             His
             Majesty
             did
             only
             Exclude
             the
             Creditors
             from
             the
             Estates
             of
             the
             Vassals
             ,
             but
             thereby
             Declares
             ,
             that
             not
             only
             the
             Superiority
             and
             Casualities
             thereof
             should
             belong
             to
             the
             Earl
             ,
             but
             the
             Property
             of
             all
             these
             who
             had
             not
             sufficient
             Rights
             from
             the
             House
             of
             Argile
             ,
             and
             Confirmations
             from
             the
             King
             ,
             and
             that
             the
             Earl
             might
             Intent
             all
             Actions
             competent
             of
             Law
             ,
             for
             that
             effect
             .
             It
             was
             answered
             for
             the
             Vassals
             ,
             that
             if
             their
             true
             condition
             and
             adherence
             to
             His
             Majesty
             ,
             had
             been
             understood
             His
             Majesty
             would
             not
             so
             have
             Declared
             ,
             and
             that
             
               post
               jus
               quaesitum
            
             to
             them
             by
             the
             Kings
             Gift
             and
             Letter
             ,
             no
             posterior
             ▪
             Declaration
             impetrat
             from
             His
             Majesty
             ,
             should
             prejudge
             them
             ,
             at
             the
             least
             ,
             they
             humbly
             craved
             that
             the
             Lords
             according
             to
             their
             former
             Interlocutor
             ,
             would
             Represent
             the
             Case
             to
             His
             Majesty
             ,
             that
             His
             Pleasure
             might
             be
             known
             ,
             and
             that
             His
             Majesty
             might
             interpose
             with
             my
             Lord
             Argile
             ,
             not
             to
             insist
             against
             the
             Vassals
             ,
             who
             had
             been
             Loyal
             .
             It
             was
             answered
             for
             the
             Earl
             ,
             that
             he
             had
             given
             no
             just
             grounds
             to
             his
             Vassals
             to
             expect
             ,
             that
             though
             they
             were
             in
             his
             power
             ,
             that
             he
             would
             destroy
             them
             ,
             and
             annul
             their
             Rights
             :
             and
             seing
             His
             Majesty
             had
             fully
             and
             absolutely
             entrusted
             them
             to
             him
             ,
             they
             ought
             to
             have
             rested
             upon
             His
             Kindness
             and
             Generosity
             ,
             and
             not
             to
             have
             made
             all
             this
             Clamour
             ,
             where
             they
             have
             no
             Legal
             Defense
             ,
             it
             being
             no
             strange
             nor
             new
             thing
             ,
             for
             the
             King
             to
             give
             Gifts
             of
             Forefaulture
             without
             any
             Reservation
             of
             Vassals
             ,
             
             who
             had
             no
             Confirmation
             from
             the
             King
             ,
             yea
             many
             times
             without
             any
             Reservation
             of
             the
             Forefault
             Persons
             Debt
             ,
             and
             His
             Majesty
             has
             lately
             so
             done
             to
             the
             Marquess
             of
             Huntly
             ,
             to
             whom
             he
             gave
             the
             Estate
             of
             Huntly
             ,
             without
             Reservation
             ,
             either
             to
             Vassals
             or
             Creditors
             ,
             and
             that
             upon
             the
             Forfaulture
             of
             the
             Marquess
             of
             Argile
             ,
             who
             had
             Right
             to
             ,
             and
             was
             in
             Possession
             of
             the
             Estate
             of
             Huntly
             for
             vast
             sums
             of
             Mony
             ,
             and
             the
             Earl
             of
             Argile
             has
             the
             Gift
             of
             the
             remainder
             of
             his
             Fathers
             Estate
             ,
             with
             the
             burden
             of
             more
             Debt
             ,
             then
             the
             proper
             Debt
             of
             the
             House
             of
             Argile
             would
             have
             been
             ,
             over
             and
             above
             the
             Debts
             undertaken
             for
             the
             House
             of
             
               Huntly
               .
               2dly
            
             ,
             Whatever
             the
             Vassals
             might
             plead
             in
             Point
             of
             Favour
             :
             yet
             they
             do
             not
             pretend
             to
             a
             Defense
             in
             Law.
             And
             the
             Lords
             being
             Judges
             of
             the
             Law
             ,
             ought
             not
             to
             stop
             the
             Course
             thereof
             ,
             upon
             the
             Insinuations
             of
             any
             Party
             ;
             otherwayes
             they
             may
             deny
             the
             Course
             of
             Law
             to
             any
             of
             the
             Leidges
             ,
             when
             they
             please
             ,
             upon
             the
             account
             that
             they
             think
             the
             Law
             hard
             ,
             or
             rigorous
             ,
             or
             the
             Kings
             grants
             made
             conform
             thereto
             ;
             and
             whatsoever
             the
             Lords
             might
             do
             in
             the
             dubious
             Interpretation
             of
             a
             Treaty
             of
             Peace
             ,
             to
             know
             the
             Kings
             meaning
             ;
             yet
             
               in
               claris
               ●on
               est
               locus
               conjecturis
               ,
            
             nothing
             can
             be
             clearer
             then
             the
             Kings
             meaning
             ,
             under
             His
             Great
             Seal
             ,
             and
             all
             the
             Defenders
             can
             pretend
             ,
             is
             Favour
             ,
             which
             is
             no
             Point
             of
             Right
             ,
             nor
             legal
             Defense
             .
          
           
             The
             Lords
             granted
             Certification
             
               e●n●ra
               non
               producta
            
             ,
             conditionally
             ,
             that
             what
             the
             Vassals
             should
             produce
             betwixt
             and
             the
             tenth
             of
             November
             ,
             should
             be
             received
             ;
             and
             left
             it
             to
             the
             Vassals
             in
             the
             mean
             time
             ,
             if
             they
             thought
             fit
             to
             make
             Address
             to
             the
             King
             ,
             that
             he
             might
             interpose
             with
             the
             Earl
             in
             their
             Favours
             ,
             or
             to
             Debate
             any
             thing
             they
             thought
             fit
             ,
             when
             the
             Earl
             insisted
             for
             Reduction
             of
             their
             Rights
             ,
             for
             want
             of
             Confirmations
             ,
             or
             for
             Mails
             and
             Duties
             .
          
        
         
           
             Agnew
             contra
             Tennents
             of
             Dronlaw
             .
             Eodem
             die
             .
          
           
             AGnem
             having
             Appryzed
             the
             Lands
             of
             Dronlaw
             from
             Mr.
             
               Robert
               Hay
            
             Advocat
             ,
             as
             Cautioner
             for
             the
             Earl
             of
             Buchan
             ,
             to
             the
             behove
             of
             the
             Earl
             of
             Kinghorn
             ,
             pursues
             the
             Tennents
             for
             Removing
             ,
             who
             alleadged
             Absolviture
             ,
             because
             the
             Tennents
             were
             Tennents
             by
             payment
             of
             Mail
             and
             Duty
             to
             the
             Liferenter
             ,
             Mr.
             
               Robert
               Hayes
            
             Mother
             ,
             and
             she
             is
             not
             warned
             nor
             called
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Liferenter
             dyed
             before
             the
             Term
             ,
             and
             that
             he
             was
             content
             ,
             that
             the
             Tennents
             should
             be
             Decerned
             to
             Remove
             but
             at
             the
             next
             Term
             of
             Whitsonday
             .
          
           
             Yet
             the
             Lords
             Sustained
             the
             Defense
             ,
             seing
             the
             Liferenter
             was
             living
             the
             time
             of
             the
             Warning
             .
          
        
         
           
             Farquhar
             contra
             Magistr●tes
             of
             Elgin
             .
             Iuly
             2.
             1669.
             
          
           
             FArquhar
             having
             caused
             a
             Messenger
             Charge
             the
             Magistrates
             of
             Elgin
             to
             take
             my
             Lord
             Lovat
             ,
             and
             the
             Baillies
             being
             together
             upon
             the
             Street
             ,
             about
             eight
             or
             nine
             a
             Clock
             in
             the
             Morning
             ,
             the
             Messenger
             ,
             with
             several
             other
             Persons
             present
             ,
             Charged
             them
             to
             go
             into
             an
             House
             near
             by
             ,
             which
             they
             designed
             to
             them
             ,
             and
             to
             take
             Lovat
             ,
             being
             then
             in
             Bed
             ,
             and
             the
             Messenger
             offered
             to
             go
             with
             them
             ,
             and
             enter
             first
             ,
             yet
             the
             Bailies
             did
             not
             obey
             ,
             but
             said
             they
             would
             go
             at
             their
             conveniency
             ,
             when
             they
             had
             conveened
             their
             Neighbours
             to
             assist
             ;
             there
             is
             an
             Execution
             ,
             and
             Instrument
             upon
             the
             back
             of
             the
             Caption
             ,
             to
             the
             effect
             foresaid
             produced
             ;
             whereupon
             Farquhar
             pursues
             the
             Magistrates
             for
             Payment
             of
             the
             Debt
             contained
             in
             the
             Caption
             .
             The
             Defenders
             alleadged
             Absolviture
             :
             First
             ,
             Because
             they
             were
             no
             further
             
             obliged
             but
             to
             conveen
             the
             Neighbours
             of
             the
             Town
             ,
             and
             send
             them
             with
             the
             Messenger
             to
             assist
             ,
             which
             they
             offered
             to
             do
             .
             2dly
             ,
             Albeit
             themselves
             were
             obliged
             to
             take
             the
             Rebel
             if
             he
             were
             showen
             to
             them
             within
             their
             Jurisdiction
             ,
             yet
             they
             were
             not
             obliged
             to
             search
             every
             House
             of
             the
             Town
             for
             him
             ,
             or
             to
             enter
             within
             closle
             Doors
             .
             3dly
             ,
             The
             Lord
             Lovat
             being
             known
             to
             be
             a
             fierce
             young
             Man
             ,
             who
             ordinarly
             had
             a
             Minzie
             attending
             him
             ,
             they
             were
             not
             obliged
             to
             adventure
             upon
             him
             ,
             without
             calling
             the
             assistance
             of
             their
             Neighbours
             ,
             which
             they
             did
             within
             an
             hour
             or
             two
             thereafter
             ,
             and
             he
             was
             gone
             .
          
           
             The
             Lords
             Repelled
             all
             these
             Defenses
             ,
             in
             respect
             of
             the
             Execution
             and
             instrument
             produced
             ,
             and
             found
             the
             Magistrats
             ,
             being
             Charged
             ,
             obliged
             to
             take
             the
             Rebel
             ,
             and
             without
             delay
             to
             search
             any
             House
             within
             the
             Town
             that
             was
             particularly
             shown
             to
             them
             ,
             unless
             they
             had
             been
             Repulsed
             by
             Force
             ,
             or
             the
             Doors
             by
             Violence
             keeped
             closse
             against
             them
             by
             the
             Master
             of
             the
             House
             ,
             and
             ordained
             the
             Pursuers
             to
             adduce
             the
             Witnesses
             in
             the
             Instrument
             ,
             and
             others
             to
             prove
             the
             particulars
             foresaid
             ,
             to
             have
             been
             so
             done
             as
             is
             therein
             exprest
             .
          
        
         
           
             Bow
             contra
             Campbel
             ,
             Eodem
             die
             .
          
           
             BOw
             Stabler
             in
             Edinburgh
             as
             Assigney
             to
             a
             Sum
             of
             Money
             due
             by
             Glenurchy
             ,
             and
             also
             as
             Donotar
             to
             the
             Escheat
             of
             his
             Cedent
             ,
             being
             called
             in
             a
             double
             Poinding
             ,
             and
             competing
             ;
             the
             Donator
             alleadged
             he
             ought
             to
             be
             preferred
             to
             the
             Arrefter
             ,
             because
             the
             Debt
             in
             question
             falling
             in
             his
             Cedents
             Escheat
             ,
             he
             had
             taken
             the
             Gift
             of
             the
             Escheat
             ,
             bearing
             expresly
             all
             Goods
             the
             Rebel
             had
             ,
             or
             should
             acquire
             ,
             and
             this
             Debt
             .
             being
             acquired
             ,
             after
             the
             Gift
             did
             accresce
             to
             him
             ,
             the
             Rebel
             not
             being
             yet
             Relaxed
             .
             It
             was
             answered
             ,
             that
             though
             the
             stile
             of
             the
             Gift
             bear
             all
             Goods
             to
             be
             acquired
             ,
             yet
             that
             is
             always
             interpret
             such
             as
             happen
             to
             be
             acquired
             within
             year
             and
             day
             after
             the
             Horning
             .
             It
             was
             answered
             for
             the
             Donatar
             ,
             that
             he
             oppones
             the
             Tenor
             of
             his
             Gift
             ,
             and
             if
             any
             limitation
             could
             be
             thereof
             ,
             it
             could
             only
             be
             of
             Sums
             to
             be
             acquired
             within
             a
             year
             after
             the
             Gift
             ,
             and
             not
             within
             a
             year
             after
             the
             Horning
             ,
             because
             sometimes
             Gifts
             are
             not
             taken
             within
             a
             year
             of
             the
             Horning
             .
          
           
             The
             Lords
             found
             the
             Gift
             to
             extend
             to
             the
             Sum
             in
             question
             ,
             being
             acquired
             by
             the
             Rebel
             within
             a
             year
             after
             the
             Gift
             ,
             and
             that
             the
             general
             Clause
             of
             Goods
             to
             be
             acquired
             ,
             did
             extend
             no
             further
             then
             to
             Goods
             acquired
             within
             a
             year
             after
             the
             Gift
             .
          
        
         
           
             Laird
             of
             Grubbet
             contra
             More
             ,
             Eodem
             die
             .
          
           
             THe
             Barony
             of
             Lintoun
             belonging
             to
             Sir
             
               Iohn
               Ker
            
             of
             Litledean
             ,
             the
             Lands
             of
             Morbatle
             and
             Otterburn
             are
             parts
             thereof
             ;
             there
             is
             a
             piece
             of
             Land
             called
             Greenlaw
             ,
             lying
             in
             the
             borders
             of
             Morbatle
             and
             Otterburn
             ,
             and
             there
             is
             an
             Heretable
             Right
             of
             the
             Lands
             of
             Otterburn
             granted
             by
             Sir
             
               Iohn
               Ker
            
             to
             one
             Young
             ,
             and
             by
             that
             Young
             a
             subaltern
             Right
             to
             another
             Young
             ,
             bearing
             the
             Lands
             of
             
               Greenlaw
               per
               expressum
            
             ,
             both
             these
             Young's
             joyntly
             Dispone
             to
             Grubbet
             the
             Lands
             of
             Otterburn
             ,
             with
             the
             Pertinents
             ,
             comprehending
             the
             Lands
             of
             Raschbogs
             ;
             in
             the
             end
             of
             which
             Disposition
             there
             is
             a
             Clause
             ,
             bearing
             that
             because
             the
             Young's
             were
             kindly
             Tennents
             in
             the
             Lands
             of
             Greenlaw
             ,
             therefore
             they
             Dispone
             their
             Right
             thereof
             ,
             and
             kindlynesse
             thereto
             ,
             to
             
               Grubbet
               ,
               More
            
             having
             acquired
             the
             Rights
             of
             the
             Lands
             of
             Morbatle
             
             from
             Sir
             
               Iohn
               Ker
            
             ;
             and
             the
             Earl
             of
             Louthian
             having
             Apprized
             Sir
             Iohn's
             Right
             of
             the
             Barony
             of
             Lintoun
             ,
             in
             Anno
             1636.
             gives
             a
             particular
             Right
             of
             Greenlaw
             alone
             ,
             which
             is
             now
             also
             in
             the
             Person
             of
             More
             ,
             whereupon
             arises
             a
             Competition
             of
             Right
             between
             Grubbet
             and
             
               More
               ,
               Grubbet
            
             alleadged
             that
             he
             has
             Right
             to
             Greenlaw
             ,
             as
             a
             Part
             and
             Pertinent
             of
             Otterburn
             ,
             which
             he
             and
             the
             Young's
             his
             Authors
             have
             Possest
             far
             beyond
             40.
             years
             ,
             as
             Part
             and
             Pertinent
             of
             Otterburn
             ,
             and
             offers
             to
             prove
             that
             there
             is
             standing
             Marches
             between
             Morbatle
             and
             Otterburn
             ,
             within
             which
             Marches
             ,
             Greenlaw
             lyes
             on
             Otterburn
             side
             ,
             and
             that
             his
             Infeftment
             produced
             granted
             by
             Young
             to
             Young
             ,
             bears
             expresly
             Greenlaw
             .
             It
             was
             alleadged
             for
             
               More
               ,
               First
            
             ,
             that
             Grubbet
             cannot
             pretend
             Greenlaw
             to
             be
             Part
             and
             Pertinent
             of
             Otterburn
             ,
             because
             by
             his
             own
             Infeftments
             produced
             ,
             granted
             by
             the
             Young's
             ,
             and
             accepted
             by
             him
             ,
             Greenlaw
             is
             not
             exprest
             as
             Part
             and
             Pertinent
             of
             Otterburn
             ,
             albeit
             Raschbog
             tho
             lesse
             considerable
             then
             it
             ,
             be
             exprest
             ,
             and
             on
             the
             contrair
             ,
             it
             is
             declared
             that
             the
             Young's
             were
             kindly
             Tennents
             of
             Greenlaw
             ,
             and
             Disponed
             their
             kindness
             thereof
             ;
             aud
             offers
             to
             prove
             that
             the
             Young's
             were
             in
             constant
             custom
             of
             Service
             to
             Sir
             
               Iohn
               Ker
            
             in
             Armes
             and
             otherways
             whenever
             they
             were
             required
             ,
             and
             that
             most
             of
             the
             Lands
             on
             the
             border
             were
             Set
             only
             for
             Service
             ,
             which
             Service
             could
             not
             be
             attribute
             to
             Otterburn
             ,
             because
             it
             was
             holden
             blench
             of
             Sir
             Iohn
             ,
             and
             if
             need
             be
             's
             ,
             offered
             to
             prove
             by
             Witnesses
             ,
             that
             when
             the
             said
             Young's
             came
             not
             to
             the
             said
             Service
             they
             were
             poinded
             therefore
             .
             
               2dly
               ,
               More
            
             offered
             to
             prove
             that
             Greenlaw
             is
             a
             distinct
             Tenement
             ,
             both
             from
             Otterburn
             and
             Morbatle
             ,
             and
             hath
             past
             as
             a
             distinct
             Tenement
             since
             the
             year
             1636.
             and
             hath
             a
             known
             March
             between
             it
             and
             
               Otterburn
               ,
               viz.
            
             a
             Know.
             3dly
             ,
             For
             Grubbets
             pretence
             of
             bruiking
             Greenlaw
             as
             Part
             and
             Pertinent
             of
             Otterburn
             for
             40.
             years
             ,
             so
             that
             he
             might
             claim
             it
             by
             Prescription
             ,
             the
             alleadgeance
             ought
             to
             be
             Repelled
             ,
             first
             because
             Prescription
             cannot
             proceed
             without
             an
             Infeftmen
             ,
             and
             it
             cannot
             be
             ascribed
             to
             the
             Young's
             Infeftment
             ,
             wherein
             they
             acknowledge
             that
             they
             were
             kindly
             Tennents
             of
             Greenlaw
             ,
             after
             which
             no
             course
             of
             time
             can
             ever
             prescribe
             a
             Right
             to
             Greenlaw
             ,
             as
             part
             and
             Pertinent
             of
             Otterburn
             by
             that
             Charter
             ,
             and
             therefore
             any
             Possession
             that
             is
             thereof
             is
             without
             Infeftment
             .
             2dly
             ,
             There
             is
             not
             fourty
             years
             Possession
             ,
             abating
             Mores
             Minority
             .
             3dly
             ,
             There
             are
             interruptions
             ,
             and
             therefore
             if
             Greenlaw
             be
             either
             a
             distinct
             Tenement
             ,
             or
             part
             of
             Morbatle
             ,
             it
             belongs
             to
             More
             .
             It
             was
             answered
             for
             Grubbet
             ,
             that
             he
             and
             his
             Authors
             Possessing
             Greenlaw
             these
             40
             years
             past
             ,
             as
             part
             of
             Otterburn
             gives
             him
             sufficient
             Right
             thereunto
             ,
             notwithstanding
             of
             any
             acknowledgement
             in
             the
             Charter
             ,
             or
             without
             the
             Charter
             before
             that
             time
             ,
             for
             Prescription
             may
             change
             Part
             and
             Pertinents
             ,
             so
             that
             which
             was
             once
             not
             acknowledged
             to
             be
             a
             part
             by
             Possession
             ,
             40
             years
             thereafter
             may
             become
             a
             part
             ,
             and
             that
             acknowledgement
             never
             being
             made
             use
             of
             Prescribes
             and
             the
             Charter
             in
             which
             it
             is
             ,
             is
             a
             sufficient
             Title
             ,
             both
             for
             what
             was
             parts
             the
             time
             of
             the
             Charter
             ,
             and
             what
             becomes
             thereafter
             parts
             by
             Prescription
             .
             2dly
             ,
             The
             acknowledgement
             of
             a
             Party
             having
             Right
             is
             of
             no
             effect
             ,
             when
             by
             demonstration
             of
             the
             Right
             it self
             the
             contrair
             appears
             ,
             as
             here
             ,
             therebeing
             an
             anterior
             Right
             of
             Property
             of
             the
             Young's
             produced
             before
             that
             acknowledgement
             .
             3dly
             ,
             The
             ackowledgement
             is
             not
             ,
             that
             they
             were
             only
             kindly
             Tennents
             ,
             otherwise
             it
             is
             very
             well
             consistent
             with
             the
             Property
             ,
             that
             they
             being
             first
             kindly
             Tennents
             ,
             and
             that
             kindliness
             being
             thought
             more
             favourable
             to
             maintain
             Possession
             in
             these
             places
             ,
             then
             any
             Heretable
             Right
             ,
             they
             might
             very
             well
             Dispone
             Otterburn
             ,
             whereof
             Greenlaw
             is
             a
             part
             ,
             and
             might
             also
             Dispone
             their
             kindness
             of
             Greenlaw
             they
             had
             before
             the
             Right
             of
             Property
             ;
             neither
             doth
             it
             infer
             ,
             because
             Raschbog
             is
             exprest
             
             as
             Pertinent
             of
             Otterburn
             ,
             which
             hath
             been
             upon
             account
             that
             Raschbog
             was
             then
             unclear
             ,
             that
             therefore
             Greenlaw
             is
             no
             Part
             thereof
             ,
             or
             else
             it
             could
             have
             no
             more
             parts
             but
             Raschhog
             ,
             there
             being
             no
             more
             exprest
             ;
             and
             as
             for
             the
             alleadged
             Services
             done
             by
             the
             Young's
             to
             Sir
             
               Iohn
               Ker
            
             ,
             they
             cannot
             infer
             that
             the
             Young's
             were
             then
             Tennents
             of
             Greenlaw
             ,
             because
             such
             Services
             being
             only
             general
             ,
             and
             no
             particular
             Services
             accustomed
             by
             Tennents
             ,
             they
             might
             have
             been
             performed
             to
             Sir
             Iohn
             as
             Superior
             ,
             or
             as
             out
             of
             kindness
             to
             a
             great
             Man
             in
             the
             Countrey
             ,
             and
             it
             s
             offered
             to
             be
             proven
             (
             if
             need
             be
             's
             )
             that
             hundreds
             granted
             such
             Services
             ,
             who
             were
             not
             Tennents
             ,
             so
             that
             unless
             there
             were
             a
             Tack
             ,
             Inrolments
             of
             Court
             ,
             or
             Executions
             of
             Poinding
             produced
             to
             instruct
             Services
             as
             a
             Tack-duty
             on
             Greenlaw
             ,
             it
             is
             Irrelevant
             .
          
           
             The
             Lords
             by
             a
             former
             Interlocutor
             had
             found
             that
             by
             the
             acknowlegement
             in
             Young's
             Charter
             ,
             or
             any
             thing
             therein
             was
             not
             sufficient
             to
             exclude
             Greenlaw
             from
             being
             Part
             and
             Pertinent
             of
             Otterburn
             ,
             but
             they
             found
             that
             is
             More
             would
             alleadge
             a
             Tack
             ,
             or
             Inrolment
             of
             Court
             ,
             to
             the
             Young's
             of
             Services
             for
             Greenlaw
             ,
             it
             were
             sufficient
             ,
             or
             otherwise
             if
             he
             would
             alleadge
             constant
             Service
             of
             the
             Young's
             ,
             by
             Riding
             &c.
             with
             Sir
             Iohn
             ,
             and
             there
             being
             Poinded
             by
             him
             ,
             when
             they
             were
             absent
             ,
             they
             found
             the
             same
             with
             the
             acknowledgement
             in
             Grubbets
             Right
             to
             exclude
             Grubbet
             from
             Greenlaw
             ,
             and
             if
             these
             were
             not
             alleadged
             ,
             they
             ordained
             Witnesses
             to
             be
             Examined
             upon
             the
             ground
             
               hinc
               inde
            
             before
             answer
             ,
             upon
             these
             points
             ,
             whether
             Greenlaw
             was
             known
             to
             be
             a
             distinct
             Tennement
             ,
             both
             from
             Otterburn
             and
             Marbotle
             ,
             or
             whether
             it
             was
             known
             to
             be
             Part
             and
             Pertinent
             of
             either
             ,
             and
             what
             were
             the
             Marches
             and
             Meithes
             thereof
             ,
             and
             what
             Services
             were
             done
             by
             the
             Young's
             to
             Sir
             
               Iohn
               Ker
            
             ,
             and
             if
             such
             Services
             were
             done
             by
             others
             ,
             not
             being
             moveable
             Tennents
             .
          
        
         
           
             Barclay
             contra
             Barclay
             ,
             Iuly
             6.
             1669.
             
          
           
             BArclay
             of
             Towy
             having
             but
             one
             Daughter
             ,
             and
             his
             Estate
             Tailzied
             to
             Heirs-male
             ,
             his
             nearest
             Heir-male
             being
             the
             old
             Tutor
             of
             Towy
             ,
             above
             80.
             years
             of
             Age
             ,
             and
             having
             also
             but
             one
             Daughter
             ,
             and
             neither
             Father
             nor
             Daughter
             being
             Persons
             of
             much
             discretion
             ,
             Captain
             Barclay
             his
             next
             Heir-male
             having
             also
             but
             Daughters
             ,
             he
             Dispones
             his
             Estate
             in
             favours
             of
             his
             own
             Daughter
             ;
             and
             it
             being
             rumored
             that
             Captain
             Barclay
             pretended
             a
             Bond
             of
             an
             hundreth
             and
             three
             thousand
             Pounds
             ,
             granted
             by
             Towy
             to
             him
             ,
             that
             thereby
             he
             might
             prefer
             him
             to
             the
             Tutor
             ,
             and
             that
             the
             Tutor
             as
             Heir-male
             ,
             had
             also
             granted
             several
             Dispositions
             to
             Captain
             Barclay
             of
             that
             Estate
             :
             Towies
             Daughter
             being
             an
             Infant
             ,
             her
             friends
             did
             also
             procure
             a
             Disposition
             from
             the
             Tutor
             to
             her
             ,
             and
             she
             pursues
             a
             Reduction
             and
             Improbation
             against
             Captain
             Barclay
             of
             the
             foresaid
             Bond
             ,
             and
             Dispositions
             made
             to
             him
             ,
             he
             Compears
             ,
             and
             produces
             a
             late
             Disposition
             made
             by
             the
             Tutor
             ,
             and
             alleadges
             that
             he
             had
             the
             Bond
             foresaid
             ,
             and
             two
             Dispositions
             from
             the
             Tutor
             ,
             anterior
             to
             this
             produced
             ,
             but
             that
             a
             Person
             to
             whom
             he
             had
             entrusted
             them
             ,
             had
             carried
             them
             away
             ,
             but
             there
             being
             produced
             in
             the
             Process
             attested
             doubles
             of
             the
             former
             Dispositions
             ,
             under
             the
             hands
             of
             Nottars
             .
             The
             Pursuer
             craved
             ,
             that
             seing
             the
             Witnesses
             alleadged
             insert
             might
             die
             ,
             and
             the
             Captain
             of
             purpose
             keeped
             up
             the
             Principals
             ,
             that
             the
             Witnesses
             might
             be
             Examined
             upon
             what
             they
             know
             of
             the
             Truth
             ,
             or
             Forgery
             of
             the
             saids
             Dispositions
             .
          
           
             Which
             the
             Lords
             granted
             ,
             the
             Fame
             ,
             and
             suspition
             of
             the
             Forgery
             being
             
             so
             great
             ,
             though
             ordinarly
             they
             do
             not
             Examine
             Witnesses
             upon
             the
             Forgery
             of
             a
             Writ
             ,
             till
             the
             principal
             be
             produced
             ,
             that
             the
             Witnesses
             may
             see
             their
             Subscriptions
             ,
             whereupon
             Steel
             one
             of
             the
             Witnesses
             compeared
             ,
             and
             Deponed
             ,
             acknowledging
             the
             Forgery
             ,
             and
             the
             way
             of
             contrivance
             of
             it
             ,
             in
             which
             the
             Captain
             made
             use
             of
             him
             ,
             whereupon
             the
             Lords
             proceeded
             to
             Examine
             the
             Tutor
             ,
             who
             stifly
             stood
             to
             the
             verity
             of
             the
             Dispositions
             ,
             as
             being
             truly
             Subscribed
             by
             him
             ,
             but
             differed
             in
             the
             Date
             ,
             and
             in
             the
             persons
             who
             were
             Witnesses
             to
             the
             Subscription
             :
             The
             Captains
             Son
             in
             law
             being
             also
             Examined
             ,
             whether
             or
             not
             the
             Captain
             had
             employed
             him
             to
             corrupt
             the
             Witnesses
             ,
             and
             if
             he
             had
             written
             any
             Letter
             to
             him
             ,
             to
             that
             purpose
             produced
             a
             Letter
             ,
             mentioning
             some
             things
             by
             word
             which
             he
             should
             diligently
             go
             about
             ,
             and
             being
             asked
             who
             the
             Bearer
             was
             ,
             Deponed
             that
             he
             was
             
               Robert
               Ogilvy
            
             the
             Tutors
             Servant
             ,
             who
             being
             in
             the
             House
             ,
             and
             presently
             called
             to
             the
             Bar
             ,
             upon
             Oath
             being
             interrogat
             ,
             whether
             he
             had
             brought
             North
             any
             Letter
             from
             the
             Captain
             to
             his
             Good-son
             ,
             Deponed
             that
             he
             had
             brought
             no
             Letter
             from
             him
             to
             his
             Good-son
             ,
             or
             any
             other
             ,
             and
             thereafter
             the
             Letter
             being
             showen
             him
             ,
             and
             confronted
             with
             the
             Captains
             Good-son
             ,
             he
             Deponed
             that
             he
             did
             bring
             that
             Paper
             ,
             and
             delivered
             it
             to
             the
             Captains
             Wife
             ,
             but
             he
             thought
             it
             was
             an
             order
             ,
             not
             being
             Sealed
             ,
             and
             being
             interrogat
             whether
             he
             had
             any
             Message
             in
             word
             from
             the
             Captain
             to
             his
             Good-son
             ,
             Deponed
             he
             had
             none
             ,
             and
             upon
             reading
             of
             the
             Letter
             ,
             bearing
             the
             contrair
             ,
             and
             confronting
             with
             the
             Captains
             Good-son
             ,
             he
             acknowledged
             that
             he
             had
             order
             to
             cause
             his
             Good-son
             bring
             over
             the
             Witnesses
             to
             Edinburgh
             ;
             and
             the
             Captains
             Good-son
             further
             acknowledged
             that
             Ogilvy
             had
             desired
             him
             to
             deall
             with
             the
             Witnesses
             ,
             to
             stand
             to
             the
             Truth
             of
             the
             Writs
             ,
             he
             stifly
             denyed
             that
             point
             .
          
           
             The
             Lords
             having
             considered
             his
             grosse
             Prevarication
             ,
             and
             contradictory
             Oath
             ,
             ordained
             him
             to
             be
             put
             in
             the
             Irons
             ,
             and
             the
             next
             day
             to
             stand
             in
             the
             Pillary
             betwixt
             ten
             and
             twelve
             ,
             and
             a
             Paper
             on
             his
             Brow
             to
             declare
             the
             Cause
             ,
             and
             did
             declare
             him
             infamous
             ,
             and
             appointed
             him
             to
             continue
             in
             Prison
             till
             further
             Order
             .
          
        
         
           
             Mr.
             William
             Kintor
             contra
             the
             Heirs
             and
             Successors
             of
             Logan
             of
             Coat-field
             .
             Iuly
             9.
             1669.
             
          
           
             LOgan
             of
             Coat-field
             having
             become
             Cautioner
             for
             the
             Tutor
             of
             Burncastle
             ,
             an
             Inhibition
             used
             upon
             the
             act
             of
             Caution
             ,
             Mr.
             
               William
               Kintor
            
             having
             Right
             by
             Progress
             from
             Burncastle
             ,
             obtained
             Decreet
             against
             the
             Representatives
             of
             the
             Tutor
             ,
             and
             of
             Coat-field
             the
             Cautioner
             ,
             for
             payment
             of
             the
             Annualrent
             of
             10000
             ,
             pounds
             ,
             due
             to
             the
             Pupil
             by
             the
             Marquess
             of
             Hamiltoun
             ,
             and
             the
             like
             Sum
             due
             by
             the
             Earl
             of
             Bucclengh
             ,
             in
             respect
             that
             the
             Tutor
             was
             obliged
             to
             have
             uplifted
             these
             Annualrents
             ,
             and
             to
             have
             employed
             them
             for
             Annualrent
             ,
             and
             thereupon
             pursues
             a
             Reduction
             of
             the
             Rights
             granted
             by
             the
             Tutors
             Cautioner
             ,
             as
             being
             granted
             after
             the
             Cautioner
             was
             Inhibited
             ,
             these
             Acquirers
             raise
             a
             Reduction
             of
             Mr.
             Williams
             Decreet
             ,
             and
             repeat
             the
             Reasons
             by
             way
             of
             Defense
             ,
             alleadging
             that
             the
             Tutor
             nor
             his
             Cautioner
             were
             not
             obliged
             for
             the
             Annualrents
             due
             by
             the
             Marquess
             of
             Hamiltoun
             and
             Earl
             of
             Buccleugh
             ,
             because
             they
             were
             in
             responsal
             Hands
             ,
             and
             the
             Pupil
             had
             no
             Damnage
             ,
             for
             it
             was
             free
             for
             the
             Tutor
             to
             uplift
             the
             Annualrents
             of
             Pupils
             Money
             ,
             when
             secure
             ,
             at
             any
             time
             during
             the
             Pupillarity
             ,
             but
             here
             they
             offer
             to
             prove
             the
             Tutor
             Died
             
               durante
               tutela
            
             ,
             and
             so
             was
             not
             lyable
             when
             he
             Died
             ,
             to
             uplift
             these
             secure
             Annualrents
             ,
             or
             to
             have
             employed
             them
             .
             The
             Pursuer
             answered
             ▪
             that
             the
             Lords
             had
             already
             
             found
             at
             the
             same
             Pursuers
             Instance
             against
             
               Iohn
               Boyd
            
             ,
             that
             the
             Tutor
             was
             lyable
             for
             Annualrent
             ,
             not
             only
             
               pro
               intromissis
            
             ,
             but
             
               pro
               omissis
            
             ,
             and
             for
             the
             Annualrent
             of
             the
             Pupils
             Annuals
             
               a
               finita
               tutela
            
             ,
             which
             is
             finished
             ,
             either
             by
             ending
             the
             Pupillarity
             ,
             or
             the
             Death
             or
             Removal
             of
             the
             Tutor
             .
             It
             was
             answered
             ,
             that
             the
             Lords
             Interlocutor
             was
             only
             in
             the
             case
             that
             the
             Tutory
             had
             been
             finished
             in
             the
             ordinar
             way
             by
             the
             Age
             of
             the
             Pupil
             ,
             for
             that
             way
             of
             ending
             thereof
             ,
             could
             only
             been
             foreknowen
             by
             the
             Tutor
             ,
             that
             within
             the
             same
             he
             might
             lift
             the
             Pupils
             Annuals
             ,
             and
             give
             them
             out
             on
             Annualrent
             ,
             but
             he
             could
             not
             foresee
             his
             own
             Death
             ,
             but
             might
             justly
             think
             he
             had
             time
             before
             the
             expiring
             of
             his
             Tutory
             ,
             to
             lift
             and
             employ
             ,
             and
             so
             the
             Tutor
             not
             having
             failed
             in
             his
             Duty
             ,
             his
             Cautioner
             is
             free
             .
             It
             was
             answered
             ,
             First
             ,
             That
             by
             the
             Lords
             dayly
             Practique
             Tutors
             are
             lyable
             for
             the
             Annualrents
             of
             Rents
             ,
             of
             and
             within
             a
             year
             after
             the
             Rents
             are
             due
             ,
             and
             there
             being
             so
             much
             parity
             of
             Reason
             in
             Annualrents
             ,
             it
             cannot
             be
             thought
             just
             that
             the
             Tutor
             was
             not
             obliged
             to
             lift
             them
             till
             the
             end
             of
             his
             Tutory
             ,
             for
             albeit
             he
             might
             have
             keeped
             them
             in
             his
             Hands
             unemployed
             ,
             and
             only
             to
             leave
             them
             employed
             at
             the
             ish
             of
             his
             Tutory
             ,
             yet
             he
             was
             obliged
             to
             uplift
             them
             ,
             and
             if
             by
             any
             accident
             ,
             as
             being
             preveened
             by
             Death
             ,
             he
             did
             not
             employ
             them
             ,
             that
             accident
             should
             be
             on
             his
             peril
             ,
             not
             the
             innocent
             Pupils
             .
             2dly
             ,
             If
             need
             beis
             ,
             the
             Pursuer
             offers
             to
             prove
             the
             Annualrents
             were
             uplifted
             by
             the
             Tutor
             ,
             and
             so
             these
             that
             Represent
             him
             ,
             and
             his
             Cautioners
             ,
             are
             lyable
             for
             Annualrent
             therefore
             ,
             at
             least
             from
             the
             Death
             of
             the
             Tutor
             .
          
           
             The
             Lords
             found
             that
             the
             Tutor
             was
             neither
             obliged
             to
             lift
             ,
             nor
             give
             out
             on
             Annual
             the
             Annualrents
             of
             his
             Pupil
             ,
             if
             the
             Debitors
             were
             Responsal
             ,
             but
             only
             once
             betwixt
             and
             the
             end
             of
             the
             Pupillarity
             ;
             and
             if
             he
             Died
             betwixt
             and
             the
             end
             of
             the
             Tutory
             ,
             he
             was
             free
             both
             of
             the
             Annual
             and
             Annualrents
             thereof
             ,
             but
             if
             he
             did
             actually
             uplift
             the
             Annalrents
             ,
             they
             found
             that
             it
             was
             sufficient
             to
             employ
             them
             any
             time
             before
             the
             Tutory
             ended
             ,
             and
             found
             that
             his
             Heir
             was
             lyable
             for
             Annualrent
             ,
             not
             from
             the
             Tutors
             Death
             ,
             but
             from
             the
             end
             of
             the
             Pupillarity
             ,
             and
             that
             he
             could
             be
             no
             further
             lyable
             then
             the
             Tutor
             ,
             if
             he
             had
             lived
             ,
             in
             respect
             that
             subsequent
             Tutors
             were
             obliged
             to
             lift
             these
             Annualrents
             from
             the
             former
             Tutors
             Heirs
             ,
             and
             employ
             them
             .
          
           
             This
             was
             stoped
             to
             be
             further
             heard
             .
          
        
         
           
             Garner
             contra
             Colvin
             ,
             Iuly
             10.
             1669.
             
          
           
             
               JAmes
               Colvin
            
             having
             Apprized
             the
             Lands
             of
             Lady-kirk
             ,
             and
             some
             Tenements
             in
             Air
             ,
             and
             being
             Infeft
             therein
             ;
             Garners
             Wife
             and
             Bairns
             raise
             a
             Reduction
             ,
             and
             alleadge
             that
             the
             Apprizers
             Right
             is
             null
             ,
             as
             to
             the
             Tenements
             in
             Air
             ,
             because
             
               Iohn
               Garner
            
             had
             never
             Right
             thereto
             ,
             but
             the
             Right
             was
             Originally
             granted
             to
             young
             
               Iohn
               Garner
            
             the
             Pursuer
             ,
             by
             his
             Mother
             Brother
             .
             The
             Defender
             answered
             .
             that
             the
             said
             Right
             must
             be
             affected
             with
             his
             Apprizing
             ,
             as
             if
             it
             had
             been
             in
             the
             Fathers
             Person
             ,
             because
             young
             Garner
             was
             then
             an
             Infant
             in
             his
             Fathers
             Family
             ;
             and
             albeit
             the
             Right
             be
             granted
             by
             his
             Uncle
             ,
             yet
             it
             is
             necessarly
             inferred
             to
             be
             Acquired
             by
             the
             Fathers
             Means
             ,
             because
             it
             bears
             not
             for
             Love
             and
             Favour
             ,
             but
             for
             Sums
             of
             Money
             ,
             and
             the
             Uncle
             had
             Bairns
             of
             his
             own
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Right
             had
             been
             Acquired
             by
             the
             Fathers
             Means
             ,
             yet
             its
             anterior
             to
             the
             Apprizing
             ,
             and
             Sums
             on
             which
             it
             proceeds
             ,
             whereupon
             nothing
             
             can
             be
             taken
             away
             but
             what
             is
             posterior
             thereto
             ,
             albeit
             there
             were
             a
             Declarator
             and
             Reduction
             intented
             for
             that
             purpose
             ,
             as
             there
             is
             none
             .
          
           
             The
             Lords
             Sustained
             the
             alleadgeance
             ,
             and
             Reduced
             the
             Apprizing
             as
             to
             these
             Tenements
             .
          
           
             2dly
             ,
             The
             Pursuer
             alleadges
             the
             Apprizing
             (
             as
             to
             Lady-kirk
             )
             must
             be
             Reduced
             ,
             because
             the
             Pursuers
             produce
             a
             prior
             Infeftment
             granted
             by
             
               Iohn
               Garner
            
             to
             his
             Wife
             in
             Liferent
             ,
             and
             his
             Bairns
             in
             Fee.
             it
             was
             answered
             ,
             that
             the
             said
             Infeftment
             was
             base
             ,
             never
             cled
             with
             Possession
             .
             The
             Pursuers
             Replyed
             ,
             that
             the
             Fathers
             Liferent
             not
             being
             Reserved
             ,
             the
             continuation
             of
             Possession
             was
             as
             lawful
             Administrator
             to
             the
             Pursuers
             Bairns
             ,
             and
             if
             need
             be
             's
             its
             offered
             to
             be
             proven
             he
             had
             a
             Factory
             from
             them
             .
             The
             Defender
             answered
             ,
             that
             a
             Fathers
             Possession
             being
             continued
             ,
             was
             never
             found
             to
             validate
             a
             base
             Infeftment
             granted
             to
             his
             Children
             ,
             albeit
             his
             Liferent
             were
             expresly
             Reserved
             ,
             but
             it
             s
             ever
             accounted
             a
             latent
             fraudulent
             Deed
             ,
             and
             a
             Factory
             can
             be
             of
             no
             more
             force
             then
             a
             Reservation
             ,
             otherwise
             it
             were
             impossible
             to
             obviat
             fraudulent
             conveyances
             betwixt
             Fathers
             and
             Children
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             such
             Reservations
             are
             not
             valide
             in
             Rights
             freely
             granted
             by
             Fathers
             ,
             yet
             it
             meets
             not
             this
             case
             ,
             especially
             where
             there
             was
             an
             anterior
             Onerous
             Cause
             ,
             
               Iohn
               Garner
            
             being
             obliged
             by
             his
             Contract
             of
             Marriage
             ,
             that
             what
             Lands
             he
             should
             Acquire
             ,
             should
             be
             to
             his
             Wife
             in
             Liferent
             ,
             and
             to
             the
             Bairns
             of
             the
             Marriage
             .
          
           
             The
             Lords
             found
             that
             the
             Bairns
             Infeftment
             granted
             by
             their
             Father
             ,
             albeit
             he
             had
             Possest
             by
             a
             Factory
             from
             them
             ,
             was
             not
             cled
             with
             Possession
             ,
             or
             sufficient
             to
             exclude
             a
             posterior
             publick
             Infeftment
             ,
             and
             that
             the
             Clause
             in
             the
             Contract
             was
             but
             to
             substitute
             the
             Children
             Heirs
             to
             their
             Father
             in
             the
             Conquest
             .
          
           
             Here
             it
             was
             not
             alleadged
             that
             the
             Factory
             was
             made
             publick
             by
             Process
             founded
             at
             the
             Fathers
             Instance
             ,
             or
             otherwise
             in
             this
             Process
             .
             The
             Defender
             to
             satisfie
             the
             Production
             of
             an
             Assignation
             ,
             upon
             which
             the
             Apprizing
             proceeded
             ,
             which
             the
             Pursuers
             offered
             to
             improve
             as
             false
             in
             the
             Date
             ,
             and
             the
             Defender
             now
             produced
             another
             Assignation
             of
             the
             same
             Date
             ,
             and
             declared
             he
             abade
             by
             the
             same
             as
             of
             that
             Date
             ,
             and
             that
             it
             being
             a
             missing
             ,
             he
             had
             caused
             the
             Cedent
             to
             Subscribe
             another
             of
             the
             same
             Date
             with
             the
             first
             ,
             which
             did
             expresly
             bear
             Reservation
             of
             another
             Assignation
             formerly
             Subscribed
             ,
             which
             he
             did
             also
             bide
             be
             as
             truly
             Subscribed
             ,
             but
             not
             of
             the
             Date
             it
             bears
             ,
             but
             of
             the
             Date
             of
             the
             true
             Assignation
             insert
             therein
             .
          
           
             The
             Lords
             Sustained
             the
             Assignation
             now
             last
             produced
             ,
             and
             did
             not
             quarrel
             the
             other
             Assignation
             ,
             though
             another
             Date
             was
             insert
             ,
             then
             when
             it
             was
             Subscribed
             ,
             for
             the
             Cause
             foresaid
             .
          
        
         
           
             Alexander
             Glasse
             contra
             Iohn
             Haddin
             ;
             Eodem
             die
             .
          
           
             
               ALexander
               Glasse
            
             and
             
               William
               Reid
            
             having
             a
             proper
             Wodset
             of
             the
             Lands
             of
             Alairtnenie
             ,
             and
             
               Iohn
               Haddin
            
             being
             also
             Infeft
             in
             an
             Annualrent
             forth
             thereof
             some
             days
             prior
             ,
             compet
             for
             the
             Maills
             and
             Duties
             ;
             Haddin
             alleadged
             that
             both
             infeftments
             being
             base
             from
             the
             same
             Author
             ,
             his
             Infeftment
             of
             Annualrent
             is
             preferable
             ,
             because
             prior
             and
             first
             cled
             with
             Possession
             .
             It
             was
             answered
             ,
             any
             Possession
             he
             had
             was
             by
             a
             Factory
             from
             Glass
             .
             It
             was
             replyed
             ,
             that
             he
             offered
             to
             prove
             Possession
             before
             that
             Factory
             .
             It
             was
             duplyed
             that
             by
             Haddins
             back
             Bond
             produced
             ,
             bearing
             expresly
             that
             Glasse
             had
             had
             a
             valide
             Right
             to
             the
             Maills
             and
             Duties
             of
             the
             
             Lands
             ,
             and
             that
             he
             was
             in
             Possession
             thereof
             ,
             and
             that
             Haddin
             had
             accepted
             a
             Factory
             from
             him
             ,
             and
             was
             obliged
             to
             compt
             to
             him
             for
             the
             Maills
             and
             Duties
             without
             any
             Reservation
             of
             his
             own
             Right
             ,
             this
             was
             an
             unquestionable
             Homologation
             ,
             and
             acknowledgement
             of
             the
             Right
             ,
             and
             equivalent
             to
             a
             Ratification
             thereof
             .
          
           
             The
             Lords
             found
             by
             the
             back
             Bond
             produced
             of
             the
             Tenor
             foresaid
             ,
             that
             Haddin
             had
             so
             far
             acknowledged
             Reid
             and
             Glasses
             Right
             ,
             that
             he
             could
             not
             quarrel
             it
             upon
             his
             own
             Right
             ,
             but
             he
             proponing
             that
             there
             was
             a
             Reservation
             of
             his
             own
             Right
             related
             to
             in
             the
             back
             Bond
             ,
             the
             Lords
             found
             the
             same
             Relevant
             he
             proving
             Possession
             before
             the
             other
             Party
             ,
             and
             before
             the
             Factory
             .
          
        
         
           
             The
             Old
             Colledge
             of
             Aberdeen
             contra
             the
             Town
             of
             Aberdeen
             ,
             Iuly
             13.
             1669.
             
          
           
             THe
             Principal
             and
             the
             remanent
             Members
             of
             the
             old
             Colledge
             of
             Aberdeen
             ,
             having
             Set
             a
             Tack
             to
             Doctor
             Dun
             of
             his
             Teinds
             during
             the
             Principals
             Life
             ,
             and
             five
             years
             thereafter
             ,
             and
             bearing
             an
             Obligement
             to
             renew
             the
             like
             Tack
             from
             time
             to
             time
             for
             ever
             .
             The
             Doctor
             Mortified
             the
             same
             to
             the
             Town
             for
             plous
             uses
             ,
             after
             the
             Death
             of
             that
             Principal
             many
             years
             .
             The
             Colledge
             now
             pursues
             the
             Possessors
             of
             the
             Lands
             upon
             an
             Inhibition
             for
             the
             full
             value
             of
             the
             Teinds
             ;
             and
             the
             Town
             Defends
             upon
             the
             foresaid
             Tack
             .
             It
             was
             answered
             for
             the
             Colledge
             ,
             that
             the
             Tack
             is
             only
             for
             the
             Principals
             Life
             ,
             and
             five
             years
             after
             ,
             which
             is
             expired
             ;
             and
             as
             for
             the
             new
             Obligement
             to
             renew
             such
             Tacks
             for
             ever
             .
             It
             was
             answered
             First
             ,
             Albeita
             Tack
             were
             conceived
             in
             these
             Terms
             it
             would
             be
             null
             ,
             as
             wanting
             an
             ish
             .
             2dly
             ,
             Obligements
             of
             the
             present
             Incumbents
             in
             Universities
             are
             not
             obligator
             ,
             but
             where
             there
             is
             an
             equivalent
             Cause
             Onerous
             Received
             for
             the
             good
             of
             the
             University
             .
             It
             was
             replyed
             for
             the
             Town
             ,
             that
             an
             Obligement
             to
             grant
             a
             Tack
             by
             them
             who
             can
             grant
             it
             ,
             is
             equiparat
             to
             the
             Tack
             it self
             ,
             which
             requires
             no
             other
             solemnity
             ,
             as
             an
             obligement
             to
             grant
             an
             Assignation
             ,
             is
             equivalent
             to
             an
             Assignation
             ,
             and
             that
             there
             is
             here
             a
             Cause
             Onerous
             of
             the
             Universities
             Obligement
             ,
             because
             the
             Tack
             bears
             expresly
             300.
             
             Merks
             of
             grassum
             ,
             and
             that
             the
             former
             Tack-duty
             was
             only
             ten
             Merks
             ,
             which
             by
             this
             Tack
             is
             made
             50.
             
             Merks
             ,
             and
             albeit
             it
             want
             a
             desinit
             ish
             ,
             yet
             it
             must
             be
             valide
             for
             a
             Renovation
             during
             this
             Principals
             Life
             ,
             and
             five
             years
             after
             ,
             and
             it
             is
             Homologat
             by
             the
             Colledge
             ,
             who
             have
             received
             the
             same
             Duties
             several
             years
             since
             the
             first
             Tack
             expired
             .
             It
             was
             duplyed
             for
             the
             Colledge
             ,
             that
             this
             Tack
             is
             not
             valide
             for
             any
             time
             after
             the
             first
             ish
             ,
             because
             by
             the
             Act
             of
             Parliament
             1617.
             
             Tacks
             by
             beneficed
             Persons
             under
             Prelats
             ,
             are
             prohibit
             for
             longer
             time
             nor
             their
             own
             Life
             ,
             and
             five
             years
             after
             ,
             and
             these
             Teinds
             are
             a
             part
             of
             the
             benefice
             Mortified
             to
             the
             Colledge
             ,
             and
             they
             must
             be
             accounted
             as
             beneficed
             Persons
             ,
             and
             albeit
             the
             Teinds
             were
             augmented
             to
             50.
             
             Merks
             ,
             yet
             they
             are
             worth
             200.
             
             Merks
             ;
             and
             for
             the
             Receipt
             of
             the
             Duties
             after
             the
             first
             Tack
             ,
             it
             is
             
               per
               tacitamrelocati●nem
            
             ,
             and
             no
             Homologation
             of
             the
             Obligement
             to
             renew
             the
             Tack
             .
          
           
             The
             Lords
             found
             that
             the
             Colledge
             was
             not
             comprehended
             under
             beneficed
             Persons
             ,
             but
             found
             that
             there
             was
             no
             sufficient
             .
             Cause
             Onerous
             alleadged
             for
             this
             Obligement
             of
             Renewing
             a
             perpetual
             Tack
             ,
             and
             would
             not
             Sustain
             the
             samine
             in
             part
             ,
             and
             found
             it
             totally
             null
             ,
             and
             that
             the
             Receiving
             of
             the
             former
             Duties
             was
             no
             Homologation
             thereof
             .
          
        
         
           
           
             Captain
             Wood
             contra
             Boyneilson
             ,
             Eodem
             die
             .
          
           
             CAptain
             Wood
             having
             taken
             a
             Ship
             of
             Norway
             ,
             whereof
             Boyneilson
             was
             Master
             ,
             called
             the
             Raphael
             Prize
             ,
             she
             was
             Adjudged
             by
             the
             Admiral
             ,
             and
             there
             is
             now
             Reduction
             intented
             of
             the
             Decreet
             of
             Adjudication
             ,
             in
             fortification
             whereof
             the
             Privateer
             Insists
             upon
             two
             grounds
             .
             First
             ,
             That
             this
             Ship
             belongs
             to
             the
             Kings
             Enemies
             ,
             with
             a
             considerable
             part
             of
             the
             Loadning
             ,
             viz.
             1500.
             
             Dails
             as
             is
             acknowledged
             by
             the
             Skippers
             Deposition
             .
             2dly
             ,
             Whereas
             she
             pretends
             to
             have
             been
             bound
             for
             London
             upon
             the
             Kings
             Proclamation
             ,
             giving
             liberty
             to
             all
             his
             Subjects
             to
             import
             Timber
             from
             Sweden
             and
             Denmark
             ,
             by
             the
             Ships
             and
             Mariners
             in
             these
             Countreys
             ,
             though
             then
             in
             Enimity
             ,
             yet
             the
             said
             Proclamation
             requires
             that
             all
             such
             Ships
             shall
             find
             Caution
             at
             the
             Custom-house
             to
             return
             straight
             to
             England
             ,
             without
             going
             aside
             into
             an
             Enemies
             Countrey
             ,
             and
             requires
             the
             Lord
             Admirals
             Pass
             ;
             but
             this
             Ship
             at
             the
             time
             of
             the
             Adjudication
             did
             not
             pretend
             to
             the
             Duke
             of
             York's
             Pass
             ,
             but
             only
             to
             the
             Duke
             of
             Richmond's
             Pass
             as
             Admiral
             of
             Scotland
             ,
             whereas
             the
             Proclamation
             warrands
             only
             the
             Duke
             of
             York
             to
             give
             such
             Passes
             ,
             neither
             doth
             he
             produce
             now
             any
             Pass
             from
             the
             Duke
             ,
             or
             any
             extract
             of
             a
             Pass
             from
             him
             .
             It
             was
             answered
             for
             the
             Strangers
             ,
             and
             for
             
               Iohn
               Dyson
            
             Citizen
             of
             London
             ,
             that
             they
             having
             Contracted
             conform
             to
             the
             Kings
             Proclamation
             for
             importing
             Timber
             ,
             and
             having
             found
             Caution
             and
             obtained
             a
             Pass
             conform
             to
             the
             Proclamation
             the
             Ship
             and
             Loadning
             cannot
             be
             made
             Prize
             ,
             upon
             the
             Skippers
             Oath
             ,
             that
             they
             had
             Aboard
             1500.
             
             Dails
             belonging
             to
             him
             and
             the
             Company
             .
             First
             ,
             Because
             the
             Skipper
             is
             
               testis
               singularis
               .
               2dly
            
             ,
             By
             the
             constant
             Custom
             Sailers
             have
             Portage
             Dails
             allowed
             .
             3dly
             ,
             The
             number
             of
             the
             Dails
             is
             insert
             but
             with
             Figures
             ,
             and
             might
             easily
             have
             been
             altered
             after
             the
             Testimony
             ,
             from
             500.
             by
             adding
             one
             ,
             and
             from
             150.
             by
             adding
             a
             Cipher
             ,
             neither
             of
             which
             would
             have
             been
             sufficient
             to
             infer
             Confiscation
             .
             
               4thly
               ,
               Iohn
               Dyson
            
             Citizen
             of
             London
             ,
             having
             
               bona
               fide
            
             Contracted
             with
             the
             Stranger
             for
             importing
             6000.
             
             Dails
             ,
             albeit
             the
             Skipper
             had
             foisted
             in
             some
             more
             ,
             it
             cannot
             infer
             a
             Confiscation
             of
             a
             Loadning
             belonging
             to
             him
             the
             Kings
             Subject
             ,
             Contracting
             
               bona
               fide
            
             ,
             whatever
             it
             may
             infer
             as
             to
             the
             Strangers
             Ship
             and
             his
             own
             Dails
             .
             As
             to
             the
             second
             point
             anent
             the
             wanting
             the
             Duke
             of
             Yorks
             Pass
             ,
             there
             is
             produced
             a
             Testificat
             of
             the
             Dukes
             Secretaries
             ,
             and
             the
             Ship
             having
             been
             Bought
             from
             the
             Privateer
             by
             Captain
             Lye
             ,
             who
             carried
             her
             to
             London
             ,
             the
             Duke
             gives
             her
             a
             Pass
             to
             return
             from
             London
             to
             Norway
             ,
             bearing
             that
             he
             had
             given
             her
             a
             former
             Pass
             to
             come
             into
             England
             ;
             there
             is
             also
             produced
             His
             Majesties
             Letter
             ,
             that
             he
             is
             sufficiently
             informed
             that
             this
             Ship
             is
             Authorized
             by
             a
             sufficient
             Pass
             ,
             and
             therefore
             ordering
             her
             to
             be
             Restored
             with
             Testificats
             from
             the
             Customers
             ,
             that
             Caution
             was
             found
             there
             ,
             and
             the
             Testimony
             of
             the
             Skipper
             and
             a
             Sea-man
             taken
             at
             London
             ,
             bearing
             that
             Captain
             Lye
             having
             Bought
             the
             Ship
             from
             a
             Privateer
             ,
             desired
             the
             Skipper
             (
             then
             in
             Prison
             )
             to
             show
             him
             the
             Duke
             of
             Yorks
             Pass
             ,
             which
             when
             he
             shew'd
             him
             ,
             he
             pulled
             it
             out
             of
             his
             Hand
             to
             secure
             the
             Ship
             ;
             against
             all
             which
             it
             was
             objected
             ,
             that
             all
             these
             were
             impetrat
             after
             the
             Ship
             was
             declared
             Prize
             ,
             and
             that
             it
             is
             the
             more
             suspitious
             ,
             that
             at
             the
             time
             of
             the
             Adjudication
             there
             was
             not
             so
             much
             as
             mention
             made
             of
             the
             Duke
             of
             York's
             Pass
             ,
             though
             the
             Duk
             of
             Richmonds
             Pass
             was
             rejected
             ,
             as
             not
             sufficient
             without
             the
             Duke
             of
             Yorks
             ,
             and
             that
             as
             yet
             there
             is
             no
             Extract
             ,
             of
             the
             Pass
             out
             of
             any
             Record
             ;
             and
             as
             for
             his
             Majesties
             Letter
             it
             hath
             been
             impetrat
             
               suppressa
               veritate
            
             ,
             and
             cannot
             take
             away
             a
             Parties
             privat
             Right
             ,
             but
             
             is
             
               salvo
               jure
            
             ,
             as
             are
             all
             Acts
             of
             Parliament
             done
             by
             His
             Majesty
             ,
             and
             three
             Estates
             
               incitata
               parte
            
             ,
             much
             more
             such
             a
             Letter
             ,
             as
             the
             Lords
             found
             in
             the
             case
             of
             the
             Castle
             of
             Riga
             ,
             and
             though
             there
             had
             been
             a
             Pass
             from
             the
             Duke
             of
             York
             ,
             it
             is
             likely
             not
             to
             have
             been
             of
             this
             Date
             but
             for
             a
             former
             Voyage
             .
          
           
             The
             Lords
             found
             the
             alleadgeance
             for
             the
             Privateer
             ,
             that
             there
             was
             1500.
             
             Dails
             Aboard
             belonging
             to
             the
             Kings
             Enemies
             Relevant
             to
             Confiscat
             the
             Ship
             and
             Dails
             ,
             but
             not
             to
             Confiscat
             
               Iohn
               Dysons
            
             Dails
             ,
             His
             Majesties
             Subject
             ,
             who
             acted
             
               bona
               fide
            
             if
             he
             can
             make
             out
             a
             Pass
             ,
             and
             before
             answer
             to
             that
             point
             ,
             grants
             Commission
             to
             Sir
             
               Robert
               Murray
            
             to
             try
             if
             there
             were
             a
             Record
             keeped
             of
             the
             Dukes
             Passes
             ,
             and
             if
             therein
             there
             was
             a
             Pass
             for
             this
             Voyage
             ,
             and
             to
             send
             down
             the
             duplicat
             thereof
             compared
             with
             the
             Principal
             ,
             and
             Signed
             by
             Sir
             Robert
             ,
             and
             to
             try
             at
             the
             Records
             of
             the
             Custom-house
             ,
             if
             Caution
             was
             found
             there
             ,
             and
             if
             there
             was
             no
             Records
             of
             Passes
             ,
             to
             take
             the
             Oath
             of
             Captain
             Lye
             concerning
             the
             Pass
             alleadged
             taken
             by
             him
             ,
             and
             ordained
             the
             Members
             of
             the
             Court
             of
             Admirality
             to
             be
             Examined
             upon
             Oath
             ,
             whether
             the
             Testimonies
             in
             Figures
             for
             1500
             Dails
             was
             given
             in
             Figures
             as
             it
             bears
             ,
             and
             found
             the
             Skippers
             Testimony
             alone
             to
             prove
             not
             only
             against
             himself
             ,
             but
             the
             Owners
             ,
             because
             he
             was
             entrusted
             by
             them
             in
             this
             Affair
             .
          
        
         
           
             Duke
             Hamiltoun
             contra
             the
             Feuars
             of
             the
             Kings
             Property
             ,
             Iuly
             14.
             1669.
             
          
           
             THe
             Duke
             of
             Hamiltoun
             as
             Collector-general
             of
             the
             Taxations
             ,
             having
             Charged
             the
             Feuars
             of
             the
             Kings
             Property
             for
             payment
             of
             this
             current
             Taxation
             ,
             several
             of
             them
             Suspended
             upon
             this
             Reason
             ,
             that
             by
             the
             Act
             of
             Convention
             there
             is
             abatement
             given
             of
             a
             third
             part
             to
             such
             Shires
             as
             in
             the
             West
             and
             South
             ,
             in
             regard
             their
             Retours
             are
             higher
             then
             the
             rest
             of
             the
             Countrey
             ,
             and
             yet
             these
             of
             the
             Kings
             Property
             are
             Charged
             for
             the
             whole
             .
             It
             was
             answered
             ,
             that
             that
             abatement
             cannot
             extend
             to
             the
             Feuars
             of
             the
             Property
             ,
             because
             in
             all
             former
             Taxations
             they
             were
             distinct
             both
             from
             the
             Temporality
             and
             Spirituality
             ,
             and
             therefore
             though
             by
             the
             Act
             of
             Convention
             ,
             the
             Temporality
             of
             these
             Shires
             be
             eased
             ,
             it
             will
             not
             extend
             to
             the
             Property
             ,
             especially
             seing
             the
             Reason
             of
             the
             Act
             cannot
             extend
             to
             them
             ,
             for
             the
             Feuars
             of
             the
             Property
             did
             bear
             no
             Taxation
             till
             the
             year
             1592.
             and
             then
             there
             was
             a
             Commission
             granted
             for
             Retouring
             them
             ,
             and
             that
             Complaint
             of
             the
             high
             Retours
             of
             the
             Shires
             being
             then
             known
             ,
             these
             of
             the
             Property
             would
             doubtless
             endeavour
             to
             have
             easie
             Retours
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Convention
             expresly
             Regulating
             the
             Taxation
             ,
             both
             as
             to
             the
             Spirituality
             and
             Temporality
             ,
             it
             cannot
             be
             thought
             but
             that
             these
             Members
             did
             comprehend
             the
             whole
             ,
             and
             seing
             the
             Property
             cannot
             be
             of
             the
             Spirituality
             ,
             it
             must
             be
             of
             the
             Temporality
             ,
             which
             hath
             the
             abatement
             as
             to
             these
             Shires
             without
             exception
             ,
             and
             albeit
             the
             Property
             was
             lately
             Retoured
             ,
             yet
             there
             being
             no
             Rule
             to
             estimate
             a
             Merk-land
             ,
             or
             Pound-lands
             Retour
             by
             ,
             or
             how
             many
             Pounds
             of
             real
             Rent
             makes
             a
             Pound
             of
             Retour
             ,
             there
             could
             be
             no
             other
             Rule
             ,
             but
             to
             make
             the
             Retour
             of
             the
             Property
             proportional
             to
             the
             remainant
             Lands
             lying
             in
             that
             Shire
             ,
             so
             that
             where
             the
             other
             Lands
             are
             generally
             highly
             Retoured
             ,
             it
             is
             evidently
             presumed
             that
             the
             Property
             was
             so
             Retoured
             ,
             and
             seing
             the
             Property
             did
             of
             old
             pay
             no
             Taxation
             ,
             it
             were
             strange
             now
             to
             make
             it
             bear
             more
             then
             the
             other
             Temporal
             Lands
             about
             it
             .
          
           
           
             The
             Lords
             found
             that
             the
             Property
             of
             the
             Shires
             had
             the
             same
             abatement
             with
             the
             rest
             of
             the
             temporality
             in
             these
             Shires
             .
          
        
         
           
             Earl
             of
             Marishal
             contra
             Leith
             of
             Whitehaugh
             ,
             Eodem
             die
             .
          
           
             
               IEan
               Keith
            
             having
             a
             Right
             to
             a
             Wodset
             of
             the
             Mains
             and
             Miln
             of
             Troup
             ,
             and
             being
             Married
             to
             
               Iohn
               Forbes
            
             ,
             she
             Disponed
             the
             Heretable
             Right
             to
             his
             Brother
             ,
             which
             Right
             is
             now
             by
             progress
             in
             the
             Person
             of
             Leith
             of
             
               Whitehaugh
               ,
               Isobebs
            
             Brother
             raised
             a
             Reduction
             in
             Anno
             1628.
             of
             the
             Right
             granted
             by
             her
             to
             her
             Husbands
             Brother
             ,
             and
             now
             his
             Right
             and
             an
             Assignation
             to
             the
             said
             Process
             coming
             to
             the
             Earl
             of
             Marishal
             ,
             and
             by
             him
             to
             Lesmore
             ,
             they
             insist
             in
             their
             Reduction
             upon
             the
             Reason
             of
             Minority
             and
             Lesion
             .
             It
             was
             alleadged
             for
             the
             Defender
             ;
             First
             ,
             No
             Process
             ,
             because
             prescription
             is
             past
             since
             the
             Right
             was
             granted
             by
             
               Isobel
               Keith
            
             ,
             which
             cannot
             be
             interrupted
             by
             the
             Reduction
             in
             Anno
             1628.
             because
             it
             is
             evident
             by
             inspection
             of
             the
             Reduction
             that
             it
             is
             but
             filled
             up
             of
             late
             and
             that
             the
             Executions
             there
             of
             are
             new
             ,
             so
             that
             it
             signifies
             no
             more
             nor
             blank
             Paper
             ,
             or
             a
             blank
             Summonds
             till
             the
             Reasons
             be
             filled
             up
             and
             insisted
             in
             before
             which
             prescription
             was
             compleat
             .
             2dly
             .
             Absolvitor
             ,
             because
             the
             Right
             granted
             by
             
               Isobel
               Keith
            
             to
             her
             Husbands
             Brother
             ,
             was
             to
             the
             Husbands
             behove
             :
             Likeas
             there
             was
             a
             blank
             Bond
             granted
             by
             the
             Brother
             to
             the
             Husband
             so
             declaring
             ,
             and
             there
             being
             no
             other
             Contract
             of
             Marriage
             ,
             this
             Disposition
             must
             be
             understood
             as
             granted
             to
             the
             Husband
             in
             contemplation
             of
             the
             Marriage
             ,
             and
             being
             but
             the
             Right
             of
             10000.
             
             Merks
             ,
             which
             was
             but
             a
             competent
             Tocher
             ,
             it
             was
             no
             Lesion
             to
             Dispone
             the
             same
             to
             the
             Husband
             ,
             or
             any
             to
             his
             behove
             ,
             and
             offered
             to
             prove
             by
             the
             Brothers
             Oath
             that
             there
             was
             such
             a
             back
             Bond
             ,
             and
             that
             yet
             there
             is
             a
             back
             Bond
             by
             him
             to
             whom
             the
             Brother
             Disponed
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             interruption
             is
             sufficient
             by
             any
             Act
             whereby
             the
             Party
             having
             Right
             ,
             may
             follow
             the
             same
             ,
             so
             that
             Summonds
             (
             albeit
             not
             legally
             Execute
             )
             would
             yet
             make
             an
             interruption
             ,
             though
             no
             Sentence
             could
             follow
             thereupon
             ,
             and
             a
             Summonds
             being
             blank
             ,
             must
             be
             presumed
             as
             comprehending
             all
             the
             Grounds
             and
             Reasons
             that
             might
             have
             been
             filled
             up
             therein
             ,
             but
             here
             the
             Lybelling
             of
             the
             Interest
             ,
             which
             is
             not
             with
             new
             Ink
             ,
             bears
             expresly
             that
             the
             Pursuer
             as
             Heir
             to
             his
             Sister
             has
             good
             interest
             to
             Revock
             and
             Reduce
             Deeds
             done
             by
             her
             to
             her
             prejudice
             ,
             which
             doth
             imply
             the
             Reason
             of
             Minority
             and
             Lesion
             .
             To
             the
             second
             ,
             albeit
             the
             Disposition
             by
             the
             Wife
             had
             been
             to
             the
             Husband
             ,
             yet
             it
             is
             simply
             Reduceable
             upon
             Minority
             ,
             there
             being
             no
             remuneratory
             Obligation
             upon
             the
             part
             of
             the
             Husband
             providing
             her
             to
             a
             Jointure
             ,
             in
             which
             case
             if
             the
             Provision
             had
             been
             suitable
             ,
             there
             would
             have
             been
             no
             Lesion
             ,
             and
             if
             not
             suitable
             ,
             the
             Lords
             might
             Reduce
             it
             in
             part
             ,
             or
             Rectifie
             it
             if
             done
             in
             the
             Wifes
             Life
             ,
             but
             here
             she
             having
             nothing
             from
             the
             Husband
             ,
             and
             being
             Dead
             she
             cannot
             now
             receive
             a
             Jointure
             ,
             and
             so
             the
             Right
             is
             Reduceable
             in
             totum
             ,
             especially
             seing
             the
             said
             
               Iohn
               Forbes
            
             did
             violently
             carry
             away
             the
             said
             
               Isobel
               Keith
            
             ,
             and
             Married
             her
             without
             her
             Friends
             Consents
             ,
             and
             must
             be
             presumed
             by
             the
             same
             means
             to
             have
             purchased
             the
             same
             Disposition
             from
             her
             without
             any
             remuneratory
             Provision
             to
             her
             .
             2dly
             ,
             There
             is
             not
             ,
             nor
             cannot
             be
             known
             any
             such
             back
             Bond
             ,
             and
             it
             were
             absurd
             that
             the
             Husbands
             Brothers
             Oath
             alone
             should
             prove
             the
             same
             in
             favours
             of
             his
             Brother
             .
             The
             Defender
             answered
             ,
             that
             albeit
             there
             was
             no
             Jointure
             provided
             ,
             yet
             the
             Law
             provides
             a
             Terce
             ,
             which
             ofttimes
             is
             better
             nor
             the
             Jointure
             .
             The
             Pursuer
             likewise
             answered
             ,
             that
             the
             Law
             did
             provide
             the
             
             
               jus
               mariti
            
             ,
             and
             the
             courtesie
             ,
             so
             that
             either
             Party
             ought
             either
             to
             acquiesce
             in
             the
             provision
             of
             Law
             ,
             or
             the
             Provision
             of
             Parties
             must
             be
             mutual
             .
          
           
             The
             Lords
             Repelled
             the
             first
             Defense
             ,
             especially
             in
             respect
             of
             the
             manner
             of
             Libelling
             the
             Title
             ,
             and
             found
             not
             the
             Executions
             of
             the
             first
             Summonds
             to
             appear
             new
             ,
             and
             therefore
             Sustained
             them
             ,
             unless
             the
             Defender
             would
             improve
             the
             same
             ;
             they
             found
             also
             that
             alleadgeance
             ,
             that
             the
             Disposition
             was
             to
             the
             Husbands
             behove
             ,
             was
             not
             to
             be
             Sustained
             ,
             especially
             seing
             no
             back
             Bonds
             were
             produced
             ,
             or
             offered
             to
             be
             proven
             ,
             and
             that
             the
             manner
             of
             Probation
             offered
             was
             no
             way
             sufficient
             ,
             that
             there
             was
             no
             Provision
             for
             the
             Wife
             .
          
        
         
           
             Duke
             Hamiltoun
             contra
             the
             Laird
             of
             Blackwood
             ,
             Eodem
             die
             .
          
           
             THe
             Duke
             of
             Hamiltoun
             pursues
             the
             Laird
             of
             Blackwood
             ,
             that
             it
             may
             be
             declared
             that
             he
             is
             his
             Vassal
             in
             his
             Lands
             of
             Blackwood
             ,
             on
             this
             ground
             ,
             that
             the
             late
             Marquess
             of
             Hamiltoun
             having
             Disponed
             to
             the
             King
             the
             Abbacie
             of
             Arbroth
             ,
             did
             in
             consideration
             thereof
             ,
             in
             Anno
             1636.
             get
             a
             Charter
             from
             the
             King
             of
             the
             Barony
             of
             Leshmahago
             ;
             a
             part
             of
             the
             Abbacie
             of
             Kelso
             ,
             of
             which
             the
             Lands
             of
             Blackwood
             were
             holden
             Waird
             ;
             which
             Lands
             having
             been
             Apprized
             ,
             and
             the
             Apprizers
             Infeft
             holden
             of
             the
             King
             ,
             the
             Laird
             of
             Blackwood
             having
             thereafter
             Disponed
             them
             to
             Major
             Ballantine
             ,
             by
             his
             Contract
             of
             Marriage
             with
             Blackwoods
             Daughter
             ,
             and
             the
             Major
             having
             purchased
             a
             Right
             from
             the
             Apprizers
             ,
             both
             upon
             Blackwoods
             procuratory
             of
             Resignation
             ,
             and
             the
             Apprizers
             ,
             he
             Resigned
             the
             Lands
             in
             the
             Marquess
             Hand
             ,
             and
             did
             take
             his
             Infeftment
             holding
             Waird
             of
             him
             ;
             likeas
             this
             Blackwood
             who
             is
             Heir
             of
             Provision
             to
             the
             Major
             as
             procreat
             by
             
               Marion
               Weir
               Blackwoods
            
             Daughter
             with
             
               William
               Lowry
            
             ,
             hath
             no
             other
             Right
             but
             as
             Heir
             of
             Provision
             to
             the
             Major
             ,
             and
             yet
             he
             hath
             taken
             Infeftment
             holding
             of
             the
             King
             ;
             likeas
             the
             said
             
               William
               Lowry
            
             his
             Father
             as
             lawful
             Administrator
             ,
             and
             taking
             burden
             for
             him
             ,
             has
             obliged
             himself
             by
             his
             Bond
             ,
             that
             so
             soon
             as
             the
             Marquess
             should
             obtain
             a
             Right
             to
             the
             Superiority
             ,
             he
             should
             take
             his
             Infeftment
             from
             him
             Waird
             ,
             and
             by
             the
             Act
             of
             Parliament
             1661.
             
             Ratifying
             the
             Act
             of
             Annexation
             1633.
             
             It
             is
             expresly
             provided
             ,
             that
             any
             Right
             to
             the
             Superiority
             of
             Kirk
             Lands
             granted
             by
             the
             King
             ,
             yet
             notwithstanding
             the
             annexation
             shall
             be
             valide
             ,
             as
             to
             such
             Vassals
             who
             have
             ,
             or
             shall
             consent
             to
             the
             Rights
             of
             the
             Persons
             obtainers
             of
             the
             saids
             Superiorities
             ,
             so
             that
             Major
             Ballantine
             having
             consented
             ,
             by
             taking
             Infeftment
             in
             manner
             foresaid
             ,
             he
             and
             his
             Successors
             must
             continue
             the
             Dukes
             Vassals
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             any
             Right
             the
             Duke
             has
             ,
             or
             the
             Marquesse
             had
             to
             the
             Superiority
             is
             absolutely
             null
             by
             the
             saids
             Acts
             of
             Parliaments
             ,
             annexing
             the
             Superiority
             of
             Kirk
             Lands
             to
             the
             Crown
             ,
             so
             that
             unless
             there
             had
             been
             a
             Dissolution
             in
             Parliament
             ,
             no
             Right
             of
             these
             Superiorities
             is
             valide
             ,
             but
             null
             ,
             and
             the
             exception
             of
             the
             said
             Act
             1661.
             is
             only
             in
             the
             case
             of
             the
             Vassals
             consenting
             to
             a
             Right
             of
             Superiority
             ,
             
               Ita
               est
            
             there
             can
             be
             no
             Right
             but
             
               legitimo
               modo
            
             by
             Dissolution
             .
             The
             Pursuer
             answered
             ;
             First
             ,
             That
             albeit
             the
             King
             ,
             or
             his
             Officers
             might
             quarrel
             his
             Right
             as
             not
             proceeding
             upon
             Dissolution
             ,
             or
             any
             other
             having
             their
             Right
             upon
             Dissolution
             ,
             yet
             the
             Defender
             cannot
             ,
             especially
             seing
             he
             hath
             Homologat
             the
             Pursuers
             Right
             ,
             his
             Predecessors
             to
             whom
             he
             is
             Heir
             ,
             having
             taken
             Infeftment
             thereupon
             ;
             likeas
             the
             Pursuer
             has
             satisfyed
             the
             Kings
             Interest
             ,
             by
             giving
             Bond
             to
             the
             Kings
             Advocat
             to
             hold
             the
             Lands
             Waird
             of
             the
             King
             in
             the
             same
             way
             as
             the
             Defender
             would
             ,
             therefore
             the
             Advocat
             hath
             declared
             he
             will
             not
             concern
             himself
             .
             2dly
             ,
             the
             Pursuer
             having
             
             obtained
             a
             new
             Right
             of
             the
             King
             since
             the
             Act
             of
             Parliament
             1661.
             the
             same
             must
             be
             valide
             to
             him
             as
             to
             these
             Vassals
             who
             have
             ,
             or
             shall
             consent
             ,
             because
             the
             exception
             of
             the
             Act
             expresly
             bears
             ,
             that
             such
             a
             consent
             is
             equivalent
             ,
             as
             if
             the
             Vassal
             had
             Resigned
             in
             the
             Kings
             Hands
             in
             favour
             ,
             and
             for
             new
             Infeftment
             to
             the
             interposed
             Superior
             ,
             and
             had
             then
             taken
             a
             subaltern
             Right
             of
             him
             ,
             against
             which
             there
             can
             be
             no
             pretence
             ,
             so
             that
             (
             by
             a
             Right
             in
             the
             exception
             )
             it
             cannot
             be
             meaned
             a
             perfect
             Right
             proceeding
             upon
             Dissolution
             ,
             because
             that
             would
             be
             valide
             without
             the
             Vassals
             consent
             ,
             but
             that
             the
             Vassals
             consent
             being
             equivalent
             to
             a
             Resignation
             ,
             makes
             the
             Right
             valide
             without
             Dissolution
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             the
             Duke
             proving
             a
             sufficient
             consent
             ,
             but
             it
             was
             not
             Decided
             whether
             Major
             Ballantines
             taking
             Infeftment
             would
             import
             a
             sufficient
             consent
             conform
             to
             the
             exception
             of
             the
             Act
             ,
             so
             that
             he
             might
             not
             thereafter
             return
             to
             the
             King.
             
          
        
         
           
             Iack
             contra
             Iack
             ,
             Iuly
             15.
             1669.
             
          
           
             
               PAtrick
               Iack
            
             having
             only
             three
             Daughters
             ,
             Margaret
             his
             eldest
             Daughter
             Married
             
               Iohn
               Dowglas
            
             ,
             and
             there
             is
             a
             Contract
             betwixt
             
               Iohn
               Dowglas
            
             and
             the
             Tutors
             of
             the
             other
             two
             Daughters
             ,
             dividing
             there
             Fathers
             Inheritance
             in
             three
             parts
             ,
             and
             mutally
             Disponing
             the
             same
             with
             Procuratory
             and
             Precept
             ,
             and
             there
             being
             a
             Salmond
             Fishing
             holding
             Waird
             of
             the
             King
             ,
             which
             fell
             to
             Margarets
             share
             ,
             
               Iohn
               Dowglas
            
             takes
             Infeftment
             upon
             the
             Tutors
             Precept
             ,
             Disponing
             for
             the
             other
             two
             that
             Fishing
             after
             his
             Death
             ,
             the
             said
             Margaret
             takes
             a
             Gift
             of
             Recognition
             of
             the
             said
             Salmond
             Fishing
             ,
             as
             falling
             by
             the
             Infeftment
             taken
             by
             
               Iohn
               Dowglas
            
             without
             consent
             of
             the
             Superior
             ,
             and
             thereupon
             pursues
             Declarator
             ,
             
               Katharin
               Iack
            
             and
             Robertson
             her
             Spouse
             ,
             and
             the
             other
             Sister
             ,
             pursue
             a
             Reduction
             of
             the
             Contract
             of
             Division
             ,
             as
             done
             by
             their
             Tutors
             in
             their
             Minority
             to
             their
             Lesion
             ,
             and
             in
             answer
             to
             the
             Recognition
             alleadged
             .
             First
             ,
             That
             this
             Recognition
             occurred
             in
             the
             time
             of
             the
             English
             when
             Recognitions
             were
             excluded
             ,
             and
             such
             Infeftments
             by
             the
             Law
             then
             in
             use
             were
             allowed
             .
             2dly
             ,
             The
             Infeftment
             here
             granted
             proceeded
             only
             upon
             the
             Disposition
             of
             their
             Tutors
             ,
             whose
             acts
             except
             in
             what
             is
             proper
             to
             the
             Administration
             of
             their
             Office
             is
             void
             .
             It
             was
             answered
             as
             to
             the
             first
             ,
             that
             they
             opponed
             the
             Decision
             in
             the
             case
             of
             Sir
             
               George
               Kinaired
            
             against
             the
             Vassals
             of
             the
             Master
             of
             Gray
             ,
             by
             which
             it
             was
             found
             that
             Infeftments
             taken
             of
             Waird-lands
             without
             the
             Superiors
             consent
             ,
             even
             during
             the
             Usurpation
             ,
             inferred
             Recognition
             ,
             and
             to
             the
             second
             ,
             that
             the
             Division
             among
             the
             Daughters
             was
             an
             act
             of
             Administration
             ,
             that
             the
             Daughters
             might
             have
             been
             compelled
             to
             do
             .
             It
             was
             answered
             ,
             that
             there
             is
             no
             such
             Decision
             produced
             ,
             and
             that
             in
             the
             case
             of
             the
             Vassals
             of
             Gray
             ,
             they
             did
             continue
             in
             Possession
             several
             years
             after
             the
             Kings
             Restitution
             ,
             and
             did
             not
             take
             Confirmations
             ;
             but
             here
             the
             said
             Margaret
             one
             of
             the
             Sisters
             who
             should
             have
             taken
             Confirmation
             before
             she
             had
             continued
             Possession
             ,
             cannot
             have
             benefit
             by
             her
             own
             fault
             ,
             and
             make
             use
             of
             a
             Gift
             of
             Recognition
             in
             her
             own
             Person
             ,
             proceeding
             upon
             her
             own
             and
             her
             Husbands
             fault
             ,
             neither
             can
             the
             Division
             be
             a
             lawful
             act
             of
             Administration
             of
             the
             Tutors
             ,
             in
             so
             far
             as
             they
             granted
             them
             Precepts
             of
             Seising
             to
             be
             holden
             of
             their
             Pupil
             ,
             which
             no
             Law
             could
             have
             compelled
             them
             to
             do
             ,
             but
             only
             Procuratories
             of
             Resignation
             ,
             likeas
             it
             was
             
               Iohn
               Dowglas
            
             fault
             not
             to
             make
             use
             of
             the
             Procuratory
             ,
             but
             of
             the
             Prccept
             .
          
           
           
             The
             Lords
             found
             no
             Recognition
             incurred
             ,
             but
             because
             the
             Parties
             might
             have
             been
             troubled
             if
             any
             other
             had
             taken
             the
             Gift
             ,
             they
             ordained
             the
             other
             two
             Sisters
             to
             pay
             their
             part
             of
             the
             expences
             of
             the
             Gift
             .
          
        
         
           
             Mr.
             Archibald
             Dennistoun
             contra
             Semple
             of
             Fulwood
             ,
             Iuly
             16
             1669.
             
          
           
             THe
             Lairds
             of
             Fulwood
             elder
             and
             younger
             ,
             and
             Dennistoun
             being
             appointed
             Overseers
             by
             Culgrain
             to
             his
             Daughters
             ,
             the
             eldest
             Daughter
             being
             Married
             to
             Mr.
             
               Archibald
               Dennistouns
            
             Son
             ,
             there
             is
             a
             Contract
             betwixt
             Mr.
             Archibald
             and
             the
             three
             Overseers
             ,
             taking
             burden
             for
             the
             Daughters
             ,
             by
             which
             the
             Estate
             of
             Culgrain
             ,
             and
             Mr.
             Archibalds
             Estate
             are
             both
             settled
             in
             the
             Person
             of
             his
             Son
             ,
             and
             the
             Overseers
             are
             obliged
             to
             cause
             the
             Minors
             ,
             and
             their
             Curators
             become
             obliged
             to
             relieve
             Mr.
             Archibald
             of
             17000.
             
             Merks
             .
             Mr.
             Archibald
             Charges
             Fulwood
             upon
             the
             Contract
             ,
             who
             Suspends
             ,
             alleadging
             that
             the
             Clause
             can
             only
             import
             that
             he
             is
             lyable
             for
             his
             own
             part
             ,
             but
             not
             in
             solidum
             ,
             seing
             the
             Clause
             bears
             not
             the
             Overseers
             to
             be
             bound
             conjunctly
             and
             severally
             .
             It
             was
             answered
             ,
             that
             the
             obligement
             is
             not
             for
             payment
             of
             a
             Sum
             ,
             which
             is
             divisible
             ,
             but
             for
             doing
             a
             Fact
             which
             is
             indivisible
             ,
             viz.
             the
             Minors
             being
             become
             bound
             to
             relieve
             ,
             which
             is
             all
             one
             as
             if
             the
             Overseers
             had
             been
             obliged
             to
             cause
             the
             Minors
             Subscribe
             a
             Bond
             of
             releif
             ,
             which
             could
             not
             divide
             ,
             but
             would
             have
             obliged
             every
             one
             of
             them
             in
             solidum
             ,
             It
             was
             answered
             ,
             that
             the
             result
             of
             the
             obligation
             being
             releif
             of
             Sums
             which
             are
             divisible
             ,
             the
             obligation
             at
             least
             the
             Damnadge
             and
             Interest
             succeeding
             in
             place
             thereof
             ought
             to
             be
             devisible
             ,
             for
             the
             obligation
             being
             
               factum
               alienum
            
             imprestable
             to
             the
             Overseer
             ,
             and
             the
             third
             Overseers
             that
             refuses
             to
             concur
             being
             the
             Chargers
             own
             Brother
             ;
             there
             is
             no
             reason
             that
             the
             Overseers
             who
             had
             no
             Office
             or
             obligement
             ,
             but
             were
             only
             Overseers
             which
             is
             not
             
               nomen
               juris
            
             ,
             should
             be
             lyable
             for
             the
             Chargers
             own
             Brother
             ,
             his
             third
             part
             thereof
             .
          
           
             The
             Lords
             found
             them
             only
             lyable
             
               pro
               rata
            
             .
          
        
         
           
             Barclay
             contra
             Barclay
             ,
             Iuly
             20.
             1669.
             
          
           
             THe
             Laird
             of
             Towy
             having
             only
             one
             Daughter
             
               Elizabeth
               Barclay
            
             ,
             and
             his
             Lands
             being
             provided
             to
             Heirs
             Male
             ,
             Dispones
             his
             Estate
             to
             his
             Daughter
             ,
             In
             which
             Disposition
             there
             being
             not
             only
             a
             Procuratory
             of
             Resignation
             ,
             but
             a
             Prcept
             of
             Seising
             ,
             the
             said
             Elizabeth
             was
             Infeft
             upon
             the
             Precept
             ,
             and
             being
             an
             Infant
             ,
             her
             Friends
             thinking
             it
             might
             infer
             Recognition
             ,
             took
             a
             Gift
             of
             the
             Recognition
             ,
             and
             now
             pursues
             Declarator
             thereon
             ,
             against
             the
             Tutor
             of
             Towy
             Heir
             Male
             ,
             and
             Captain
             Barclay
             as
             pretending
             Right
             by
             Disposition
             to
             the
             Estate
             .
             It
             was
             alleadged
             for
             the
             Defenders
             Absolvitor
             ,
             because
             the
             Disposition
             granted
             by
             umquhile
             Towy
             to
             the
             Pursuer
             his
             Daughter
             was
             granted
             on
             Death-bed
             ,
             at
             the
             least
             it
             was
             retained
             by
             the
             Defunct
             ,
             and
             never
             delivered
             till
             he
             was
             on
             Death-bed
             ,
             and
             thereby
             it
             is
             null
             ,
             and
             cannot
             infer
             Recognition
             ,
             because
             the
             Law
             upon
             just
             consideration
             that
             Parties
             are
             presumed
             to
             be
             weak
             in
             their
             Minds
             ,
             and
             easily
             wrought
             upon
             ,
             after
             contracting
             of
             the
             Disease
             of
             which
             they
             Died
             ,
             has
             incapacitat
             them
             then
             to
             Dispone
             their
             Heretage
             ,
             or
             to
             take
             it
             any
             way
             from
             their
             nearest
             Heirs
             .
             2dlie
             ,
             Albeit
             the
             Disposition
             had
             been
             Subscribed
             ,
             and
             Delivered
             in
             
               leige
               poustie
            
             ,
             yet
             the
             Seising
             not
             being
             taken
             till
             the
             Defunct
             was
             on
             Death-bed
             ,
             Recognition
             cannot
             be
             incurred
             ,
             because
             it
             is
             not
             the
             Disposition
             ,
             but
             the
             Seising
             that
             alienats
             the
             Fee
             ,
             and
             infers
             Recognition
             .
             The
             Pursuer
             answered
             ;
             First
             ,
             That
             Death
             bed
             is
             only
             introduced
             in
             favours
             of
             Heirs
             against
             other
             Persons
             getting
             Right
             but
             hath
             no
             effect
             against
             the
             
             Superi
             or
             ,
             who
             is
             not
             to
             consider
             whether
             the
             Vassal
             was
             sick
             or
             whole
             ,
             but
             whether
             he
             hath
             indeavoured
             to
             withdraw
             himself
             ,
             and
             his
             Heirs
             in
             the
             investiture
             from
             their
             Superior
             .
             2dlie
             ,
             Death-bed
             is
             never
             competent
             by
             way
             of
             exception
             ,
             but
             by
             way
             of
             Reduction
             .
             3dlie
             ,
             The
             Disposition
             being
             in
             favours
             of
             the
             Disponers
             only
             Daughter
             ,
             reserving
             his
             Liferent
             ,
             albeit
             it
             wants
             a
             Clause
             dispensing
             with
             the
             Delivery
             ,
             it
             being
             Subscribed
             in
             
               leige
               poustie
            
             ,
             it
             is
             as
             valide
             as
             if
             it
             had
             been
             then
             Delivered
             ,
             and
             if
             need
             be
             's
             offers
             to
             prove
             that
             it
             was
             Delivered
             in
             
               leige
               poustie
            
             to
             the
             Lord
             Frazer
             for
             the
             Pursuers
             use
             ,
             so
             that
             albeit
             Seising
             had
             been
             taken
             when
             the
             Disponer
             was
             on
             Death
             bed
             ,
             Recognition
             must
             be
             incurred
             ,
             because
             the
             Vassal
             should
             not
             have
             granted
             a
             Precept
             of
             Seising
             ,
             and
             Delivered
             the
             same
             without
             Reservation
             ,
             and
             the
             having
             of
             the
             Precept
             of
             Seising
             being
             always
             accounted
             a
             sufficient
             ▪
             Warrand
             for
             taking
             of
             Seising
             ,
             and
             that
             the
             Warrand
             was
             given
             at
             the
             Delivery
             of
             the
             Precept
             ,
             albeit
             the
             Seising
             was
             taken
             when
             the
             Disponer
             was
             on
             Death-bed
             ,
             yet
             the
             Warrand
             was
             granted
             when
             he
             was
             in
             
               leige
               poustie
            
             ,
             by
             the
             Precept
             ,
             which
             bears
             in
             it self
             to
             be
             an
             irrevockable
             Power
             and
             Warrand
             to
             take
             Seising
             ,
             so
             that
             the
             Vassal
             had
             in
             his
             
               leige
               poustie
            
             done
             
               quantum
               in
               se
               fuit
            
             ,
             to
             alienat
             this
             Waird
             Fee.
             
          
           
             The
             Lords
             found
             that
             if
             the
             Disposition
             containing
             the
             Precept
             ,
             was
             Delivered
             to
             the
             Vassal
             without
             Reservation
             in
             the
             Disponers
             
               leige
               poustie
            
             ,
             it
             would
             infer
             Recognition
             ,
             though
             the
             Seising
             were
             taken
             after
             his
             Sickness
             ,
             and
             found
             that
             if
             the
             Disposition
             and
             Seising
             were
             on
             Death-bed
             ,
             it
             would
             exclude
             Recognition
             by
             way
             of
             exception
             ,
             Recognition
             not
             being
             a
             Possessory
             ,
             but
             a
             Petitory
             ,
             or
             Declaratory
             Judgement
             ;
             but
             seing
             it
             was
             alleadged
             that
             the
             Disposition
             was
             Delivered
             to
             the
             Lord
             Frazer
             ,
             the
             Lords
             before
             answer
             ordained
             the
             Lord
             Frazer
             to
             Depone
             from
             whom
             ,
             and
             when
             he
             Received
             the
             said
             Disposition
             ,
             and
             whether
             he
             had
             any
             Direction
             to
             take
             Seising
             thereupon
             ,
             or
             any
             Direction
             to
             the
             contrair
             ,
             and
             also
             that
             the
             Bailly
             ,
             Atturney
             ,
             Notar
             ,
             and
             Witnesses
             in
             the
             Seising
             should
             Depone
             by
             what
             Warrand
             they
             did
             proceed
             therein
             .
          
        
         
           
             Earl
             of
             Crawfoord
             contra
             Rig
             ,
             Iulie
             21.
             1669.
             
          
           
             THe
             Earl
             of
             Crawfoord
             pursues
             Rig
             for
             payment
             of
             the
             half
             of
             the
             Expence
             of
             the
             Building
             a
             Park
             Dike
             ,
             belonging
             to
             the
             Earl
             in
             so
             far
             as
             it
             is
             Built
             ,
             or
             to
             be
             Built
             upon
             the
             March
             betwixt
             him
             and
             Rig
             ,
             and
             that
             upon
             the
             Act
             of
             Parliament
             1661.
             anent
             the
             Parking
             and
             Inclosing
             of
             Ground
             ,
             whereby
             for
             the
             Encouragement
             of
             them
             that
             Inclose
             it
             ,
             it
             is
             provided
             that
             whatever
             part
             of
             the
             Park
             or
             inclosure
             falls
             upon
             the
             March
             ,
             that
             part
             shall
             be
             Built
             upon
             the
             equal
             Charges
             of
             both
             the
             Heretors
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             March
             betwixt
             the
             Earl
             of
             Crawfoord
             and
             him
             is
             not
             a
             dry
             March
             ,
             but
             a
             Burn
             ,
             and
             the
             Act
             cannot
             be
             understood
             but
             of
             dry
             Marches
             ,
             otherwise
             though
             there
             were
             a
             Water
             intersected
             ,
             the
             Heretor
             Building
             a
             Park
             Dike
             upon
             his
             own
             side
             of
             the
             Water
             ,
             might
             require
             his
             Neighbour
             on
             the
             other
             side
             of
             the
             Water
             to
             pay
             the
             half
             of
             his
             Charges
             .
             2dlie
             ,
             Some
             parts
             of
             the
             Marches
             betwixt
             the
             Pursuer
             and
             Defender
             are
             Mossy
             and
             Bogy
             Ground
             ,
             upon
             which
             no
             Dike
             can
             stand
             .
             The
             Pursuer
             answered
             ,
             that
             he
             opponed
             the
             Act
             of
             Parliament
             ,
             and
             that
             any
             Meith
             betwixt
             his
             Land
             and
             the
             Defenders
             is
             an
             inconsiderable
             Stripe
             of
             Water
             ,
             which
             oftimes
             is
             dry
             ,
             and
             cannot
             hinder
             a
             Stone
             Dike
             to
             be
             Built
             in
             the
             very
             Channel
             of
             it
             ,
             and
             for
             the
             other
             if
             the
             Pursuer
             Build
             not
             the
             Dike
             ,
             the
             Defender
             will
             not
             be
             lyable
             .
          
           
           
             The
             Lords
             found
             the
             Reply
             Relevant
             ,
             and
             ordained
             the
             Stripe
             of
             Water
             either
             to
             be
             wholly
             without
             the
             Dike
             ,
             or
             if
             the
             Defender
             pleased
             that
             it
             run
             a
             space
             within
             the
             Dike
             ,
             and
             a
             space
             without
             the
             Dike
             that
             either
             Party
             might
             have
             the
             benefit
             of
             Watering
             thereat
             .
          
        
         
           
             Town
             of
             Perth
             contra
             the
             Weavers
             of
             the
             Bridg-end
             of
             Perth
             .
             Eodem
             die
             .
          
           
             THe
             Town
             of
             Perth
             pursues
             the
             Weavers
             at
             the
             Bridg-end
             of
             Perth
             either
             to
             desist
             from
             Weaving
             in
             their
             Suburbs
             ,
             or
             otherwise
             to
             pay
             a
             Duty
             accustomed
             to
             be
             payed
             by
             the
             Weavers
             there
             to
             the
             Town
             for
             that
             Liberty
             ,
             conform
             to
             the
             several
             Tickets
             produced
             ,
             and
             that
             conform
             to
             the
             159.
             
             
               Act
               Parliament
            
             1592.
             
             Entituled
             
               the
               Exercise
               of
               Crafts
               within
               Suburbs
               adjacent
               to
               Burghs
               forbidden
               .
            
             It
             was
             alleadged
             for
             the
             Defenders
             ,
             and
             Sir
             
               George
               Hay
            
             thier
             Master
             Absolvitor
             ,
             because
             the
             said
             Act
             of
             Parliament
             has
             been
             in
             continual
             desuetude
             ,
             and
             was
             never
             in
             use
             .
             2dly
             Though
             it
             were
             yet
             effectual
             ,
             yet
             it
             can
             only
             be
             understood
             of
             such
             Suburbs
             as
             have
             no
             Priviledge
             ,
             but
             where
             the
             Suburbs
             are
             contained
             in
             any
             Burgh
             of
             Regality
             or
             Barony
             ,
             or
             within
             any
             Barony
             though
             having
             no
             Burgh
             ,
             the
             Priviledges
             of
             these
             Erections
             warrants
             the
             exercise
             of
             all
             Crafts-men
             ,
             so
             that
             these
             Websters
             Living
             within
             the
             Barony
             of
             Pitcullen
             ;
             cannot
             be
             upon
             that
             pretence
             hindered
             from
             Exercising
             their
             Trade
             .
             The
             Pursuer
             answered
             ,
             that
             he
             opponed
             the
             Act
             of
             Parliament
             being
             general
             ,
             and
             that
             it
             was
             a
             standing
             Law
             unrepelled
             ,
             and
             that
             the
             obligations
             of
             the
             Weavers
             Living
             there
             to
             pay
             a
             Duty
             for
             their
             Liberty
             of
             Weaving
             ,
             did
             preserve
             the
             Act
             in
             vigour
             ,
             at
             least
             as
             to
             this
             Burgh
             .
             The
             Defenders
             answered
             ,
             that
             these
             Weavers
             being
             in
             no
             Incorporation
             ,
             the
             Tickets
             granted
             by
             any
             of
             them
             ,
             could
             prejudge
             none
             but
             themselves
             ,
             and
             being
             without
             the
             consent
             of
             the
             Heretor
             ,
             cannot
             infer
             a
             Servitude
             upon
             his
             Barony
             without
             his
             consent
             ,
             more
             then
             his
             Tennents
             could
             infer
             a
             Thirlage
             without
             his
             consent
             .
          
           
             The
             Lords
             found
             that
             the
             said
             Act
             of
             Parliament
             did
             not
             reach
             to
             the
             Inhabitants
             of
             any
             Barony
             ,
             and
             that
             the
             Tickets
             of
             the
             Weavers
             could
             not
             infer
             a
             Servitude
             upon
             the
             Barony
             ,
             and
             therefore
             Decerned
             only
             against
             the
             granters
             of
             the
             Tickets
             personally
             ,
             for
             the
             Duties
             contained
             therein
             .
          
        
         
           
             Iames
             Gray
             contra
             Margaret
             Ker
             ,
             Iuly
             23.
             1669.
             
          
           
             
               IAmes
               Gray
            
             having
             Apprized
             certain
             Lands
             ,
             and
             having
             Charged
             the
             Superior
             ,
             pursues
             for
             Mails
             and
             Duties
             ,
             Compearance
             is
             made
             for
             
               Margaret
               Ker
            
             ,
             who
             produces
             her
             Infeftment
             granted
             by
             her
             Husband
             the
             common
             Author
             ,
             prior
             to
             the
             Apprizing
             ,
             and
             craves
             to
             be
             preferred
             .
             The
             Pursuer
             answered
             ,
             that
             her
             Infeftment
             being
             granted
             by
             her
             Husband
             to
             be
             holden
             of
             the
             Superior
             not
             Confirmed
             is
             null
             .
             To
             the
             which
             it
             was
             answered
             ,
             that
             an
             Infeftment
             of
             a
             Liferent
             granted
             to
             a
             Wife
             in
             implement
             of
             her
             Contract
             of
             Marriage
             is
             valide
             though
             not
             Confirmed
             .
          
           
             The
             Lords
             Repelled
             the
             alleadgeance
             ,
             and
             found
             the
             Relicts
             Infeftment
             null
             ,
             and
             not
             sufficient
             to
             defend
             her
             Possession
             .
          
        
         
           
             Mr.
             Iohn
             Eleis
             contra
             Inglishtoun
             ,
             Eodem
             die
             .
          
           
             CRichtoun
             of
             Crawfordstoun
             having
             only
             one
             Daughter
             ,
             Disponed
             his
             Estate
             to
             
               Iohn
               Brown
            
             of
             Inglishstoun
             ,
             in
             contemplation
             of
             the
             Marriage
             betwixt
             
             him
             and
             Crawfordstouns
             Daughter
             ,
             and
             to
             the
             Heirs-male
             of
             the
             Marriage
             ,
             which
             failzying
             ,
             to
             certain
             other
             Heirs
             Substitute
             ,
             bearing
             a
             power
             to
             Burden
             the
             Estate
             with
             5000.
             
             Merks
             to
             whom
             he
             pleased
             ,
             and
             containing
             a
             Clause
             that
             the
             Disposition
             should
             be
             valide
             ,
             though
             not
             Delivered
             in
             his
             Lifetime
             ;
             and
             after
             Inglistouns
             Marriage
             ,
             Crafordstoun
             grants
             a
             Bond
             relating
             to
             his
             former
             promise
             of
             20000.
             
             Pounds
             to
             Inglistoun
             ,
             and
             the
             Heirs
             of
             the
             Marriage
             ,
             (
             which
             failzying
             :
             )
             After
             which
             words
             there
             follows
             a
             blank
             of
             a
             Line
             and
             a
             half
             ,
             and
             the
             Sum
             is
             payable
             at
             the
             first
             Term
             after
             Crawfordstouns
             Death
             ;
             the
             intent
             of
             which
             Bonds
             seems
             to
             have
             been
             ,
             that
             thereupon
             Apprizing
             might
             proceed
             to
             Denude
             the
             Heirs
             of
             Line
             ,
             and
             to
             compel
             the
             Superior
             〈◊〉
             Receive
             Inglistoun
             .
             Thereafter
             Crawfordstoun
             made
             a
             second
             Tailzy
             ,
             wherein
             Inglistouns
             Son
             ,
             with
             his
             Daughter
             being
             then
             Born
             ,
             is
             Feear
             ,
             and
             several
             Members
             of
             the
             Tailzy
             altered
             ;
             and
             after
             that
             he
             made
             a
             third
             ,
             wherein
             his
             Daughter
             (
             Inglistouns
             Wife
             )
             is
             Feear
             ,
             and
             the
             Substitutions
             much
             like
             the
             former
             .
             After
             his
             Death
             these
             Papers
             being
             Exhibit
             ,
             at
             the
             Instance
             of
             two
             of
             his
             Daughters
             ,
             Heirs
             of
             Line
             ,
             Married
             to
             Mr.
             
               Iohn
               Eleis
            
             ,
             and
             
               Alexander
               Tran
            
             upon
             a
             Process
             
               ad
               deliberandum
            
             ,
             and
             being
             craved
             up
             again
             from
             the
             Clerks
             ,
             by
             the
             Tutor
             of
             Inglistouns
             Son.
             It
             was
             alleadged
             for
             the
             Heirs
             of
             Line
             ,
             that
             the
             saids
             Writs
             could
             not
             be
             Delivered
             up
             ,
             because
             they
             not
             having
             been
             Delivered
             by
             the
             Defunct
             in
             his
             
               leige
               po●stie
            
             ,
             could
             not
             prejudge
             his
             Heirs
             of
             Line
             ;
             and
             albeit
             his
             first
             Disposition
             contained
             a
             dispensation
             for
             not
             Delivery
             ,
             which
             ordinarly
             is
             accounted
             sufficient
             ,
             yet
             where
             it
             appears
             the
             Defunct
             altered
             his
             purpose
             ,
             both
             by
             the
             posterior
             Dispositions
             of
             a
             different
             Tenor
             ,
             and
             several
             Missive
             Letters
             showing
             a
             resolution
             after
             all
             to
             alter
             the
             same
             the
             said
             Clause
             cannot
             be
             effectual
             ,
             and
             there
             is
             no
             pretence
             for
             Delivering
             the
             Bond
             ,
             and
             the
             two
             other
             Dispositions
             ,
             seing
             they
             want
             that
             Clause
             .
             It
             was
             answerd
             ,
             that
             the
             Dispensation
             with
             Delivery
             is
             in
             all
             cases
             equiparat
             with
             the
             Delivery
             it self
             ,
             and
             that
             the
             remanent
             Writs
             ought
             also
             to
             be
             Delivered
             ,
             though
             they
             bear
             not
             that
             Clause
             ,
             because
             the
             Heirs
             of
             Line
             being
             absolutely
             excluded
             by
             the
             first
             Disposition
             ,
             they
             have
             no
             interest
             to
             quarrel
             the
             other
             Dispositions
             ,
             and
             albeit
             it
             the
             posterior
             Dispositions
             were
             to
             different
             effects
             ,
             the
             want
             of
             Dispensation
             therein
             might
             make
             them
             ineffectual
             ▪
             yet
             where
             they
             are
             but
             qualifications
             of
             the
             first
             Tailzy
             they
             are
             accessory
             thereto
             ,
             and
             must
             be
             Delivered
             therewith
             ,
             seing
             the
             Defunct
             so
             long
             as
             he
             keeped
             the
             Writ
             in
             his
             own
             Hand
             ,
             might
             still
             alter
             the
             same
             at
             his
             pleasure
             .
             It
             was
             answered
             ,
             that
             the
             posterior
             Dispositions
             wanted
             the
             Clause
             ,
             reserving
             power
             to
             the
             Defunct
             to
             leave
             to
             whom
             he
             pleased
             the
             5000.
             
             Merks
             ,
             and
             it
             is
             like
             he
             hath
             left
             it
             to
             his
             other
             Daughters
             ,
             and
             the
             Bond
             may
             be
             made
             use
             of
             to
             overturn
             his
             whole
             intent
             ,
             and
             alter
             the
             Tailzy
             .
          
           
             The
             Lords
             found
             ,
             that
             seing
             the
             first
             Disposition
             contained
             a
             Dispensation
             with
             Delivery
             ,
             and
             the
             rest
             being
             accessory
             thereto
             ,
             and
             only
             altering
             in
             somethings
             the
             Tailzy
             ,
             but
             still
             to
             the
             first
             Heir
             of
             Tailzy
             ,
             being
             the
             Son
             of
             Inglistouns
             Marriage
             ;
             they
             ordained
             them
             all
             to
             be
             Delivered
             up
             ,
             and
             the
             Bond
             also
             ,
             but
             with
             this
             Declaration
             ,
             that
             the
             Provision
             anent
             the
             5000.
             
             Merks
             in
             the
             first
             Disposition
             ,
             should
             be
             holden
             as
             repeared
             in
             the
             rest
             ,
             that
             the
             Heirs
             of
             Line
             might
             be
             in
             no
             worse
             Case
             then
             by
             the
             first
             ,
             and
             that
             the
             Bond
             should
             only
             be
             made
             use
             of
             according
             to
             the
             Substitutions
             ,
             and
             Clauses
             of
             the
             Tailzies
             .
          
        
         
           
           
             Crawford
             contra
             Anderson
             ,
             Iuly
             24.
             1669.
             
          
           
             
               IOhn
               Fleeming
            
             having
             made
             a
             Disposition
             of
             his
             Lands
             to
             
               William
               Anderson
            
             Provost
             of
             Glasgow
             ,
             sometime
             thereafter
             William
             grants
             Back-bond
             ,
             Declaring
             the
             Disposition
             was
             upon
             Trust
             ,
             to
             the
             behove
             of
             Fleemings
             Creditors
             ;
             Young
             being
             one
             of
             the
             Creditors
             ,
             uses
             Inhibition
             and
             Apprizing
             against
             Fleeming
             ,
             and
             is
             thereupon
             publickly
             Infeft
             ;
             after
             which
             
               William
               Anderson
            
             makes
             payment
             to
             the
             other
             of
             the
             Creditors
             ,
             the
             said
             
               Alexander
               Young
            
             and
             Crawford
             his
             Spouse
             Insists
             for
             Mails
             and
             Duties
             of
             the
             Apprised
             Lands
             ,
             Anderson
             excepts
             upon
             his
             prior
             Infeftment
             from
             Fleeming
             ,
             the
             common
             Author
             ,
             upon
             the
             said
             Disposition
             ,
             Crawford
             replys
             upon
             the
             Back-bond
             ,
             that
             the
             said
             Infeftment
             is
             on
             Trust
             to
             the
             behove
             of
             
               Fleeming
               :
               Anderson
            
             duplys
             that
             it
             is
             a
             qualified
             Trust
             to
             the
             behove
             of
             Anderson
             himself
             in
             so
             far
             as
             any
             Debt
             was
             Due
             to
             him
             ,
             and
             next
             to
             the
             behove
             of
             Fleemings
             Creditors
             ,
             and
             condescends
             and
             instructs
             that
             he
             has
             made
             payment
             to
             several
             of
             these
             Creditors
             ,
             so
             that
             payment
             made
             by
             him
             
               bona
               fide
            
             must
             give
             him
             Right
             to
             the
             Trust
             
               pro
               tanto
            
             ,
             and
             any
             Inhibition
             or
             Infeftment
             at
             Youngs
             Instance
             ,
             was
             only
             against
             Fleeming
             ,
             and
             not
             against
             Anderson
             ,
             against
             whom
             there
             was
             never
             any
             Action
             .
             It
             was
             answered
             ,
             that
             the
             Trust
             being
             for
             payment
             of
             Fleemings
             Creditors
             ,
             cannot
             be
             interpret
             at
             the
             option
             of
             Anderson
             ,
             which
             would
             be
             a
             most
             fraudulent
             conveyance
             to
             exclude
             the
             more
             timeous
             Diligence
             of
             Fleemings
             other
             Creditors
             ,
             but
             it
             must
             be
             understood
             to
             pay
             the
             Creditors
             
               legitimo
               modo
            
             ,
             and
             not
             to
             make
             voluntar
             payment
             to
             these
             who
             had
             done
             no
             Diligence
             ▪
             and
             prefer
             them
             to
             these
             who
             had
             done
             Diligence
             ;
             and
             albeit
             the
             Inhibition
             and
             publick
             Infeftment
             upon
             the
             Apprizing
             be
             only
             against
             Fleeming
             ,
             yet
             Anderson
             who
             was
             Intrusted
             for
             Fleeming
             ,
             might
             and
             ought
             to
             have
             known
             the
             same
             by
             searching
             of
             the
             Registers
             ,
             appointed
             for
             publication
             of
             Rights
             ,
             and
             if
             he
             had
             neglected
             the
             same
             
               Sibi
               imputet
            
             ,
             for
             he
             being
             Trusty
             for
             Fleeming
             ,
             could
             no
             more
             prefer
             Fleemings
             Creditors
             ,
             then
             Fleeming
             himself
             could
             do
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             and
             Duply
             ,
             and
             found
             that
             voluntary
             payment
             made
             by
             Anderson
             to
             Fleemings
             Creditors
             ,
             after
             the
             Inhibition
             or
             publick
             Infeftment
             of
             other
             Creditors
             ,
             did
             not
             give
             him
             any
             Right
             by
             his
             Infeftment
             in
             Trust
             ,
             to
             exclude
             the
             more
             timeous
             Diligence
             of
             the
             other
             Creditors
             .
          
        
         
           
             Street
             contra
             Masson
             and
             Lord
             Tarphichen
             ,
             Iuly
             27.
             1669.
             
          
           
             
               IAmes
               Masson
            
             being
             Debitor
             to
             the
             Lord
             Tarphichen
             does
             Infeft
             his
             Son
             an
             Infant
             in
             his
             Lands
             ,
             publickly
             holden
             of
             the
             Superior
             ,
             and
             being
             a
             Merchant
             ,
             there
             was
             a
             correspondence
             betwixt
             him
             and
             Mr.
             Street
             ,
             and
             other
             London
             Merchants
             ,
             whereupon
             he
             gave
             them
             Bond
             ,
             mentioning
             to
             be
             for
             former
             Accompts
             ,
             and
             Provisions
             betwixt
             them
             ,
             and
             thereupon
             followed
             an
             Infeftment
             of
             Annualrent
             .
             The
             Lord
             Tarphichen
             obtains
             Decreet
             of
             Reduction
             of
             the
             Infeftment
             granted
             to
             the
             Son
             ,
             as
             being
             posterior
             to
             his
             Debt
             ,
             and
             granted
             by
             a
             Father
             in
             defraud
             thereof
             :
             The
             London
             Merchants
             raise
             also
             a
             Declarator
             ,
             that
             the
             Infeftment
             granted
             by
             Masson
             to
             his
             Son
             (
             then
             an
             Infant
             )
             ought
             to
             be
             affected
             with
             their
             Debt
             ,
             in
             the
             same
             condition
             as
             it
             were
             yet
             standing
             in
             the
             Fathers
             Person
             ,
             or
             otherwise
             ought
             to
             be
             declared
             void
             as
             a
             fraudulent
             Deed
             by
             the
             Father
             in
             favours
             of
             his
             Son
             ,
             the
             Father
             being
             then
             in
             tract
             of
             Correspondence
             and
             Traffick
             with
             these
             Merchants
             ,
             who
             
               bona
               fide
            
             continued
             the
             same
             ,
             seing
             the
             Father
             continued
             in
             Possession
             of
             the
             
             Lands
             ,
             and
             built
             thereupon
             ,
             and
             gave
             an
             Infeftment
             of
             Annualrent
             to
             the
             Merchants
             ,
             after
             the
             Infeftment
             granted
             to
             his
             Son
             ,
             and
             likewise
             raised
             a
             Poinding
             of
             the
             Ground
             upon
             his
             Infeftment
             of
             Annualrent
             ,
             whereupon
             he
             now
             insists
             .
             It
             was
             alleadged
             for
             the
             Son
             and
             the
             Lord
             
               Tarphichen
               ▪
            
             that
             the
             Sons
             Right
             being
             publick
             ,
             and
             Registrat
             in
             the
             publick
             Registers
             ,
             prior
             to
             the
             Pursuers
             Annualrent
             for
             the
             Bonds
             whereupon
             the
             same
             proceeds
             ,
             it
             doth
             fully
             exclude
             them
             from
             Poinding
             of
             that
             Ground
             .
             The
             Merchants
             repeat
             their
             Declarator
             by
             way
             of
             reply
             :
             To
             which
             it
             was
             answered
             ,
             that
             whatsoever
             may
             be
             said
             of
             Latent
             and
             Clandestine
             Rights
             betwixt
             Fathers
             and
             Children
             ,
             and
             other
             confident
             Persons
             ,
             yet
             there
             is
             no
             Law
             hindering
             a
             Father
             to
             give
             an
             publick
             Infeftment
             to
             his
             Son
             ,
             unlesse
             it
             be
             in
             prejudice
             of
             the
             Creditors
             ,
             to
             whom
             he
             was
             due
             Sums
             at
             that
             time
             ,
             which
             being
             a
             valide
             pubick
             Right
             ,
             no
             Deed
             or
             pretence
             of
             fraud
             of
             the
             Father
             thereafter
             can
             prejudge
             the
             Son
             in
             his
             Right
             ,
             who
             being
             an
             Infant
             was
             not
             capable
             to
             be
             partaker
             of
             fraud
             ,
             neither
             can
             fraud
             be
             presumed
             as
             to
             Creditors
             ,
             who
             are
             but
             to
             Contract
             thereafter
             ,
             nor
             can
             a
             publick
             Right
             Registrat
             ,
             and
             a
             publick
             Seising
             ,
             which
             all
             the
             World
             may
             ,
             and
             all
             Concerned
             ought
             to
             know
             ,
             be
             esteemed
             a
             contrivance
             or
             fradulent
             Right
             ,
             and
             as
             to
             any
             Commerce
             betwixt
             these
             Merchants
             and
             the
             Father
             ,
             which
             began
             before
             the
             Sons
             Right
             ,
             no
             respect
             can
             be
             had
             thereto
             ,
             because
             the
             Pursuers
             Bonds
             are
             lately
             for
             a
             Sum
             of
             Money
             ,
             and
             must
             import
             that
             the
             former
             Debts
             by
             Traffick
             were
             past
             from
             or
             Discharged
             ,
             and
             if
             need
             beis
             offered
             to
             prove
             that
             they
             were
             actually
             Discharged
             .
             2dly
             ,
             The
             making
             up
             a
             Debt
             to
             be
             prior
             to
             take
             away
             the
             Sons
             Infeftment
             ,
             can
             only
             be
             probably
             by
             Writ
             or
             Oath
             of
             Party
             ,
             and
             not
             by
             Witnesses
             ,
             who
             cannot
             prove
             above
             100.
             
             Pounds
             .
             3dly
             ,
             Though
             the
             cause
             of
             the
             Bond
             were
             proven
             to
             be
             a
             Correspondence
             and
             Traffick
             begun
             before
             the
             Sons
             Infeftment
             ,
             it
             is
             no
             ways
             relevant
             against
             any
             Provisions
             gotten
             after
             the
             Infeftment
             ,
             for
             such
             can
             have
             effect
             but
             from
             their
             own
             Date
             ,
             and
             the
             effect
             is
             cut
             off
             as
             to
             what
             is
             posterior
             to
             this
             publick
             Infeftment
             ,
             seing
             the
             Merchants
             did
             either
             follow
             Massons
             Faith
             upon
             their
             hazards
             ,
             or
             else
             they
             should
             have
             had
             a
             Procurator
             here
             ,
             and
             taken
             advice
             how
             they
             might
             have
             been
             secured
             of
             Massons
             Estate
             by
             the
             Law
             of
             Scotland
             ,
             who
             would
             have
             taken
             notice
             by
             the
             Registers
             ,
             that
             Masson
             was
             denuded
             by
             a
             publick
             Infeftment
             ,
             which
             nothing
             he
             could
             do
             thereafter
             could
             prejudge
             ,
             and
             would
             have
             certified
             the
             Merchants
             thereof
             ,
             and
             their
             failing
             therein
             is
             on
             their
             own
             peril
             ,
             and
             albeit
             their
             payment
             and
             acting
             
               bona
               fide
            
             is
             sometimes
             good
             ,
             though
             made
             to
             these
             who
             had
             not
             a
             valide
             ,
             but
             a
             colourable
             Right
             by
             these
             who
             knew
             not
             a
             better
             Right
             ,
             and
             might
             have
             been
             compelled
             to
             pay
             upon
             the
             colourable
             Right
             ,
             yet
             other
             Deeds
             ,
             though
             
               bona
               fide
            
             done
             ,
             are
             upon
             the
             peril
             of
             the
             Actor
             .
             To
             which
             it
             was
             answered
             ,
             that
             by
             the
             common
             Law
             and
             Custom
             of
             this
             Nation
             all
             fraudulent
             Deeds
             are
             Reduceable
             ,
             and
             there
             can
             be
             no
             Deed
             more
             fraudulent
             then
             this
             of
             a
             Father
             to
             his
             own
             Infant
             Son
             ,
             for
             whom
             he
             is
             legal
             Administrator
             ,
             and
             must
             accept
             the
             Right
             he
             gives
             himself
             ,
             and
             so
             colludes
             with
             himself
             to
             make
             a
             snare
             to
             intrap
             Merchants
             and
             Strangers
             in
             the
             midst
             of
             a
             course
             of
             Trade
             with
             them
             ,
             which
             is
             a
             common
             ground
             of
             Law
             ,
             whether
             the
             Debt
             be
             prior
             or
             posterior
             to
             the
             Sons
             Infeftment
             ,
             and
             albeit
             the
             Merchants
             Bond
             be
             posterior
             ,
             yet
             seing
             it
             bears
             to
             be
             for
             Ware
             ,
             Witnesses
             according
             to
             the
             ordinar
             custom
             ,
             are
             Receiveable
             for
             astructing
             the
             Writ
             ,
             to
             prove
             what
             the
             Ware
             was
             ,
             and
             when
             Received
             ,
             which
             will
             not
             be
             prejudged
             ,
             though
             there
             had
             been
             a
             Discharge
             of
             the
             Ware
             granted
             the
             time
             of
             the
             Bond
             ,
             unlesse
             there
             had
             been
             a
             real
             and
             true
             payment
             of
             the
             Money
             ,
             for
             there
             being
             nothing
             then
             payed
             ,
             this
             Bond
             ceases
             not
             to
             have
             a
             true
             anterior
             Cause
             ,
             as
             if
             it
             had
             been
             granted
             
             on
             Death-bed
             upon
             a
             Discharge
             then
             given
             ,
             it
             would
             be
             valide
             ,
             as
             being
             upon
             an
             anterior
             Cause
             before
             the
             Sicknesse
             ,
             neither
             is
             there
             any
             difference
             to
             be
             made
             of
             the
             Parts
             of
             the
             Traffick
             after
             the
             Sons
             Infeftment
             ,
             but
             seing
             the
             Correspondence
             began
             before
             ,
             and
             is
             once
             continued
             as
             a
             constant
             Correspondence
             and
             Traffick
             ,
             it
             must
             all
             be
             drawn
             back
             to
             its
             beginning
             ,
             as
             if
             the
             Merchants
             on
             both
             sides
             had
             Contracted
             when
             they
             began
             their
             Correspondence
             ,
             that
             they
             should
             faithfully
             pay
             what
             either
             of
             them
             Received
             from
             other
             ,
             till
             the
             Correspondence
             was
             given
             up
             .
          
           
             The
             Lords
             found
             that
             this
             Bond
             ,
             although
             posterior
             to
             the
             Sons
             Infeftment
             ,
             not
             bearing
             borrowed
             Money
             ,
             but
             Merchant
             Ware
             ,
             that
             the
             quantity
             ,
             and
             times
             of
             furnishing
             thereof
             might
             be
             proven
             by
             Witnesses
             ,
             and
             albeit
             there
             had
             been
             a
             Discharge
             of
             the
             Ware
             ,
             yet
             so
             much
             thereof
             as
             was
             furnished
             before
             the
             Sons
             Infeftment
             would
             affect
             the
             same
             ,
             but
             found
             that
             the
             Sons
             Infeftment
             being
             publick
             and
             Registrat
             ,
             no
             posterior
             Deed
             of
             the
             Fathers
             ,
             by
             continuing
             Traffick
             or
             Correspondence
             ,
             nor
             no
             pretence
             of
             fraud
             of
             his
             ,
             could
             annul
             or
             burden
             the
             said
             Infeftment
             ,
             for
             any
             Debt
             contracted
             posterior
             thereto
             .
          
        
         
           
             Executors
             of
             Mr.
             Thomas
             Ridpeth
             contra
             Iohn
             Hume
             ,
             Eodem
             die
             .
          
           
             IN
             a
             Competition
             betwixt
             the
             Executors
             Creditors
             of
             Mr.
             
               Thomas
               Ridpeth
            
             ,
             about
             a
             Sum
             due
             to
             Mr.
             Thomas
             by
             Bond
             ,
             and
             by
             him
             Assigned
             to
             
               Iohn
               Hume
            
             ,
             who
             not
             having
             Intimat
             it
             in
             Mr.
             Thomas
             his
             Lifetime
             ,
             did
             thereafter
             get
             payment
             of
             a
             part
             of
             the
             same
             ,
             and
             a
             Bond
             of
             Corroboration
             for
             the
             rest
             thereafter
             ,
             Toredlie
             for
             a
             Debt
             due
             to
             him
             by
             Mr.
             
               Thomas
               Ridpeth
            
             ,
             Confirms
             himself
             Executor
             Creditor
             to
             Mr.
             Thomas
             ,
             and
             alleadges
             that
             he
             ought
             to
             be
             preferred
             ,
             because
             the
             Assignation
             made
             to
             
               Iohn
               Hume
            
             was
             an
             uncompleat
             Right
             ,
             wanting
             Intimation
             ,
             so
             that
             the
             Sum
             remained
             
               in
               bonis
            
             of
             Mr.
             
               Thomas
               Ridpeth
            
             ,
             and
             that
             he
             had
             followed
             the
             only
             legal
             way
             to
             affect
             it
             ,
             by
             Confirming
             himself
             Executor
             Creditor
             to
             Mr.
             Thomas
             ,
             and
             albeit
             the
             Assigney
             may
             force
             any
             other
             Executor
             to
             pay
             to
             him
             ,
             yet
             not
             an
             Executor
             Creditor
             ,
             who
             is
             Executor
             to
             his
             own
             behove
             for
             satisfying
             his
             Debt
             .
             It
             was
             answered
             ,
             that
             the
             Assignation
             ,
             though
             not
             Intimat
             ,
             being
             a
             special
             Assignation
             ,
             albeit
             it
             cannot
             have
             Execution
             by
             Horning
             ,
             yet
             it
             is
             the
             undoubted
             ground
             of
             an
             Action
             ,
             even
             after
             the
             Defuncts
             Death
             ,
             against
             the
             Debitor
             ,
             and
             no
             Executor
             Creditor
             can
             have
             Right
             thereto
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             preferred
             the
             Assigney
             .
          
        
         
           
             Duke
             Hamiltoun
             contra
             Weir
             of
             Balckwood
             ,
             Iuly
             28.
             1669.
             
          
           
             THe
             Duke
             of
             Hamiltoun
             insisted
             in
             his
             Declarator
             against
             the
             Laird
             of
             Blackwood
             ,
             for
             declaring
             that
             he
             had
             Right
             to
             his
             Superiority
             by
             the
             Act
             of
             Parliament
             1661.
             bearing
             ,
             
               That
               whosoever
               should
               get
               Right
               from
               the
               King
               to
               the
               Superiority
               of
               the
               annexed
               Kirk
               Lands
               ,
               the
               same
               should
               be
               valide
               as
               to
               these
               Vassals
               who
               had
               Confirmed
               ,
               or
               should
               Consent
               .
            
             And
             alleadged
             that
             Major
             Ballantine
             ,
             to
             whom
             Blackwood
             is
             Heir
             ,
             had
             taken
             an
             Infeftment
             of
             the
             Estate
             of
             Blackwood
             ,
             from
             the
             Marquess
             of
             Hamiltoun
             ,
             upon
             Blackwoods
             Resignation
             ,
             and
             upon
             the
             Resignation
             of
             two
             Apprizers
             ,
             in
             Anno
             164●
             .
             The
             Marquesse
             then
             having
             a
             Right
             to
             the
             Superiority
             ,
             granted
             by
             the
             King
             in
             Anno
             1636.
             
             Which
             albeit
             it
             was
             not
             then
             valide
             ,
             because
             the
             Lands
             were
             then
             annexed
             to
             the
             Crown
             ,
             by
             the
             Act
             of
             Parliament
             1633.
             and
             were
             not
             Dissolved
             ;
             yet
             the
             Major
             having
             taken
             Infeftment
             as
             to
             his
             part
             ,
             
             his
             Heirs
             could
             not
             quarrel
             the
             Superiority
             ,
             though
             the
             King
             might
             ;
             and
             now
             the
             King
             and
             Parliament
             by
             the
             Act
             1661.
             having
             declared
             such
             Rights
             of
             Superiority
             valide
             as
             to
             these
             Vassals
             who
             had
             ,
             or
             should
             Consent
             ,
             and
             the
             Duke
             having
             gotten
             a
             new
             Right
             of
             the
             Superiority
             since
             the
             Act
             ,
             the
             former
             Consent
             is
             valide
             ;
             Likeas
             
               William
               Lowry
               Blackwoods
            
             Father
             and
             Tutor
             gave
             a
             Bond
             ,
             that
             so
             soon
             as
             the
             Duke
             should
             obtain
             the
             Superiority
             ,
             the
             Son
             should
             become
             Vassal
             .
             The
             Defender
             alleadged
             that
             his
             Fathers
             Bond
             was
             only
             effectual
             against
             his
             Father
             ,
             but
             not
             against
             himself
             ,
             and
             his
             Father
             never
             being
             Feear
             of
             the
             Estate
             ,
             his
             Bond
             could
             never
             be
             a
             Consent
             of
             the
             Vassal
             ,
             neither
             can
             the
             Consent
             of
             any
             Tutor
             ,
             or
             lawful
             Administrator
             be
             sufficient
             to
             give
             such
             a
             Consent
             ,
             which
             is
             not
             an
             Act
             of
             Office
             or
             Administration
             ;
             and
             as
             to
             the
             Infeftment
             taken
             by
             Major
             
               Ballantine
               ,
               First
            
             ,
             The
             simple
             taking
             of
             Infeftmen
             from
             a
             Lord
             of
             Erection
             by
             the
             Vassals
             of
             Kirk-lands
             ,
             cannot
             import
             their
             passing
             from
             the
             King
             ,
             and
             the
             benefit
             of
             the
             Act
             of
             Annexation
             ,
             so
             that
             they
             may
             not
             return
             to
             the
             King
             thereafter
             ,
             neither
             can
             it
             be
             such
             a
             Consent
             as
             it
             is
             meant
             in
             this
             Act
             of
             Parliament
             ,
             otherwise
             the
             King
             and
             the
             Leidges
             should
             both
             losse
             the
             benefit
             of
             the
             Annexation
             ,
             seing
             most
             part
             of
             the
             Vassals
             have
             continued
             to
             take
             Infeftment
             of
             the
             Lords
             of
             Erection
             ,
             through
             ignorance
             or
             inadvertance
             ,
             finding
             their
             Infeftments
             flowing
             from
             the
             Lords
             of
             Erection
             ,
             and
             in
             respect
             that
             the
             Lords
             of
             Erection
             have
             still
             Right
             to
             the
             Feu-duties
             till
             they
             be
             Redeemed
             ,
             which
             being
             a
             common
             Error
             that
             they
             may
             safely
             so
             do
             till
             the
             Redemption
             ,
             and
             yet
             may
             still
             take
             Infeftment
             from
             the
             King
             when
             they
             please
             ,
             it
             were
             a
             very
             evil
             consequence
             ,
             if
             thereupon
             they
             should
             not
             only
             lose
             the
             benefit
             to
             be
             Vassals
             to
             the
             King
             ,
             but
             by
             disclamation
             lose
             the
             Property
             .
             2dly
             ,
             As
             to
             this
             case
             it
             cannot
             be
             presumed
             ,
             but
             Major
             Ballantine
             is
             in
             the
             same
             case
             with
             other
             Vassals
             of
             Kirk-lands
             ,
             and
             also
             in
             this
             much
             better
             case
             ,
             that
             he
             is
             in
             a
             manifest
             and
             palpable
             Error
             ,
             in
             so
             far
             as
             the
             Disposition
             that
             he
             takes
             from
             the
             Apprizers
             ,
             bears
             expresly
             that
             the
             Apprizers
             are
             informed
             that
             the
             Marquess
             of
             Hamiltoun
             was
             Superior
             ,
             and
             their
             Procuratory
             bears
             warrand
             ,
             either
             to
             Resign
             in
             the
             Kings
             hands
             ,
             or
             the
             Marquess
             hands
             ,
             or
             in
             the
             hands
             of
             any
             other
             lawful
             Superior
             ,
             and
             Blackwoods
             Procuratory
             in
             the
             Contract
             of
             Marriage
             ,
             bears
             warrand
             to
             Resign
             in
             the
             hands
             of
             the
             King
             ,
             the
             Marquess
             of
             Hamiltoun
             ,
             or
             the
             Earl
             of
             Roxburgh
             ,
             who
             had
             Right
             of
             Erection
             before
             the
             Marquess
             or
             any
             other
             lawful
             Superior
             ,
             so
             that
             by
             Resigning
             in
             the
             Marquess
             hand
             ,
             it
             is
             evident
             that
             the
             Resigner
             and
             the
             Major
             believed
             that
             the
             Marquess
             was
             Superior
             ,
             whereas
             he
             was
             not
             ,
             any
             Right
             he
             then
             had
             being
             absolutely
             null
             by
             the
             Act
             of
             Annexation
             ,
             1633.
             and
             the
             King
             was
             the
             only
             Superior
             ;
             yea
             ,
             by
             the
             taking
             of
             that
             Infeftment
             he
             incurred
             disclamation
             ,
             unless
             it
             were
             excused
             by
             his
             error
             ,
             but
             the
             Consent
             requisit
             here
             must
             be
             such
             ,
             as
             the
             Party
             knowing
             the
             King
             was
             his
             Superior
             ,
             did
             choose
             to
             interject
             another
             Superior
             ,
             and
             become
             his
             perpetual
             Vassal
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             the
             acceptance
             of
             the
             Infeftment
             as
             it
             is
             now
             stated
             can
             be
             no
             Error
             ,
             because
             it
             is
             evidenced
             by
             the
             Apprizers
             Rights
             now
             produced
             ,
             that
             they
             hold
             of
             the
             King
             ,
             and
             were
             Infeft
             by
             him
             ,
             and
             yet
             the
             Major
             took
             the
             Infeftment
             upon
             their
             Resignation
             in
             the
             Dukes
             hands
             ;
             likeas
             the
             Rights
             produced
             relate
             to
             the
             Right
             of
             Annexation
             ,
             which
             being
             a
             most
             publick
             Law
             ,
             and
             recent
             at
             that
             time
             ,
             cannot
             be
             thought
             but
             to
             be
             known
             to
             any
             at
             that
             time
             ,
             
               &
               ignorantia
               juris
               neminem
               excusat
            
             .
             It
             was
             answered
             ,
             that
             the
             Error
             was
             the
             greater
             that
             the
             Apprizers
             Infeftment
             was
             holden
             of
             the
             King
             ,
             seing
             in
             their
             Disposition
             and
             Procuratory
             they
             mention
             they
             were
             informed
             the
             Marquess
             was
             Superior
             ,
             and
             therefore
             the
             Procuratory
             is
             to
             Resign
             in
             the
             hands
             of
             the
             King
             ,
             the
             Marquess
             or
             any
             
             other
             lawful
             Superior
             ,
             and
             the
             other
             Procuratory
             is
             in
             the
             like
             Terms
             ,
             so
             that
             the
             Accepter
             of
             the
             Writs
             did
             not
             intend
             ,
             nor
             do
             any
             new
             or
             free
             Deed
             in
             favours
             of
             the
             Marquess
             ,
             but
             did
             only
             that
             Deed
             that
             they
             supposed
             was
             necessar
             ,
             and
             so
             did
             not
             by
             this
             Infeftment
             make
             the
             Marquess
             Superior
             ,
             as
             that
             his
             Right
             should
             be
             valide
             by
             their
             Consent
             ,
             but
             did
             take
             the
             Right
             from
             the
             Marquess
             ,
             as
             being
             Superior
             before
             they
             took
             it
             ,
             which
             was
             an
             palpable
             Error
             ,
             so
             prejudicial
             to
             them
             that
             it
             might
             infer
             disclamation
             ,
             if
             it
             were
             not
             excusable
             upon
             Error
             ,
             and
             if
             it
             had
             been
             intended
             that
             the
             Major
             minded
             to
             make
             the
             Marquess
             his
             Superior
             ,
             where
             he
             was
             not
             ,
             there
             is
             no
             doubt
             but
             it
             would
             have
             been
             exprest
             in
             the
             Right
             it self
             ,
             being
             so
             great
             a
             deference
             to
             the
             Marquess
             ,
             and
             would
             not
             have
             been
             past
             over
             in
             common
             Form
             ;
             neither
             can
             it
             be
             thought
             that
             this
             was
             procured
             by
             the
             Marquess
             upon
             accompt
             and
             favouring
             the
             Major
             ,
             the
             Infeftment
             being
             granted
             by
             the
             Lady
             Marquess
             ,
             as
             her
             sons
             Commissioner
             ,
             he
             being
             then
             in
             England
             ,
             and
             having
             no
             great
             influence
             then
             being
             the
             time
             of
             the
             Troubles
             of
             the
             Countrey
             .
             It
             was
             answered
             ,
             that
             the
             other
             Vassals
             of
             that
             Barony
             did
             voluntarly
             Accept
             the
             Marquess
             as
             their
             Superior
             ,
             and
             gave
             Bonds
             for
             that
             purpose
             ,
             which
             are
             produced
             ,
             and
             it
             is
             most
             like
             that
             Blackwood
             hath
             given
             Bond
             ,
             which
             hath
             been
             lost
             or
             given
             up
             to
             him
             upon
             taking
             this
             Infeftment
             ,
             which
             is
             an
             implement
             thereof
             .
          
           
             The
             Lords
             did
             not
             see
             that
             the
             single
             taking
             of
             the
             Infeftment
             from
             a
             Lord
             of
             the
             Erection
             ,
             did
             import
             his
             Consent
             to
             become
             Vassal
             thereby
             for
             ever
             ,
             or
             that
             he
             might
             not
             thereafter
             return
             to
             the
             King
             ,
             neither
             did
             they
             find
             such
             a
             Consent
             as
             is
             meant
             in
             the
             Act
             of
             Parliament
             ,
             but
             considering
             the
             whole
             Circumstances
             of
             this
             Case
             ,
             and
             especially
             the
             Fathers
             clear
             Bond
             ,
             who
             procured
             and
             settled
             the
             Controverted
             Right
             of
             this
             Estate
             for
             his
             Son
             ,
             then
             an
             Infant
             ,
             they
             found
             there
             was
             no
             Error
             ,
             but
             a
             choise
             of
             the
             Marquess
             to
             be
             Superior
             in
             place
             of
             the
             King
             ,
             and
             therefore
             declared
             .
          
        
         
           
             Lesly
             contra
             Cunningham
             ,
             Eodem
             die
             .
          
           
             LEsly
             having
             Arrested
             certain
             Sums
             for
             payment
             of
             a
             Tack-duty
             due
             to
             him
             .
             It
             was
             alleadged
             for
             the
             Party
             ,
             in
             whose
             hands
             Arrestment
             was
             made
             ,
             that
             the
             Arrestment
             could
             not
             reach
             any
             further
             ,
             then
             for
             the
             Tack-duty
             Arrested
             ,
             which
             was
             due
             the
             time
             of
             the
             Arrestment
             ,
             but
             not
             for
             any
             Term
             following
             the
             Arrestment
             ,
             because
             Arrestment
             being
             a
             Legal
             Execution
             ,
             can
             no
             more
             proceed
             upon
             a
             Debt
             ,
             before
             the
             Term
             that
             the
             Debt
             be
             due
             then
             Apprizing
             ;
             and
             further
             alleadged
             ,
             that
             they
             had
             made
             payment
             of
             the
             subsequent
             Terms
             to
             the
             Debitor
             ,
             which
             they
             were
             in
             
               bona
               fide
            
             to
             do
             ,
             knowing
             no
             Law
             nor
             Custom
             to
             the
             contrare
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             the
             Arrestment
             to
             be
             valide
             for
             that
             Terms
             Duty
             that
             was
             then
             running
             ,
             and
             found
             that
             the
             Arrestment
             was
             rather
             like
             to
             an
             Inhibition
             then
             an
             Apprizing
             ,
             which
             gave
             present
             payment
             .
          
        
         
           
             Scot
             of
             Hartwood-mires
             contra
             November
             6.
             1669.
             
          
           
             SCot
             of
             Hartwood-mires
             gave
             in
             a
             Bill
             of
             Suspension
             of
             a
             Decreet
             
               in
               foro●
            
             which
             the
             Ordinar
             reported
             to
             the
             Lords
             ;
             the
             Reason
             of
             Suspension
             was
             ,
             that
             he
             being
             Conveened
             as
             Representing
             his
             Father
             ,
             to
             pay
             the
             Debt
             in
             question
             ,
             for
             which
             his
             Father
             was
             Cautioner
             ,
             he
             offered
             to
             prove
             payment
             ,
             denying
             alwise
             the
             passive
             Titles
             ,
             and
             having
             proven
             the
             most
             part
             
             payed
             ,
             by
             Discharges
             granted
             to
             the
             Principal
             Debitor
             ,
             he
             was
             Decerned
             for
             the
             rest
             ,
             and
             now
             offers
             to
             Renunce
             to
             be
             Heir
             to
             his
             Father
             ,
             conform
             to
             his
             Protestation
             in
             the
             first
             Act.
             It
             was
             answered
             ,
             that
             the
             Defense
             of
             payment
             does
             never
             suffer
             the
             proponer
             to
             deny
             the
             passive
             Titles
             ,
             or
             put
             the
             Pursuer
             to
             a
             necessity
             to
             prove
             them
             ,
             by
             the
             constant
             custom
             ,
             founded
             upon
             good
             Reason
             ,
             because
             the
             proponing
             upon
             any
             positive
             Right
             of
             the
             Defuncts
             is
             a
             behaviour
             as
             Heir
             ,
             and
             in
             the
             Act
             of
             
               ●i●is
               contestation
            
             ,
             a
             Term
             is
             only
             assigned
             to
             the
             Defender
             to
             prove
             payment
             ▪
             and
             the
             Protestation
             in
             effect
             is
             rejected
             ,
             because
             there
             is
             no
             Term
             therein
             assigned
             to
             the
             Pursuer
             to
             prove
             the
             passive
             Titles
             ,
             in
             case
             the
             Defender
             failed
             to
             prove
             payment
             ,
             neither
             could
             there
             be
             any
             by
             our
             Custom
             .
          
           
             The
             Lords
             refused
             the
             Suspension
             ,
             and
             found
             that
             the
             offer
             to
             prove
             payment
             ,
             Liberated
             the
             Pursuer
             from
             proving
             the
             passive
             Titles
             .
          
        
         
           
             Lady
             Towy
             contra
             Captain
             Barclay
             ,
             November
             9.
             1669.
             
          
           
             THe
             Lady
             Towy
             having
             pursued
             Improbation
             of
             a
             Bond
             of
             an
             bundreth
             thousand
             Pounds
             ,
             alleadged
             granted
             by
             the
             Umquhile
             Laird
             of
             Towy
             to
             Captain
             Barclay
             ,
             and
             of
             a
             Disposition
             of
             the
             Estate
             of
             Towy
             ,
             alleadged
             made
             by
             the
             Tutor
             of
             Towy
             ,
             the
             day
             after
             the
             Laird
             of
             Towy
             died
             ,
             at
             the
             Barns
             of
             Towy
             ,
             which
             Tutor
             fell
             Heir-male
             to
             the
             Laird
             ,
             who
             had
             only
             one
             Daughter
             ;
             the
             foresaid
             Bond
             and
             Disposition
             being
             produced
             Judicially
             before
             by
             Captain
             Barclay
             ,
             though
             not
             in
             this
             Process
             ,
             he
             refused
             now
             to
             produce
             the
             same
             ,
             but
             suffered
             Certification
             to
             be
             granted
             against
             it
             .
             The
             question
             having
             arisen
             whether
             any
             further
             Process
             could
             be
             in
             the
             Improbation
             ,
             in
             respect
             that
             the
             principal
             Writs
             were
             not
             produced
             ,
             but
             Copies
             bearing
             the
             Tenor
             ,
             Date
             ,
             and
             Witnes●es
             insert
             .
          
           
             The
             Lords
             the
             last
             Session
             did
             Examine
             Captain
             Barclay
             ,
             and
             Steel
             one
             of
             the
             Witnesses
             insert
             ,
             and
             certain
             others
             ,
             and
             Steel
             confessing
             the
             Forgery
             ,
             and
             Captain
             Barclay
             denying
             the
             same
             after
             he
             was
             Confronted
             with
             Steel
             ,
             and
             denying
             the
             having
             of
             the
             principal
             Writs
             ,
             the
             Lords
             sent
             Captain
             Barclay
             and
             Steel
             to
             the
             Tolbooth
             of
             Edinburgh
             ,
             to
             be
             keeped
             there
             till
             the
             Event
             of
             the
             Plea
             ,
             or
             further
             Order
             ,
             and
             did
             thereafter
             permit
             Steel
             to
             come
             out
             upon
             sufficient
             Caution
             for
             a
             great
             Sum
             ,
             and
             the
             other
             Witnesses
             inserted
             being
             Sumonned
             ,
             and
             not
             Compearing
             .
          
           
             The
             Lords
             granted
             Caption
             against
             them
             ,
             and
             gave
             Commission
             to
             certain
             Persons
             to
             search
             for
             them
             ,
             and
             now
             
               Iohn
               Rosse
            
             the
             other
             VVitness
             in
             the
             Disposition
             ,
             and
             
               Alexander
               Ferguson
            
             who
             filled
             up
             the
             Date
             ,
             and
             Witnesses
             ,
             both
             in
             the
             Disposition
             and
             Bond
             ,
             and
             Subscribed
             Witness
             to
             the
             Bond
             ,
             and
             insert
             himself
             as
             VVitness
             in
             the
             Disposition
             ,
             but
             Subscribed
             not
             as
             VVitness
             in
             the
             Disposition
             ,
             being
             brought
             to
             the
             Bar.
             
          
           
             It
             was
             alleadged
             for
             Captain
             Barclay
             ,
             that
             the
             saids
             VVitnesses
             could
             not
             be
             Examined
             ,
             First
             ,
             Because
             there
             was
             now
             no
             Process
             depending
             ,
             in
             respect
             that
             the
             Improbation
             which
             was
             only
             civilly
             intented
             ,
             was
             determined
             by
             the
             Decreet
             of
             Certification
             ,
             which
             now
             is
             Extracted
             ,
             and
             albeit
             the
             Lords
             did
             before
             Examine
             Captain
             Barclay
             and
             Steel
             ,
             yet
             the
             Process
             was
             then
             depending
             ,
             and
             the
             Certification
             not
             Extracted
             .
             2dly
             ,
             It
             was
             alleadged
             that
             Rosse
             and
             Fergusson
             were
             not
             habile
             VVitnesses
             ,
             having
             appeared
             
             most
             partial
             upon
             the
             Pursuers
             part
             ,
             having
             stayed
             a
             long
             time
             with
             her
             in
             her
             House
             ,
             
               Et
               prodiderunt
               Testimonia
            
             ,
             in
             so
             far
             as
             not
             only
             they
             had
             declared
             what
             they
             would
             depone
             ,
             but
             that
             they
             had
             set
             the
             samine
             under
             their
             hands
             ,
             and
             that
             by
             their
             said
             Subscription
             they
             acknowledged
             themselves
             accessory
             to
             the
             Forgery
             ,
             and
             so
             by
             their
             confession
             they
             are
             
               socij
               criminis
            
             ,
             and
             being
             culpable
             of
             so
             great
             a
             Crime
             are
             infamous
             ,
             and
             their
             Testimonies
             can
             make
             no
             Faith
             against
             any
             but
             themselves
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             Improbations
             (
             even
             civilly
             intented
             )
             are
             not
             totally
             determined
             by
             the
             Certification
             ,
             which
             is
             of
             its
             own
             nature
             but
             an
             Interlocutor
             Sentence
             ,
             and
             if
             the
             Pursuer
             should
             notwithstanding
             thereof
             find
             out
             ,
             and
             produce
             the
             Principal
             Writ
             ,
             he
             might
             proceed
             to
             the
             Improving
             thereof
             ,
             it
             being
             very
             well
             consistent
             ,
             that
             it
             might
             be
             holden
             ,
             and
             repute
             false
             by
             the
             Certification
             ,
             and
             might
             also
             be
             proven
             to
             be
             false
             ;
             and
             though
             the
             Pursuer
             could
             not
             produce
             the
             Writ
             ,
             yet
             the
             Process
             is
             not
             wholly
             determined
             by
             the
             Certification
             ,
             but
             it
             may
             be
             justly
             desired
             that
             all
             evidences
             of
             the
             Forgery
             that
             were
             possible
             ,
             without
             production
             of
             the
             Writ
             ,
             might
             be
             taken
             to
             remain
             
               in
               retentis
            
             ,
             in
             case
             the
             Principal
             should
             after
             be
             found
             ,
             for
             there
             might
             be
             clandestine
             Assignations
             of
             the
             Writs
             made
             by
             Barclay
             ,
             and
             Intimat
             at
             the
             Pursuers
             Dwelling-house
             ,
             or
             Forged
             and
             Antedated
             Intimations
             made
             up
             ,
             so
             that
             the
             Certification
             would
             not
             be
             effectual
             against
             the
             Assigney's
             ,
             and
             though
             Parties
             should
             not
             insist
             ,
             the
             Kings
             Advocat
             who
             is
             also
             Pursuer
             of
             the
             Process
             might
             insist
             ,
             that
             the
             VVitnesses
             might
             be
             Examined
             ,
             for
             detecting
             of
             the
             Forgery
             ;
             and
             there
             could
             be
             no
             case
             more
             favourable
             then
             this
             ,
             wherein
             Captain
             Barclay
             had
             Judicially
             produced
             the
             VVrits
             ,
             and
             now
             wilfully
             refuses
             to
             produce
             the
             same
             ,
             and
             if
             Forgers
             shall
             escape
             ,
             and
             be
             in
             no
             more
             hazard
             ,
             but
             suffer
             Certification
             ,
             though
             they
             have
             burnt
             ,
             or
             wilfully
             keep
             up
             the
             VVrits
             ,
             it
             will
             be
             an
             open
             Door
             to
             encourage
             all
             Forgerers
             ,
             neither
             have
             the
             VVitnesses
             betrayed
             their
             Testimonies
             ,
             albeit
             being
             Examined
             by
             the
             Lord
             Fivy
             ,
             a
             Nobleman
             in
             the
             Countrey
             ,
             one
             of
             them
             did
             Subscribe
             ,
             who
             had
             just
             ground
             to
             think
             that
             it
             was
             no
             voluntar
             Deed
             ,
             but
             that
             the
             Lord
             Fivy
             might
             have
             sufficient
             Authority
             for
             that
             effect
             ;
             but
             whatever
             objections
             were
             against
             VVitnesses
             ,
             they
             are
             ever
             Received
             in
             Improbations
             ,
             and
             the
             Lords
             at
             Advising
             of
             the
             Cause
             do
             consider
             what
             their
             Testimonies
             may
             work
             ,
             at
             which
             time
             only
             it
             will
             be
             proper
             to
             object
             .
          
           
             The
             Lords
             notwithstanding
             these
             alleadgeances
             ,
             Examined
             the
             VVitnesses
             .
          
           
             Rosse
             acknowledged
             that
             he
             being
             Servant
             to
             Captain
             Barclay
             ,
             he
             called
             him
             up
             to
             Subscribe
             VVitness
             to
             a
             VVrit
             ,
             but
             told
             him
             not
             about
             what
             it
             was
             ,
             nor
             did
             not
             let
             him
             hear
             nor
             see
             what
             was
             written
             therein
             ,
             but
             rolled
             it
             up
             ,
             and
             presented
             only
             to
             him
             the
             white
             paper
             ,
             near
             about
             the
             end
             of
             the
             VVrit
             ,
             and
             desired
             him
             to
             Subscribe
             VVitness
             ,
             and
             he
             saying
             that
             he
             could
             not
             be
             VVitness
             ,
             because
             he
             saw
             no
             body
             Subscribe
             ,
             the
             Captain
             answered
             ,
             that
             that
             was
             nothing
             to
             him
             ,
             and
             that
             he
             should
             stand
             betwixt
             him
             and
             all
             danger
             ,
             and
             that
             he
             would
             be
             loath
             to
             bid
             him
             do
             any
             thing
             would
             do
             him
             harm
             ,
             whereupon
             he
             did
             Subscribe
             as
             VVitness
             ,
             and
             saw
             not
             the
             Tutor
             Subscribe
             at
             all
             ,
             nor
             saw
             not
             his
             Name
             put
             to
             the
             VVrit
             at
             that
             time
             ,
             and
             that
             this
             was
             not
             at
             the
             Barns
             of
             Towy
             ,
             the
             time
             of
             the
             Lairds
             Death
             ,
             as
             the
             Date
             of
             the
             Paper
             bears
             ,
             but
             at
             Achready
             five
             weeks
             thereafter
             .
             Ferguson
             Deponed
             that
             Captain
             Barclay
             having
             been
             his
             Tutor
             ,
             he
             induced
             him
             to
             VVrite
             over
             the
             Bond
             of
             100000.
             
             Pounds
             ,
             whereof
             he
             had
             formerly
             gotten
             a
             Draught
             from
             
               Iames
               Midletoun
            
             Notar
             ,
             wherein
             Debitor
             ,
             Creditor
             ,
             Sums
             and
             Date
             were
             blank
             ▪
             and
             that
             he
             filled
             up
             Umquh●●●
             Towy
             
             Debitor
             ,
             and
             the
             Captain
             Creditor
             ,
             and
             the
             Sum
             100000.
             
             Pound
             ,
             and
             put
             in
             a
             Date
             as
             if
             it
             had
             been
             before
             the
             Lairds
             Sickness
             ,
             albeit
             it
             was
             truly
             after
             his
             Death
             ,
             and
             that
             the
             Captain
             shew
             him
             Towies
             Subscription
             in
             a
             Letter
             ,
             and
             caused
             him
             feinz●e
             it
             to
             the
             Bond
             as
             near
             as
             he
             could
             ;
             and
             likewise
             Depones
             that
             the
             Captains
             Brother
             was
             the
             other
             VVitness
             ,
             but
             that
             he
             saw
             not
             what
             the
             Deponent
             had
             done
             ,
             nor
             knew
             not
             thereof
             ;
             He
             also
             Deponed
             that
             he
             filled
             up
             the
             Date
             ,
             and
             insert
             the
             VVitnesses
             in
             the
             Disposition
             of
             the
             Estate
             of
             Towy
             ,
             at
             the
             Captains
             desire
             ,
             and
             made
             the
             Date
             to
             be
             at
             the
             Barns
             of
             Towy
             ,
             at
             the
             Lairds
             Death
             ,
             albeit
             it
             was
             done
             at
             Achready
             ,
             about
             a
             Month
             or
             twenty
             days
             thereafter
             ,
             and
             that
             there
             was
             no
             Subscription
             put
             thereto
             at
             that
             time
             ,
             but
             that
             the
             Captain
             told
             him
             that
             he
             would
             get
             the
             Tutor
             to
             put
             his
             Hand
             to
             it
             thereafter
             ,
             and
             that
             the
             Deponent
             refused
             to
             Subscribe
             VVitness
             ,
             because
             the
             Tutors
             Name
             was
             not
             thereat
             .
          
           
             Upon
             these
             Testimonies
             both
             these
             VVitnesses
             and
             Steel
             ,
             who
             was
             formerly
             out
             upon
             Bail
             ,
             were
             put
             in
             Prison
             .
          
        
         
           
             Henderson
             contra
             Anderson
             ,
             November
             18.
             1669.
             
          
           
             HEwat
             having
             made
             a
             general
             Disposition
             of
             his
             whole
             Goods
             and
             Geir
             to
             Anderson
             ,
             and
             thereafter
             having
             Disponed
             to
             Henderson
             ,
             his
             Creditor
             Henderson
             pursues
             Anderson
             for
             Reduction
             of
             his
             Disposition
             ,
             as
             being
             fraudulent
             in
             prejudice
             of
             Creditors
             ,
             without
             any
             equivalent
             Cause
             Onerous
             ,
             contrare
             to
             the
             Act
             of
             Parliament
             ,
             1621.
             against
             fraudulent
             Dispositions
             .
             The
             Defender
             ,
             a●leadged
             that
             the
             Reason
             was
             not
             Relevant
             upon
             the
             said
             Act
             ,
             because
             Hewat
             and
             Anderson
             were
             not
             conjunct
             persons
             ,
             and
             because
             his
             Disposition
             buir
             an
             Onerous
             Cause
             ,
             viz.
             for
             Sums
             due
             to
             himself
             ,
             and
             for
             2000.
             
             Merks
             ,
             and
             other
             Sums
             ,
             for
             which
             he
             was
             Cautioner
             for
             Hewat
             ,
             and
             gave
             in
             a
             condescendence
             of
             the
             particular
             Sums
             ,
             and
             offered
             not
             only
             to
             Depone
             thereupon
             himself
             ,
             but
             to
             astruct
             the
             same
             by
             the
             Oath
             of
             Hewats
             Creditors
             to
             whom
             he
             payed
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             ordinarly
             Dispositions
             amongst
             persons
             not
             conjunct
             ,
             bearing
             Causes
             Onerous
             were
             sufficient
             ,
             yet
             this
             Disposition
             being
             manifestly
             fraudulent
             ,
             in
             that
             it
             is
             
               omnium
               bonorum
            
             ,
             which
             the
             Receiver
             thereof
             could
             not
             but
             know
             to
             be
             in
             prejudice
             of
             the
             Disponers
             other
             Creditors
             ,
             to
             whom
             there
             was
             nothing
             left
             ,
             and
             so
             is
             
               particeps
               fraudis
            
             ;
             and
             likewise
             the
             Sum
             of
             2000.
             
             Merks
             ,
             which
             is
             the
             only
             Cause
             specially
             exprest
             ,
             being
             instructed
             to
             be
             false
             by
             Discharges
             of
             the
             most
             part
             of
             that
             Sum
             by
             the
             Creditor
             to
             Hewat
             himself
             ,
             the
             remainder
             of
             the
             Cause
             being
             general
             ,
             ought
             to
             be
             instructed
             not
             by
             Andersons
             Oath
             ,
             but
             by
             sufficient
             Probation
             ,
             at
             least
             the
             verity
             of
             the
             Debt
             by
             Hewats
             Oath
             ,
             and
             the
             payment
             thereof
             by
             the
             Oaths
             of
             Hewats
             Creditors
             ,
             to
             whom
             it
             was
             payed
             ,
             and
             that
             it
             wa
             .
             payed
             by
             Anderson
             before
             the
             Disposition
             ,
             at
             least
             that
             he
             was
             bound
             for
             payment
             thereof
             before
             the
             Disposition
             .
             The
             Defender
             answered
             ,
             that
             Dispositions
             of
             Moveables
             are
             valide
             without
             any
             VVrit
             ,
             especially
             before
             any
             Diligegence
             done
             by
             the
             Pursuer
             ,
             and
             if
             these
             who
             acquire
             Moveables
             were
             obliged
             to
             instruct
             the
             Cause
             otherwise
             then
             by
             their
             own
             Oaths
             ,
             all
             Commerce
             would
             cease
             ,
             and
             the
             Defender
             having
             taken
             a
             Disposition
             in
             VVrit
             ,
             can
             be
             in
             no
             worse
             case
             then
             if
             he
             had
             none
             .
          
           
             The
             Lords
             having
             considered
             the
             Defenders
             condescendence
             ,
             found
             that
             what
             wa●
             due
             to
             the
             Defender
             himself
             by
             Hewat
             before
             the
             Disposition
             ,
             
             should
             be
             sufficiently
             instructed
             by
             Anderson's
             own
             Oath
             ;
             but
             as
             to
             what
             was
             due
             to
             him
             ,
             or
             payed
             by
             him
             for
             H●wat
             ,
             after
             the
             Disposition
             ,
             and
             before
             any
             Right
             or
             Diligence
             of
             Hendersons
             ,
             that
             the
             same
             should
             also
             be
             allowed
             ,
             being
             instructed
             by
             Howats
             Oath
             ,
             and
             these
             who
             received
             the
             Sums
             ,
             and
             that
             accordingly
             Anderson
             should
             accompt
             for
             the
             whole
             Goods
             he
             meddled
             with
             ,
             and
             pay
             the
             superplus
             thereof
             to
             Henderson
             the
             Pursuer
             ,
             over
             and
             above
             the
             saids
             Articles
             .
          
        
         
           
             The
             Creditors
             of
             Cowper
             and
             Balmerino
             contra
             My
             Lady
             Cowper
             .
             November
             25.
             1669.
             
          
           
             THe
             Deceast
             Lord
             Cowper
             having
             made
             a
             Disposition
             of
             his
             whole
             Estate
             in
             Fee
             to
             his
             Lady
             ,
             and
             thereby
             having
             excluded
             the
             Lord
             Balmerino
             ,
             his
             appearand
             Heir
             therein
             ,
             Balmerino
             being
             unwillingly
             to
             Enter
             Heir
             to
             Cowper
             ,
             before
             he
             knew
             whether
             the
             Disposition
             would
             stand
             or
             not
             ,
             moves
             some
             of
             Cowpers
             Creditors
             ,
             and
             some
             of
             his
             own
             Creditors
             having
             Charged
             him
             to
             Enter
             Heir
             to
             Cowper
             ,
             to
             insist
             in
             the
             Reduction
             of
             the
             Disposition
             ,
             made
             to
             the
             Lady
             ,
             as
             being
             done
             by
             
               Cowper
               ,
               in
               lecto
               agritudinis
            
             .
             It
             was
             alleadged
             for
             the
             Lady
             no
             Process
             ,
             at
             the
             Creditors
             of
             Cowpers
             Instance
             :
             First
             ,
             Because
             they
             insist
             only
             upon
             Personal
             Bonds
             ,
             granted
             by
             the
             Lord
             Cowper
             ,
             and
             have
             no
             real
             Right
             to
             the
             Land
             ,
             and
             so
             cannot
             Reduce
             a
             real
             Right
             ,
             but
             upon
             a
             real
             Right
             :
             So
             till
             they
             have
             Apprized
             the
             Lands
             they
             have
             no
             Interest
             .
             2dly
             ,
             Albeit
             Cowpers
             Creditors
             might
             Reduce
             the
             Disposition
             ,
             as
             betwixt
             conjunct
             Persons
             ,
             without
             an
             onerous
             Cause
             ,
             yet
             not
             upon
             the
             Reason
             ,
             
               ex
               lecto
            
             ,
             because
             that
             is
             a
             priviledge
             particularly
             competent
             to
             Heirs
             ,
             but
             not
             to
             Creditors
             ,
             as
             they
             are
             Creditors
             ,
             unless
             by
             real
             Diligences
             ,
             they
             state
             themselves
             in
             place
             of
             the
             Heir
             ,
             and
             so
             make
             use
             of
             his
             Right
             and
             Priviledge
             .
             It
             was
             answered
             for
             the
             Pursuers
             ,
             that
             in
             that
             they
             were
             Creditors
             ,
             they
             had
             sufficient
             interest
             to
             crave
             it
             to
             be
             declared
             ,
             that
             the
             Estate
             of
             Cowper
             should
             be
             Affected
             with
             Apprizings
             upon
             Cowpers
             Debts
             due
             to
             them
             ,
             notwithstanding
             this
             Disposition
             ,
             which
             is
             all
             the
             Effect
             of
             this
             Reduction
             ;
             and
             as
             they
             may
             ,
             without
             any
             real
             Right
             ,
             Reduce
             ,
             or
             Declare
             as
             aforesaid
             upon
             the
             Act
             of
             Parliament
             1621.
             against
             fraudulent
             Dispositions
             ,
             so
             they
             may
             declare
             that
             any
             Disposition
             done
             on
             Death-bed
             ,
             as
             it
             could
             not
             prejudge
             the
             Heir
             ,
             so
             it
             cannot
             prejudge
             the
             Creditors
             of
             the
             Defunct
             ,
             or
             his
             appearand
             Heir
             ,
             but
             that
             they
             may
             affect
             the
             said
             Estate
             ,
             with
             their
             Legal
             Diligences
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             she
             repeats
             the
             former
             Defense
             .
             And
             further
             alleadges
             ,
             that
             she
             is
             content
             to
             take
             off
             the
             interest
             of
             Cowpers
             own
             Creditors
             ,
             and
             to
             Declare
             that
             the
             Disposition
             shall
             be
             burdened
             with
             their
             Debts
             :
             but
             adhered
             to
             her
             Defense
             against
             
             Balmerino's
             Creditors
             ,
             who
             ,
             though
             they
             produce
             an
             Apprizing
             ,
             yet
             it
             is
             posterior
             to
             the
             Summons
             ,
             and
             their
             Personal
             Debts
             can
             be
             no
             sufficient
             Title
             ,
             nor
             is
             there
             any
             produced
             .
             It
             was
             answered
             for
             Cowpers
             Creditors
             ,
             that
             the
             Declarator
             in
             their
             favours
             was
             no
             way
             sufficient
             ,
             nor
             would
             not
             give
             them
             a
             real
             Right
             ,
             nor
             prevent
             the
             Diligence
             of
             other
             Creditors
             .
             2dly
             ,
             If
             they
             had
             a
             good
             interest
             to
             Reduce
             ,
             and
             thereupon
             to
             Apprize
             ,
             no
             offer
             could
             take
             away
             that
             interest
             but
             payment
             .
          
           
             The
             Lords
             found
             the
             Creditors
             had
             sufficient
             Interest
             upon
             their
             Personal
             Bonds
             to
             insist
             upon
             the
             Reduction
             ,
             
               ex
               capite
               lecti
            
             ;
             but
             they
             found
             that
             a
             real
             Security
             given
             to
             Cowpers
             Creditors
             ,
             equivalent
             to
             an
             Apprizing
             ,
             and
             Infeftment
             was
             sufficient
             to
             exclude
             their
             Interest
             .
          
        
         
           
           
             Monteith
             of
             Car●ubber
             contra
             Margaret
             Boyd
             .
             December
             2.
             1669
          
           
             UMquhil
             Mr.
             
               Robert
               Boyd
            
             of
             Kips
             ,
             dying
             Infeft
             in
             the
             Lands
             of
             Kips
             ,
             and
             Gourmyre
             ,
             and
             in
             a
             Miln
             ,
             and
             having
             left
             two
             Daughters
             Heirs
             portioners
             ,
             the
             younger
             having
             Married
             Monteith
             of
             Carrubber
             being
             dead
             ,
             her
             Son
             and
             Heir
             raised
             a
             Brief
             of
             Division
             against
             the
             eldest
             Sister
             ,
             whereupon
             Division
             was
             made
             in
             this
             manner
             ,
             viz.
             The
             Rent
             of
             the
             Miln
             being
             Rated
             at
             a
             100.
             pound
             the
             Chalder
             ,
             being
             more
             than
             the
             Rent
             of
             the
             Land
             ,
             the
             whole
             Land
             was
             set
             on
             the
             one
             part
             ,
             and
             the
             Miln
             on
             the
             other
             ,
             and
             because
             the
             Mansion-House
             belonged
             to
             the
             eldest
             Sister
             ,
             the
             Land
             was
             Adjudged
             to
             her
             ,
             and
             the
             Miln
             Adjudged
             to
             the
             other
             ,
             and
             the
             superplus
             of
             the
             Rent
             of
             the
             Miln
             allowed
             ,
             in
             satisfaction
             of
             the
             youngest
             Sisters
             Interest
             in
             the
             House
             .
             Carrubber
             raises
             Reduction
             of
             this
             Division
             ,
             upon
             these
             Reasons
             :
             First
             ,
             That
             the
             Lands
             ought
             to
             have
             been
             divided
             in
             two
             shares
             ,
             and
             the
             House
             likewise
             ,
             having
             convenient
             Rooms
             and
             Lodgings
             for
             both
             Families
             ,
             in
             which
             they
             have
             Dwelt
             these
             20.
             years
             ,
             and
             not
             to
             have
             Adjudged
             the
             Miln
             only
             to
             him
             ,
             stating
             the
             Victual
             ,
             being
             only
             Meal
             ,
             at
             a
             100.
             pound
             the
             Chalder
             ,
             far
             above
             the
             just
             value
             ;
             and
             stating
             the
             Miln-Rent
             equivalent
             to
             the
             Land-Rent
             ,
             which
             is
             subject
             to
             many
             more
             Contingencies
             ▪
             and
             Expenses
             in
             upholding
             the
             Miln
             ,
             and
             difficulties
             in
             recovering
             the
             Rent
             ;
             and
             in
             the
             common
             estimation
             ,
             is
             not
             accounted
             equivalent
             to
             Land
             Rent
             ;
             so
             that
             he
             is
             enormly
             les'd
             ,
             and
             offered
             a
             1000
             merks
             to
             Margaret
             the
             eldest
             Daughter
             ,
             to
             exchange
             shares
             ,
             albeit
             the
             Rent
             of
             either
             share
             be
             but
             about
             three
             Chalders
             of
             Victual
             .
             The
             Defender
             answered
             ,
             that
             the
             Reasons
             of
             Reduction
             were
             no
             way
             Relevant
             ,
             because
             all
             Divisions
             ought
             to
             proceed
             ,
             as
             is
             most
             convenient
             for
             either
             Party
             ,
             and
             where
             least
             is
             left
             undivided●
             ▪
             and
             the
             Division
             it self
             cannot
             have
             a
             precise
             Rule
             ,
             but
             is
             
               in
               arbitrio
            
             of
             the
             Inquest
             ,
             who
             were
             knowing
             Gentlemen
             of
             the
             Neighbourhead
             ,
             and
             upon
             Oath
             ;
             so
             that
             unless
             the
             Lesion
             were
             
               ultra
               dimidium
               justi
               valoris
            
             ,
             it
             cannot
             be
             recalled
             ,
             seing
             an
             Inquest
             has
             the
             irrecoverable
             determination
             of
             Life
             and
             Death
             ,
             which
             is
             of
             far
             greater
             moment
             than
             this
             ,
             and
             this
             Division
             proceeded
             upon
             Carrubbers
             own
             Process
             ,
             and
             the
             Inquest
             was
             called
             by
             himself
             .
             And
             albeit
             it
             be
             true
             ,
             that
             if
             the
             Division
             could
             have
             been
             made
             ,
             by
             giving
             both
             a
             share
             of
             the
             Lands
             ,
             and
             a
             share
             of
             the
             Milns
             ,
             if
             there
             had
             been
             more
             Milns
             ,
             it
             might
             have
             been
             more
             equal
             ;
             but
             here
             ,
             if
             the
             Land
             had
             been
             Divided
             ,
             the
             Miln
             behoved
             to
             have
             remained
             for
             ever
             Common
             ,
             and
             so
             the
             Division
             not
             be
             compleat
             .
             Likeas
             ,
             the
             Miln
             lies
             at
             a
             distance
             from
             the
             Land
             ,
             and
             near
             to
             Carrubbers
             own
             Land
             ,
             and
             is
             not
             a
             casual
             Rent
             ,
             arising
             from
             free
             Multures
             ,
             but
             has
             the
             whole
             Barrony
             of
             Torphichen
             astricted
             by
             Infeftment
             ;
             and
             the
             Defender
             is
             willing
             to
             give
             2500.
             merks
             for
             each
             Chalder
             of
             the
             Miln
             Rent
             ,
             which
             is
             the
             ordinary
             rate
             of
             Land
             Rent
             ;
             and
             the
             reason
             why
             there
             was
             no
             Cavel
             ,
             or
             Lot
             ,
             was
             because
             the
             eldest
             Sister
             falling
             the
             Mansion
             House
             by
             Law
             ,
             she
             behoved
             to
             have
             the
             Land
             therewith
             .
          
           
             The
             Lords
             Sustained
             the
             Reasons
             ,
             and
             Ordained
             a
             new
             Commission
             for
             a
             new
             Division
             ;
             here
             the
             Lords
             would
             not
             consider
             the
             Points
             severally
             ,
             whether
             the
             Mansion
             House
             ought
             to
             have
             been
             Adjudged
             to
             the
             eldest
             Sister
             ,
             and
             a
             Recompence
             to
             the
             second
             :
             Or
             whether
             such
             a
             House
             ,
             being
             no
             Tower
             nor
             Fortalice
             ,
             but
             which
             would
             be
             comprehended
             as
             a
             Pertinent
             of
             the
             Land
             ,
             gave
             no
             preference
             ;
             so
             that
             Lots
             ought
             to
             have
             been
             cast
             upon
             the
             Division
             :
             Or
             whether
             the
             House
             could
             be
             divided
             ,
             
               per
               contignaliones
            
             :
             Or
             whether
             the
             Miln
             ,
             though
             it
             had
             been
             truly
             Rated
             ,
             could
             have
             been
             put
             
             to
             answer
             the
             whole
             Land
             :
             Or
             that
             the
             Land
             behoved
             to
             be
             divided
             ,
             and
             the
             Miln
             remain
             common
             ;
             but
             only
             generally
             ,
             the
             Lords
             gave
             a
             new
             Commission
             for
             a
             new
             Division
             .
          
        
         
           
             Weavers
             of
             Pearth
             contra
             Weavers
             at
             the
             Bridge-end
             of
             Pearth
             December
             4.
             1669.
             
          
           
             THE
             Weavers
             of
             Pearth
             having
             pursued
             the
             Weavers
             at
             the
             Bridge-end
             ,
             upon
             the
             154.
             
             
               Act
               ,
               Par.
            
             1592.
             prohibiting
             Trads-men
             in
             the
             Suburbs
             of
             Burghs
             ,
             to
             exercise
             their
             Trades
             ,
             whereof
             mention
             is
             made
             ,
             Iuly
             21.
             1669.
             
             The
             Defenders
             were
             then
             assoilzied
             .
             Now
             the
             Pursuers
             further
             alleadge
             ,
             whereas
             it
             was
             then
             represented
             ,
             that
             that
             Act
             had
             never
             taken
             effect
             ,
             but
             was
             in
             desuetude
             .
             They
             now
             produce
             a
             Decreet
             of
             the
             Lords
             ,
             at
             the
             instance
             of
             the
             Weavers
             of
             Edinburgh
             ,
             against
             the
             Weavers
             of
             the
             Suburbs
             compearing
             ,
             Decerning
             them
             to
             desist
             ,
             and
             cease
             from
             bringing
             any
             of
             their
             Work
             within
             the
             Liberties
             of
             Edinburgh
             ,
             and
             from
             coming
             within
             the
             same
             to
             receive
             Work
             ;
             and
             that
             upon
             the
             same
             Act
             of
             Parliament
             which
             cleares
             ,
             that
             the
             same
             is
             not
             in
             desuetude
             ,
             and
             it
             is
             founded
             upon
             a
             most
             just
             ,
             and
             necessar
             Ground
             ,
             viz.
             That
             Trads-men
             within
             Burgh
             pay
             Stent
             for
             their
             Trade
             ,
             which
             were
             impossible
             for
             them
             to
             do
             ,
             if
             the
             same
             Trads-men
             were
             permitted
             in
             the
             Suburbs
             ,
             who
             might
             work
             cheaper
             then
             they
             ,
             not
             being
             lyable
             to
             Stent
             .
          
           
             The
             Lords
             Explained
             their
             former
             Interlocutor
             ,
             and
             declared
             ,
             conform
             to
             the
             foresaid
             Decreet
             of
             the
             Town
             of
             
               Edinburgh
               ,
               viz.
            
             That
             Weavers
             in
             Suburbs
             might
             serve
             any
             in
             the
             Landward
             ,
             but
             might
             not
             come
             within
             the
             Liberties
             of
             the
             Burgh
             ,
             for
             taking
             up
             the
             Work
             of
             the
             Burgesses
             ,
             in
             prejudice
             of
             the
             Free-men
             ,
             who
             were
             Free-men
             of
             the
             Burgh
             .
          
        
         
           
             Iohn
             Iaffray
             contra
             Alexander
             Iaffray
             and
             Doctor
             Iaffray
             his
             Son.
             Eodem
             die
             .
          
           
             
               JOhn
               Iaffray
            
             ,
             late
             Provost
             of
             Aberdeen
             ,
             pursues
             a
             Declarator
             of
             the
             Escheat
             and
             Liferent
             of
             
               Alexander
               Iaffray
            
             his
             Brother
             .
             Compearance
             is
             made
             for
             Doctor
             Iaffray
             ,
             Son
             to
             the
             Rebel
             ,
             who
             produced
             a
             prior
             Gift
             ,
             with
             general
             and
             special
             Declarator
             ,
             and
             alleadges
             no
             Declarator
             at
             the
             Pursuers
             instance
             ,
             upon
             this
             posterior
             Gift
             ,
             because
             the
             Right
             is
             fully
             Established
             in
             his
             Person
             ,
             by
             the
             prior
             Gift
             and
             Declarators
             .
             The
             Pursuer
             answered
             ,
             First
             ,
             That
             the
             Doctors
             Gift
             is
             simulat
             to
             the
             Rebels
             behove
             ,
             and
             so
             accresced
             to
             the
             Pursuer
             ,
             which
             appears
             from
             these
             Evidences
             ;
             First
             ,
             That
             the
             Doctor
             is
             the
             Rebels
             own
             Son.
             2dly
             ,
             That
             it
             is
             
               retenta
               possessione
            
             ,
             the
             Doctor
             having
             suffered
             his
             Father
             to
             possess
             for
             many
             years
             .
             3dly
             ,
             It
             was
             offered
             to
             be
             proven
             ,
             
               per
               membra
               curiae
            
             of
             the
             Exchequer
             ,
             that
             the
             Gift
             was
             purchased
             by
             the
             Rebels
             Means
             and
             Moyen
             ,
             and
             severally
             it
             was
             offered
             to
             be
             proven
             by
             the
             Doctors
             ,
             and
             his
             Fathers
             Oath
             conjunctim
             ,
             that
             he
             had
             given
             a
             Back-bond
             ,
             declaring
             the
             Gift
             to
             be
             to
             his
             Fathers
             behove
             .
             It
             was
             answered
             for
             the
             Doctor
             ,
             to
             the
             first
             ,
             that
             the
             Grounds
             of
             Simulation
             were
             no
             way
             Relevant
             ;
             for
             albeit
             he
             was
             the
             Rebels
             Son
             ,
             yet
             he
             had
             means
             of
             his
             own
             ,
             and
             was
             not
             in
             his
             Family
             ;
             and
             albeit
             he
             were
             not
             eager
             ,
             to
             put
             his
             Father
             out
             of
             Possession
             of
             his
             House
             and
             Lands
             :
             yet
             his
             continuance
             of
             Possession
             is
             not
             Relevant
             ,
             unless
             it
             had
             been
             to
             his
             death
             ,
             or
             for
             a
             longer
             time
             :
             but
             any
             delay
             that
             was
             ,
             is
             because
             it
             is
             but
             of
             late
             ,
             that
             the
             Doctor
             hath
             obtained
             special
             Declarator
             ,
             till
             which
             ,
             he
             was
             not
             in
             capacity
             to
             discontinue
             his
             Fathers
             Possession
             :
             Neither
             can
             Members
             of
             Court
             be
             admitted
             
             to
             prove
             ,
             that
             the
             Father
             wared
             out
             the
             Expence
             ,
             and
             procured
             the
             Gift
             ,
             because
             the
             Doctor
             ,
             at
             the
             passing
             of
             the
             Gift
             ,
             gave
             a
             Back-bond
             ,
             that
             he
             being
             satisfied
             of
             the
             Debts
             due
             to
             him
             ,
             and
             the
             Expences
             thereof
             ,
             there
             should
             be
             place
             for
             the
             Rebels
             Creditors
             ,
             and
             did
             make
             Faith
             at
             the
             passing
             of
             the
             Gift
             ,
             that
             it
             was
             to
             his
             own
             behove
             ,
             after
             which
             ,
             no
             Winesses
             can
             be
             admitted
             against
             him
             ,
             nor
             any
             other
             presumptive
             Probation
             ,
             of
             the
             simulation
             of
             the
             Gift
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             found
             also
             the
             Pursuers
             Reply
             upon
             the
             Back-bond
             alleadged
             granted
             by
             the
             Doctor
             to
             his
             Father
             ,
             Relevant
             to
             be
             proven
             by
             the
             Doctors
             Oath
             only
             .
          
        
         
           
             Sir
             Iohn
             Vrquhart
             Supplicant
             .
             December
             7.
             1669.
             
          
           
             
               SIr
               Iohn
               Vrquhart
            
             gave
             in
             a
             Supplication
             to
             the
             Lords
             ,
             bearing
             ,
             that
             he
             being
             Cited
             before
             the
             Council
             ,
             upon
             several
             alleadged
             Riots
             ,
             and
             fearing
             that
             he
             might
             be
             excluded
             from
             appearing
             in
             his
             own
             defense
             ,
             by
             hornings
             against
             him
             ;
             therefore
             desired
             that
             the
             Lords
             would
             grant
             Suspension
             of
             all
             Hornings
             against
             him
             ,
             
               ad
               hunc
               effectum
            
             only
             to
             give
             him
             
               personam
               standi
               in
               judicio
            
             ,
             but
             prejudice
             to
             the
             Creditors
             of
             all
             other
             execution
             .
          
           
             Which
             desire
             the
             Lords
             granted
             as
             to
             all
             Hornings
             he
             should
             condescend
             upon
             .
          
        
         
           
             Pittrichie
             contra
             Laird
             of
             Geight
             .
             December
             15.
             1669.
             
          
           
             MAitland
             of
             Pittrichie
             having
             obtained
             the
             Gift
             of
             Recognition
             from
             the
             King
             ,
             of
             certain
             Waird-lands
             ,
             held
             by
             the
             Laird
             of
             Geight
             ,
             of
             His
             Majesty
             ,
             pursues
             Declarator
             of
             Recognition
             upon
             Geights
             Alienation
             of
             the
             Lands
             ,
             wherein
             compearance
             was
             made
             for
             the
             Purchasers
             thereof
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             time
             of
             their
             Alienation
             by
             the
             Law
             ,
             and
             custom
             in
             force
             for
             the
             time
             ,
             Such
             Alienations
             without
             consent
             of
             the
             Superiour
             were
             valide
             .
             The
             Pursuer
             answered
             ,
             that
             any
             Law
             or
             Custom
             that
             then
             was
             ,
             is
             now
             Annulled
             and
             Rescinded
             ,
             as
             from
             the
             beginning
             ▪
             The
             Defender
             answered
             ,
             that
             no
             Laws
             of
             whatsoever
             Tenor
             ,
             can
             be
             drawn
             back
             by
             invalidat
             Deeds
             ,
             done
             by
             the
             Law
             and
             Custom
             for
             the
             time
             ,
             especially
             as
             to
             Matters
             Penal
             ,
             such
             as
             Recognitions
             ,
             so
             that
             Parties
             having
             acted
             
               bona
               fide
            
             ,
             according
             to
             any
             thing
             they
             could
             know
             for
             a
             Rule
             ,
             cannot
             fall
             in
             the
             Penalty
             and
             certification
             of
             Recognition
             ,
             which
             imports
             a
             contempt
             of
             the
             Superiour
             ,
             and
             cannot
             be
             inferred
             by
             any
             Deed
             legal
             for
             the
             time
             .
             The
             Pursuer
             answered
             ,
             that
             the
             contempt
             is
             the
             same
             ,
             when
             the
             Vassal
             alie●
             nat●
             his
             Fee
             ,
             without
             the
             Superiours
             consent
             ;
             and
             when
             such
             Alienations
             being
             by
             Law
             become
             void
             ,
             and
             the
             Superiours
             Right
             of
             Recognition
             revived
             ,
             the
             Vassal
             did
             not
             after
             that
             time
             crave
             the
             Superiours
             Confirmation
             as
             Heir
             :
             so
             he
             Laird
             of
             Geight
             having
             never
             sought
             Confirmation
             from
             the
             King
             since
             His
             Restauration
             ;
             it
             is
             no
             less
             contempt
             ,
             than
             if
             since
             the
             Kings
             Restauration
             he
             had
             Alienat
             ,
             especially
             seing
             the
             King
             refuses
             Confirmation
             to
             none
             who
             demand
             it
             .
             It
             was
             answered
             for
             the
             Purchasers
             ,
             that
             the
             Vassal
             being
             Denuded
             in
             their
             favour
             ,
             according
             to
             the
             Law
             standing
             for
             the
             time
             ,
             his
             fault
             cannot
             lose
             their
             Right
             ;
             for
             though
             he
             should
             collude
             against
             them
             ,
             yet
             that
             ought
             not
             to
             prejudge
             them
             ,
             and
             there
             being
             no
             obliegment
             upon
             the
             Vassal
             to
             seek
             a
             Confirmation
             ,
             to
             the
             behove
             of
             the
             Purchasers
             ,
             they
             cannot
             be
             prejudged
             ,
             for
             not
             obtaining
             the
             same
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Purchasers
             might
             have
             craved
             the
             Kings
             Confirmation
             of
             their
             Right
             ,
             
             both
             for
             themselves
             ,
             and
             in
             name
             of
             Geight
             the
             immediat
             Vassal
             ,
             which
             Geight
             neither
             would
             ,
             nor
             could
             oppose
             .
          
           
             The
             Lords
             Repelled
             the
             Defenses
             in
             respect
             of
             the
             Reply
             ,
             that
             no
             Confirmation
             was
             craved
             ,
             neither
             by
             the
             Vassal
             nor
             Purchasers
             ,
             his
             Sub-vassals
             ,
             which
             they
             might
             have
             done
             if
             they
             had
             pleased
             ,
             and
             therefore
             declared
             the
             Lands
             to
             be
             Recognosced
             .
          
        
         
           
             Innes
             contra
             Innes
             .
             Ianuary
             5.
             1670.
             
          
           
             Innes
             having
             granted
             an
             Assignation
             of
             an
             Heretable
             Bond
             of
             6000.
             merks
             ,
             4000.
             merks
             thereof
             to
             
               Robert
               Innes
            
             his
             eldest
             Son
             ,
             and
             2000.
             merks
             thereof
             to
             William
             and
             
               Ianet
               Inness
            
             his
             younger
             Children
             ,
             and
             in
             case
             of
             Roberts
             Decease
             ,
             providing
             his
             part
             amongst
             the
             rest
             equally
             ;
             Ianes
             having
             died
             before
             Robert
             ,
             her
             Heirs
             and
             Roberts
             Heirs
             compet
             for
             the
             sum
             ,
             for
             Robert
             died
             without
             Children
             ,
             and
             William
             as
             Heir
             to
             Robert
             ,
             claimed
             the
             whole
             sum
             upon
             this
             Ground
             ,
             that
             Ianet
             being
             substitute
             by
             the
             Father
             to
             Robert
             ,
             without
             any
             mention
             of
             Ianets
             heirs
             ,
             Ianet
             having
             died
             before
             Robert
             ,
             she
             had
             never
             right
             ,
             and
             her
             Substitution
             became
             absolutely
             void
             ,
             and
             her
             Heirs
             not
             being
             exprest
             ,
             this
             Substitution
             cannot
             extend
             to
             them
             ,
             because
             ,
             though
             ordinarly
             Heirs
             are
             comprehended
             ,
             though
             not
             exprest
             ,
             
               qui
               acquirit
               sibi
               acquirit
               suis
            
             ,
             yet
             here
             is
             no
             Acquisition
             ,
             but
             a
             voluntary
             Substitution
             ,
             whereby
             it
             may
             be
             rationally
             conjectured
             ,
             the
             mind
             of
             the
             Defunct
             was
             ,
             that
             he
             would
             prefer
             Ianet
             to
             Roberts
             Heirs
             of
             line
             ,
             not
             being
             Heirs
             of
             his
             Body
             ;
             but
             not
             that
             he
             would
             prefer
             
               Ianets
               Heirs
            
             ,
             which
             were
             a
             degree
             further
             from
             his
             own
             other
             Bairns
             .
             And
             the
             case
             of
             Substitutions
             in
             the
             Roman
             Law
             was
             urged
             ,
             that
             if
             the
             Substitute
             died
             before
             the
             Institute
             ,
             the
             Substitutes
             Heirs
             have
             never
             place
             .
             It
             was
             answered
             ,
             that
             Institutions
             and
             Substitutions
             with
             us
             ,
             do
             far
             differ
             from
             the
             Roman
             Substitutions
             ,
             whereby
             if
             the
             Institute
             succeed
             ,
             the
             Substitute
             has
             never
             place
             as
             Heir
             to
             the
             Institute
             ,
             but
             the
             Institutes
             Heirs
             whatsomever
             ,
             which
             failing
             ,
             the
             Institute
             is
             there
             interpret
             so
             ,
             that
             if
             the
             Institute
             never
             be
             Heir
             ,
             then
             the
             Substitute
             has
             place
             ,
             as
             Heir
             of
             Tailzie
             ,
             and
             provision
             to
             the
             Substitute
             ;
             so
             that
             here
             Ianets
             Heirs
             are
             Heirs
             to
             Robert
             ,
             who
             had
             no
             Heirs
             of
             his
             Body
             ,
             and
             do
             exclude
             William
             his
             Brother
             :
             and
             though
             Ianets
             Heirs
             be
             not
             mentioned
             ,
             yet
             they
             are
             understood
             and
             comprehended
             ,
             because
             in
             Tailzies
             and
             Provisions
             ,
             there
             uses
             never
             to
             be
             an
             Institution
             or
             Substitution
             of
             a
             single
             person
             ,
             without
             the
             Heirs
             of
             their
             Body
             .
             And
             though
             there
             be
             some
             singular
             Cases
             ,
             in
             which
             Heirs
             not
             being
             exprest
             ,
             are
             not
             comprehended
             ,
             this
             is
             none
             of
             them
             .
             It
             was
             further
             alleadged
             for
             William
             ,
             that
             William
             and
             Ianet
             being
             Substitute
             joyntly
             ,
             Ianet
             deceasing
             before
             Robert
             ,
             her
             share
             accresces
             to
             him
             ,
             
               jure
               accrescendi
               ex
               conjuncta
               substitutione
            
             .
             It
             was
             answered
             ,
             that
             there
             is
             here
             only
             
               substitutio
               conjuncta
               verbis
            
             ,
             but
             
               disjuncta
               rebus
            
             ,
             for
             the
             sum
             is
             declared
             to
             belong
             to
             William
             and
             Ianet
             equally
             ,
             so
             that
             each
             of
             them
             has
             but
             Right
             to
             a
             half
             .
          
           
             The
             Lords
             preferred
             the
             Heirs
             of
             Ianet
             ,
             and
             found
             that
             they
             had
             Right
             as
             Heirs
             of
             Provision
             to
             Robert
             ,
             and
             that
             they
             ought
             to
             be
             served
             to
             him
             ,
             and
             not
             to
             Ianet
             ,
             who
             had
             never
             Right
             her self
             ,
             having
             died
             before
             she
             was
             ,
             or
             could
             be
             Heir
             to
             Robert.
             
          
        
         
           
           
             Elizabeth
             and
             Anna
             Boids
             .
             contra
             Iames
             Boid
             of
             Temple
             .
             Ianuary
             6.
             1670.
             
          
           
             
               JAmes
               Boid
            
             of
             Temple
             in
             his
             Contract
             of
             Marriage
             ,
             and
             in
             a
             Bond
             of
             Provision
             relative
             thereto
             ,
             became
             oblieged
             to
             pay
             to
             the
             Bairns
             of
             the
             Marriage
             beside
             the
             Heir
             the
             sum
             of
             20000.
             merks
             at
             their
             age
             of
             17.
             years
             ,
             reserving
             his
             own
             Liferent
             .
             Elizabeth
             and
             
               Anna
               Boids
            
             ,
             the
             only
             Bairnes
             of
             the
             Marriage
             ,
             now
             after
             their
             Mothers
             Death
             ,
             and
             age
             of
             seventeen
             ,
             do
             with
             concourse
             of
             their
             Husbands
             ,
             pursue
             their
             Father
             to
             imploy
             the
             said
             sum
             of
             20000.
             merks
             to
             himself
             in
             Liferent
             ,
             and
             them
             in
             Fee.
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuers
             can
             have
             no
             Interest
             in
             this
             Provision
             ,
             being
             expresly
             conceived
             in
             favours
             of
             the
             Bairns
             of
             the
             Marriage
             ,
             beside
             the
             Heir
             :
             Itaest
             ,
             The
             Pursuers
             are
             the
             Heirs
             appearand
             of
             the
             Marriage
             ,
             there
             being
             no
             Sons
             ,
             and
             will
             succeed
             to
             the
             Estate
             by
             the
             Contract
             ,
             and
             so
             cannot
             demand
             the
             Provision
             made
             to
             the
             other
             Bairns
             ,
             for
             if
             there
             had
             been
             a
             Son
             of
             the
             Marriage
             only
             ,
             he
             could
             not
             have
             claimed
             this
             Clause
             ;
             and
             the
             Pursuers
             can
             be
             in
             no
             better
             Case
             than
             he
             .
             It
             was
             answered
             ,
             that
             in
             Contracts
             of
             Marriage
             ,
             the
             meaning
             of
             the
             Parties
             is
             chiefly
             to
             be
             respected
             ,
             which
             has
             been
             ,
             that
             in
             case
             there
             were
             an
             Heir-male
             ,
             or
             Son
             of
             the
             Marriage
             ,
             this
             Sum
             should
             belong
             to
             the
             remanent
             Bairns
             ,
             and
             therefore
             it
             is
             conceived
             under
             the
             name
             of
             Heir
             in
             the
             singular
             number
             ,
             and
             being
             introduced
             in
             favours
             of
             the
             Daughters
             ,
             it
             ought
             not
             to
             be
             interpret
             against
             them
             ,
             but
             that
             they
             may
             renunce
             to
             be
             Heirs
             ,
             and
             be
             satisfied
             with
             this
             Provision
             only
             ;
             otherwise
             they
             may
             be
             absolutely
             excluded
             ,
             the
             Fathers
             Estate
             being
             apprized
             by
             
               Iohn
               Boid
            
             ,
             whose
             Legal
             is
             near
             to
             expire
             ,
             and
             who
             makes
             use
             of
             the
             Fathers
             Name
             without
             his
             Warrand
             .
             It
             was
             answered
             ,
             that
             Law
             allows
             not
             in
             any
             Contract
             to
             make
             up
             new
             Clauses
             ,
             and
             seing
             the
             Provision
             is
             express
             in
             favours
             of
             the
             Bairns
             beside
             the
             Heir
             ,
             it
             can
             never
             quadrat
             to
             thir
             Pursuers
             ,
             who
             are
             the
             only
             Heirs
             .
          
           
             The
             Lords
             found
             the
             Provision
             not
             to
             be
             extended
             to
             the
             Pursuers
             ,
             but
             because
             it
             was
             suggested
             ,
             that
             the
             Father
             did
             not
             propone
             it
             .
             They
             desired
             the
             Ordinar
             to
             enquire
             ,
             whether
             the
             pursuit
             was
             for
             the
             Father
             ,
             and
             by
             his
             Warrand
             ,
             that
             then
             they
             might
             consider
             ,
             whether
             
               Iohn
               Boid
            
             the
             Appryzer
             could
             have
             interest
             to
             propone
             that
             alleadgeance
             .
          
        
         
           
             Ker
             of
             Cavers
             ,
             and
             Scot
             of
             Golden-berrie
             Supplicants
             .
             Eodem
             die
             .
          
           
             KEr
             of
             Cavers
             ,
             and
             Scot
             of
             Golden-berrie
             being
             Arbit●ators
             nominat
             by
             a
             Submission
             ,
             did
             by
             Bill
             crave
             Warrand
             from
             the
             Lords
             to
             authorize
             them
             ,
             to
             summond
             Witnesses
             to
             compear
             ,
             and
             Depone
             before
             them
             in
             the
             Cause
             in
             which
             they
             were
             Arbiters
             .
          
           
             Which
             the
             Lords
             granted
             .
          
        
         
           
             Iean
             Ker
             contra
             Downie
             .
             Ianuary
             7.
             1670.
             
          
           
             
               JEan
               Ker
            
             having
             set
             a
             House
             in
             Edinburgh
             to
             Downie
             for
             nine
             Pound
             ten
             Shillings
             Sterling
             ;
             She
             obtains
             Decreet
             against
             him
             therefore
             :
             He
             Suspends
             on
             this
             Reason
             ,
             that
             within
             48.
             hours
             after
             he
             took
             the
             House
             ,
             he
             did
             by
             Instrument
             give
             it
             over
             ,
             which
             is
             the
             ordinar
             custom
             of
             Burghs
             ,
             where
             there
             is
             no
             Writ
             ,
             to
             quite
             the
             Bargain
             within
             a
             short
             space
             ,
             unless
             some
             offer
             interveen
             ,
             
               medio
               tempore
            
             ,
             by
             which
             the
             Party
             is
             damnified
             .
             The
             Charger
             answered
             ,
             that
             this
             House
             having
             been
             taken
             but
             
             fourteen
             days
             before
             the
             Term
             ,
             there
             is
             neither
             Law
             nor
             Custom
             allowing
             either
             Party
             to
             give
             over
             or
             resile
             ,
             there
             being
             then
             no
             competent
             time
             to
             set
             again
             :
             For
             albeit
             Houses
             sometimes
             are
             given
             over
             when
             they
             are
             taken
             ,
             and
             quite
             before
             Warning
             time
             ,
             when
             the
             ordinar
             occasion
             of
             setting
             to
             others
             may
             occur
             ;
             yet
             that
             cannot
             be
             drawn
             to
             this
             case
             ,
             and
             the
             Instrument
             of
             over-giving
             ,
             was
             only
             by
             Downies
             Wife
             ,
             who
             shew
             no
             Warrand
             .
             The
             Suspender
             answered
             ,
             that
             there
             was
             no
             difference
             ,
             whether
             the
             House
             was
             taken
             before
             warning
             time
             ,
             or
             after
             ,
             seing
             the
             Law
             gives
             
               locum
               penitentiae
            
             ,
             or
             some
             small
             time
             ,
             which
             must
             take
             place
             in
             either
             case
             .
             2dly
             ,
             Albeit
             the
             Charger
             had
             not
             been
             obliged
             to
             accept
             the
             over-giving
             ,
             yet
             
               de
               facto
            
             ,
             she
             has
             accepted
             it
             ,
             because
             it
             is
             offered
             to
             be
             proven
             ,
             that
             she
             set
             the
             House
             to
             another
             ,
             and
             took
             Earnest
             thereupon
             ,
             which
             did
             import
             that
             she
             quite
             the
             first
             Bargain
             ,
             seing
             at
             once
             she
             could
             not
             set
             it
             to
             two
             .
             3dly
             ,
             Albeit
             offer
             was
             made
             of
             the
             Keys
             at
             the
             Term
             ,
             yet
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             House
             was
             not
             void
             ,
             but
             that
             the
             former
             Tennents
             Goods
             remained
             therein
             .
          
           
             The
             Lords
             Repelled
             the
             first
             Reason
             of
             Suspension
             ,
             upon
             the
             over-giving
             but
             found
             that
             Member
             Relevant
             ,
             that
             the
             House
             being
             given
             over
             ,
             the
             same
             was
             set
             to
             another
             ,
             and
             earnest
             taken
             therupon
             ;
             but
             found
             that
             Point
             ,
             that
             the
             Tennents
             Goods
             ,
             who
             possessed
             formerly
             ,
             were
             not
             removed
             ,
             not
             Relevant
             ,
             in
             respect
             of
             the
             Custom
             in
             Edinburgh
             ,
             not
             to
             remove
             peremptorly
             at
             the
             Term.
             
          
        
         
           
             Mr.
             Laurence
             Charters
             contra
             Parochioners
             of
             Curry
             .
             Ianuary
             8.
             1670.
             
          
           
             MR.
             
               Laurence
               Charters
            
             ,
             as
             Executor
             Confirmed
             to
             Mr.
             
               Iohn
               Charters
            
             Minister
             of
             Currie
             his
             Father
             pursues
             the
             Parochioners
             for
             1000.
             
             Pound
             for
             the
             Melioration
             of
             the
             Manse
             of
             Currie
             ,
             conform
             to
             the
             Act
             of
             Parliament
             ,
             1661.
             which
             is
             drawn
             back
             to
             the
             Rescinded
             Act
             of
             Parliament
             ,
             1649.
             
             It
             was
             alleadged
             by
             the
             Parochioners
             ,
             Absolvitor
             .
             First
             ,
             Because
             the
             Meliorations
             of
             the
             Manse
             were
             long
             before
             any
             of
             these
             Acts
             ,
             which
             do
             only
             relate
             to
             Meliorations
             to
             be
             made
             thereafter
             ;
             and
             for
             any
             thing
             done
             before
             
               adificium
               solo
               cedit
            
             ,
             and
             it
             must
             be
             presumed
             to
             be
             done
             by
             the
             Minister
             
               animo
               donandi
            
             ,
             there
             being
             no
             Law
             when
             he
             did
             it
             ,
             by
             which
             he
             could
             expect
             satisfaction
             .
             2dly
             ,
             Several
             of
             the
             Defenders
             are
             singular
             Successors
             ,
             and
             so
             are
             not
             lyable
             for
             Reparations
             done
             before
             they
             were
             Heretors
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             these
             Reparations
             were
             done
             before
             the
             year
             1649.
             yet
             there
             being
             subsequent
             Acts
             of
             Parliament
             ,
             obliging
             the
             Heretors
             to
             make
             the
             Manses
             worth
             1000.
             pounds
             ,
             if
             these
             former
             Reparations
             had
             not
             been
             made
             ,
             the
             Heretors
             of
             this
             Paroch
             would
             have
             been
             necessitate
             to
             make
             up
             the
             same
             ,
             and
             so
             
               in
               quantum
               sunt
               lucrati
               tenentur
               .
               2dly
               ,
            
             The
             saids
             Acts
             of
             Parliament
             contained
             two
             Points
             ,
             one
             is
             ,
             that
             whereas
             the
             intrant
             Minister
             payed
             to
             his
             Predecessor
             500.
             merks
             for
             the
             Manse
             ,
             and
             his
             Executors
             were
             to
             receive
             the
             same
             from
             his
             Successor
             ;
             the
             saids
             Acts
             ordained
             the
             Heretors
             to
             free
             the
             Successor
             ,
             as
             to
             which
             the
             present
             Heretors
             can
             have
             no
             pretence
             ,
             and
             as
             to
             the
             alleadgeance
             ,
             that
             they
             are
             singular
             Successors
             ,
             the
             Acts
             oblige
             Heretors
             ,
             without
             distinction
             ,
             whether
             they
             are
             singular
             Successors
             ,
             or
             not
             .
          
           
             The
             Lords
             found
             the
             Parochioners
             only
             lyable
             for
             the
             500.
             merks
             payed
             by
             the
             Minister
             at
             his
             Entry
             ▪
             and
             found
             ,
             that
             at
             the
             time
             of
             the
             Reparation
             ,
             the
             Parochioners
             not
             being
             lyable
             ,
             were
             not
             then
             lucrati
             ,
             and
             are
             not
             lyable
             
             by
             the
             subsequent
             Acts
             ,
             which
             extend
             not
             
               ad
               praeterita
            
             ,
             neither
             did
             they
             find
             the
             singular
             Successors
             lyable
             ,
             but
             that
             the
             Heretors
             for
             the
             time
             were
             only
             obliged
             .
          
        
         
           
             Scot
             contra
             Murray
             .
             Eodem
             die
             .
          
           
             IN
             a
             Process
             betwixt
             Scot
             and
             Murray
             ;
             a
             Husband
             having
             granted
             a
             Tack
             of
             his
             Wifes
             Liferent
             Lands
             ,
             and
             the
             Wife
             having
             promised
             after
             his
             death
             ,
             never
             to
             quarrel
             that
             Tack
             ;
             yet
             thereafter
             insisting
             against
             the
             Tennents
             ,
             who
             alleadged
             upon
             the
             said
             promise
             ,
             it
             was
             answered
             ,
             that
             it
             being
             but
             a
             verbal
             Promise
             ,
             not
             in
             Writ
             ,
             it
             can
             be
             no
             more
             effectual
             ,
             than
             if
             it
             had
             been
             a
             verbal
             Tack
             ,
             which
             is
             only
             effectual
             for
             a
             year
             ,
             and
             thereafter
             ,
             the
             Setter
             may
             resile
             .
             It
             was
             answered
             ,
             that
             here
             there
             is
             a
             Tack
             by
             the
             Husband
             for
             several
             years
             ,
             and
             the
             Wifes
             promise
             never
             to
             quarrel
             it
             ,
             needs
             no
             Solemnity
             in
             Writ
             ,
             but
             is
             valid
             ,
             as
             
               pactum
               de
               non
               petendo
            
             ,
             or
             
               de
               non
               repugnando
            
             .
          
           
             The
             Lords
             found
             the
             Wifes
             Promise
             effectual
             ,
             and
             that
             she
             might
             not
             resile
             during
             the
             years
             of
             the
             Tack
             .
          
        
         
           
             Lady
             Lucia
             Hamiltoun
             contra
             The
             Lands
             of
             Dunlap
             and
             Pitcon
             ,
             and
             the
             Creditors
             of
             Hay
             of
             Montcastle
             .
             Ianuary
             15.
             1670.
             
          
           
             LAdy
             
               Lucia
               Hamiltoun
            
             being
             assigned
             to
             a
             Bond
             of
             4400.
             merks
             ,
             grantted
             by
             
               George
               Hay
            
             of
             Montcastle
             ,
             to
             the
             Earl
             of
             Abercorn
             ,
             she
             Inhibits
             the
             said
             George
             ,
             and
             Denunces
             ,
             and
             Apprizes
             his
             Lands
             of
             Birklands
             and
             others
             ,
             and
             thereupon
             pursues
             Reduction
             against
             Dunlap
             ,
             and
             Pitcon
             ,
             and
             certain
             other
             Creditors
             ,
             in
             favours
             of
             whom
             ,
             there
             is
             a
             Disposition
             granted
             of
             the
             saids
             Lands
             by
             
               George
               Hay
            
             ,
             and
             ins●sts
             on
             this
             Reason
             ,
             that
             albeit
             the
             Disposition
             bear
             ,
             to
             be
             for
             sums
             of
             Money
             ,
             and
             Causes
             onerous
             ;
             yet
             by
             a
             Clause
             therein
             ,
             it
             is
             expresly
             declared
             ,
             that
             it
             is
             granted
             to
             Dunlap
             and
             Pitcon
             ,
             for
             satisfying
             of
             the
             Debts
             due
             to
             them
             :
             and
             to
             the
             effect
             they
             may
             sell
             the
             Lands
             for
             payment
             ,
             and
             satisfaction
             of
             the
             said
             
               Iohn
               Hay
            
             ,
             his
             other
             Creditors
             under-written
             ,
             for
             the
             sums
             after-specified
             :
             after
             which
             words
             ,
             there
             was
             left
             a
             large
             blank
             ,
             which
             by
             ocular
             inspection
             ,
             is
             now
             filled
             up
             with
             another
             hand
             ,
             than
             he
             who
             Wrote
             the
             Body
             of
             the
             Disposition
             :
             and
             which
             Article
             so
             filled
             up
             ,
             is
             in
             the
             same
             case
             ,
             as
             if
             it
             had
             been
             set
             upon
             the
             Margent
             and
             subscribed
             ,
             or
             as
             if
             it
             had
             been
             in
             a
             several
             Writ
             ,
             wanting
             Witnesses
             ,
             and
             cannot
             be
             holden
             to
             be
             of
             the
             same
             date
             of
             the
             Disposition
             ,
             but
             must
             be
             presumed
             to
             have
             been
             filled
             up
             after
             the
             Pursuers
             Inhibition
             ,
             and
             after
             she
             had
             Denunced
             and
             Apprized
             the
             Lands
             ;
             and
             therefore
             as
             to
             these
             Creditors
             so
             filled
             up
             ,
             their
             Rights
             which
             are
             granted
             by
             Dunlap
             and
             Pit●on
             ,
             the
             intrusted
             Persons
             ,
             long
             after
             the
             Pursuers
             Inhibition
             and
             Appryzing
             ,
             the
             same
             ought
             to
             be
             Reduced
             .
             It
             was
             alleadged
             for
             the
             Creditors
             Defenders
             ,
             that
             the
             reason
             ,
             as
             it
             is
             qualified
             ,
             is
             no
             ways
             Relevant
             against
             them
             .
             First
             ,
             Because
             the
             Disposition
             granted
             to
             Dunlap
             and
             Pitcon
             ,
             being
             of
             the
             whole
             Lands
             ,
             and
             they
             Infest
             accordingly
             ,
             being
             long
             before
             the
             Pursuers
             Inhibition
             and
             Appryzing
             ;
             and
             the
             said
             Disposition
             and
             Infeftment
             ,
             being
             to
             the
             Creditors
             behove
             ,
             albeit
             their
             Subaltern
             Rights
             from
             Dunlap
             and
             Pitcon
             ,
             be
             posterior
             ,
             
               nihil
               referi
            
             :
             And
             whereas
             it
             is
             alleadged
             ,
             that
             their
             Names
             and
             Sums
             are
             filled
             up
             in
             the
             blank
             ,
             after
             the
             Inhibition
             and
             Appryzing
             with
             another
             hand
             ,
             and
             so
             must
             be
             presumed
             of
             another
             date
             .
             It
             is
             answered
             ,
             that
             the
             Subscription
             at
             the
             Foot
             and
             Body
             of
             a
             Writ
             ,
             did
             necessarly
             infer
             ,
             that
             the
             whole
             blanks
             were
             then
             filled
             up
             ,
             unless
             the
             contrary
             be
             proven
             ,
             
             neither
             uses
             the
             Names
             of
             fillers
             up
             of
             blanks
             to
             be
             exprest
             ,
             and
             it
             cannot
             be
             presumed
             ,
             that
             any
             man
             in
             prudence
             would
             subscribe
             a
             blank
             Writ
             ,
             till
             the
             blanks
             were
             first
             filled
             up
             .
             2dly
             ,
             Though
             it
             could
             be
             proven
             that
             the
             blank
             was
             filled
             up
             after
             the
             Inhibition
             ,
             yet
             the
             general
             Terms
             of
             the
             Clause
             being
             insert
             ,
             
               a
               principio
            
             ,
             with
             the
             same
             hand
             ,
             viz.
             for
             satisfaction
             of
             the
             said
             George
             his
             Creditors
             ,
             it
             is
             sufficient
             ,
             although
             the
             particulars
             were
             insert
             after
             .
          
           
             3dly
             ,
             It
             is
             offered
             to
             be
             proven
             ,
             if
             need
             beis
             by
             the
             Oaths
             of
             
               Dunlap
               .
               Pitcon
            
             ,
             and
             the
             Witnesses
             insert
             ,
             that
             before
             the
             subscribing
             of
             this
             Disposition
             ,
             thir
             Creditors
             filled
             up
             ,
             were
             particularly
             comm●ned
             on
             to
             be
             filled
             up
             ,
             and
             no
             other
             .
             The
             Pursuer
             answered
             ,
             that
             there
             being
             here
             pregnant
             Evidences
             of
             Fraud
             ,
             by
             interposing
             intrusted
             persons
             ,
             and
             preferring
             of
             some
             Creditors
             to
             others
             by
             the
             Debitor
             ,
             who
             was
             Insolvent
             ,
             and
             had
             no
             more
             Estate
             ,
             in
             that
             case
             the
             filling
             up
             of
             the
             blanks
             must
             be
             presumed
             fraudulent
             and
             posterior
             ,
             unless
             the
             Creditors
             prove
             it
             was
             truly●
             filled
             up
             before
             the
             Inhibition
             ,
             otherwise
             it
             opens
             a
             Door
             to
             all
             Insolvent
             Persons
             in
             this
             manner
             ,
             to
             exclude
             any
             of
             their
             Creditors
             from
             payment
             ,
             and
             to
             have
             such
             Clauses
             ambulatory
             at
             their
             pleasure
             :
             Neither
             doth
             the
             general
             part
             of
             the
             Clause
             suffice
             ,
             unless
             it
             had
             been
             in
             favours
             of
             the
             Disponers
             Creditors
             generally
             ,
             or
             indefinitly
             ,
             which
             would
             have
             comprehended
             the
             Pursuer
             ;
             but
             it
             being
             only
             of
             the
             Creditors
             under-written
             ,
             if
             these
             were
             not
             under-written
             till
             after
             the
             Inhibition
             they
             ,
             have
             no
             place
             :
             And
             as
             for
             any
             verbal
             Communing
             or
             Agreement
             ,
             it
             cannot
             be
             effectual
             ,
             until
             it
             be
             redacted
             into
             Write
             ,
             which
             was
             not
             till
             after
             the
             Inhibition
             .
          
           
             The
             Lords
             found
             that
             the
             blank
             being
             filled
             up
             with
             another
             hand
             ,
             and
             so
             substantial
             a
             Clause
             ,
             and
             the
             Writer
             not
             being
             exprest
             at
             the
             foot
             ,
             that
             it
             was
             to
             be
             presumed
             ,
             to
             be
             posterior
             to
             the
             Inhibition
             ,
             unless
             the
             Creditors
             prove
             by
             the
             Witnesses
             insert
             ,
             or
             others
             above
             exception
             ,
             that
             it
             was
             truly
             insert
             before
             the
             Inhibition
             and
             Apprizing
             ,
             wherein
             they
             would
             not
             admit
             the
             Oaths
             of
             the
             Persons
             intrusted
             ,
             and
             they
             had
             no
             respect
             to
             the
             alleadgeance
             ,
             that
             it
             was
             Communed
             and
             Agreed
             upon
             before
             the
             Subscription
             .
          
        
         
           
             Doctor
             Balfour
             and
             his
             Spouse
             contra
             Mr.
             William
             Wood.
             Ianuary
             18.
             1670.
             
          
           
             UMquhil
             Mr.
             
               Iames
               Wood
            
             having
             been
             Tutor
             to
             his
             Wifes
             Daughter
             ,
             she
             being
             now
             Married
             to
             Doctor
             Balfour
             ,
             they
             pursue
             Mr.
             
               William
               Wood
            
             ,
             as
             Representing
             his
             Father
             for
             a
             Tutor
             accompt
             ;
             in
             which
             Accompt
             ,
             the
             Auditors
             reported
             these
             Points
             .
             1.
             
             The
             Pursuer
             insisted
             for
             the
             whole
             sums
             ,
             bearing
             Annualrent
             ,
             whereof
             no
             part
             belongs
             to
             the
             Wife
             ,
             as
             Relict
             ,
             she
             being
             excluded
             by
             the
             Act
             of
             Parliament
             .
             The
             Defender
             answered
             ,
             that
             he
             opponed
             the
             Testament
             ,
             and
             Confirmation
             unreduced
             ,
             whereby
             there
             is
             a
             Tripartite
             Division
             of
             the
             whole
             Sums
             ,
             and
             the
             Relict
             has
             one
             Third
             ,
             which
             belonged
             to
             the
             Defunct
             Tutor
             ,
             her
             Husband
             ,
             
               jure
               mariti
            
             .
          
           
             The
             Lords
             Repelled
             this
             alleadgeance
             ,
             and
             found
             that
             the
             Errour
             of
             the
             Confirmation
             was
             Corrigible
             without
             Reduction
             .
          
           
             2.
             
             The
             Defender
             alleadged
             that
             he
             was
             not
             comptable
             for
             the
             Annualrent
             of
             one
             of
             the
             Sums
             acclaimed
             ,
             because
             by
             the
             Bond
             ,
             it
             was
             provided
             in
             Liferent
             to
             the
             Relict
             ,
             whereto
             his
             Father
             had
             right
             ,
             
               jure
               mariti
            
             .
             It
             was
             answered
             ,
             that
             the
             Tutor
             had
             given
             several
             Discharges
             of
             that
             Annualrent
             as
             Tutor
             ,
             and
             not
             as
             Husband
             ,
             and
             so
             had
             Homologat
             and
             acknowledged
             the
             Pupils
             right
             to
             the
             Annualrent
             .
             It
             was
             answered
             ,
             that
             the
             Discharge
             was
             so
             
             granted
             by
             errour
             and
             mistake
             ,
             
               &
               falsa
               designatio
               non
               obest
               ubi
               constat
               dere
            
             and
             offered
             to
             prove
             by
             the
             Bond
             ,
             that
             the
             Wife
             was
             Liferenter
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             Andrew
             Hadden
             contra
             Nicol
             Campbel
             .
             Ianuary
             25.
             1670.
             
          
           
             
               ANdrew
               Hadden
            
             having
             Charged
             
               Nicol
               Campbel
            
             upon
             a
             Bond
             Subscribed
             by
             him
             as
             Cautioner
             for
             
               Samuel
               Meikle
            
             Gold-smith
             .
             
               Nicol
               Campbel
            
             Suspends
             ,
             and
             raises
             Reduction
             on
             this
             Ground
             ,
             that
             he
             being
             an
             illiterate
             man
             ,
             and
             could
             not
             subscribe
             ,
             he
             was
             induced
             to
             be
             Cautioner
             for
             
               Samuel
               Meikle
            
             ,
             but
             on
             these
             express
             Terms
             ,
             that
             he
             should
             only
             be
             Cautioner
             for
             1200.
             merks
             ,
             and
             accordingly
             he
             gave
             order
             to
             the
             two
             Nottars
             ,
             to
             subscribe
             for
             him
             as
             Cautioner
             for
             1200.
             merks
             .
             The
             said
             
               Andrew
               Hadden
            
             the
             Creditor
             ,
             being
             then
             present
             at
             the
             Warrand
             and
             Subscription
             ,
             and
             yet
             a
             far
             greater
             Sum
             is
             filled
             up
             in
             the
             Bond
             ,
             which
             he
             offers
             to
             prove
             by
             the
             two
             Nottars
             ,
             the
             Witnesses
             insert
             ,
             and
             the
             Communers
             .
             The
             Charger
             answered
             ,
             that
             he
             oppones
             his
             Bond
             ,
             being
             a
             clear
             liquid
             Bond
             in
             Writ
             ,
             which
             cannot
             be
             taken
             away
             by
             Witnesses
             .
             The
             Suspender
             answered
             ,
             that
             albeit
             regularly
             ,
             Writ
             cannot
             be
             taken
             away
             by
             Witnesses
             ,
             yet
             Fraud
             or
             Circumvention
             ,
             or
             the
             Terms
             of
             Agreement
             ,
             and
             Communing
             in
             Contracts
             ,
             are
             always
             probable
             by
             the
             Oaths
             of
             the
             Communers
             ,
             Writer
             ,
             and
             the
             Witnesses
             insert
             .
          
           
             The
             Lords
             would
             not
             receive
             the
             Reason
             to
             be
             proven
             in
             the
             ordinar
             way
             by
             Witnesses
             ,
             but
             
               ex
               officio
            
             ,
             ordained
             the
             Communers
             ,
             Nottars
             ,
             and
             Witnesses
             to
             be
             Examined
             ,
             that
             they
             might
             consider
             the
             clearness
             ,
             and
             pregnancy
             of
             their
             Testimonies
             ,
             whether
             this
             Writ
             was
             Read
             to
             the
             Suspender
             ,
             when
             he
             gave
             Warrand
             to
             Subscribe
             ,
             and
             what
             was
             Read
             for
             the
             Sum
             ,
             and
             on
             what
             Terms
             he
             gave
             Warrand
             to
             Subscribe
             .
          
        
         
           
             Mr.
             Iohn
             Mcqueen
             contra
             Marquess
             of
             Douglass
             ,
             and
             Mr.
             Peter
             Pearson
             .
             January
             26.
             1670.
             
          
           
             MR.
             
               Iohn
               Mcqueen
            
             having
             been
             Minister
             at
             Carmichael
             ,
             and
             Trainsported
             to
             Edinburgh
             ,
             he
             continued
             to
             serve
             the
             Cure
             at
             Carmichael
             ,
             till
             March
             1669
             and
             pursues
             the
             Marquess
             for
             the
             half
             years
             Stipend
             1669.
             
             Compearance
             is
             made
             for
             Mr.
             
               Peter
               Pearson
            
             his
             Successor
             ,
             who
             alleadged
             that
             he
             is
             presented
             in
             Ianuary
             to
             the
             whole
             Stipend
             1669.
             and
             thereby
             has
             Right
             ;
             and
             Mcqueen
             was
             Transported
             before
             Ianuary
             1669.
             and
             though
             he
             continued
             to
             Preach
             till
             February
             or
             March
             ,
             yet
             being
             Transported
             ,
             he
             was
             no
             more
             Minister
             ,
             and
             did
             not
             Preach
             till
             the
             compleat
             Sowing
             ,
             or
             Whitsonday
             ,
             which
             is
             the
             legal
             Term
             for
             half
             a
             years
             Stipend
             of
             Transported
             Ministers
             .
             It
             was
             answered
             for
             Mr.
             Mcqueen
             ,
             that
             Pearson
             not
             being
             Admitted
             Minister
             till
             August
             1669.
             can
             have
             no
             right
             to
             a
             Term
             anterior
             ,
             and
             the
             Patrons
             Presentation
             can
             give
             him
             no
             right
             ,
             because
             the
             Patron
             has
             now
             no
             power
             of
             the
             vaccand
             Stipend
             .
          
           
             The
             Lords
             preferred
             
               Mcqueen
            
             ,
             seing
             nothing
             was
             alleadged
             for
             the
             Collector
             of
             the
             Vaccand
             Stipends
             ,
             who
             ,
             it
             is
             like
             ,
             might
             have
             excluded
             both
             ,
             for
             at
             Whitsonday
             ,
             neither
             of
             them
             was
             in
             officio
             ,
             or
             beneficio
             ,
          
        
         
           
           
             Relict
             of
             Mr.
             Patrick
             She●ls
             contra
             Parochioners
             of
             West-Calder
             .
             Eodem
             die
             .
          
           
             MR.
             
               Patrick
               Sh●ils
            
             having
             been
             Minister
             of
             West-Calder
             ,
             he
             was
             Suspended
             by
             the
             Synod
             and
             Bishop
             ,
             for
             not
             coming
             to
             the
             Presbyteries
             and
             Synods
             ,
             and
             the
             Act
             Suspended
             him
             ;
             
               ab
               officio
            
             ,
             and
             bear
             ,
             that
             if
             he
             did
             not
             come
             to
             the
             next
             Synod
             ,
             they
             would
             proceed
             to
             Depose
             him
             ,
             yet
             he
             was
             not
             Deposed
             ,
             but
             continued
             three
             years
             in
             the
             Possession
             of
             the
             Manse
             ,
             Gleib
             ,
             and
             Stipend
             ,
             his
             Wife
             now
             pursues
             for
             an
             Ann
             ,
             the
             next
             Intrant
             being
             admitted
             within
             three
             Moneths
             after
             Mr.
             Patricks
             Death
             ,
             alleadges
             she
             could
             have
             no
             Ann
             ,
             because
             Mr.
             Patrick
             was
             Suspended
             
               ab
               officio
               &
               benefici●
            
             ,
             and
             produces
             an
             Act
             of
             the
             Synod
             bearing
             so
             much
             ,
             and
             the
             Relict
             produces
             that
             same
             Act
             Extracted
             ,
             and
             Subscribed
             by
             umquhil
             Mr.
             
               George
               Hay
            
             ,
             who
             was
             Clerk
             at
             the
             time
             ,
             and
             bears
             only
             Suspension
             ,
             
               ab
               officio
            
             ,
             and
             the
             Intrants
             Act
             is
             Extracted
             by
             the
             present
             subsequent
             Clerk
             ,
             and
             bears
             
               ab
               officio
               &
               beneficio
            
             .
             The
             Relict
             alleadged
             ,
             that
             the
             Act
             produced
             by
             her
             ,
             was
             the
             only
             Act
             intimate
             to
             Mr.
             Patrick
             ,
             and
             which
             is
             Subscribed
             by
             the
             Clerk
             ,
             who
             was
             Clerk
             to
             the
             principal
             Act
             it self
             ,
             and
             accordingly
             Mr.
             Patrick
             was
             in
             
               bona
               fide
            
             ,
             and
             did
             possesse
             three
             years
             after
             .
          
           
             The
             Lords
             adhered
             to
             that
             Act
             ,
             and
             found
             the
             Ann
             due
             ,
             and
             ordained
             the
             other
             Act
             to
             be
             keeped
             
               in
               retentis
            
             ,
             that
             it
             might
             be
             compared
             with
             the
             Register
             ,
             that
             he
             might
             be
             Cen●ured
             if
             he
             Extracted
             it
             wrong
             .
          
        
         
           
             Lady
             Towie
             contra
             Captain
             Barclay
             .
             Eodem
             die
             .
          
           
             THe
             Lady
             Towie
             insisted
             in
             the
             improbation
             of
             a
             Disposition
             ,
             alleadged
             granted
             by
             the
             Tutor
             of
             Towie
             ,
             whose
             Estate
             was
             provided
             to
             Heirs-male
             ,
             but
             he
             had
             Disponed
             his
             Estate
             to
             the
             Pursuer
             his
             Daughter
             ,
             upon
             which
             ,
             no
             Infeftment
             had
             followed
             in
             his
             Life
             :
             And
             also
             for
             improving
             of
             a
             Bond
             of
             a
             hundreth
             and
             three
             thousand
             pound
             ,
             alleadged
             granted
             by
             the
             Deceast
             Laird
             of
             Towie
             ,
             both
             granted
             in
             favours
             of
             Captain
             
               William
               Barclay
            
             .
             In
             which
             Improbation
             ,
             because
             the
             Writs
             were
             not
             produced
             ,
             a
             Decreet
             of
             Certification
             ,
             holding
             them
             as
             false
             and
             feinzied
             ,
             and
             declaring
             them
             to
             make
             no
             Faith
             ,
             was
             Pronounced
             and
             Extracted
             :
             and
             thereafter
             the
             Pursuer
             having
             desired
             ,
             that
             
               Alexander
               Steil
            
             ,
             and
             
               Iohn
               Ross
            
             ,
             Witnesses
             insert
             in
             the
             Disposition
             ,
             and
             
               Alexander
               Ferguson
            
             Writer
             ,
             and
             Witnesses
             in
             the
             Disposition
             ,
             and
             Witnesse
             in
             the
             Bond
             ,
             should
             be
             Examined
             ,
             lest
             by
             their
             Death
             ,
             the
             means
             of
             Improbation
             should
             fail
             ,
             in
             case
             the
             Writs
             were
             hereafter
             produced
             .
          
           
             Whereupon
             the
             Lords
             Examined
             the
             Witnesses
             ,
             Steil
             and
             R●ss
             by
             their
             Depositions
             ,
             acknowledged
             ,
             that
             they
             being
             Servants
             to
             Captain
             Barclay
             ,
             he
             had
             induced
             them
             to
             Subscribe
             as
             Witnesses
             to
             a
             Writ
             ,
             which
             he
             had
             folded
             up
             ,
             and
             did
             not
             Read
             to
             them
             ;
             but
             they
             saw
             that
             there
             was
             no
             Name
             ,
             as
             a
             Subscription
             thereto
             ,
             at
             that
             time
             ,
             but
             the
             Captain
             told
             them
             ,
             that
             he
             would
             get
             the
             Tutor
             of
             Towies
             Subscription
             thereto
             ,
             and
             that
             he
             had
             thereafter
             dealt
             with
             them
             to
             bide
             by
             the
             Writ
             ,
             as
             a
             true
             Writ
             ;
             and
             that
             albeit
             it
             bear
             date
             at
             the
             Barns
             of
             Towie
             ,
             the
             day
             after
             the
             Laird
             died
             ,
             yet
             that
             it
             was
             truly
             Subscribed
             at
             the
             Captains
             House
             of
             Achridie
             ,
             about
             a
             Month
             thereafter
             ,
             Ferguson
             did
             Depone
             ,
             that
             he
             had
             Written
             over
             the
             said
             Disposition
             ,
             and
             that
             it
             was
             Subscribed
             at
             Achridie
             about
             a
             Moneth
             after
             Towie
             died
             ,
             and
             that
             he
             had
             insert
             himself
             Witness
             therein
             ,
             but
             had
             not
             Subscribed
             as
             Witness
             ;
             and
             that
             he
             was
             insert
             ,
             and
             Subscribing
             Witnesse
             in
             the
             said
             Bond
             ,
             to
             which
             
             he
             Forged
             ,
             and
             set
             to
             the
             hand
             of
             the
             Deceast
             Laird
             of
             Tow●e
             ,
             at
             the
             desire
             of
             the
             Captain
             ,
             whose
             Pupil
             he
             had
             been
             .
             The
             other
             Witness
             in
             the
             Bond
             was
             
               Richard
               Barclay
            
             ,
             who
             appeared
             not
             :
             upon
             the
             foresaid
             Disposition
             Captain
             Barclay
             had
             made
             Resignation
             before
             the
             Lords
             of
             Exchequer
             ,
             and
             the
             same
             had
             been
             produced
             by
             him
             ,
             and
             made
             use
             of
             in
             Processes
             before
             the
             Lords
             ,
             as
             appeared
             by
             the
             Subscribed
             Minute
             ,
             by
             Mr.
             
               Alexander
               Birnie
            
             his
             Advocat
             ,
             acknowledging
             the
             getting
             up
             of
             that
             Disposition
             from
             the
             Clerk
             ,
             which
             he
             had
             produced
             for
             Captain
             Barclays
             interest
             ,
             and
             which
             he
             had
             delivered
             to
             the
             Captain
             immediatly
             ,
             as
             he
             had
             received
             the
             same
             from
             the
             Clerk.
             Captain
             
             Barclay's
             Goodson
             Arnage
             ,
             was
             also
             Examined
             ,
             who
             Depo●ed
             that
             he
             had
             received
             a
             Message
             from
             the
             Captain
             ,
             to
             deal
             with
             the
             Witnesses
             to
             come
             over
             to
             Edinburgh
             ,
             and
             bide
             by
             the
             Writs
             .
             Captain
             Barclay
             himself
             was
             also
             Examined
             upon
             Oath
             ,
             and
             Confronted
             with
             the
             Witnesses
             ,
             but
             he
             denyed
             all
             the
             foresaid
             Points
             in
             their
             Testimonies
             ,
             and
             Deponed
             that
             the
             said
             
               William
               Steil
            
             being
             his
             Servant
             ,
             had
             run
             away
             from
             him
             ,
             and
             carryed
             away
             the
             said
             Disposition
             and
             Bond
             ,
             and
             had
             gone
             over
             to
             the
             Lady
             Towie
             ,
             and
             conspired
             with
             her
             for
             his
             destruction
             .
             The
             Tutor
             also
             being
             Examined
             upon
             Oath
             ,
             acknowledged
             he
             had
             subscribed
             several
             Dispositions
             of
             the
             Estate
             of
             Towie
             ,
             in
             favours
             of
             Captain
             Barclay
             ,
             and
             that
             some
             of
             them
             were
             Subscribed
             ,
             no
             Witnesses
             being
             present
             ,
             but
             that
             he
             had
             bidden
             the
             Captain
             put
             in
             what
             Witnesses
             he
             pleased
             ;
             and
             that
             whereas
             before
             he
             had
             declared
             ,
             that
             he
             had
             Subscribed
             no
             Disposition
             ,
             yet
             he
             had
             done
             it
             ,
             being
             in
             the
             power
             of
             the
             Lady
             Towies
             Friends
             ,
             who
             told
             him
             that
             Captain
             Barclay
             being
             next
             Heir-male
             of
             Towie
             ,
             had
             a
             mind
             to
             take
             his
             Life
             ,
             which
             he
             found
             afterward
             not
             to
             be
             true
             ,
             and
             was
             willing
             to
             do
             any
             Deed
             for
             conveying
             of
             the
             Estate
             to
             the
             Captain
             ,
             seing
             he
             had
             no
             Heirs-male
             of
             his
             own
             .
             The
             Clerks
             of
             Exchequer
             ,
             Advocats
             ,
             and
             several
             Writers
             and
             their
             Servants
             ,
             were
             also
             Examined
             upon
             Oath
             ,
             anent
             the
             having
             of
             the
             said
             Disposition
             and
             Bond
             ;
             The
             Clerks
             of
             Exchequer
             Deponed
             that
             the
             Disposition
             was
             produced
             in
             Exchequer
             ,
             and
             Resignation
             made
             thereon
             ;
             and
             the
             r●st
             Deponed
             ,
             that
             they
             had
             seen
             the
             Disposition
             and
             Bond
             ,
             and
             were
             Consulted
             thereupon
             by
             the
             Captain
             ,
             but
             had
             given
             them
             back
             to
             him
             .
          
           
             Upon
             the
             whole
             Matter
             ,
             the
             Pursuer
             craved
             ,
             that
             now
             ,
             seing
             there
             was
             sufficient
             Probation
             of
             the
             Forgery
             of
             the
             Writs
             ,
             and
             that
             the
             Lords
             had
             produced
             before
             them
             a
             just
             double
             of
             the
             Disposition
             ,
             presented
             to
             the
             Exchequer
             ,
             that
             therefore
             the
             Lords
             would
             proceed
             to
             improve
             the
             same
             ,
             and
             to
             declare
             that
             the
             same
             were
             false
             ,
             and
             Forged
             by
             the
             Captain
             ,
             and
             that
             they
             would
             remit
             him
             to
             the
             Justice
             General
             ,
             according
             to
             the
             ordinary
             Custom
             in
             Improbations
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             the
             Lords
             could
             not
             proceed
             to
             improve
             the
             Writs
             ,
             because
             the
             Writs
             were
             not
             produced
             ,
             and
             never
             any
             Writ
             in
             Scotland
             was
             improven
             ,
             but
             when
             the
             principal
             Writ
             it self
             was
             produced
             ;
             neither
             can
             it
             otherwise
             be
             ,
             for
             Improbation
             before
             the
             Lords
             ,
             being
             
               ad
               effectum
               civilem
            
             ,
             to
             take
             away
             the
             Writ
             ,
             and
             Right
             therein
             ,
             the
             same
             behoved
             alwayes
             to
             proceed
             upon
             a
             particular
             and
             individual
             Writ
             ,
             which
             therefore
             behoved
             to
             be
             produced
             before
             the
             Lords
             and
             Witnesses
             ;
             for
             suppose
             it
             could
             be
             prove
             that
             a
             Write
             of
             such
             a
             date
             ,
             and
             such
             a
             Tenor
             ,
             was
             Fabricat
             ,
             and
             Forged
             at
             such
             a
             time
             and
             place
             ,
             which
             might
             in●er
             a
             Crime
             against
             the
             Forgers
             ;
             yet
             it
             could
             not
             take
             away
             all
             right
             by
             such
             a
             Writ
             ,
             because
             there
             might
             be
             several
             Writs
             of
             the
             same
             Date
             ;
             and
             the
             making
             up
             and
             improving
             of
             a
             false
             Writ
             of
             such
             a
             Date
             ,
             could
             not
             take
             away
             the
             true
             Writ
             of
             the
             same
             Date
             ,
             unless
             the
             principal
             Writ
             it self
             had
             been
             produced
             ,
             that
             the
             Judges
             and
             Witnesses
             might
             know
             that
             that
             was
             
             the
             very
             Writ
             in
             question
             .
             And
             therefore
             our
             Custom
             hath
             settled
             and
             fixed
             upon
             this
             Remeid
             ,
             by
             allowing
             a
             Certification
             ,
             that
             if
             the
             Writs
             called
             for
             to
             be
             Improven
             ,
             were
             not
             produced
             ,
             they
             should
             be
             holden
             and
             repute
             as
             false
             and
             feinzied
             ,
             and
             should
             make
             no
             Faith
             :
             but
             did
             not
             find
             them
             proven
             to
             be
             Forged
             and
             Feinzied
             :
             but
             only
             to
             make
             no
             Faith
             ,
             as
             if
             they
             had
             been
             fenzied
             ,
             which
             in
             this
             Process
             has
             been
             done
             ,
             and
             the
             Lords
             have
             neither
             Law
             nor
             Custom
             to
             do
             any
             further
             .
             2dly
             ,
             Albeit
             the
             Witnesses
             have
             by
             their
             own
             Testimonies
             declared
             themselves
             to
             be
             Forgers
             of
             false
             Writs
             ,
             their
             Testimonies
             cannot
             prove
             that
             Captain
             Barclay
             was
             either
             Authour
             ,
             or
             accessory
             to
             their
             Forgery
             ▪
             because
             they
             are
             
               socij
               criminis
            
             ,
             and
             have
             by
             their
             Testimony
             made
             themselves
             infamous
             ,
             as
             Falsers
             ;
             and
             so
             there
             is
             no
             Faith
             to
             be
             given
             to
             their
             Testimonies
             ,
             against
             any
             other
             but
             themselves
             :
             Besides
             ,
             they
             have
             given
             partial
             Counsel
             to
             the
             Pursuer
             ,
             and
             have
             betrayed
             their
             Testimonies
             ,
             by
             voluntarly
             coming
             to
             them
             ,
             and
             declaring
             what
             they
             would
             Depone
             ;
             and
             therefore
             the
             Lords
             can
             neither
             Improve
             the
             Writs
             ,
             nor
             Remit
             Captain
             Barclay
             to
             the
             Justice
             ,
             as
             a
             Falser
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             the
             ordinar
             Course
             in
             Improbations
             ,
             be
             only
             Certification
             ,
             when
             the
             Writs
             are
             not
             produced
             :
             yet
             there
             is
             nothing
             to
             hinder
             the
             Lords
             to
             use
             extraordinary
             Remeids
             ,
             in
             extraordinary
             Cases
             ;
             and
             there
             can
             be
             no
             Case
             more
             extraordinar
             than
             this
             ,
             where
             there
             is
             an
             evident
             Tract
             of
             Forgery
             ,
             for
             taking
             away
             a
             considerable
             Estate
             of
             sixscore
             Chalders
             of
             Victual
             Improven
             by
             the
             very
             Witnesses
             insert
             ,
             and
             that
             the
             Writs
             have
             not
             been
             produced
             .
             It
             is
             the
             Defenders
             own
             fault
             ,
             who
             knowing
             them
             to
             be
             false
             ,
             wilfully
             Abstracts
             the
             same
             ,
             and
             it
             will
             be
             a
             very
             great
             incouragement
             to
             Forgery
             ,
             if
             the
             Forger
             knew
             that
             all
             his
             hazard
             will
             be
             ,
             to
             suffer
             Certification
             ,
             if
             his
             Forgery
             take
             not
             ;
             Neither
             were
             ever
             Witnesses
             in
             Improbation
             of
             Writs
             ,
             exclude
             in
             the
             Civil
             Process
             ,
             as
             being
             
               socij
               criminis
            
             :
             But
             if
             they
             acknowledge
             the
             Forgery
             thereof
             ,
             they
             were
             Improved
             ,
             though
             they
             themselves
             were
             accessory
             to
             the
             Forgery
             ,
             otherwise
             if
             Witnesses
             can
             be
             induced
             to
             Subscribe
             as
             Witnesses
             to
             a
             forged
             Subscription
             ,
             there
             were
             no
             possibility
             of
             Remeid
             ,
             seing
             it
             cannot
             be
             thought
             ,
             they
             would
             suffer
             any
             other
             to
             be
             present
             ,
             or
             that
             the
             Forger
             himself
             would
             consess
             .
          
           
             The
             Lords
             refused
             to
             proceed
             to
             Improve
             the
             Writs
             ,
             not
             being
             produced
             ,
             or
             to
             Remit
             the
             Parties
             to
             the
             Justice
             :
             But
             they
             did
             Declare
             ,
             that
             by
             the
             Processes
             ,
             they
             found
             
               Steil
               ,
               Ross
            
             ,
             and
             Ferguson
             ,
             the
             Witnesses
             to
             be
             guilty
             of
             Forgery
             ,
             by
             their
             own
             Confession
             ;
             and
             that
             they
             found
             Captain
             Barclay
             had
             made
             use
             of
             the
             VVrits
             ,
             acknowledged
             to
             have
             been
             Forged
             ,
             and
             therefore
             ordained
             these
             of
             their
             number
             ,
             that
             were
             upon
             the
             Privy
             Council
             ,
             to
             Represent
             the
             Case
             to
             the
             Council
             ,
             that
             they
             might
             cognos●e
             what
             furder
             Censure
             they
             saw
             just
             to
             be
             Inflicted
             :
             and
             it
             was
             the
             privat
             opinion
             of
             most
             of
             the
             Lords
             ,
             that
             at
             least
             the
             Witnesses
             ,
             and
             Barclay
             himself
             should
             be
             banished
             :
             But
             they
             found
             it
             not
             proper
             for
             them
             to
             express
             their
             opinion
             ;
             or
             prelimit
             the
             Council
             .
             But
             withal
             ,
             the
             Lords
             found
             the
             Probation
             adduced
             ,
             sufficient
             to
             Declare
             Captain
             Barclay
             and
             the
             VVitnesses
             infamous
             ,
             and
             did
             Declare
             them
             such
             accordingly
             .
          
        
         
           
             Iames
             Watson
             contra
             Agnes
             Simpson
             .
             February
             1.
             1670.
             
          
           
             
               AGnes
               Simpson
            
             being
             Infeft
             by
             umquhil
             
               Alexander
               Stewart
            
             her
             Husband
             in
             Liferent
             ,
             in
             an
             Annualrent
             of
             40.
             pound
             yearly
             out
             of
             the
             Lands
             of
             La●ellethem
             ,
             she
             in
             Anno
             1657.
             obtained
             a
             Decreet
             of
             Poinding
             of
             the
             Ground
             ,
             and
             the
             Tennents
             having
             Suspended
             on
             multiply
             Poinding
             
             calling
             her
             ,
             and
             
               James
               Watson
            
             and
             others
             ,
             wherein
             she
             is
             preferred
             in
             Anno
             1666.
             to
             her
             Annualrent
             ,
             for
             all
             years
             bygone
             ,
             and
             in
             time
             coming
             .
             In
             which
             〈◊〉
             of
             multiple
             Poinding
             ,
             Watson
             was
             absent
             .
             Watson
             making
             use
             of
             the
             names
             of
             the
             Tennents
             ,
             does
             raise
             a
             second
             Suspension
             ,
             Anno
             1668.
             wherein
             he
             is
             called
             on
             the
             one
             part
             ,
             and
             the
             said
             
               Agnes
               Simpson
            
             on
             the
             other
             part
             ,
             which
             now
             coming
             to
             be
             Discust
             ;
             it
             was
             alleadged
             for
             the
             said
             
               Iames
               Watson
            
             ,
             that
             the
             Decreet
             of
             multiple
             Poinding
             against
             him
             ,
             being
             in
             absence
             ,
             he
             ought
             now
             to
             be
             heard
             upon
             his
             Right
             ,
             which
             is
             a
             publick
             Infeftment
             ,
             long
             before
             the
             Liferenters
             base
             Infeftment
             ,
             or
             before
             it
             was
             cled
             with
             Possession
             .
             It
             was
             answered
             ,
             that
             by
             the
             express
             Act
             of
             Parliament
             ,
             anent
             double
             Poindings
             ,
             It
             is
             Declared
             ,
             that
             where
             parties
             are
             called
             ,
             and
             compear
             not
             ,
             but
             intent
             Reduction
             of
             the
             Decreet
             ,
             that
             they
             shall
             never
             be
             heard
             against
             the
             Decreet
             ,
             or
             what
             the
             obtainer
             thereof
             has
             uplifted
             ,
             unles●
             they
             shew
             a
             sufficient
             Cause
             of
             their
             absence
             ;
             and
             that
             the
             obtainer
             of
             the
             Decreet
             shall
             only
             be
             obliged
             to
             answer
             the
             other
             Party
             in
             the
             second
             instance
             ,
             according
             to
             the
             Right
             ,
             which
             is
             then
             competent
             in
             his
             Pe●son
             ,
             and
             the
             obtainer
             of
             the
             Decreet
             shall
             have
             undoubted
             Right
             to
             the
             Mails
             and
             Duties
             ,
             ay
             and
             while
             he
             be
             warned
             at
             the
             instance
             of
             the
             other
             Party
             ,
             and
             better
             Right
             shown
             ,
             as
             is
             clear
             by
             the
             Act
             of
             Parliament
             ,
             1584.
             cap.
             3.
             
             So
             that
             Watson
             having
             yet
             raised
             no
             Reduction
             of
             the
             Decreet
             of
             multiple
             Poinding
             ,
             preferring
             Simpson
             ,
             but
             only
             a
             second
             Suspension
             in
             name
             of
             the
             Tennents
             ,
             who
             Suspended
             before
             ,
             the
             said
             
               Agnes
               Simpson
            
             her
             Decreet
             standing
             ,
             and
             her
             Right
             standing
             thereby
             ,
             cannot
             be
             taken
             away
             ,
             till
             in
             a
             Reduction
             Watson
             produce
             a
             better
             Right
             .
             It
             was
             answered
             ,
             that
             Watson
             does
             not
             contend
             for
             the
             years
             lifted
             by
             Simpson
             ,
             or
             for
             any
             years
             prior
             to
             his
             second
             Suspension
             ,
             albeit
             he
             does
             produce
             an
             unquestionable
             Right
             ,
             that
             would
             exclude
             her
             from
             all
             ;
             yet
             in
             regard
             of
             the
             Act
             of
             Parliament
             ,
             he
             is
             sati●fied
             she
             be
             preferred
             ,
             for
             all
             years
             ,
             till
             he
             in
             his
             second
             Suspension
             ,
             produce
             his
             Rights
             ;
             but
             alleadges
             that
             he
             needs
             not
             raise
             Reduction
             ,
             because
             the
             Act
             of
             Parliament
             does
             not
             require
             the
             same
             ,
             but
             any
             Complaint
             or
             Process
             is
             thereby
             sufficient
             ;
             Neither
             does
             the
             ordinar
             course
             of
             Law
             require
             a
             Reduction
             of
             a
             Decreet
             in
             absence
             ,
             but
             a
             Suspension
             alone
             is
             sufficient
             ;
             and
             if
             he
             be
             put
             to
             a
             Reduction
             ,
             his
             unquestionable
             Right
             will
             be
             excluded
             for
             all
             years
             bygone
             ,
             and
             ay
             and
             while
             he
             raise
             his
             Reduction
             ,
             and
             produce
             his
             Right
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             ordinar
             course
             requires
             not
             Reduction
             of
             Decreets
             in
             absence
             ,
             yet
             the
             Act
             of
             Parliament
             requires
             the
             same
             ,
             because
             in
             the
             Narrative
             ,
             it
             expresly
             mentions
             ,
             that
             the
             party
             absent
             in
             the
             double
             Poinding
             ,
             uses
             to
             raise
             Reduction
             :
             And
             in
             the
             Statutory
             part
             ,
             it
             mentions
             ,
             that
             the
             other
             Parties
             Complaint
             shall
             be
             heard
             in
             the
             second
             instance
             ,
             which
             is
             always
             understood
             to
             be
             Reduction
             or
             Declarator
             ,
             and
             in
             a
             second
             Suspension
             .
          
           
             The
             Lords
             found
             that
             Reduction
             was
             necessary
             to
             take
             away
             a
             Decreet
             of
             multiple
             Poinding
             in
             absence
             ,
             and
             that
             a
             second
             Suspension
             was
             not
             sufficient
             ,
             and
             therefore
             preferred
             Simpson
             ,
             and
             found
             the
             Letters
             orderly
             proceeded
             ,
             but
             prejudice
             to
             Watson
             to
             raise
             his
             Reduction
             for
             the
             Duties
             in
             time
             coming
             .
          
        
         
           
             Alexander
             Jack
             contra
             Collonel
             Borthwick
             .
             February
             2.
             1670.
             
          
           
             
               ALexander
               Jack
            
             alleadging
             that
             he
             Subscribed
             a
             blank
             to
             have
             been
             filled
             up
             in
             a
             Bond
             of
             Cautionry
             ,
             in
             a
             Suspension
             ,
             which
             was
             found
             among
             the
             Writs
             of
             umquhil
             
               George
               Jack
            
             ,
             as
             a
             blank
             Paper
             ,
             who
             lived
             several
             years
             thereafter
             ;
             and
             after
             his
             Decease
             ,
             his
             Relict
             finding
             the
             same
             ,
             caused
             fill
             
             up
             in
             the
             blank
             ,
             a
             Bond
             of
             ten
             thousand
             pound
             ,
             as
             being
             borrowed
             from
             
               Thomas
               Boid
            
             of
             Pinkill
             ,
             and
             is
             now
             in
             the
             Person
             of
             Collonel
             B●r●hwick
             ,
             who
             having
             Charged
             thereupon
             ,
             the
             said
             
               Alexander
               Jack
            
             Suspended
             ,
             and
             raised
             Reduction
             on
             this
             Reason
             ,
             that
             he
             had
             never
             any
             medling
             ,
             or
             borrowing
             with
             the
             said
             
               Thomas
               Boyd
            
             ;
             but
             that
             the
             said
             Bond
             was
             a
             blank
             Paper
             ,
             found
             among
             the
             Writs
             of
             the
             said
             Deceast
             
               George
               Jack
            
             ,
             and
             neither
             he
             nor
             the
             said
             Alexander
             were
             ever
             worth
             so
             great
             a
             sum
             :
             and
             now
             seing
             Collonel
             Borthwich
             did
             not
             insist
             in
             his
             Charge
             ;
             Jack
             was
             necessitate
             to
             proceed
             to
             take
             away
             the
             Bond
             ,
             and
             craved
             that
             the
             Lords
             would
             Examine
             Witnesses
             ,
             
               ex
               officio
            
             ,
             upon
             the
             truth
             of
             this
             Reason
             .
          
           
             The
             Lords
             ordained
             the
             Writer
             ,
             and
             the
             Witnesses
             to
             be
             first
             Examined
             ,
             
               ex
               officio
            
             ,
             and
             thereafter
             other
             VVitnesses
             ,
             as
             the
             Lords
             should
             see
             Cause
             .
          
        
         
           
             Earl
             of
             Kinghorn
             contra
             The
             Laird
             of
             Pittarro
             .
             February
             3.
             1670.
             
          
           
             THe
             Earl
             of
             Kinghorn
             pursues
             a
             Declarator
             of
             the
             nullity
             of
             a
             Bond
             of
             1000.
             merks
             granted
             by
             his
             Father
             ▪
             and
             now
             standing
             in
             the
             name
             of
             Pi●tarro
             ,
             as
             Creditor
             on
             this
             Ground
             ,
             that
             he
             never
             borrowed
             the
             sum
             from
             Pittarro
             ,
             nor
             delivered
             this
             Bond
             to
             him
             ;
             but
             having
             Trusted
             umquhil
             
               Alexander
               Keith
            
             ,
             as
             his
             ordinar
             Agent
             and
             Writer
             ,
             with
             this
             Bond
             ,
             blank
             in
             the
             Sum
             and
             Date
             ,
             to
             have
             borrowed
             Money
             upon
             the
             same
             ,
             took
             never
             effect
             ,
             but
             remained
             so
             blank
             in
             the
             hands
             of
             
               Alexander
               Keith
            
             ,
             for
             many
             years
             ,
             till
             his
             Death
             ,
             and
             thereafter
             in
             his
             Relicts
             hands
             ,
             till
             her
             Death
             ,
             and
             after
             her
             Death
             the
             blank
             was
             filled
             up
             ,
             by
             
               John
               Bane
            
             her
             Brother
             ,
             and
             the
             Date
             made
             in
             Anno
             1647.
             whereas
             the
             Bond
             mentions
             Alber
             as
             Cautioner
             ,
             who
             Died
             before
             the
             year
             1640.
             whereupon
             
             Pittarro's
             Oath
             ,
             and
             the
             Oath
             of
             
               Alexander
               Keith
            
             ,
             Friend
             to
             the
             said
             umquhil
             ,
             Alexander
             being
             taken
             ,
             Pittarro
             acknowledged
             that
             the
             Bond
             was
             blank
             ,
             and
             filled
             up
             by
             the
             said
             
               John
               Bane
            
             ,
             as
             the
             Reason
             bears
             ,
             and
             that
             he
             received
             the
             same
             by
             advice
             of
             this
             
               Alexander
               Keith
            
             ,
             in
             satisfaction
             of
             1000.
             merks
             ,
             and
             40.
             pound
             due
             to
             Pittarro
             ,
             by
             Mr.
             
               Roger
               Mowat
            
             ,
             and
             lifted
             from
             him
             by
             umquhil
             
               Alexander
               Keith
            
             ,
             by
             
             Pittarro's
             Warrand
             ,
             for
             which
             he
             obtained
             Decreet
             against
             
               Alexander
               Keith
            
             his
             Executrix
             before
             the
             Commissars
             ,
             now
             produced
             in
             Process
             ,
             and
             proceeding
             upon
             a
             missive
             Letter
             of
             umquhil
             
               Alexander
               Keiths
            
             ,
             acknowledging
             the
             Debt
             .
             It
             was
             answered
             for
             Pittarro
             ,
             that
             by
             the
             Bond
             produced
             ,
             it
             was
             clear
             that
             his
             Name
             was
             in
             the
             Bond
             ,
             
               ab
               initio
            
             ,
             as
             Creditor
             ,
             and
             was
             not
             filled
             up
             ,
             
               ex
               post
               facto
            
             ,
             neither
             was
             there
             any
             wrong
             in
             filling
             up
             this
             Sum
             ,
             because
             he
             having
             already
             proven
             ,
             that
             
               Alexander
               Keith
            
             had
             uplifted
             the
             like
             Sum
             of
             his
             from
             Mr.
             
               Roger
               Mowat
            
             ,
             and
             that
             my
             Lord
             Kinghorn
             being
             Debitor
             to
             Keith
             in
             considerable
             Sums
             of
             Money
             ,
             payed
             to
             his
             Creditors
             ,
             conform
             to
             Discharges
             produced
             in
             Process
             ,
             
               Alexander
               Keith
            
             might
             lawfully
             have
             filled
             up
             the
             Sum
             in
             the
             Bond
             ,
             for
             Repayment
             of
             Pittarro
             ,
             whose
             Money
             he
             had
             uplifted
             ,
             and
             any
             Friend
             of
             his
             had
             done
             my
             Lord
             Kinghorn
             no
             wrong
             ,
             seing
             thereby
             he
             would
             be
             exonered
             of
             the
             like
             Sum
             to
             Keith
             ,
             and
             was
             content
             yet
             to
             Compt
             and
             Reckon
             with
             Kinghorn
             ,
             for
             
               Alexander
               Keith
            
             ,
             and
             to
             Restrict
             his
             Sum
             ,
             to
             what
             shall
             be
             found
             due
             by
             the
             umquhil
             Earl
             of
             Kinghorn
             to
             Keith
             .
             Likeas
             ,
             this
             
               Alexander
               Keith
            
             by
             his
             Oath
             in
             Process
             Depones
             that
             he
             heard
             that
             umquhil
             
               Alexander
               Keith
            
             ,
             on
             his
             Death-bed
             Declared
             ,
             that
             Kinghorn
             was
             Debitor
             to
             him
             in
             nine
             thousand
             merks
             :
             and
             therefore
             he
             thought
             it
             no
             fault
             to
             fill
             up
             the
             blank
             in
             this
             Bond.
             It
             was
             answered
             for
             Kinghorn
             ,
             that
             albeit
             umquhil
             
               Alexander
               Keith
            
             was
             
             trusted
             by
             the
             umquhil
             Earl
             of
             Kinghorn
             with
             this
             blank
             Bond
             ,
             that
             Trust
             being
             meerly
             personal
             to
             him
             .
             It
             was
             a
             most
             unwarrantable
             trinkating
             for
             any
             other
             after
             his
             Death
             ,
             to
             fill
             up
             the
             Bond
             ,
             especially
             seing
             neither
             by
             Testament
             ,
             nor
             any
             other
             Writ
             umquhil
             
               Alexander
               Keith
            
             ,
             who
             only
             was
             intrusted
             ,
             and
             who
             lived
             many
             years
             after
             ,
             and
             was
             no
             ways
             surprised
             with
             Death
             ,
             did
             signifie
             that
             the
             Money
             was
             borrowed
             from
             Pittarro
             ,
             or
             taken
             from
             any
             of
             his
             Creditors
             and
             applyed
             to
             
             Kinghorn's
             use
             ,
             and
             the
             hear-say
             of
             this
             
               Alexander
               Keith
            
             is
             of
             no
             moment
             :
             and
             if
             any
             thing
             be
             due
             by
             Kinghorn
             to
             Keith
             ,
             the
             Pursuer
             Represents
             his
             Father
             as
             Heir
             ,
             and
             shall
             answer
             Pittarro
             ,
             or
             any
             Executor
             or
             Creditor
             of
             Keiths
             ,
             whenever
             he
             shall
             be
             pursued
             :
             but
             cannot
             be
             insisted
             against
             ,
             upon
             this
             Bond
             ,
             so
             unwarrantably
             filled
             up
             .
          
           
             The
             Lords
             found
             the
             Declarator
             Relevant
             and
             Proven
             ,
             and
             therefore
             Decerned
             the
             said
             Bond
             null
             ,
             reserving
             Action
             against
             Kinghorn
             ,
             upon
             any
             Debt
             due
             by
             Kinghorn
             to
             Keith
             as
             accords
             .
          
        
         
           
             Tutor
             of
             Colzean
             contra
             The
             nearest
             of
             Kin
             of
             the
             Pupil
             .
             February
             5.
             1670.
             
          
           
             THe
             Tutor
             of
             Colzean
             having
             cited
             the
             nearest
             of
             Kin
             of
             his
             Pupil
             ,
             to
             hear
             and
             see
             it
             found
             and
             declared
             ,
             that
             the
             Pupils
             Lands
             were
             set
             too
             high
             ,
             and
             could
             not
             be
             keeped
             at
             these
             Rates
             ,
             and
             that
             the
             Tennents
             were
             in
             Arreir
             before
             his
             Tutory
             in
             great
             Sums
             ,
             which
             if
             he
             should
             exact
             ,
             would
             cast
             the
             Land
             waste
             ;
             and
             that
             it
             was
             for
             the
             good
             of
             the
             Pupil
             ,
             to
             set
             the
             Land
             at
             lower
             Rates
             ,
             which
             it
             might
             be
             able
             to
             pay
             ,
             and
             to
             quite
             so
             much
             of
             the
             Arreirs
             ,
             as
             the
             Tennents
             might
             pay
             the
             rest
             ,
             and
             be
             able
             to
             continue
             and
             Possess
             .
          
           
             There
             being
             no
             compearance
             ,
             the
             Lords
             gave
             Commission
             to
             certain
             Gentlemen
             in
             the
             Countrey
             to
             Examine
             the
             Rate
             of
             the
             Land
             ,
             and
             the
             conditions
             of
             the
             Tennents
             ,
             who
             have
             reported
             several
             of
             the
             Rooms
             to
             be
             too
             high
             set
             ,
             and
             what
             ought
             to
             be
             given
             down
             ,
             and
             what
             behoved
             to
             be
             quite
             to
             each
             Tennent
             ,
             that
             was
             deep
             in
             Arreir
             ,
             to
             inable
             him
             to
             pay
             the
             rest
             ,
             and
             L●bour
             the
             Ground
             .
          
           
             The
             Lords
             approved
             the
             Report
             ,
             with
             these
             Qualifications
             ,
             First
             ,
             That
             the
             Tutor
             should
             Discharge
             nothing
             simply
             ,
             but
             only
             till
             the
             Pupillarity
             were
             past
             ,
             that
             himself
             and
             Curators
             might
             then
             proceed
             as
             they
             saw
             Cause
             ,
             and
             that
             the
             Tutor
             ,
             before
             any
             Abatement
             of
             the
             Rooms
             ,
             should
             cause
             make
             Intimation
             at
             the
             Mercat
             Cross
             of
             the
             Jurisdiction
             ,
             and
             at
             the
             Paroch
             Church
             that
             such
             Lands
             were
             to
             be
             set
             ,
             at
             such
             a
             place
             ,
             such
             a
             day
             ,
             and
             whoever
             bade
             most
             for
             them
             ,
             being
             sufficient
             Tennents
             ,
             should
             have
             them
             ,
             and
             that
             at
             the
             said
             day
             ,
             if
             a
             better
             Rate
             were
             not
             gotten
             ,
             the
             Tutor
             might
             then
             ,
             or
             thereafter
             ,
             set
             at
             the
             Rates
             contained
             in
             the
             Commission
             .
          
        
         
           
             Daniel
             Cathcart
             contra
             Mccorquodail
             and
             Mr.
             Iames
             Mirk
             .
             February
             8.
             1670.
             
          
           
             Mccorquodail
             having
             Married
             the
             Daughter
             of
             Mr.
             
               James
               Mirk
            
             ,
             he
             ,
             and
             the
             Barron
             of
             Mccorquodail
             his
             Brother
             ,
             are
             obliged
             to
             pay
             yearly
             600.
             merks
             to
             the
             Wife
             ,
             after
             the
             Husbands
             Death
             :
             and
             Mr.
             
               James
               Mirk
            
             is
             obliged
             to
             pay
             to
             Mccorquodail
             7000.
             merks
             of
             Tocher
             :
             Mccorquodail
             being
             Debitor
             to
             
               Daniel
               Cathcart
            
             Writer
             in
             Edinburgh
             in
             600.
             merks
             .
             He
             arrests
             the
             Tocher
             in
             Mirks
             hands
             ,
             and
             pursues
             to
             make
             forthcoming
             ,
             
             and
             for
             instructing
             ,
             produces
             the
             foresaid
             Contract
             of
             Marriage
             .
             It
             was
             alleadged
             for
             Mirk
             that
             he
             is
             not
             obliged
             to
             pay
             ,
             or
             make
             furthcoming
             the
             Tocher
             ,
             unless
             his
             Daughter
             were
             secured
             in
             her
             Jointer
             ,
             for
             the
             Tocher
             and
             Jointer
             being
             the
             mutual
             causes
             of
             the
             Contract
             ;
             neither
             Mccorquodail
             nor
             any
             deriving
             Right
             from
             him
             by
             Assignation
             ,
             or
             Arrestment
             ,
             can
             demand
             the
             Tocher
             till
             they
             secure
             the
             Jointer
             ,
             and
             that
             exception
             is
             Relevant
             ,
             both
             against
             Mccorquodail
             and
             his
             Assignies
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             if
             it
             had
             been
             provided
             by
             the
             Contract
             ,
             that
             the
             Tocher
             should
             have
             been
             employed
             for
             the
             Wifes
             security
             ,
             the
             Defense
             had
             been
             Relevant
             ,
             or
             there
             might
             be
             some
             pretence
             ,
             if
             there
             were
             an
             obligement
             upon
             the
             Husband
             to
             secure
             the
             Wife
             in
             Land
             or
             Annualrent
             for
             600.
             
             Merks
             .
             But
             the
             Contracters
             having
             agreed
             for
             no
             security
             for
             the
             future
             ,
             but
             having
             agreed
             upon
             a
             Personal
             security
             ,
             viz.
             of
             the
             Husband
             and
             his
             Brother
             ,
             the
             Husbands
             part
             of
             the
             Contract
             is
             performed
             ,
             and
             the
             Husband
             is
             no
             ways
             Creditor
             till
             his
             Death
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             in
             respect
             of
             the
             conception
             of
             the
             Contract
             as
             aforesaid
             ,
             Repelled
             the
             Defense
             ,
             and
             Decerned
             .
          
        
         
           
             Iohn
             Scot
             contra
             Alexander
             Cheisly
             and
             David
             Thomson
             ,
             February
             9.
             1670.
             
          
           
             
               IOhn
               Scot
            
             pursues
             a
             Declarator
             of
             Circumvention
             against
             
               Alexander
               Cheisly
            
             ,
             and
             
               David
               Thomson
            
             ,
             bearing
             that
             
               Alexander
               Cheisly
            
             having
             a
             Processe
             against
             the
             Magistrats
             of
             Glasgow
             ,
             for
             alleadged
             hindering
             the
             Executing
             of
             a
             Decreet
             ,
             and
             imprisoning
             him
             ,
             and
             being
             in
             an
             evil
             Condition
             in
             his
             Means
             ,
             he
             proposed
             to
             the
             said
             
               Iohn
               Scot
            
             his
             Good-brother
             ,
             that
             he
             must
             make
             use
             of
             his
             Name
             as
             Assigney
             to
             that
             Process
             ,
             lest
             his
             Creditors
             might
             affect
             any
             thing
             that
             might
             be
             obtained
             thereby
             ,
             and
             that
             
               Iohn
               Scot
            
             should
             give
             a
             Back-bond
             ,
             declaring
             that
             his
             Name
             was
             put
             in
             the
             Assignation
             upon
             Trust.
             In
             stead
             of
             which
             Back-bond
             ,
             he
             caused
             draw
             up
             a
             Bond
             ,
             bearing
             that
             forsomuch
             as
             
               Alexander
               Cheisly
            
             had
             Assigned
             
               Iohn
               Scot
            
             to
             a
             Process
             against
             the
             Town
             of
             Glasgow
             therefore
             ,
             and
             for
             other
             good
             Causes
             and
             Considerations
             .
             
               Iohn
               Scot
            
             obliges
             him
             to
             pay
             to
             a
             blank
             Person
             3850.
             
             Merks
             ,
             in
             which
             Bond
             
               Alex●nder
               Cheisly
            
             ,
             filled
             up
             
               David
               Thomsons
            
             Name
             ,
             and
             which
             Bond
             was
             obtained
             by
             
               Alexander
               Cheisly
            
             ,
             by
             gross
             Circumvention
             upon
             the
             absolute
             Trust
             the
             said
             
               Iohn
               Scot
            
             reposed
             upon
             the
             said
             Alexander
             ,
             for
             clearing
             whereof
             he
             condescends
             on
             these
             Points
             ,
             viz.
             that
             the
             said
             
               Iohn
               Scot
            
             was
             Goodbrother
             to
             the
             said
             
               Alexander
               Cheisly
            
             ,
             had
             been
             his
             Prentice
             ,
             and
             the
             said
             Alexander
             was
             his
             Curator
             ,
             and
             the
             said
             
               Iohn
               Scot
            
             is
             known
             to
             be
             a
             simple
             Person
             ,
             and
             the
             said
             
               Alexander
               Cheisly
            
             to
             be
             a
             subtile
             Person
             ,
             ready
             to
             take
             advantage
             :
             Likeas
             it
             is
             evident
             that
             he
             did
             take
             advantage
             of
             the
             said
             
               Iohn
               Scot
            
             ,
             about
             that
             same
             time
             ,
             pretending
             that
             he
             was
             more
             able
             to
             act
             
               Iohn
               Scots
            
             Affairs
             then
             himself
             ,
             he
             procured
             Assignation
             from
             
               Iohn
               Scot
            
             to
             Bonds
             of
             twenty
             eight
             thousand
             Merks
             ,
             and
             put
             in
             the
             Assignation●
             Clause
             of
             absolute
             Warrandice
             ,
             albeit
             by
             a
             Back-bond
             of
             the
             same
             Date
             ,
             it
             be
             clear
             that
             the
             Assignation
             was
             only
             granted
             for
             Love
             and
             Favour
             ,
             and
             for
             Agenting
             the
             Matter
             ,
             and
             that
             the
             one
             half
             should
             belong
             to
             Cheisly
             for
             his
             pains
             ,
             and
             the
             other
             to
             Scot
             ,
             but
             prejudice
             to
             Scots
             obligements
             in
             the
             Assignation
             ,
             which
             could
             be
             no
             other
             but
             the
             Warrandice
             ,
             whereby
             albeit
             Cheisly
             knew
             that
             a
             part
             of
             the
             Debts
             were
             payed
             to
             Scots
             Father
             ,
             and
             a
             part
             was
             insolvent
             ,
             and
             that
             Scot
             who
             was
             Assigney
             by
             his
             Mother
             as
             Executrix
             ,
             had
             no
             more
             himself
             but
             Warrandice
             from
             her
             Deed
             ,
             yet
             by
             the
             absolute
             
             Warrandice
             he
             intended
             to
             be
             sure
             of
             the
             one
             half
             of
             the
             Sums
             ,
             although
             it
             s
             known
             that
             hardly
             the
             half
             will
             be
             recovered
             ,
             whereby
             Cheisly
             should
             have
             all
             ,
             and
             Scot
             who
             freely
             granted
             the
             Assignation
             should
             have
             nothing
             ,
             but
             less
             than
             nothing
             ,
             by
             being
             obliged
             to
             make
             up
             the
             half
             ,
             though
             so
             much
             were
             not
             recovered
             of
             the
             whole
             .
             2dly
             ,
             All
             the
             pretence
             of
             the
             Plea
             against
             Glasgow
             could
             never
             amount
             to
             3850.
             
             Merks
             ,
             yet
             the
             Bond
             is
             conceived
             for
             absolute
             payment
             of
             that
             Sum
             ,
             albeit
             it
             was
             a
             meer
             Plea
             ,
             depending
             many
             years
             ,
             and
             Debated
             without
             success
             .
             
               3dly
               ,
               Cheisly
            
             himself
             did
             ever
             keep
             the
             Process
             and
             Assignation
             ,
             and
             did
             transact
             the
             Plea
             ,
             or
             a
             great
             part
             thereof
             with
             the
             Magistrats
             of
             Glasgow
             ,
             and
             got
             payment
             .
             In
             this
             pursuit
             there
             was
             no
             Compearance
             for
             Cheisly
             ,
             but
             it
             was
             alleadged
             for
             
               David
               Thomson
            
             ,
             that
             whatever
             had
             past
             betwixt
             Cheisly
             and
             Scot
             ,
             no
             ground
             of
             Circumvention
             betwixt
             them
             could
             be
             Relevant
             to
             take
             away
             his
             Right
             ,
             who
             seeing
             the
             blank
             Bond
             filled
             up
             with
             his
             Name
             by
             Cheisly
             ,
             before
             it
             was
             brought
             to
             him
             ,
             and
             given
             to
             him
             for
             Debt
             due
             to
             him
             by
             Cheisly
             ,
             and
             he
             being
             nowayes
             
               particeps
               fraudis
               ,
               Cheislies
            
             Fraud
             or
             Circumvention
             cannot
             prejudge
             him
             ,
             for
             albeit
             Extortion
             
               vi
               majori
            
             be
             
               vitium
               reale
            
             ,
             that
             follows
             the
             Right
             to
             all
             singular
             Successors
             ,
             yet
             fraud
             is
             not
             ,
             and
             reaches
             none
             but
             
               participes
               fraudis
            
             ,
             both
             by
             the
             Act
             of
             Parliament
             1621.
             and
             by
             the
             civil
             Law.
             L.
             
          
           
             It
             was
             answered
             for
             Scot
             ,
             that
             albeit
             it
             be
             true
             that
             an
             Assigney
             for
             an
             O●erous
             Cause
             cannot
             be
             prejudged
             by
             the
             Oath
             of
             his
             Cedent
             ,
             and
             consequently
             by
             no
             Circumvention
             probable
             by
             his
             Oath
             ;
             yet
             in
             Personal
             Rights
             an
             Assigney
             is
             in
             no
             better
             case
             then
             the
             Cedent
             ,
             
               nisi
               quoad
               modum
               probandi
            
             ,
             but
             what
             is
             relevant
             against
             the
             Cedent
             ,
             and
             competent
             to
             be
             proven
             ,
             either
             by
             Writ
             or
             Witnesses
             is
             competent
             against
             the
             Assigney
             ,
             so
             that
             the
             Circumvention
             against
             Cheisly
             being
             inferred
             by
             pregnant
             Evidences
             and
             Witnesses
             ,
             and
             not
             by
             his
             Oath
             ,
             it
             must
             be
             effectual
             against
             Thomson
             ,
             whose
             Name
             being
             filled
             up
             by
             Cheisly
             ,
             is
             in
             effect
             Cheislies
             Assigney
             ,
             for
             so
             all
             blank
             Bonds
             are
             commonly
             found
             by
             the
             Lords
             to
             have
             the
             same
             effect
             with
             an
             Assignation
             .
             2dly
             ,
             Assignies
             without
             an
             Onerous
             Cause
             ,
             even
             as
             to
             the
             Oath
             of
             the
             Cedent
             ,
             or
             any
             other
             consideration
             are
             in
             no
             better
             case
             nor
             the
             Cedent
             ;
             but
             here
             there
             is
             no
             Onerous
             Cause
             appears
             ,
             for
             which
             Cheisly
             transmits
             this
             Right
             to
             Thomson
             ,
             for
             the
             Bond
             ●ears
             not
             that
             for
             Sums
             of
             Money
             due
             by
             Cheisly
             to
             Thomson
             ,
             or
             any
             other
             Cause
             Onerous
             on
             Thomsons
             part
             ,
             that
             Scot
             should
             be
             obliged
             at
             Cheislies
             desire
             to
             pay
             Thomson
             ,
             but
             only
             that
             because
             Cheisly
             had
             Assigned
             a
             Process
             to
             Scot
             ,
             therefore
             Scot
             becomes
             obliged
             to
             pay
             to
             
               Thomson
               .
               3dly
            
             ,
             As
             there
             is
             no
             Cause
             Onerous
             instructed
             on
             Thomsons
             part
             ,
             so
             his
             own
             Oath
             
               de
               calumnia
            
             being
             taken
             ,
             renders
             the
             matter
             most
             suspitious
             ,
             by
             which
             he
             acknowledges
             he
             got
             the
             Bond
             from
             Cheisly
             ,
             and
             that
             Cheisly
             was
             not
             then
             his
             Debitor
             for
             so
             great
             a
             Sum
             as
             in
             the
             Bond
             ,
             but
             that
             by
             payments
             made
             to
             him
             ,
             and
             for
             him
             ,
             thereafter
             he
             became
             his
             Debitor
             in
             an
             equivalent
             Sum
             ,
             but
             Depones
             that
             he
             hath
             nothing
             to
             instruct
             the
             Debt
             ,
             nor
             no
             Note
             thereof
             in
             his
             Compt
             Book
             ,
             though
             he
             be
             an
             exact
             Merchant
             and
             Factor
             ,
             so
             that
             there
             is
             no
             Evidence
             or
             Adminicle
             of
             an
             Onerous
             Cause
             instructed
             .
             And
             lastly
             ,
             Albeit
             Parties
             getting
             blank
             Bonds
             bearing
             borrowed
             Money
             from
             the
             blank
             Person
             ,
             whosoevers
             Name
             is
             filled
             up
             ,
             the
             Bond
             then
             bears
             the
             Sums
             borrowed
             from
             him
             whose
             Name
             is
             filled
             up
             ,
             and
             cannot
             be
             taken
             away
             but
             by
             his
             Writ
             or
             his
             Oath
             ,
             but
             this
             Bond
             bears
             only
             a
             Process
             Assigned
             by
             Cheisly
             ,
             and
             no
             borrowed
             Money
             ,
             or
             other
             Cause
             by
             Thomson
             ,
             and
             Thomson
             living
             in
             the
             same
             Town
             with
             Scot
             whom
             he
             knew
             ,
             and
             is
             commonly
             known
             to
             be
             a
             simple
             Person
             ,
             and
             Cheisly
             a
             subdolous
             ,
             he
             ought
             before
             accepting
             of
             
             the
             Bond
             to
             have
             acquainted
             Scot
             of
             the
             filling
             up
             of
             his
             Name
             ,
             and
             if
             he
             had
             any
             thing
             to
             say
             ,
             and
             cannot
             now
             pretend
             that
             he
             acted
             
               bona
               fide
            
             ,
             but
             either
             must
             be
             
               in
               dolo
            
             or
             
               in
               lata
               culpa
               ,
               quae
               dolo
               aequiparatur
               .
            
          
           
             The
             Lords
             found
             that
             having
             considered
             the
             Tenor
             of
             the
             Bond
             ,
             and
             Thomsons
             Oath
             ,
             Thomson
             was
             in
             the
             same
             condition
             as
             to
             the
             relevancy
             and
             probation
             of
             the
             Reasons
             of
             Circumvention
             against
             Cheisly
             ,
             and
             therefore
             found
             the
             Libel
             Relevant
             against
             them
             both
             to
             annul
             the
             Bond
             ,
             the
             Apprizings
             ,
             and
             Infeftment
             ,
             and
             all
             that
             had
             followed
             thereupon
             .
          
        
         
           
             Naper
             contra
             Gordon
             of
             Grange
             ,
             Feb.
             12.
             1670.
             
          
           
             
               IOhn
               Naper
            
             ,
             as
             Representing
             his
             Father
             ,
             did
             Pursue
             
               William
               Gordon
            
             of
             Grange
             ,
             as
             Representing
             Hugh
             his
             Father
             ,
             for
             payment
             of
             2000.
             
             Merks
             ,
             due
             by
             the
             said
             Umquhile
             Hugh
             his
             Bond
             ,
             and
             upon
             the
             said
             Williams
             Renuncing
             to
             be
             Heir
             ,
             obtaind
             Adjudication
             of
             the
             Lands
             of
             Grange
             and
             others
             ,
             in
             so
             far
             as
             might
             belong
             to
             the
             said
             Umquhile
             Hugh
             his
             Debitor
             ,
             his
             Heirs
             ;
             and
             thereupon
             did
             Pursue
             the
             Tennents
             for
             Mails
             and
             Duties
             .
             In
             which
             Action
             ,
             it
             was
             alleadged
             for
             
               William
               Gordon
            
             ,
             now
             of
             Grange
             ,
             that
             he
             stands
             Infeft
             by
             Disposition
             from
             the
             said
             Umquhile
             
               Hugh
               Gordon
            
             of
             Grange
             ,
             his
             Father
             ,
             for
             Onerous
             Causes
             ,
             and
             Sums
             of
             Money
             undertaken
             ,
             and
             payed
             for
             his
             Father
             ,
             which
             was
             found
             Relevant
             ;
             and
             to
             evite
             the
             same
             the
             said
             
               Iohn
               Naper
            
             raised
             Reduction
             of
             
             Grange's
             Right
             granted
             by
             his
             Father
             ,
             
               ex
               capite
               Inhibitionis
            
             ,
             raised
             against
             his
             Father
             upon
             the
             said
             Bond
             ,
             before
             the
             Disposition
             made
             to
             this
             Grange
             ;
             which
             Inhibition
             being
             produced
             this
             day
             fourtnight
             ,
             it
             was
             alleadged
             for
             Grange
             that
             the
             samine
             was
             null
             ,
             because
             the
             Executions
             buir
             not
             a
             Copy
             to
             have
             been
             lest
             at
             the
             Mercat
             Cross
             ,
             at
             the
             publication
             of
             the
             Inhibition
             ,
             which
             the
             Lords
             found
             Relevant
             ,
             and
             now
             the
             Pursuer
             insisted
             on
             this
             Reason
             ,
             that
             the
             Disposition
             though
             it
             buir
             Onerous
             Causes
             ,
             yet
             being
             after
             the
             Contracting
             of
             his
             Debt
             ,
             by
             a
             Father
             to
             a
             Son
             ,
             the
             Narrative
             bearing
             the
             Cause
             thereof
             ,
             is
             not
             Probative
             against
             a
             third
             Party
             ,
             but
             the
             same
             must
             yet
             be
             instructed
             .
          
           
             Which
             the
             Lords
             Sustained
             ,
             and
             ordained
             Grange
             to
             produce
             the
             Instructions
             thereof
             .
          
        
         
           
             William
             Lowry
             contra
             Sir
             Iohn
             Drummond
             ,
             Feb.
             18.
             1670.
             
          
           
             UMquhile
             Sir
             
               Robert
               Drummond
            
             of
             Meidup
             ,
             having
             Disponed
             the
             Lands
             of
             Scotstoun
             to
             Sir
             
               Iohn
               Drummond
            
             of
             Burnbank
             ;
             Mr.
             
               Iohn
               Drummond
            
             Writer
             in
             Edinburgh
             ,
             his
             Grand
             Nevoy
             ,
             intending
             to
             Reduce
             that
             Disposition
             as
             on
             Death-bed
             ,
             grants
             a
             Bond
             to
             
               William
               Lowry
            
             of
             12000.
             
             Merks
             ,
             who
             thereupon
             having
             Charged
             the
             said
             Mr.
             Iohn
             to
             enter
             Heir
             in
             special
             to
             the
             Lands
             of
             Scotstoun
             ,
             to
             the
             said
             Sir
             Robert
             his
             Grand
             Uncle
             ,
             Apprizes
             from
             him
             all
             the
             Right
             of
             the
             Lands
             ,
             that
             might
             be
             competent
             to
             him
             ,
             if
             he
             were
             entered
             Heir
             ,
             and
             thereupon
             raises
             Reduction
             of
             Sir
             Iohn
             his
             Right
             ,
             as
             being
             granted
             by
             Sir
             Robert
             on
             Death-bed
             ,
             in
             prejudice
             of
             his
             nearest
             Heirs
             ,
             in
             whose
             place
             the
             Pursuer
             now
             is
             by
             the
             Apprizing
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             no
             Process
             upon
             any
             Charge
             to
             enter
             Heir
             against
             Mr.
             
               Iohn
               Drummond
            
             ,
             because
             he
             is
             not
             the
             nearest
             appearand
             Heir
             ,
             but
             has
             an
             elder
             Brother
             living
             .
             The
             Pursuer
             answered
             ,
             that
             the
             said
             elder
             Brother
             had
             gone
             out
             of
             the
             Countrey
             18.
             years
             agoe
             ,
             and
             
             was
             commonly
             holden
             and
             repute
             Dead
             ;
             likeas
             he
             produced
             a
             Missive
             of
             one
             Crei●htoun
             his
             Commerad
             in
             the
             War
             abroad
             ,
             bearing
             the
             Circumstances
             of
             his
             Sickness
             ,
             Death
             and
             Burial
             ,
             Dated
             Iuly
             6.
             1667.
             
             It
             was
             answered
             ,
             that
             
               semel
               vivus
               semper
               presumitur
               vivus
               nis●
               contrarium
               probetur
               ,
            
             and
             what
             was
             alleadged
             could
             be
             no
             probation
             ,
             but
             some
             probabilities
             of
             Death
             .
             The
             Pursuer
             answered
             ,
             that
             the
             brokard
             is
             but
             
               presumptio
               juris
            
             ,
             and
             not
             
               presumptio
               juris
               &
               de
               jure
            
             ,
             and
             therefore
             only
             
               trans●ert
               onus
               probandi
            
             ,
             which
             Probation
             may
             be
             valid
             without
             Witnesses
             ,
             by
             such
             adminicles
             as
             the
             Lords
             shall
             find
             sufficient
             ,
             which
             are
             here
             sufficiently
             alleadged
             ,
             viz.
             long
             Absence
             ,
             common
             Fame
             ,
             and
             a
             Missive
             Letter
             .
          
           
             The
             Lords
             found
             that
             eighteen
             years
             Absence
             ,
             and
             being
             holden
             and
             repute
             Dead
             ,
             was
             sufficient
             Probation
             to
             take
             off
             the
             presumption
             of
             Life
             ,
             unless
             a
             stronger
             Probation
             for
             the
             Parties
             being
             on
             Life
             were
             showen
             ,
             then
             the
             naked
             presumption
             thereof
             .
          
        
         
           
             Lauchlen
             Lesly
             contra
             Guthry
             .
             Feb.
             19.
             1670.
             
          
           
             
               LAuchlen
               Lesly
            
             having
             Fraughted
             a
             Ship
             belonging
             to
             Bailly
             
               Guthry
               in
               Dundee
            
             ,
             to
             carry
             a
             Loadning
             of
             Wheat
             and
             Oats
             from
             Athol
             to
             Leith
             ,
             the
             Skipper
             did
             put
             in
             by
             the
             way
             at
             Dundee
             ,
             and
             there
             the
             Ship
             received
             a
             Crush
             by
             another
             Ship
             ,
             whereby
             the
             Salt-water
             entered
             amongst
             the
             Victual
             ,
             and
             thereupon
             the
             Owners
             and
             Skipper
             caused
             Disloaden
             the
             Victual
             ,
             and
             put
             it
             up
             in
             Lofts
             ,
             and
             Bailly
             Guthry
             the
             next
             day
             after
             the
             Crush
             ,
             gave
             notice
             to
             
               Robert
               Lesly
            
             in
             
               Dundee
               ,
               Lauchlens
            
             Correspondent
             ,
             and
             who
             made
             the
             Bargain
             for
             him
             ,
             to
             make
             it
             known
             to
             Lauchlen
             what
             had
             befallen
             the
             Ship
             and
             Loadning
             ,
             who
             within
             two
             dayes
             after
             came
             to
             Dundee
             and
             was
             required
             to
             Receive
             the
             Victual
             ,
             which
             he
             refused
             ,
             and
             by
             the
             Probation
             adduced
             in
             this
             Cause
             it
             was
             found
             that
             it
             was
             the
             Skippers
             Fault
             ,
             that
             he
             had
             put
             in
             to
             Dundee
             ,
             and
             so
             he
             and
             the
             Owners
             were
             found
             lyable
             for
             the
             damnage
             and
             interest
             of
             the
             Merchants
             ,
             and
             that
             the
             Merchants
             should
             be
             only
             obliged
             to
             take
             back
             that
             Part
             of
             the
             Victual
             that
             was
             unspoiled
             ,
             and
             the
             Owners
             should
             be
             lyable
             for
             the
             Price
             of
             the
             whole
             as
             it
             would
             have
             given
             at
             Leith
             ,
             if
             the
             Skipper
             had
             keeped
             his
             Course
             ,
             deducing
             the
             Price
             of
             the
             sufficient
             Victual
             as
             it
             now
             gives
             ,
             and
             a
             Commission
             being
             granted
             to
             certain
             Persons
             in
             Dundee
             to
             visit
             the
             Victual
             ,
             and
             to
             see
             what
             condition
             it
             was
             in
             ,
             they
             reported
             that
             36.
             
             Bolls
             of
             it
             was
             sufficient
             Mercatable
             Wheat
             ▪
             and
             that
             the
             Oats
             was
             damnisied
             in
             20
             Shilling
             the
             Boll
             ,
             and
             as
             to
             the
             rest
             ,
             two
             reported
             that
             it
             would
             yet
             be
             Brisket
             for
             Ships
             ,
             or
             Houshold
             Servants
             ,
             and
             two
             reported
             that
             it
             was
             spoiled
             ,
             but
             spake
             nothing
             further
             .
             The
             question
             arose
             to
             the
             Lords
             upon
             the
             Commission
             at
             the
             Advising
             thereof
             ,
             whether
             the
             Owners
             and
             Skipper
             should
             be
             lyable
             for
             the
             damnage
             that
             was
             done
             before
             the
             Advertisement
             given
             to
             the
             Merchant
             ,
             or
             for
             the
             damnage
             that
             ensued
             thereafter
             ,
             because
             the
             Victual
             being
             laid
             together
             ,
             without
             separating
             the
             wet
             from
             the
             dry
             ,
             had
             het
             and
             spoiled
             thereafter
             ,
             and
             if
             it
             had
             been
             separat
             at
             first
             ,
             the
             damnage
             would
             have
             been
             very
             litle
             ,
             and
             so
             the
             question
             was
             ,
             whether
             the
             Owners
             and
             Skipper
             were
             obliged
             to
             have
             separat
             the
             wet
             from
             the
             dry
             ,
             and
             so
             to
             have
             offered
             it
             to
             the
             Merchant
             ,
             or
             if
             the
             offer
             in
             general
             to
             the
             Merchant
             to
             receive
             the
             Victual
             was
             sufficient
             ,
             though
             he
             did
             not
             desire
             them
             to
             separat
             the
             wet
             from
             the
             dry
             ,
             or
             that
             they
             did
             not
             offer
             satisfaction
             ,
             or
             security
             for
             the
             damnage
             of
             what
             was
             wet
             .
          
           
             The
             Lords
             found
             that
             seing
             the
             damnage
             had
             fallen
             after
             ,
             and
             through
             the
             occasion
             of
             the
             Skippers
             delay
             ,
             he
             and
             the
             Owners
             were
             obliged
             to
             
             separat
             the
             wet
             from
             the
             dry
             ,
             and
             to
             have
             used
             diligence
             to
             prevent
             future
             damnage
             ,
             wherein
             having
             failzied
             ,
             they
             found
             them
             lyable
             for
             the
             whole
             damnage
             ,
             both
             before
             and
             after
             the
             offer
             ;
             the
             next
             question
             arose
             was
             ,
             whether
             the
             Skipper
             and
             Owners
             were
             obliged
             to
             take
             the
             spoiled
             Victual
             ,
             and
             pay
             the
             Price
             thereof
             ,
             as
             if
             it
             had
             been
             sufficient
             ,
             or
             if
             the
             Merchant
             was
             obliged
             to
             take
             it
             ,
             and
             the
             Owners
             to
             make
             up
             the
             damnage
             .
          
           
             The
             Lords
             found
             that
             seing
             the
             Victual
             remained
             yet
             in
             specie
             ,
             and
             was
             not
             wholly
             Corrupted
             ,
             but
             by
             the
             report
             appeared
             to
             be
             useful
             for
             Ship
             Brisket
             ,
             and
             seing
             the
             property
             thereof
             still
             remained
             in
             the
             Merchant
             ,
             ,
             and
             the
             Owners
             were
             only
             lyable
             for
             damnage
             ;
             They
             ordained
             the
             Merchants
             to
             Receive
             the
             wet
             Victual
             ,
             and
             gave
             Commission
             to
             the
             same
             Persons
             to
             report
             what
             it
             was
             worse
             then
             the
             Price
             it
             would
             have
             given
             at
             Leith
             ,
             if
             the
             Voyage
             had
             held
             .
          
        
         
           
             The
             Countesse
             of
             Cassills
             contra
             The
             Earl
             of
             Cassills
             ,
             February
             .
             22.
             1670.
             
          
           
             BY
             Contract
             of
             Marriage
             betwixt
             the
             Deceast
             Earl
             of
             Cassills
             and
             his
             Lady
             ,
             he
             is
             obliged
             to
             Infeft
             her
             in
             certain
             Lands
             ,
             with
             absolute
             Warrandice
             ,
             and
             obliges
             him
             that
             the
             Lands
             did
             pay
             then
             ,
             and
             several
             years
             before
             6000.
             
             Merks
             of
             yearly
             Rent
             ,
             beside
             Kanes
             and
             Customs
             ,
             and
             over
             and
             above
             Teinds
             and
             Feu-duties
             ,
             and
             if
             it
             shall
             please
             the
             Lady
             within
             six
             Moneths
             after
             the
             Earls
             Death
             ,
             rather
             to
             choise
             six
             thousand
             Merks
             of
             free
             Rent
             ,
             then
             to
             retain
             the
             Possession
             of
             the
             Land
             ,
             and
             to
             give
             a
             Tack
             to
             his
             Heirs
             and
             Successors
             of
             the
             Liferent-lands
             :
             Then
             and
             in
             that
             case
             he
             obliges
             his
             Heirs
             and
             Successors
             to
             pay
             her
             6000.
             
             Merks
             yearly
             .
             Therefore
             the
             Countesse
             has
             made
             it
             in
             her
             option
             ,
             and
             offers
             to
             take
             ,
             and
             Pursues
             the
             Earl
             her
             Son
             to
             pay
             yearly
             the
             said
             Sum
             of
             six
             thousand
             Merks
             of
             free
             Rent
             ;
             who
             alleadged
             ,
             that
             albeit
             that
             Clause
             be
             mentioned
             to
             be
             free
             Rent
             ,
             yet
             he
             must
             have
             allowance
             of
             Cess
             ,
             Maintainance
             ,
             and
             other
             publick
             Burdens
             ,
             because
             by
             free
             Rent
             can
             only
             be
             understood
             ,
             free
             of
             Teinds
             and
             Feu-duties
             ,
             in
             respect
             that
             this
             being
             a
             Tack-duty
             for
             the
             Liferent-lands
             ,
             the
             Lady
             thereby
             can
             be
             no
             further
             free
             ,
             then
             if
             she
             enjoyed
             the
             whole
             Lands
             ,
             which
             the
             Earl
             is
             only
             obliged
             to
             make
             worth
             6000.
             
             Merks
             of
             yearly
             Rent
             ,
             over
             and
             above
             Teind
             and
             Feu-duty
             ;
             but
             neither
             does
             it
             bear
             generally
             of
             free
             Rent
             ,
             much
             less
             of
             publick
             Burdens
             ,
             and
             therefore
             the
             subsequent
             Clause
             for
             the
             Tack-duty
             ,
             albeit
             it
             bear
             free
             Rent
             ,
             yet
             it
             can
             only
             be
             understood
             to
             be
             free
             of
             Teind
             and
             Feu-duty
             ,
             and
             not
             to
             be
             free
             of
             publick
             Burden
             ,
             which
             is
             further
             cleared
             by
             the
             Act
             of
             Parliament
             1646.
             
             
               Ordaining
               all
               Liferenters
               to
               hear
               proportional
               Burden
               for
               any
               Annualrent
               ,
               or
               Tack-duty
               belonging
               to
               them
               in
               Liferent
               ,
               unlesse
               they
               were
               expresly
               freed
               of
               Maintainance
               .
            
             It
             was
             answered
             for
             the
             Countess
             ,
             that
             she
             oppones
             the
             Clause
             of
             her
             Contract
             ,
             bearing
             free
             Rent
             ,
             without
             ●●nitation
             ,
             and
             Contracts
             of
             Marriage
             are
             to
             be
             extended
             in
             favours
             of
             Women
             ,
             and
             as
             to
             the
             Act
             1646.
             the
             same
             is
             Repealed
             ,
             and
             not
             Revived
             again
             .
          
           
             The
             Lords
             found
             that
             by
             the
             Contract
             of
             Marriage
             ,
             the
             Countesse
             was
             no●
             free
             of
             Cesse
             and
             Maintainance
             ,
             which
             were
             the
             only
             Points
             at
             In●●●●cutor
             ;
             But
             if
             any
             Debate
             arose
             concerning
             the
             ordinar●
             Taxation
             ,
             or
             the
             Outrikes
             ,
             or
             allowance
             to
             Militia
             Horse
             ,
             the
             Lords
             would
             hear
             the
             Parties
             thereanent
             ,
             and
             accordingly
             the
             next
             day
             found
             the
             Clause
             did
             free
             my
             Lady
             of
             the
             ordinar
             Taxation
             ,
             Militia
             ,
             and
             so
             much
             of
             the
             Cesse
             as
             the
             Tennents
             of
             the
             Lands
             payed
             to
             my
             Lord.
             
          
        
         
           
           
             Murray
             of
             Achtertire
             contra
             Sir
             Iohn
             Drummond
             ,
             Eodem
             die
             .
          
           
             THe
             Deceast
             Earl
             of
             Tulli●airn
             having
             Wodset
             the
             Lands
             of
             Logy-Almond
             ,
             to
             
               William
               Murray
            
             of
             ●chtertire
             ,
             by
             a
             Contract
             of
             Wodset
             in
             February
             1656.
             by
             which
             the
             Earl
             Assigns
             .
             Achtertire
             to
             the
             Mails
             and
             Duties
             of
             the
             Lands
             ,
             due
             for
             the
             Cropt
             1656.
             at
             Whitsunday
             or
             Martimess
             ,
             or
             any
             other
             Term
             ,
             and
             obliges
             him
             to
             Deliver
             to
             him
             the
             Keyes
             of
             the
             House
             ,
             and
             to
             enter
             him
             in
             the
             Possession
             at
             Whitsunday
             1656.
             
             The
             Earl
             having
             Sold
             the
             Lands
             to
             Sir
             
               Iohn
               Drummond
            
             ,
             whose
             entry
             was
             to
             be
             at
             Whitsunday
             1668.
             and
             having
             used
             an
             order
             of
             Redemption
             in
             the
             Earls
             Name
             ,
             because
             the
             Reversion
             did
             not
             extend
             to
             the
             Earls
             Assignies
             ,
             and
             having
             obtained
             Declarator
             ,
             Decerning
             Achtertire
             to
             denude
             himself
             of
             the
             Lands
             ,
             who
             in
             obedience
             of
             the
             Decreet
             grants
             a
             Renunciation
             ,
             Reserving
             to
             himself
             the
             Mails
             and
             Duties
             for
             the
             Cropt
             and
             year
             1667.
             
             Achtertire
             insists
             for
             the
             Duties
             of
             the
             Cropt
             1667.
             which
             are
             payable
             at
             Martimess
             1667.
             
             The
             way
             of
             payment
             of
             the
             Rent
             of
             those
             Lands
             ,
             and
             many
             others
             being
             ,
             that
             the
             Tennent
             enters
             at
             Whitsunday
             ,
             and
             payes
             his
             Rent
             at
             Martimess
             thereafter
             for
             the
             whole
             year
             ;
             and
             if
             he
             remove
             at
             the
             next
             Whitsunday
             ,
             he
             payes
             no
             Rent
             at
             that
             Term
             ,
             but
             leaves
             his
             Corns
             Sowen
             by
             him
             upon
             the
             Ground
             ,
             which
             he
             Shears
             after
             his
             removal
             .
             Whereupon
             it
             was
             alleadged
             by
             Sir
             
               Iohn
               Drummond
            
             ,
             that
             this
             way
             of
             payment
             being
             aforehand
             Duty
             ,
             whereby
             the
             Tennent
             payes
             at
             Martimess
             before
             he
             Sowes
             the
             Cropt
             ,
             for
             the
             Cropt
             of
             the
             year
             of
             God
             subsequent
             to
             the
             Martimess
             ,
             that
             therefore
             Sir
             Iohn
             entering
             at
             Whitsunday
             1668.
             and
             having
             Right
             to
             the
             Duties
             due
             for
             the
             Cropt
             and
             year
             1668.
             he
             has
             Right
             to
             the
             Duties
             due
             at
             Martimess
             1667.
             because
             that
             Duty
             albeit
             not
             payable
             in
             the
             year
             1668.
             yet
             is
             payable
             for
             the
             Cropt
             1668.
             seing
             the
             Tennent
             if
             he
             were
             removing
             at
             Whitsunday
             1668.
             would
             for
             the
             payment
             made
             at
             Martimess
             1667.
             carry
             free
             with
             him
             without
             any
             payment
             ,
             the
             whole
             Corns
             of
             the
             Cropt
             1668.
             so
             that
             if
             Sir
             Iohn
             should
             enter
             to
             the
             void
             Possession
             of
             the
             Land
             at
             Whitsunday
             1668.
             he
             should
             have
             no
             benefit
             of
             the
             Cropt
             1668.
             but
             only
             of
             the
             Cropt
             1669.
             
             It
             was
             answered
             for
             Achtertire
             ,
             that
             he
             has
             the
             only
             Right
             to
             the
             Rent
             payable
             at
             Martimess
             1667.
             and
             Sir
             Iohn
             can
             have
             no
             Right
             thereto
             ,
             because
             his
             entry
             being
             but
             at
             Whitsunday
             1668.
             he
             can
             have
             no
             Interest
             in
             the
             Cropt
             then
             Sown
             ,
             and
             standing
             on
             the
             Ground
             ,
             unto
             which
             no
             Buyer
             did
             ever
             pretend
             ,
             but
             the
             Seller
             if
             he
             be
             in
             natural
             Possession
             ,
             takes
             always
             with
             him
             his
             own
             growing
             Cropt
             ,
             even
             after
             the
             Buyers
             enters
             into
             Possession
             ,
             and
             so
             do
             all
             outgoing
             Tennents
             ,
             and
             so
             did
             Achtertire
             at
             his
             entry
             ,
             which
             being
             at
             Whitsunday
             1656.
             he
             lifted
             the
             Duties
             due
             at
             Martimess
             thereafter
             ,
             but
             lifted
             not
             the
             Martimess
             Duty
             of
             the
             Cropt
             1655.
             payable
             before
             his
             Wodset
             ,
             and
             therefore
             now
             he
             must
             lift
             the
             Rent
             due
             at
             Martimess
             1657.
             or
             otherwise
             he
             wants
             a
             years
             Annualrent
             ;
             and
             if
             Sir
             
               Iohn
               Drummond
            
             should
             lift
             a
             years
             Rent
             due
             at
             Martimess
             1667.
             and
             an
             other
             years
             Rent
             due
             at
             Martimess
             1668.
             he
             should
             have
             two
             full
             years
             Rent
             of
             the
             Land
             within
             half
             a
             year
             of
             his
             entry
             ,
             which
             was
             at
             Whitsunday
             1668.
             and
             which
             can
             never
             be
             understood
             ,
             except
             it
             had
             been
             clearly
             so
             expressed
             by
             the
             Parties
             ,
             neither
             is
             there
             here
             any
             further
             forehand
             Duty
             ,
             then
             what
             ordinarly
             Tennents
             paying
             Silver
             Rent
             ,
             and
             not
             Inlayed
             or
             Rentalled
             Victual
             entering
             at
             Whitsunday
             do
             ,
             for
             they
             pay
             the
             one
             half
             of
             there
             Rent
             at
             Martimess
             thereafter
             ,
             and
             the
             next
             half
             at
             the
             Whitsunday
             following
             that
             Martimess
             ,
             and
             for
             his
             years
             Rent
             they
             must
             have
             a
             years
             Cropt
             both
             of
             Grass
             and
             Corn
             ,
             and
             all
             the
             difference
             here
             ,
             is
             that
             the
             Rent
             due
             for
             the
             Possession
             from
             Whitsunday
             1667.
             to
             Whitsunday
             
             1668.
             is
             payable
             together
             at
             Martimess
             1667.
             in
             the
             middle
             of
             the
             year
             ,
             whereas
             if
             it
             had
             been
             according
             to
             the
             ordinar
             course
             of
             Silver
             Rent
             ,
             being
             payable
             half
             at
             Martimess
             1667.
             and
             half
             at
             Whitsunday
             1668.
             
             Sir
             
               Iohn
               Drummond
            
             who
             entered
             but
             at
             the
             Whitsunday
             1668.
             could
             have
             no
             Right
             to
             the
             Rent
             even
             payable
             at
             Whitsunday
             1668.
             so
             neither
             can
             he
             claim
             it
             ,
             when
             it
             is
             payable
             jointly
             at
             Martimess
             1667.
             
          
           
             The
             Lords
             found
             that
             Achtertire
             had
             Right
             to
             the
             Rent
             payable
             at
             Martimess
             1667.
             and
             that
             Sir
             
               Iohn
               Drummond
            
             had
             Right
             to
             no
             part
             thereof
             .
          
        
         
           
             Ierdan
             of
             Apilgirth
             contra
             Iohnstoun
             of
             Lockerby
             ,
             Feb.
             24.
             1670.
             
          
           
             APilgirth
             having
             Apprized
             Lockerbies
             Estate
             ,
             and
             pursuing
             on
             the
             Apprizing
             .
             Lockerby
             alleadged
             that
             the
             Apprizing
             was
             satisfied
             ,
             at
             least
             he
             offered
             presently
             what
             was
             defective
             in
             this
             Accompt
             ;
             Lockerby
             alleadged
             upon
             a
             Wodset
             Right
             ,
             whereof
             an
             order
             was
             used
             ,
             whereupon
             the
             question
             arose
             ,
             and
             was
             reported
             by
             the
             Auditor
             ,
             whether
             after
             order
             used
             for
             Redemption
             of
             a
             proper
             Wodset
             ,
             the
             Sums
             Consigned
             ,
             being
             immediatly
             taken
             up
             by
             the
             Redeemer
             ,
             and
             the
             Wodsetter
             remaining
             four
             ,
             or
             five
             years
             in
             Possession
             thereafter
             ,
             and
             Declarator
             of
             Redemption
             being
             obtained
             upon
             production
             of
             the
             Sums
             consigned
             ,
             with
             the
             Annualrent
             from
             the
             Consignation
             ,
             whether
             the
             Wodsetter
             had
             Right
             to
             the
             Mails
             and
             Duties
             ,
             and
             might
             refuse
             his
             Annualrent
             ,
             or
             if
             he
             behoved
             to
             accept
             of
             his
             Annualrent
             ,
             and
             compt
             for
             the
             Mails
             and
             Duties
             .
             It
             was
             alleadged
             for
             the
             Wodsetter
             ,
             that
             the
             Consignation
             was
             but
             simulat
             ,
             and
             the
             Money
             remained
             not
             in
             the
             Consignators
             hand
             ,
             so
             that
             he
             did
             justly
             retain
             the
             Possession
             ,
             and
             so
             was
             not
             comptable
             for
             the
             Duties
             .
          
           
             The
             Lords
             found
             the
             Wodsetter
             comptable
             for
             the
             Duties
             ,
             seing
             he
             had
             no
             objection
             against
             the
             legality
             or
             verity
             of
             the
             order
             ,
             so
             that
             it
             was
             his
             fault
             that
             he
             keeped
             not
             the
             day
             of
             Consignation
             ,
             and
             Received
             his
             Money
             conform
             to
             the
             premonition
             ;
             and
             that
             the
             user
             of
             the
             order
             did
             no
             wrong
             to
             take
             up
             the
             Money
             out
             of
             the
             Consignators
             hand
             ,
             seing
             Consignations
             are
             upon
             peril
             of
             he
             Con●igner
             ,
             he
             making
             the
             same
             forthcoming
             at
             the
             time
             of
             Declarator
             ,
             with
             Annualrent
             since
             the
             Consignation
             .
          
        
         
           
             George
             Graham
             contra
             The
             Laird
             of
             Stainbires
             ▪
             Feb.
             26
             ,
             1670.
             
          
           
             
               GEorge
               Graham
            
             Merchant
             in
             Edinburgh
             ,
             Pursues
             the
             Laird
             of
             Stinbires
             for
             a
             Merchant
             Compt
             ,
             taken
             off
             partly
             by
             his
             Umquhile
             Father
             before
             his
             Decease
             ,
             and
             partly
             by
             his
             Factors
             and
             Servants
             thereafter
             .
             It
             was
             alleadged
             as
             to
             the
             Defuncts
             Part
             of
             the
             Accompt
             ,
             the
             samine
             was
             not
             pursued
             within
             3.
             years
             of
             the
             off-taking
             ,
             and
             therefore
             it
             is
             only
             probable
             by
             Writ
             ,
             or
             Oath
             of
             Party
             .
             The
             Pursuer
             answered
             ,
             that
             he
             was
             ordinar
             Merchant
             to
             the
             Defunct
             for
             many
             years
             ,
             and
             that
             this
             was
             a
             current
             Accompt
             to
             the
             Defunct
             and
             his
             Heir
             ,
             the
             Defuncts
             Funerals
             having
             been
             taken
             off
             at
             his
             Death
             ,
             and
             the
             other
             subsequent
             Furniture
             to
             the
             Heir
             always
             since
             ,
             so
             that
             there
             is
             not
             three
             years
             betwixt
             that
             part
             of
             the
             Accompt
             that
             is
             for
             the
             Funerals
             ,
             and
             the
             last
             of
             the
             current
             Accompt
             given
             off
             to
             the
             Defunct
             ,
             and
             therefore
             it
             remains
             a
             current
             Accompt
             as
             to
             both
             .
             2dly
             .
             There
             is
             not
             three●
             year
             betwixt
             that
             part
             of
             the
             Accompt
             furnished
             to
             the
             Defunct
             ,
             and
             the
             Summons
             raised
             against
             his
             Heir
             ,
             deducing
             the
             year
             and
             day
             in
             
             which
             the
             ●eir
             could
             not
             be
             Pursued
             which
             is
             
               intra
               annum
               deliberandi
            
             .
             The
             Defender
             answered
             ,
             that
             the
             currency
             of
             an
             Accompt
             was
             never
             extended
             to
             a
             Defunct
             and
             his
             Heir
             ,
             but
             only
             to
             one
             Person
             to
             exclude
             the
             prescription
             of
             probation
             by
             Witnesses
             ,
             neither
             in
             this
             short
             prescription
             ,
             is
             Minority
             ,
             or
             any
             other
             incapacity
             to
             be
             deduced
             ,
             and
             the
             Pursuer
             ought
             to
             have
             raised
             his
             Summonds
             
               intra
               annum
               deliberandi
            
             ,
             though
             he
             could
             not
             have
             obtained
             Decreet
             ,
          
           
             The
             Lords
             Sustained
             the
             Compt
             ,
             both
             against
             the
             Defunct
             and
             Heir
             ,
             as
             an
             current
             Accompt
             to
             be
             proven
             by
             Witnesses
             for
             the
             whole
             .
          
        
         
           
             Doctor
             Hay
             contra
             Marjory
             Iameson
             ,
             Iune
             8.
             16670.
             
          
           
             DOctor
             Hay
             as
             Heir
             to
             his
             Father
             ,
             who
             was
             distressed
             as
             Cautioner
             for
             Con
             of
             Artrachy
             ,
             pursues
             a
             Reduction
             and
             Improbation
             of
             all
             Rights
             of
             the
             Lands
             of
             Artrachy
             ,
             and
             others
             proceeding
             from
             Con
             ,
             in
             favours
             of
             
               Iohn
               Stuart
            
             Advocat
             ,
             
               William
               Neilson
               ,
               Mr.
               Iohn
               Alexander
               ,
            
             and
             
               Marjory
               Iameson
            
             his
             Relick
             ,
             or
             
               Andrew
               Alexander
            
             Brother
             to
             Mr.
             Iohn
             ,
             wherein
             there
             was
             produced
             an
             Apprizing
             against
             Con
             ,
             at
             the
             instance
             of
             
               George
               Stuart●
            
             :
             Likewise
             a
             Liferent-seising
             of
             
               Helen
               Kinaird
            
             ,
             Relick
             of
             Con
             ,
             with
             a
             Liferent-tack
             to
             her
             of
             the
             Lands
             contained
             in
             the
             Seising
             ,
             and
             also
             of
             other
             Lands
             ,
             and
             another
             Tack
             of
             two
             nineteen
             years
             of
             the
             same
             Lands
             .
             There
             is
             also
             ▪
             produced
             a
             Disposition
             of
             the
             Apprized
             Lands
             ,
             by
             
               George
               Stuart
            
             to
             
               William
               Neilson
            
             ,
             and
             because
             
               William
               Neilson
            
             failzied
             in
             payment
             of
             four
             thousand
             Merks
             of
             the
             price
             ,
             George
             Apprized
             the
             Lands
             again
             from
             
               William
               Neilson
            
             ,
             and
             upon
             all
             these
             Rights
             there
             is
             publick
             Infeftments
             ;
             there
             is
             also
             a
             second
             Apprizing
             ,
             at
             the
             instance
             of
             
               Andrew
               Alexander
            
             ,
             long
             after
             
               George
               Stuarts
            
             Apprizing
             from
             Neilson
             ,
             but
             no
             Infeftment
             thereon
             ;
             and
             there
             is
             produced
             a
             Disposition
             by
             
               George
               Stuart
            
             as
             returning
             to
             the
             Right
             by
             the
             second
             Apprizing
             ,
             made
             to
             Mr.
             
               Iohn
               Alexander
            
             Advocat
             ,
             and
             by
             him
             to
             
               Marjory
               Iameson
            
             his
             Spouse
             ,
             and
             publick
             Infeftments
             on
             these
             ▪
             and
             there
             is
             a
             Decreet
             of
             Cerification
             Extracted
             
               contra
               non
               producta
            
             .
             And
             now
             the
             Doctor
             insists
             on
             this
             Reason
             of
             Reduction
             ,
             that
             
               George
               Stuarts
            
             first
             Apprizing
             against
             Con
             the
             common
             Debitor
             was
             satis●ied
             ,
             by
             Intromission
             within
             the
             Legal
             ,
             and
             so
             is
             extinct
             ,
             and
             all
             the
             subsequent
             Rights
             depending
             thereon
             fall
             therewith
             in
             consequence
             .
             It
             was
             alleadged
             for
             the
             Defenders
             ,
             that
             
               George
               Stuart
            
             having
             in
             his
             Person
             the
             Apprizing
             ,
             and
             finding
             
               Helen
               Kinaird
               (
               Cons
            
             Relick
             )
             in
             Possession
             of
             a
             great
             part
             of
             the
             Lands
             by
             Liferent
             infeftment
             ,
             and
             a
             Liferent
             and
             two
             ninteen
             years
             Tacks
             ,
             which
             would
             have
             excluded
             him
             ;
             he
             purchased
             Right
             and
             Assignation
             thereto
             from
             the
             Relick
             ,
             and
             continued
             her
             Possession
             thereby
             ,
             and
             did
             ascrive
             his
             Possession
             to
             the
             Liferenters
             Right
             ,
             and
             not
             to
             the
             Apprizing
             ,
             so
             that
             his
             intromission
             being
             by
             another
             ,
             and
             more
             valide
             Title
             ,
             could
             not
             be
             ascrived
             to
             the
             Apprizing
             to
             extinguish
             it
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defense
             ought
             to
             be
             Repelled
             ,
             because
             he
             had
             obtained
             Certification
             against
             the
             Defenders
             of
             all
             Rights
             not
             produced
             ,
             and
             albeit
             the
             Liferenters
             Seising
             be
             produced
             yet
             the
             Warrand
             thereof
             (
             the
             Charter
             or
             Precept
             )
             was
             not
             produced
             ,
             so
             that
             it
             is
             now
             declared
             as
             false
             and
             feinzied
             ,
             and
             the
             Seising
             being
             only
             the
             Assertion
             of
             a
             Nottar
             without
             a
             Warrand
             ,
             is
             no
             Title
             to
             which
             the
             Intromission
             can
             be
             ascrived
             ,
             and
             therefore
             it
             must
             be
             ascrived
             wholly
             to
             the
             Apprizing
             .
             The
             Defenders
             answered
             ,
             First
             ,
             That
             albeit
             the
             Charter
             be
             now
             improven
             for
             not
             production
             ,
             yet
             it
             being
             a
             true
             Evident
             ,
             and
             now
             produced
             ,
             the
             effect
             of
             the
             Certification
             cannot
             be
             drawen
             back
             ,
             to
             make
             
               George
               Stuart
            
             
             countable
             ,
             who
             Possessed
             
               bona
               fide
               cum
               titul●
            
             ,
             which
             though
             now
             improven
             ,
             yet
             the
             effect
             of
             the
             improbation
             can
             only
             be
             
               a
               sententia
               ,
               lite
               contestata
               aut
               ●●ta
               ▪
            
             before
             all
             which
             the
             Liferenter
             was
             Dead
             ,
             and
             the
             intromission
             ended
             unless
             the
             Charter
             being
             produced
             ,
             had
             been
             by
             Witnesses
             ,
             or
             otherwayes
             proven
             to
             be
             false
             .
             2dly
             ,
             Albeit
             Certification
             be
             obtained
             against
             
               George
               Stuart
            
             and
             
               Marjory
               Iameson
            
             ;
             yet
             the
             Certification
             is
             not
             against
             
               Andrew
               Alexander
            
             ,
             from
             whom
             Marjory
             hath
             purchased
             Right
             after
             the
             Certification
             ,
             and
             produced
             the
             Appryzing
             at
             Andrews
             instance
             against
             Neilson
             ,
             and
             alleadges
             ,
             that
             albeit
             the
             Certification
             could
             take
             away
             
               George
               Stuarts
            
             Right
             ,
             in
             so
             far
             as
             concerns
             
               Marjory
               Iameson
            
             ,
             or
             her
             Authors
             ,
             yet
             that
             being
             no
             annulling
             of
             their
             Right
             ,
             by
             being
             Transmitted
             in
             favours
             of
             the
             Pursuer
             ,
             but
             only
             as
             being
             void
             ,
             through
             want
             of
             the
             necessary
             Evidents
             ,
             it
             cannot
             impede
             
               Andrew
               Alexander
            
             ,
             against
             whom
             no
             Certification
             is
             obtained
             ,
             to
             Defend
             
               George
               Stuart
            
             his
             Authors
             Right
             ,
             and
             to
             ascribe
             George
             his
             Possession
             to
             the
             Liferent
             ,
             Infeftment
             ,
             whereof
             he
             now
             produces
             the
             Charter
             .
             The
             Pursuer
             answered
             ,
             that
             he
             was
             not
             obliged
             to
             take
             notice
             of
             
               Andrew
               Alexander●
            
             Right
             ,
             because
             it
             was
             incompleat
             ,
             no
             Infeftment
             following
             thereon
             :
             and
             because
             it
             was
             null
             ,
             being
             deduced
             against
             Neilson
             ,
             after
             Neilson
             was
             Denuded
             by
             the
             Appryzing
             led
             against
             him
             by
             
               George
               Stuart
            
             ,
             and
             Infeftment
             thereon
             ,
             so
             that
             the
             Pursuer
             having
             prevailed
             against
             
               George
               Stuarts
            
             Right
             ,
             which
             is
             the
             only
             valide
             Right
             ,
             and
             did
             exclude
             
               Andrew
               Alexander
            
             by
             the
             Rule
             
               vinco
               vincentem
               ,
               &c.
            
             and
             if
             this
             were
             otherwise
             Sustained
             ,
             no
             Improbation
             could
             be
             effectual
             ,
             unless
             all
             the
             invalid
             and
             imperfect
             Rights
             were
             particularly
             improven
             ,
             which
             cannot
             be
             known
             ,
             and
             was
             never
             done
             .
             3dly
             ,
             Certification
             being
             Extracted
             against
             
               George
               Stuart
            
             himself
             ,
             all
             Subaltern
             Rights
             flowing
             from
             him
             ,
             fall
             in
             consequence
             ,
             and
             so
             
               Andrew
               Alexanders
            
             Right
             ,
             which
             is
             but
             incompleat
             and
             latent
             .
             The
             Defender
             answered
             ,
             that
             albeit
             
               Andrew
               Alexander
            
             was
             not
             called
             ,
             or
             Certification
             taken
             against
             him
             ,
             as
             a
             party
             necessar
             ,
             yet
             before
             Conclusion
             of
             the
             Cause
             ,
             he
             has
             a
             good
             interest
             to
             produce
             his
             Appryzing
             ,
             and
             to
             alleadge
             that
             the
             Certification
             against
             
               George
               Stuart
            
             his
             Author
             ,
             who
             neglected
             to
             produce
             the
             Liferenters
             Charter
             ,
             could
             not
             prejudge
             him
             ,
             as
             deriving
             Right
             from
             
               George
               Stuart
            
             ,
             as
             a
             singular
             Successor
             ;
             much
             less
             could
             the
             neglect
             or
             Collusion
             of
             
               Marjorie
               Iameson
            
             prejudge
             any
             other
             but
             her self
             :
             and
             therefore
             craved
             ,
             that
             if
             the
             Lords
             would
             Sustain
             the
             Certification
             of
             the
             Liferent
             Charter
             against
             
               Marjorie
               Iameson
            
             ,
             that
             it
             should
             be
             without
             prejudice
             to
             
               Andrew
               Alexander
            
             ,
             as
             to
             his
             Right
             of
             the
             said
             Liferent
             ,
             or
             to
             
               George
               Stuarts
            
             Right
             of
             the
             Liferent
             in
             so
             far
             as
             the
             same
             is
             Derived
             to
             
               Andrew
               Alexander
            
             .
          
           
             The
             Lords
             adhered
             to
             the
             Certification
             in
             so
             far
             as
             concerned
             
               Marjory
               Iameson
            
             ,
             reserving
             
               Andrew
               Alexanders
            
             Right
             and
             his
             Authors
             ,
             in
             so
             far
             as
             concerned
             
               Andrew
               Alexander
            
             as
             accords
             .
          
           
             This
             Cause
             being
             again
             Called
             the
             9.
             of
             Iune
             ,
             the
             Defenders
             ascribed
             their
             Possession
             to
             the
             Liferent
             ,
             and
             two
             nineteen
             years
             Tacks
             ,
             against
             which
             there
             was
             no
             Certification
             .
             The
             Pursuer
             answered
             ,
             First
             ,
             That
             the
             Liferenter
             having
             bruiked
             by
             a
             Liferent
             Infeftment
             ,
             and
             having
             ascribed
             her
             Possession
             to
             it
             ,
             it
             being
             improven
             ,
             she
             could
             not
             ascribe
             her
             Possession
             to
             the
             Tacks
             ,
             
               quia
               ex
               pluribus
               titulis
               ejusdem
               rei
               nemo
               fit
               Dominus
               .
               2dly
               ,
               George
               Stuart
            
             the
             Appryzer
             having
             both
             the
             Appryzing
             and
             these
             Liferent
             Rights
             in
             his
             Person
             ,
             and
             not
             having
             declared
             his
             mind
             ,
             by
             what
             Title
             he
             possessed
             ,
             his
             Possession
             must
             be
             attribute
             
               titulo
               nobilioti
            
             ,
             to
             the
             Apprizing
             ,
             and
             his
             intromission
             imputed
             thereto
             ,
             
               &
               duriori
               ●orti
            
             ,
             as
             the
             Lords
             use
             ordinarly
             to
             do
             
               in
               ●dium
            
             of
             Appryzings
             ,
             if
             the
             Appryzer
             adhere
             to
             the
             expyring
             
             of
             the
             Legal
             :
             but
             if
             the
             Defender
             will
             grant
             the
             Lands
             Redeemable
             ,
             the
             Pursuer
             is
             content
             ,
             that
             the
             Intromission
             be
             ascribed
             to
             the
             Liferent
             Right
             
               primo
               loco
            
             .
             The
             Defender
             answered
             ,
             that
             though
             
               George
               Stuart
            
             Declared
             not
             by
             what
             Title
             he
             Possessed
             ,
             yet
             his
             intromission
             must
             be
             ascribed
             
               potior●
               juri
            
             ,
             to
             that
             Right
             which
             was
             preferable
             ,
             and
             so
             to
             the
             Liferent
             ,
             which
             would
             undoubtedly
             exclude
             his
             Appryzing
             :
             and
             therefore
             he
             acquired
             Right
             from
             the
             Liferenter
             ,
             being
             then
             in
             Possession
             ,
             and
             it
             is
             unquestionable
             ,
             that
             any
             party
             who
             hath
             many
             Titles
             ,
             though
             they
             first
             make
             use
             of
             one
             ,
             if
             that
             be
             Reduced
             ,
             they
             may
             make
             use
             of
             the
             rest
             ,
             and
             so
             the
             Defender
             ,
             in
             respect
             the
             Liferent
             Infeftment
             is
             improven
             ,
             makes
             use
             of
             the
             Tacks
             .
             The
             Pursuer
             further
             alleadged
             ,
             that
             the
             Tacks
             comprehended
             Lands
             not
             contained
             in
             the
             Contract
             of
             Marriage
             ;
             and
             as
             to
             there
             ,
             it
             was
             a
             voluntar
             Deed
             granted
             by
             a
             Husband
             to
             his
             Wife
             ,
             
               stante
               matrimonio
            
             ,
             and
             Revocked
             by
             
               George
               Stuarts
            
             Appryzing
             ,
             which
             is
             a
             legal
             Disposition
             in
             the
             same
             way
             ,
             as
             if
             the
             Husband
             had
             Disponed
             to
             George
             :
             Likeas
             the
             Doctors
             Debt
             was
             anterior
             to
             these
             Tacks
             ,
             so
             that
             
               George
               Stuart
            
             in
             so
             far
             cannot
             cloath
             himself
             with
             these
             defective
             Rights
             ,
             against
             which
             his
             Appryzing
             would
             have
             prevailed
             .
             As
             to
             the
             superplus
             The
             Defender
             answered
             ,
             that
             albeit
             the
             superplus
             were
             donatio
             ,
             and
             that
             the
             Husband
             might
             recal
             it
             indirectly
             by
             a
             subsequent
             Disposition
             ,
             it
             was
             never
             found
             that
             an
             Appryzing
             was
             such
             a
             Revocation
             .
             and
             albeit
             the
             Doctor
             might
             Reduce
             the
             Tacks
             ,
             as
             to
             the
             superplus
             ,
             being
             without
             an
             onerous
             Cause
             ,
             after
             his
             Debt
             ,
             yet
             that
             Reduction
             cannot
             take
             effect
             
               ante
               litem
               mot●m
            
             ,
             to
             make
             the
             Liferenter
             ,
             or
             
               George
               Stuart
            
             Comptable
             for
             the
             bygone
             Fruits
             ,
             or
             which
             is
             equivalent
             to
             impute
             them
             in
             the
             Appryzing
             .
          
           
             The
             Lords
             found
             that
             the
             Defenders
             Intromission
             might
             be
             imputed
             to
             the
             Liferent
             Tacks
             ,
             and
             not
             to
             the
             Appryzing
             ,
             but
             as
             to
             the
             Superplus
             they
             were
             not
             clear
             ,
             even
             to
             impute
             that
             in
             the
             Appryzing
             ,
             upon
             the
             Considerations
             alleadged
             by
             the
             Defenders
             ,
             but
             as
             to
             that
             ,
             the
             hour
             prevented
             the
             Vote
             .
          
        
         
           
             Margaret
             Hunter
             contra
             The
             Creditors
             of
             John
             Peter
             .
             June
             ●1
             .
             1670.
             
          
           
             THere
             being
             a
             Competition
             betwixt
             
               Margaret
               Hunter
            
             ,
             the
             Relict
             of
             umquhile
             
               John
               Peter
            
             and
             his
             Creditors
             ,
             Appryzers
             or
             Adjudgers
             of
             his
             Lands
             in
             Anno
             1658.
             
             The
             said
             Margaret
             produced
             an
             Infeftment
             by
             her
             Husband
             ,
             of
             a
             yearly
             Annualrent
             of
             700.
             merks
             ,
             bearing
             to
             be
             for
             Implement
             of
             her
             Contract
             of
             Marriage
             ;
             which
             being
             also
             produced
             ,
             by
             her
             Registra●●
             ▪
             bear
             only
             to
             four
             thousand
             merks
             of
             Tocher
             ,
             and
             an
             obligement
             ,
             that
             upon
             payment
             of
             the
             Tocher
             ,
             the
             Husband
             should
             Imploy
             the
             same
             ,
             and
             four
             thousand
             merks
             more
             for
             her
             in
             Liferent
             ;
             whereupon
             the
             Creditors
             alleadged
             that
             her
             Infeftment
             behoved
             to
             be
             restricted
             to
             the
             Annualrent
             of
             eight
             thousand
             merks
             :
             And
             she
             having
             alleadged
             that
             her
             Contract
             was
             Vitiat
             after
             the
             Marriage
             ,
             and
             did
             bear
             seven
             thousand
             merks
             of
             Tocher
             ,
             and
             an
             Annualrent
             thereof
             ,
             and
             of
             other
             seven
             for
             Joynture
             ,
             the
             seven
             was
             made
             four
             ,
             but
             that
             not
             being
             then
             instructed
             ,
             the
             said
             Margaret
             was
             only
             preferred
             as
             to
             the
             Annualrent
             of
             eight
             thousand
             merks
             ,
             but
             prejudice
             to
             her
             to
             prove
             any
             further
             ,
             to
             have
             been
             in
             her
             Contract
             ,
             and
             that
             the
             same
             was
             Vitiat
             .
             She
             now
             pursues
             a
             Declarator
             against
             the
             Creditors
             ,
             that
             her
             Contract
             was
             altered
             ,
             and
             Vitiat
             after
             the
             Marriage
             ,
             and
             that
             she
             ought
             to
             have
             a
             Poinding
             of
             the
             Ground
             ,
             for
             two
             hundreth
             and
             ten
             merks
             yearly
             ,
             the
             times
             bygone
             ,
             wherein
             her
             Infeftment
             of
             seven
             hundreth
             merks
             ,
             exceeded
             
             the
             Annualrent
             of
             eight
             thousand
             merks
             ,
             and
             which
             she
             yet
             wanted
             ,
             and
             for
             the
             whole
             seven
             hundreth
             merks
             in
             time
             coming
             ,
             whereupon
             Witnesses
             were
             adduced
             ,
             for
             proving
             of
             the
             Vitiation
             ,
             which
             they
             did
             prove
             .
             And
             it
             was
             now
             alleadged
             by
             the
             Creditors
             ,
             that
             although
             the
             Contract
             was
             altered
             ,
             yet
             she
             could
             have
             no
             more
             in
             their
             prejudice
             ,
             but
             the
             annualrent
             of
             eight
             thousand
             merks
             ,
             because
             the
             Contract
             was
             altered
             before
             it
             was
             Registrat
             ;
             and
             her
             Infeftment
             bears
             expresly
             for
             Implement
             of
             her
             Contract
             Registrat
             ,
             which
             must
             import
             ,
             that
             it
             was
             an
             Implement
             of
             the
             Contract
             as
             it
             was
             altered
             after
             the
             Registration
             ,
             and
             not
             as
             it
             was
             before
             the
             Registration
             ,
             seing
             it
             does
             not
             mention
             the
             particular
             Sum
             ,
             either
             of
             eight
             ,
             or
             fourteen
             thousand
             merks
             ;
             and
             the
             seven
             hundreth
             merks
             ,
             is
             but
             fifty
             merks
             more
             than
             the
             Annualrent
             of
             eight
             thousand
             merks
             ,
             at
             the
             time
             of
             the
             Infeftment
             .
             2dly
             ,
             The
             Contract
             was
             altered
             by
             consent
             of
             the
             Father
             and
             the
             Husband
             ,
             Contracters
             ,
             and
             if
             need
             beis
             ,
             it
             is
             offered
             to
             be
             proven
             ,
             that
             it
             was
             with
             the
             Relicts
             own
             consent
             ,
             so
             that
             it
             was
             no
             Vitiation
             ,
             but
             a
             warrantable
             alteration
             ,
             3dly
             ,
             Albeit
             it
             had
             been
             unwarrantably
             altered
             ,
             yet
             two
             Creditors
             having
             lent
             their
             Money
             to
             
               John
               Peter
               ,
               bona
               fide
            
             ;
             and
             seing
             an
             Infeftment
             granted
             by
             her
             Husband
             in
             Implement
             of
             the
             Contract
             of
             Marriage
             Registrat
             ;
             and
             finding
             only
             in
             the
             Register
             eight
             thousand
             merks
             ,
             and
             she
             having
             produced
             it
             ,
             and
             made
             use
             thereof
             ,
             and
             so
             Homologat
             the
             Contract
             altered
             ,
             they
             could
             be
             prejudged
             ,
             but
             she
             might
             pursue
             the
             Heirs
             of
             
               John
               Peter
               .
               4thly
            
             ,
             They
             having
             bruiked
             by
             their
             Infeftment
             and
             a
             Decreet
             ,
             they
             cannot
             be
             lyable
             for
             the
             Repetition
             of
             bygones
             ,
             nor
             cannot
             suffer
             their
             Ground
             to
             be
             Poynded
             therefore
             ▪
             But
             this
             Declarator
             can
             only
             take
             effect
             
               a
               sententia
               aut
               lite
               mota
               .
               5thly
               ,
            
             Though
             the
             Vitiation
             were
             fully
             Sustained
             ,
             
               John
               Peter
            
             was
             only
             obliged
             to
             Infeft
             her
             in
             an
             Annualrent
             ,
             e●●e●ring
             to
             the
             Tocher
             ,
             upon
             payment
             thereof
             ,
             
               Ita
               est
            
             ,
             the
             Tocher
             was
             never
             payed
             ,
             and
             so
             she
             can
             only
             claim
             the
             Annualrent
             of
             seven
             thousand
             merks
             ,
             which
             the
             Husband
             should
             have
             added
             to
             the
             Tocher
             .
             And
             albeit
             ordinarly
             such
             Clauses
             prejudge
             not
             the
             Wife
             ,
             where
             the
             Tocher
             is
             not
             payed
             through
             the
             Husbands
             neglect
             ,
             who
             is
             obliged
             to
             do
             Diligence
             for
             his
             Wife
             .
             Yet
             here
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Relicts
             Father
             was
             insolvent
             the
             time
             of
             the
             Contract
             ,
             and
             still
             thereafter
             ;
             so
             that
             no
             Diligence
             could
             have
             recovered
             it
             .
             It
             was
             answered
             for
             the
             Relict
             to
             the
             first
             ,
             that
             albeit
             her
             Infeftment
             relate
             to
             the
             Contract
             which
             was
             Registrat
             ,
             yet
             not
             to
             the
             Contract
             as
             it
             was
             Registrat
             ,
             and
             the
             Husband
             having
             so
             great
             Trust
             ,
             the
             Wife
             was
             not
             obliged
             to
             look
             to
             the
             Register
             or
             Extract
             ,
             which
             was
             in
             her
             Fathers
             and
             Husbands
             Custody
             ;
             and
             by
             the
             Testimonies
             of
             the
             Witnesses
             it
             appears
             ,
             that
             they
             have
             Colluded
             to
             abate
             both
             the
             Tocher
             and
             Joyntour
             ,
             without
             her
             Consent
             .
             To
             the
             second
             ,
             The
             Father
             and
             Husband
             not
             being
             sole
             Contracters
             ,
             but
             the
             Wife
             ,
             they
             could
             not
             after
             the
             Contract
             and
             Marriage
             ,
             without
             her
             consent
             ,
             alter
             her
             Right
             .
             To
             the
             third
             ,
             The
             Creditors
             lending
             their
             Money
             ,
             
               bona
               fide
               ,
            
             ,
             cannot
             prejudge
             the
             Relicts
             Right
             ;
             for
             
               bona
               fides
            
             operats
             only
             in
             payment
             made
             ,
             and
             other
             necessary
             Deeds
             ,
             but
             not
             in
             voluntary
             Acts
             ,
             as
             lending
             of
             Mony
             ,
             wherein
             the
             Lender
             must
             follow
             the
             Faith
             and
             Condition
             of
             the
             Borrower
             ,
             whose
             Rights
             ,
             though
             never
             so
             clear
             in
             any
             Record
             ,
             yet
             if
             thereafter
             they
             be
             improven
             or
             Reduced
             ,
             the
             Creditors
             
               bona
               fides
            
             ,
             avails
             nothing
             ,
             and
             though
             the
             Relict
             made
             use
             of
             the
             Contract
             Vitiat
             ,
             yet
             it
             was
             with
             Reclamation
             against
             the
             Vitiation
             ;
             and
             therefore
             in
             the
             Decreet
             ,
             the
             same
             is
             reserved
             ,
             which
             is
             the
             Ground
             of
             this
             Declarator
             .
             To
             the
             fourth
             ,
             The
             Relict
             craves
             not
             the
             Repetition
             of
             the
             Fruits
             uplifted
             by
             the
             Creditors
             ,
             but
             only
             that
             the
             Ground
             may
             be
             Poynded
             for
             
             what
             she
             wants
             of
             bygones
             .
             To
             the
             last
             ,
             By
             no
             Practice
             was
             ever
             a
             Wife
             prejudged
             ,
             by
             not
             payment
             of
             the
             Tocher
             ;
             and
             albeit
             the
             Fathers
             being
             Insolvent
             ,
             might
             have
             been
             a
             Ground
             to
             the
             Husband
             to
             refuse
             to
             Infeft
             his
             Wife
             ,
             in
             any
             more
             than
             the
             Annualrent
             of
             7000.
             merks
             ,
             till
             the
             Tocher
             were
             payed
             :
             Yet
             where
             he
             has
             actually
             Infeft
             her
             in
             more
             ,
             and
             even
             before
             Contracting
             of
             the
             Creditors
             Debt
             ,
             her
             Infeftment
             must
             stand
             valid
             ,
             seing
             it
             was
             less
             than
             what
             was
             her
             Right
             .
          
           
             The
             Lords
             found
             the
             Vitiation
             of
             the
             Contract
             to
             have
             been
             after
             the
             Marriage
             ,
             and
             Sustained
             the
             Declarator
             ,
             and
             ordained
             the
             Ground
             to
             be
             Poynded
             for
             what
             she
             wanted
             of
             her
             Infeftment
             of
             700.
             merks
             for
             bygones
             ,
             and
             for
             the
             whole
             in
             time
             coming
             ,
             unless
             it
             were
             proven
             by
             the
             Wifes
             Oath
             ,
             that
             she
             consented
             to
             the
             alteration
             of
             her
             Contract
             .
          
        
         
           
             Margaret
             Livingstoun
             contra
             Burn●
             .
             Iune
             15.
             1670.
             
          
           
             
               MArgaret
               Livingstoun
            
             as
             Donatrix
             to
             the
             Bastardy
             of
             a
             Mason
             in
             Falkirk
             ,
             pursues
             a
             Declarator
             of
             the
             Bastardy
             ,
             and
             Restitution
             of
             the
             Goods
             against
             Burns
             ,
             who
             alleadged
             no
             Process
             ,
             because
             the
             Libel
             ,
             condescending
             upon
             the
             Bastards
             Father
             and
             Mothers
             Names
             ,
             and
             that
             the
             Defunct
             was
             Bastard
             ,
             the
             same
             must
             be
             proven
             by
             VVitnesses
             ,
             and
             so
             the
             Summons
             must
             be
             continued
             ,
             it
             being
             a
             known
             Maxime
             ,
             that
             all
             Summons
             ,
             not
             instantly
             verified
             ,
             either
             by
             Presumption
             ,
             or
             Probation
             by
             VVrit
             ;
             but
             which
             must
             be
             proven
             by
             VVitnesses
             ,
             or
             Oath
             must
             be
             continued
             .
             The
             Pursuer
             answered
             ,
             that
             albeit
             
               ex
               alundante
            
             ,
             she
             had
             condescended
             on
             the
             Bastards
             Father
             and
             Mother
             ,
             yet
             whoever
             were
             Father
             and
             Mother
             ,
             (
             that
             they
             were
             not
             Married
             together
             )
             is
             a
             Negative
             ,
             and
             proves
             it self
             ,
             and
             needs
             no
             further
             Probation
             ,
             but
             is
             presumed
             ,
             and
             puts
             the
             burden
             of
             Probation
             upon
             the
             Defender
             ,
             that
             they
             were
             really
             Married
             ,
             at
             least
             so
             holden
             and
             repute
             .
             2dly
             ,
             Albeit
             Probation
             were
             necessar
             ,
             that
             the
             Defunct
             was
             either
             Bastard
             ,
             or
             so
             commonly
             repute
             ,
             the
             Probation
             may
             proceed
             upon
             the
             first
             Summons
             ,
             
               in
               favorem
               Fisci
            
             ,
             and
             is
             so
             accustomed
             in
             Declarators
             of
             Bastardy
             ,
             and
             in
             Declarators
             of
             Non-entry
             ,
             wherein
             though
             the
             Death
             of
             the
             Vassal
             be
             Libelled
             ,
             yet
             the
             Summons
             is
             not
             continued
             .
          
           
             The
             Lords
             found
             that
             the
             Summons
             behoved
             to
             be
             proven
             ,
             that
             the
             Defunct
             was
             at
             least
             holden
             and
             repute
             Bastard
             ,
             and
             that
             Bastardy
             was
             not
             presumed
             ,
             but
             they
             Sustained
             the
             Declarator
             without
             continuation
             ,
             and
             that
             the
             Declarator
             might
             proceed
             upon
             the
             first
             Summons
             .
          
        
         
           
             Scot
             of
             Thirlestoun
             contra
             The
             Laird
             Drumlanrig
             .
             Eodem
             die
             .
          
           
             SCot
             of
             Thirlestoun
             having
             Adjudged
             cerrain
             Lands
             ,
             Charges
             Drumlanrig
             Superiour
             ,
             to
             receive
             him
             ,
             who
             Suspends
             ,
             and
             alleadges
             he
             ought
             to
             have
             a
             years
             Rent
             ,
             conform
             to
             the
             late
             Act
             of
             Parliament
             1669.
             
             It
             was
             answered
             that
             this
             and
             all
             other
             Acts
             have
             
               Effect
               ad
               futura
            
             :
             But
             not
             only
             this
             Adjudication
             was
             led
             before
             the
             Act
             ,
             but
             Drumlanrig
             was
             Charged
             before
             the
             Act
             ,
             and
             having
             no
             just
             reason
             to
             Disobey
             the
             Charge
             when
             he
             was
             Charged
             ,
             he
             cannot
             claim
             the
             benefite
             of
             a
             subsequent
             Law.
             It
             was
             answered
             ,
             The
             Tenor
             of
             the
             Act
             was
             Declaratory
             ,
             and
             bear
             a
             general
             Clause
             ,
             that
             Adjudications
             should
             be
             in
             all
             things
             as
             Apprizings
             .
          
           
           
             The
             Lords
             found
             ,
             that
             seing
             the
             Act
             did
             not
             expresly
             relate
             to
             bygones
             .
             It
             could
             not
             extend
             to
             any
             Adjudication
             ,
             whereupon
             a
             Charge
             was
             given
             before
             the
             Act.
             
          
        
         
           
             Lord
             Iustice
             Clerk
             and
             his
             Son
             Sir
             Alexander
             .
             contra
             Earl
             of
             Hume
             .
             Eodem
             die
             .
          
           
             THere
             being
             a
             Contract
             betwixt
             the
             Earl
             of
             Hume
             and
             
               Iohn
               Stuart
            
             of
             Coldinghame
             ,
             and
             
               Francis
               Stuart
            
             ,
             sometime
             Earl
             of
             Bothwel
             ,
             whereby
             the
             Lordship
             of
             Coldinghame
             was
             agreed
             to
             be
             possest
             by
             the
             Earl
             of
             Hume
             ,
             until
             he
             were
             payed
             of
             nineteen
             thousand
             Pounds
             ;
             and
             also
             that
             the
             Earl
             should
             uplift
             two
             hundreth
             pound
             Sterling
             of
             Annualrent
             ●orth
             ●hereof
             to
             him
             ,
             and
             the
             Heirs-mail
             of
             his
             Body
             ;
             and
             it
             was
             Declared
             that
             the
             Possession
             for
             the
             nineteen
             thousand
             pound
             ,
             should
             only
             be
             for
             the
             Annualrent
             thereof
             ,
             
               fructibus
               non
               computandis
               in
               sortent
            
             ,
             Sir
             
               Alexander
               Hume
            
             as
             having
             Right
             to
             this
             Contract
             by
             progress
             ,
             did
             pursue
             a
             Declarator
             against
             the
             late
             Earl
             of
             Hume
             ,
             that
             in
             regard
             his
             Predecessor
             ,
             the
             Earl
             of
             Hume
             Contracter
             ,
             Died
             without
             Heirs-male
             of
             his
             Body
             ,
             and
             he
             continued
             to
             Possess
             ,
             who
             had
             no
             right
             to
             the
             Annuity
             of
             two
             hundreth
             pound
             Sterling
             ,
             that
             his
             Possession
             did
             satisfie
             the
             nineteen
             thousand
             pound
             ,
             and
             purged
             the
             Right
             ,
             the
             said
             umquhil
             Earl
             dying
             ,
             there
             is
             now
             Summons
             of
             Transferrence
             at
             Sir
             Alexanders
             instance
             ,
             against
             this
             Earl
             of
             Hume
             ,
             as
             Representing
             his
             Father
             ,
             and
             also
             therein
             a
             Declarator
             against
             this
             Earl
             as
             appearand
             Heir
             ,
             that
             the
             Contract
             was
             satisfied
             and
             extinct
             by
             Intromission
             ,
             and
             the
             Lands
             Liberate
             .
             Compearance
             is
             made
             for
             an
             Appryzer
             ,
             who
             produced
             his
             Infeftment
             ,
             and
             who
             had
             apprized
             the
             Lordship
             of
             Coldinghame
             ,
             and
             all
             Right
             thereof
             ,
             competent
             to
             the
             late
             Earl
             of
             Hume
             ,
             who
             alleadged
             no
             Process
             for
             the
             conclusion
             of
             Declarator
             against
             this
             Earl
             of
             Hume
             ,
             because
             all
             Parties
             having
             Interest
             ,
             were
             not
             called
             ,
             viz
             himself
             who
             had
             Denuded
             the
             Earl
             of
             Hume
             ,
             and
             who
             is
             not
             cited
             .
             The
             Pursuer
             answered
             ,
             that
             this
             being
             a
             Personal
             Contract
             with
             the
             Earl
             of
             Hume
             ,
             whereupon
             no
             Infeftment
             had
             followed
             ,
             seing
             the
             original
             Right
             was
             in
             no
             Register
             ,
             he
             was
             not
             obliged
             to
             search
             the
             Register
             for
             the
             Infeftments
             of
             Appryzers
             ,
             but
             it
             was
             sufficient
             for
             him
             to
             call
             the
             appearand
             Heir
             of
             the
             Contracter
             :
             But
             seing
             this
             Alleadgeance
             could
             not
             be
             proponed
             for
             the
             Earl
             of
             Hume
             ,
             being
             
               jus
               ter●tij
            
             ,
             neither
             by
             the
             Appryzer
             ,
             unless
             he
             had
             produced
             his
             Right
             to
             verifie
             the
             same
             instantly
             ,
             seing
             he
             now
             compears
             for
             his
             Interest
             ,
             he
             may
             be
             admitted
             and
             heard
             to
             Defend
             thereupon
             
               in
               causa
            
             ,
             but
             not
             to
             delay
             ,
             or
             exclude
             the
             Process
             till
             a
             new
             Citation
             ,
             but
             according
             to
             the
             Lords
             ordinar
             custom
             ,
             he
             may
             see
             the
             Process
             in
             the
             Clerks
             hands
             ,
             and
             propone
             his
             Defense
             as
             the
             Lords
             have
             done
             in
             the
             same
             Process
             against
             one
             Park
             another
             Appryzer
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             but
             allowed
             this
             Appryzer
             ,
             as
             they
             had
             done
             the
             other
             to
             see
             in
             the
             Clerks
             hands
             ,
             and
             to
             be
             heard
             upon
             his
             Right
             ;
             and
             Ordained
             all
             the
             Advocats
             compearing
             for
             the
             Defenders
             ,
             to
             produce
             any
             other
             Interest
             in
             their
             hands
             ,
             and
             not
             be
             delay
             the
             Process
             ,
             by
             dropping
             them
             in
             severally
             .
          
        
         
           
             Langlands
             contra
             Spence
             of
             Blair
             .
             Iune
             17.
             1670.
             
          
           
             LAnglands
             pursues
             Spence
             of
             Blair
             for
             Reduction
             of
             his
             Rights
             ,
             of
             certain
             Lands
             granted
             by
             Hamiltoun
             of
             Blair
             his
             Author
             ,
             because
             Hamiltoun
             was
             Inhibit
             at
             the
             Pursuers
             Instance
             ,
             before
             he
             granted
             these
             Rights
             to
             the
             Defender
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             Absolvitor
             ,
             because
             the
             
             Inhibition
             was
             null
             ,
             the
             question
             being
             of
             Lands
             lying
             within
             the
             Regality
             of
             Culross
             ,
             and
             the
             Inhibition
             was
             not
             Execute
             at
             Culross
             the
             head
             Burgh
             of
             the
             Regality
             ,
             but
             at
             Pearth
             the
             head
             Burgh
             of
             the
             Shire
             ;
             and
             for
             instructing
             that
             Culross
             was
             a
             Regality
             ,
             the
             Lord
             Colvils
             Infeftment
             was
             produced
             ,
             which
             though
             it
             bear
             not
             expresly
             a
             Regality
             ,
             yet
             is
             bears
             a
             Bailirie
             ,
             with
             power
             to
             Repledge
             ,
             which
             importeth
             a
             Regality
             ,
             and
             accordingly
             the
             Bailzie
             and
             not
             the
             Sheriff
             ,
             makes
             count
             in
             Exchequer
             ,
             and
             Briefs
             are
             direct
             to
             the
             Bailzie
             ;
             and
             there
             is
             produced
             an
             Inhibition
             Anno
             1657.
             and
             another
             in
             Anno
             1666.
             
             Execute
             at
             Culross
             .
             The
             Pursuer
             answered
             that
             Culross
             was
             never
             denominat
             ,
             holden
             ,
             or
             repute
             a
             Regality
             ,
             but
             a
             Bailliry
             ,
             and
             though
             the
             power
             of
             Repledging
             ,
             be
             a
             special
             priviledge
             of
             Regality
             ,
             yet
             there
             are
             many
             other
             priviledges
             thereof
             ,
             not
             consequent
             upon
             the
             Repledging
             .
             2dly
             ,
             The
             Pursuer
             having
             followed
             the
             ordinar
             course
             ,
             used
             the
             time
             of
             his
             Inhibition
             ,
             viz.
             by
             Executing
             at
             the
             Mercat
             Cross
             of
             the
             head
             Burgh
             of
             the
             Shire
             ,
             he
             hath
             produced
             three
             Inhibitions
             about
             that
             same
             time
             Execute
             as
             his
             is
             ;
             so
             that
             what
             was
             then
             holden
             repute
             to
             be
             the
             head
             Burgh
             ,
             is
             sufficient
             for
             him
             to
             make
             his
             Legal
             Diligence
             subsist
             ▪
             And
             for
             the
             Inhibition
             Execute
             at
             Culross
             in
             Anno
             1657.
             
             It
             cannot
             be
             respected
             ,
             because
             it
             is
             known
             that
             at
             that
             time
             Regalities
             were
             supprest
             by
             the
             English
             ;
             and
             for
             the
             Inhibition
             in
             Anno
             1666.
             
             It
             might
             have
             been
             done
             of
             purpose
             ,
             
               pendente
               processu
            
             ,
             and
             cannot
             regulate
             the
             custom
             the
             time
             of
             the
             Pursuers
             Inhibition
             which
             was
             in
             Anno
             1633.
             
          
           
             The
             Lords
             Sustained
             the
             Pursuers
             Inhibition
             and
             Reduced
             ,
             for
             they
             neither
             found
             it
             clear
             that
             Culross
             was
             repute
             a
             Regality
             ,
             not
             that
             the
             custom
             was
             to
             Execute
             Inhibitions
             there
             at
             that
             time
             ,
             but
             at
             Pearth
             the
             head
             Burgh
             of
             the
             Shire
             .
          
        
         
           
             Mr.
             Iames
             Cheap
             contra
             Magistrates
             of
             Falkland
             .
             Iune
             18.
             1670.
             
          
           
             MR.
             
               Iames
               Cheap
            
             pursues
             the
             Bailzies
             of
             Falkland
             to
             pay
             their
             Debt
             due
             to
             him
             by
             Provest
             Mains
             ,
             who
             being
             taken
             by
             Caption
             ,
             and
             delivered
             to
             the
             Bailzies
             by
             the
             Messengers
             ,
             they
             keeped
             him
             in
             a
             private
             House
             for
             the
             space
             of
             ten
             dayes
             ,
             for
             which
             they
             are
             alse
             well
             lyable
             for
             the
             Debt
             ,
             as
             if
             they
             had
             brought
             him
             out
             of
             the
             Tolbooth
             ,
             and
             keeped
             him
             in
             the
             Town
             during
             so
             much
             time
             ;
             and
             also
             they
             were
             lyable
             in
             so
             far
             as
             having
             put
             him
             thereafter
             in
             the
             Tolbooth
             ,
             they
             suffered
             him
             to
             escape
             forth
             thereof
             .
             It
             was
             alleadged
             for
             the
             Defenders
             ,
             they
             were
             not
             obliged
             to
             keep
             Prisoners
             ,
             not
             being
             a
             Burgh
             Royal
             ,
             but
             only
             a
             Burgh
             within
             a
             Ste●●rtry
             ,
             which
             no
             Law
             obliges
             to
             receive
             Prisoners
             ,
             and
             the
             Caption
             is
             only
             Direct
             to
             Sheriffs
             ,
             Baillies
             of
             Regalitie
             ,
             or
             Royalty
             ,
             Steuarts
             ,
             and
             Magistrates
             of
             Burghs
             Royal
             ,
             but
             not
             to
             Burghs
             within
             Steuartries
             ,
             or
             within
             Regalities
             ,
             albeit
             they
             were
             the
             head
             Burghs
             of
             the
             Steuartry
             or
             Regality
             ,
             not
             being
             Burghs
             Royal.
             2dly
             ,
             The
             Defenders
             cannot
             be
             lyable
             for
             keeping
             the
             Prisoner
             some
             dayes
             out
             of
             the
             Tolbooth
             ,
             seing
             he
             did
             not
             then
             escape
             :
             And
             albeit
             it
             be
             a
             fault
             for
             which
             they
             may
             be
             censured
             ,
             to
             keep
             a
             Prisoner
             in
             a
             private
             House
             ,
             yet
             the
             doing
             thereof
             ,
             if
             the
             Rebel
             escape
             not
             ,
             makes
             them
             not
             lyable
             to
             the
             Debt
             ,
             but
             especially
             where
             the
             Rebel
             was
             never
             in
             the
             Tolbooth
             ,
             and
             when
             there
             was
             Treaty
             betwixt
             him
             and
             the
             Pursuer
             and
             his
             Servant
             ,
             for
             an
             agreement
             and
             satisfaction
             and
             security
             for
             the
             Sum.
             3dly
             ,
             They
             offered
             to
             prove
             ,
             that
             the
             Tolbooth
             was
             sufficient
             ,
             and
             that
             the
             Prisoner
             escaped
             
               vi
               majori
            
             ,
             by
             breaking
             the
             Roof
             of
             the
             Prison
             without
             their
             fault
             .
             The
             pursuer
             answered
             to
             the
             first
             ,
             that
             he
             opponed
             the
             Act
             of
             Parliament
             ,
             ordaining
             sufficient
             Prison-houses
             in
             all
             
             Burg●s
             ,
             
               Parl.
               1597.
               cap.
               273.
               2dly
            
             ,
             Whateven
             this
             Burgh
             might
             have
             pretended
             for
             refusing
             to
             accept
             the
             Prisoner
             ,
             yet
             having
             accepted
             him
             ,
             and
             suffered
             him
             to
             escape
             ,
             they
             are
             lyable
             as
             having
             acknowledged
             themselves
             to
             be
             lyable
             ;
             and
             if
             they
             had
             refused
             the
             Prisoner
             ,
             the
             Pursuer
             would
             have
             Imprisoned
             him
             in
             another
             uncontroverted
             Burgh
             .
             To
             the
             second
             Defense
             it
             was
             answered
             ,
             that
             Magistrates
             are
             lyable
             for
             the
             Debt
             of
             Rebels
             offered
             to
             them
             ,
             if
             they
             do
             not
             put
             them
             in
             Prison
             ,
             or
             if
             they
             suffer
             them
             to
             come
             out
             of
             Prison
             without
             Warrand
             ,
             and
             the
             Pursuer
             needs
             not
             Dispute
             that
             the
             Prisoner
             went
             out
             by
             the
             Magistrates
             fault
             ,
             and
             their
             Contumacy
             is
             sufficient
             in
             not
             obeying
             the
             Letters
             ,
             by
             putting
             him
             in
             their
             publick
             Prison
             ,
             but
             keeping
             him
             so
             long
             in
             a
             private
             House
             .
             To
             the
             third
             Defense
             the
             Pursuer
             offered
             him
             to
             prove
             ,
             that
             the
             Prison
             was
             insufficient
             ,
             and
             that
             thereby
             the
             Rebel
             did
             escape
             .
          
           
             The
             Lords
             found
             ,
             that
             seing
             the
             Defenders
             did
             receive
             the
             Rebel
             upon
             the
             Caption
             ,
             they
             could
             not
             now
             Dispute
             ,
             whether
             they
             were
             lyable
             to
             receive
             or
             not
             ,
             as
             being
             the
             head
             Burgh
             of
             the
             Steuartrie
             ,
             and
             therefore
             the
             Lords
             did
             not
             Determine
             that
             Point
             .
             Likewise
             ,
             the
             Lords
             found
             that
             the
             keeping
             of
             the
             Rebel
             ten
             days
             before
             he
             was
             Imprisoned
             ,
             there
             being
             Treaty
             in
             the
             time
             ,
             and
             they
             not
             urged
             to
             put
             him
             in
             the
             Prison
             ,
             did
             not
             oblige
             them
             .
             As
             to
             the
             last
             Point
             concerning
             the
             sufficiency
             ,
             or
             insufficiency
             of
             the
             Prison
             ,
             the
             alleadgeances
             being
             contrary
             ,
             the
             Lords
             would
             prefer
             neither
             Party
             in
             the
             Probation
             ,
             but
             before
             answer
             ordained
             either
             Party
             to
             adduce
             Witnesses
             ,
             concerning
             the
             condition
             of
             the
             Prison
             ,
             and
             manner
             of
             the
             Rebels
             escape
             .
          
        
         
           
             Collin
             Hay
             contra
             Magistrates
             of
             Elgin
             ▪
             Eodem
             die
             .
          
           
             
               COllin
               Hay
            
             having
             pursued
             the
             Magistrates
             of
             Elgin
             for
             a
             Debt
             of
             a
             Rebel
             ,
             arrested
             by
             him
             in
             their
             Tolbooth
             ,
             upon
             Caption
             ,
             and
             suffered
             to
             escape
             ,
             and
             the
             Town
             having
             failed
             in
             all
             their
             Defenses
             ,
             did
             at
             last
             offer
             to
             prove
             ,
             that
             the
             Execution
             of
             the
             Messenger
             bearing
             ,
             that
             he
             arrested
             the
             Prisoner
             ,
             and
             made
             intimation
             of
             the
             arrestment
             to
             the
             Magistrates
             ,
             was
             false
             ,
             whereupon
             there
             being
             three
             Witnesses
             insert
             ,
             and
             one
             Dead
             ,
             the
             Messenger
             ,
             and
             one
             of
             the
             living
             Witnesses
             Deponed
             and
             acknowledged
             the
             arrestment
             ,
             but
             differed
             in
             the
             manner
             of
             it
             ,
             the
             Execution
             and
             the
             Messengers
             Oath
             bear
             ,
             that
             he
             came
             to
             the
             Rebel
             being
             in
             Prison
             ,
             and
             commanded
             him
             to
             remain
             therein
             ,
             by
             vertue
             of
             the
             Caption
             ,
             till
             the
             Debt
             were
             payed
             ;
             the
             affirming
             Witnesses
             Deponed
             ,
             that
             the
             Messenger
             came
             with
             the
             Caption
             to
             the
             Tolbooth
             Door
             ,
             but
             that
             he
             went
             not
             in
             ,
             and
             does
             not
             remember
             that
             he
             knocked
             at
             the
             Door
             ,
             out
             that
             he
             Chalked
             the
             Door
             ,
             and
             commanded
             the
             Prisoner
             to
             remain
             ,
             but
             the
             Witnesses
             denyed
             ,
             that
             they
             remembred
             any
             thing
             of
             the
             Intimation
             to
             the
             Magistrates
             ,
             and
             the
             other
             of
             the
             ●ing
             Witnesses
             denyed
             that
             he
             was
             Witness
             to
             the
             arrestment
             or
             intimation
             ,
             whence
             the
             question
             arose
             ,
             whether
             the
             intimation
             was
             necessar
             ,
             or
             though
             it
             were
             improven
             ,
             if
             the
             arrestment
             did
             stand
             ,
             and
             were
             sufficient
             to
             oblige
             the
             Magistrates
             ,
             who
             were
             obliged
             to
             have
             a
             Jaylor
             ,
             and
             to
             keep
             a
             Book
             of
             arrestments
             :
             and
             next
             ,
             whether
             this
             arrestment
             was
             sufficient
             ,
             not
             being
             made
             to
             ,
             or
             in
             presence
             of
             the
             Jaylour
             .
             It
             was
             alleadged
             for
             the
             Defenders
             ▪
             that
             few
             Towns
             in
             Scotland
             keeped
             a
             Record
             of
             Incarcerations
             ,
             and
             here
             the
             Magistrates
             and
             Clerk
             had
             sworn
             ,
             that
             there
             was
             none
             in
             that
             Town
             at
             that
             time
             ,
             neither
             did
             the
             Execution
             bear
             that
             the
             Jaylour
             was
             Comanded
             to
             〈◊〉
             the
             Prisoner
             ;
             and
             albeit
             one
             of
             the
             Witnesses
             Depones
             that
             he
             was
             Jaylour
             at
             that
             time
             and
             the
             Messenger
             and
             other
             Witnesses
             depones
             that
             he
             was
             present
             at
             the
             arrestment
             ,
             yet
             the
             Execution
             bears
             not
             any
             command
             to
             
             him
             to
             detain
             the
             Prisoner
             ,
             but
             only
             to
             the
             Prisoner
             to
             remain
             in
             Prison
             ,
             and
             the
             Jaylor
             is
             a
             Witness
             in
             the
             Execution
             ,
             and
             not
             a
             Party
             ,
             and
             denys
             the
             same
             even
             that
             he
             was
             so
             much
             as
             Witness
             ,
             by
             his
             Oath
             ▪
             neither
             does
             the
             Messenger
             and
             the
             affirming
             Witnesses
             agree
             in
             the
             Substantials
             of
             the
             arrestment
             ;
             and
             for
             the
             Messenger
             he
             is
             a
             Party
             ,
             whose
             Execution
             is
             quarrelled
             ,
             and
             is
             infamous
             ,
             and
             Excommunicate
             for
             great
             Crimes
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             the
             arrestment
             stood
             valid
             ,
             and
             was
             not
             improven
             but
             approven
             as
             to
             the
             Substantials
             requisite
             thereto
             ,
             for
             the
             Messenger
             and
             one
             of
             the
             two
             living
             Witnesses
             do
             agree
             ,
             that
             the
             arrestment
             was
             made
             by
             the
             Caption
             at
             the
             Tolbooth
             Door
             ,
             in
             presence
             of
             the
             Jaylour
             ,
             and
             though
             it
             was
             not
             so
             formally
             done
             ,
             by
             Commanding
             the
             Jaylour
             ,
             yet
             it
             was
             sufficient
             that
             the
             Prisoner
             was
             Commanded
             in
             the
             Jaylours
             presence
             ,
             which
             is
             sufficient
             ,
             albeit
             not
             so
             formal
             ,
             in
             making
             the
             Jaylour
             Witness
             ,
             neither
             can
             respect
             be
             had
             to
             the
             Jaylours
             Oath
             ,
             denying
             that
             he
             was
             Witness
             ,
             because
             confessing
             he
             was
             Jaylour
             ,
             he
             is
             a
             Party
             lyable
             for
             suffering
             the
             Rebel
             to
             escape
             ,
             neither
             doth
             it
             import
             ,
             that
             after
             so
             long
             a
             time
             ,
             the
             affirming
             Witnesses
             do
             not
             remember
             all
             the
             Circumstances
             ,
             seing
             he
             affirms
             the
             arrestment
             to
             be
             made
             ,
             and
             that
             by
             his
             own
             advice
             ,
             he
             being
             also
             a
             Messenger
             ;
             nor
             is
             the
             Pursuer
             obliged
             to
             Dispute
             the
             Fame
             of
             the
             Messenger
             ,
             who
             lived
             at
             so
             great
             a
             distance
             from
             him
             ,
             and
             was
             continued
             in
             that
             publick
             Trust
             undeposed
             ;
             so
             that
             there
             being
             three
             Witnesses
             insert
             in
             the
             Execution
             of
             the
             Arrestment
             ,
             one
             of
             them
             who
             is
             an
             inhabile
             Witness
             ,
             as
             a
             Party
             denying
             ,
             another
             affirming
             ,
             the
             third
             being
             Dead
             ,
             doth
             unquestionably
             stand
             as
             a
             proving
             Witness
             :
             for
             where
             are
             many
             Witnesses
             in
             a
             Writ
             or
             Execution
             ,
             if
             there
             be
             one
             living
             that
             affirms
             ,
             all
             that
             are
             Dead
             affirm
             with
             him
             ,
             though
             other
             living
             Witnesses
             deny
             :
             Much
             more
             here
             ,
             where
             of
             three
             ,
             two
             being
             alive
             ,
             the
             one
             affirms
             ,
             the
             other
             denys
             ,
             but
             i●
             a
             Party
             concerned
             ,
             and
             the
             Messenger
             also
             affirms
             .
          
           
             The
             Lords
             found
             that
             there
             being
             here
             no
             formal
             arrestment
             made
             to
             the
             Jaylour
             ,
             astructed
             by
             the
             Testimo●ies
             of
             the
             Witnesses
             ,
             and
             that
             the
             intimation
             thereof
             was
             clearly
             improven
             ,
             they
             Assoylzied
             the
             Magistrates
             ,
             but
             if
             the
             arrestment
             had
             been
             good
             ,
             they
             would
             not
             have
             ●ound
             the
             Intimation
             necessar
             ,
             whether
             the
             Town
             keeped
             a
             Book
             or
             not
             ,
             but
             that
             the
             arrestment
             ,
             made
             to
             the
             Keeper
             of
             the
             Tolbooth
             ,
             whom
             they
             intrusted
             ,
             were
             sufficient
             .
          
        
         
           
             Dowglas
             of
             Lumsdean
             contra
             Dowglas
             .
             Iune
             22.
             1670.
             
          
           
             UMquhil
             Dowglas
             of
             Lumsdean
             Dispones
             his
             Estate
             to
             Archibald
             Dowglas
             his
             Son
             ,
             reserving
             power
             to
             himself
             at
             any
             time
             during
             his
             Life
             ,
             to
             burden
             the
             Estate
             with
             four
             thousand
             merks
             ,
             and
             did
             thereafter
             grant
             a
             Bond
             of
             four
             thousand
             merks
             ,
             in
             favours
             of
             
               Elizabeth
               Lyel
            
             his
             Wife
             ,
             in
             Liferent
             ,
             and
             of
             
               Iohn
               Dowglas
            
             their
             Son
             in
             Fee
             ,
             who
             thereupon
             pursues
             the
             said
             Archibald
             for
             payment
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Reservation
             in
             the
             Disposition
             ,
             being
             in
             favours
             of
             the
             Defunct
             ,
             can
             only
             be
             understood
             of
             a
             Legal
             power
             ,
             to
             burden
             according
             to
             Law.
             
               Ita
               est
            
             ,
             This
             Bond
             of
             Provision
             was
             granted
             by
             the
             Defunct
             ,
             when
             he
             was
             not
             in
             
               legiti●ua
               potestate
            
             ,
             but
             on
             Death-bed
             ,
             especially
             seing
             the
             Reservation
             does
             not
             bear
             a
             power
             to
             Dispone
             at
             any
             time
             time
             in
             his
             Life
             ,
             
               etiam
               in
               articulo
               mortis
            
             ,
             which
             is
             the
             Clause
             ordinarly
             adjected
             ,
             when
             the
             meaning
             of
             Parties
             is
             ,
             that
             the
             power
             should
             extend
             to
             Deeds
             on
             Death-bed
             ;
             and
             thereupon
             the
             Pursuer
             hath
             intented
             Reduction
             ,
             which
             he
             repeats
             by
             
             way
             of
             Defense
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defense
             is
             no
             ways
             Relevant
             ,
             because
             the
             priviledge
             excluding
             Deeds
             on
             Death-bed
             is
             introduced
             by
             Law
             in
             favours
             of
             Heirs
             only
             ,
             that
             the
             Defunct
             may
             not
             prejudge
             his
             Heir
             on
             Death-bed
             ,
             but
             if
             a
             Party
             Dispone
             ,
             he
             may
             qualify
             his
             Disposition
             as
             he
             pleases
             ,
             and
             he
             who
             hath
             so
             accepted
             the
             Disposition
             cannot
             quarrel
             the
             same
             ;
             and
             albeit
             these
             words
             
               etiam
               in
               articulo
               mortis
            
             are
             sometimes
             adjected
             
               propter
               majorem
               ca●telam
            
             ,
             yet
             the
             words
             (
             at
             any
             time
             during
             his
             Life
             )
             are
             sufficient
             to
             import
             either
             in
             his
             Health
             or
             in
             his
             Sickness
             .
             The
             Defender
             answered
             ,
             that
             whatsoever
             might
             be
             alleadged
             ,
             if
             the
             Disposition
             had
             been
             to
             a
             Stranger
             ,
             of
             that
             interpretation
             of
             the
             words
             ,
             yet
             this
             Disposition
             being
             granted
             to
             the
             Disponers
             own
             eldest
             Son
             and
             appearand
             Heir
             ,
             it
             must
             be
             understood
             only
             of
             such
             Deeds
             as
             might
             be
             done
             against
             an
             Heir
             ,
             and
             here
             the
             Creditors
             do
             also
             concur
             ,
             who
             in
             place
             of
             the
             Heir
             might
             pursue
             the
             Reduction
             ,
             and
             against
             whom
             the
             Personal
             objection
             of
             acceptance
             cannot
             be
             alleadged
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defender
             was
             not
             appearand
             Heir
             ,
             because
             it
             is
             notourly
             known
             that
             his
             Father
             begot
             him
             in
             Adultery
             ,
             upon
             the
             Wife
             of
             Sir
             
               Alexander
               Hume
            
             ,
             for
             which
             Adultery
             she
             was
             Divorced
             from
             her
             Husband
             ,
             and
             albeit
             he
             did
             co-habit
             with
             her
             thereafter
             as
             his
             Wife
             ,
             that
             cannot
             infer
             (
             as
             in
             other
             cases
             )
             that
             she
             was
             his
             Wife
             ,
             because
             Marriage
             cannot
             consist
             betwixt
             the
             Adulterer
             and
             the
             Adulteress
             ,
             and
             all
             their
             Issue
             are
             disabled
             to
             Succeed
             ,
             so
             that
             the
             Pursuer
             of
             the
             Reduction
             is
             the
             eldest
             Son
             ,
             and
             appearand
             Heir
             ,
             in
             whose
             favour
             the
             Provision
             is
             made
             .
             2dly
             ,
             Albeit
             the
             Defender
             were
             ,
             or
             could
             be
             appearand
             Heir
             ,
             yet
             here
             having
             accepted
             a
             Disposition
             of
             the
             whole
             Estate
             ,
             Burdened
             with
             this
             Provision
             ,
             his
             acceptance
             excludes
             him
             ,
             who
             is
             thereby
             bound
             ,
             and
             cannot
             pretend
             to
             any
             priviledge
             of
             an
             Heir
             ;
             for
             albeit
             
               re
               integra
            
             he
             might
             Renunce
             the
             Disposition
             ;
             and
             return
             to
             bruik
             as
             Heir
             ,
             now
             he
             cannot
             ,
             having
             bruiked
             by
             the
             Disposition
             ;
             and
             for
             the
             Creditors
             concourse
             they
             are
             not
             Pursuers
             ,
             and
             they
             may
             insist
             in
             any
             Action
             competent
             to
             them
             by
             Law
             ,
             but
             cannot
             oppose
             this
             Personal
             obligement
             ,
             whereby
             the
             Defender
             by
             the
             acceptance
             of
             the
             Disposition
             in
             these
             terms
             ,
             is
             become
             obliged
             to
             pay
             the
             Pursuer
             the
             Sum
             in
             the
             Reservation
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             found
             that
             the
             Reservation
             in
             the
             terms
             as
             it
             stood
             ,
             did
             extend
             to
             burdening
             of
             the
             Estate
             at
             any
             time
             the
             Disponer
             pleased
             ,
             and
             was
             in
             capacity
             of
             Sense
             and
             Reason
             ▪
             though
             on
             Death-bed
             ,
             and
             found
             no
             necessity
             to
             dive
             in
             the
             questions
             concerning
             the
             Defenders
             Procreation
             ,
             and
             capacity
             of
             Succession
             ,
             seing
             he
             had
             accepted
             ,
             and
             bruiked
             by
             the
             Disposition
             so
             qualified
             ,
             and
             did
             not
             admit
             the
             Creditors
             to
             oppose
             this
             Conclusion
             ,
             but
             reserved
             their
             Rights
             as
             Accords
             .
          
        
         
           
             Elizabeth
             Finlaw
             contra
             The
             Earl
             of
             Northesk
             ,
             Iune
             25.
             1670.
             
          
           
             
               ELizabeth
               Finlaw
            
             and
             her
             Children
             as
             Executors
             to
             
               Robert
               Beat●●e
            
             ,
             did
             Assign
             to
             the
             Umquhile
             Earl
             of
             ●athie
             a
             Bond
             granted
             by
             the
             Laird
             of
             Du●
             to
             the
             said
             
               Robert
               〈◊〉
            
             of
             2200.
             
             Pound
             ,
             and
             the
             Laird
             of
             Morphie
             standing
             infeft
             under
             Trust
             in
             Duns
             Estate
             ,
             grants
             a
             Bond
             of
             Corroboration
             to
             Eathie
             ,
             obliging
             him
             to
             pay
             all
             Sums
             due
             by
             Dun
             to
             Eathie
             himself
             ,
             or
             to
             which
             he
             was
             Assigned
             by
             Duns
             Creditors
             ;
             thereafter
             Morphie
             grants
             a
             second
             Bond
             of
             Corroboration
             to
             Eathie
             ,
             but
             derogation
             of
             the
             〈◊〉
             Bond
             of
             Corroboration
             ,
             obliging
             him
             to
             pay
             what
             Sums
             were
             due
             by
             Dun
             to
             Eathie
             for
             himself
             ,
             or
             as
             Assigney
             ,
             and
             that
             out
             of
             〈◊〉
             superplus
             of
             Duns
             Estate
             ,
             more
             then
             payed
             Morphie
             himself
             .
             The
             
             Earl
             of
             Eathie
             transfers
             the
             Bond
             of
             2200.
             
             Pounds
             ,
             and
             both
             these
             Bonds
             of
             Corroboration
             in
             favours
             of
             the
             said
             Elizabeth
             and
             her
             Children
             ,
             and
             the
             Translation
             bears
             for
             Sums
             of
             Money
             payed
             by
             them
             to
             Eathie
             ,
             and
             bears
             that
             the
             second
             Bond
             of
             Corroboration
             was
             Delivered
             ,
             but
             bears
             not
             that
             the
             first
             was
             Delivered
             ,
             neither
             bears
             it
             the
             obligement
             to
             Deliver
             the
             same
             ;
             the
             Translation
             also
             bears
             Warrandice
             from
             Eathies
             own
             Deed.
             The
             said
             Elizabeth
             and
             her
             Children
             having
             pursued
             Morphie
             upon
             the
             said
             second
             Bond
             of
             Corroboration
             ,
             he
             was
             Assoilzied
             ,
             because
             he
             had
             no
             superplus
             in
             his
             hand
             .
             She
             now
             pursues
             the
             Earl
             of
             Northesk
             as
             Heir
             to
             his
             Father
             ,
             to
             Deliver
             the
             first
             Bond
             of
             Corroboration
             transferred
             by
             his
             Father
             ,
             whereby
             Morphie
             was
             bound
             to
             pay
             the
             Debt
             simply
             ,
             without
             preference
             of
             his
             own
             Debt
             ,
             or
             otherways
             that
             Northesk
             should
             pay
             the
             Damnage
             and
             Interest
             ,
             which
             is
             the
             Debt
             it self
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             by
             the
             Transaction
             his
             Father
             was
             not
             obliged
             to
             Deliver
             the
             first
             Bond
             of
             Corroboration
             :
             Likeas
             the
             Translation
             bears
             the
             second
             Bond
             of
             Corroboration
             Delivered
             ,
             so
             that
             the
             Pursuer
             has
             aequiesced
             therein
             ;
             and
             albeit
             the
             Stile
             of
             the
             Translation
             bears
             for
             Sums
             of
             Money
             ,
             yet
             it
             is
             clear
             thereby
             that
             it
             is
             but
             a
             retrocession
             of
             the
             Pursuers
             to
             their
             own
             Right
             ,
             which
             they
             themselves
             had
             Assigned
             ,
             which
             doth
             presume
             that
             Eathie
             was
             but
             intrusted
             ,
             and
             seing
             he
             has
             reponed
             them
             in
             better
             condition
             than
             they
             were
             by
             the
             second
             Bond
             of
             Corroboration
             ,
             he
             cannot
             be
             obliged
             to
             Deliver
             the
             first
             Bond
             which
             Morphie
             freely
             granted
             as
             a
             favour
             to
             Eathie
             ,
             unless
             it
             did
             appear
             such
             a
             Bond
             was
             ,
             and
             that
             Eathie
             had
             fraudfully
             put
             it
             away
             ,
             whereanent
             he
             is
             content
             to
             Depone
             ,
             so
             that
             the
             transferring
             the
             first
             Bond
             must
             only
             import
             ,
             if
             any
             such
             Bond
             was
             the
             time
             of
             the
             Translation
             ,
             which
             would
             not
             oblige
             Eathie
             to
             Deliver
             it
             ,
             unless
             he
             had
             it
             ,
             much
             less
             to
             pay
             the
             Sum
             
               pro
               damno
               &
               interesse
               .
               2dly
               ,
               Eathie
            
             having
             accepted
             the
             second
             Bond
             of
             Corroboration
             ,
             with
             a
             limitation
             of
             preferring
             himself
             ,
             it
             qualifies
             the
             first
             Bond
             of
             Corroboration
             ,
             so
             that
             though
             the
             Pursuer
             had
             it
             ,
             it
             could
             operate
             nothing
             more
             nor
             the
             second
             ,
             and
             so
             he
             has
             no
             Damnage
             .
             The
             Pursuer
             answered
             ,
             that
             Eathie
             having
             transferred
             the
             first
             Bond
             of
             Corroboration
             granted
             to
             himself
             ,
             
               hoc
               ipso
            
             ,
             he
             is
             obliged
             to
             Deliver
             the
             same
             ,
             though
             the
             Translation
             expresly
             bear
             not
             an
             obligement
             to
             Deliver
             
               quod
               inest
            
             ,
             neither
             can
             Eathie
             pretend
             that
             there
             was
             not
             such
             a
             Bond
             of
             Corroboration
             ,
             seing
             the
             Translation
             acknowledges
             that
             it
             was
             granted
             to
             himself
             ,
             neither
             doth
             it
             appear
             that
             the
             Translation
             was
             in
             Trust
             ,
             seing
             it
             bears
             expresly
             that
             it
             is
             granted
             for
             Sums
             of
             Money
             ;
             and
             although
             it
             had
             been
             in
             Trust
             ,
             Eathie
             having
             acknowledged
             that
             Morphie
             granted
             a
             Bond
             of
             Corroboration
             to
             pay
             the
             Sum
             simply
             ;
             it
             was
             contrare
             to
             his
             Trust
             either
             to
             give
             back
             that
             Bond
             ,
             or
             to
             qualifie
             it
             .
             2dly
             ,
             The
             second
             Bond
             of
             Corroboration
             cannot
             restrict
             the
             first
             ,
             because
             it
             bears
             expresly
             in
             Corroboration
             thereof
             ,
             and
             but
             derogation
             thereto
             .
          
           
             The
             Lords
             Sustained
             the
             Summons
             ,
             and
             Repelled
             the
             Desenses
             ,
             and
             found
             that
             the
             Translation
             in
             terms
             as
             aforesaid
             did
             import
             an
             obligement
             to
             Deliver
             the
             first
             Bond
             of
             Corroboration
             ,
             or
             otherwise
             to
             pay
             the
             Debt
             ,
             as
             Damnage
             and
             Interest
             ,
             seing
             Morphie
             was
             Assoilzied
             from
             the
             second
             Bond
             of
             Corroboration
             .
          
        
         
           
             Eleis
             of
             South-side
             contra
             Carsse
             ,
             Iune
             28.
             1670.
             
          
           
             MAster
             
               Richard
               Carsse
            
             of
             Fordel
             having
             granted
             a
             Bond
             of
             4000.
             
             Merks
             to
             his
             Sister
             in
             Liferent
             ,
             and
             after
             her
             Decease
             to
             her
             Daughter
             ,
             she
             Assigns
             the
             same
             to
             
               Iames
               Eleis
            
             her
             Brother
             ,
             who
             now
             pursues
             
               Charles
               Carsse
            
             
             as
             Heir
             to
             Doctor
             Carsse
             ,
             who
             behaved
             himself
             as
             Heir
             to
             Mr.
             
               Richard
               Carsse
            
             the
             Debitor
             ,
             in
             so
             far
             as
             he
             Intrometted
             with
             the
             Charter
             Chist
             ,
             and
             gave
             a
             Receipt
             thereof
             to
             Arnistoun
             ,
             bearing
             ,
             that
             he
             as
             Heir
             to
             Mr.
             
               Richard
               Carsse
            
             had
             Received
             his
             Charter
             Chist
             ,
             and
             all
             the
             Writs
             and
             Evidences
             belonging
             to
             the
             House
             of
             Fordel
             ,
             which
             Charter
             Chist
             he
             keeped
             two
             years
             ,
             and
             Died
             ,
             it
             being
             in
             his
             Possession
             ;
             likeas
             he
             raised
             Breevs
             to
             Serve
             himself
             Heir
             ,
             and
             Subscribed
             a
             Revocation
             of
             all
             Deeds
             done
             by
             Mr.
             Richard
             in
             his
             Minority
             ,
             which
             is
             Registrat
             :
             The
             Defender
             alleadged
             the
             condescendencies
             are
             no
             ways
             Relevant
             ,
             for
             as
             to
             the
             Charter
             Chist
             ,
             as
             he
             might
             have
             pursued
             Arnistoun
             to
             produce
             it
             for
             inspection
             
               ad
               deliberandum
            
             ,
             so
             he
             might
             Receive
             it
             from
             Arnistoun
             voluntarly
             for
             that
             same
             effect
             ,
             which
             cannot
             import
             behaviour
             ,
             unlesse
             he
             had
             made
             use
             of
             some
             of
             the
             Writs
             belonging
             to
             him
             as
             Heir
             ,
             and
             this
             being
             an
             odious
             universal
             passive
             Title
             ,
             any
             probable
             excuse
             ought
             to
             liberat
             ,
             especially
             this
             Doctor
             ,
             who
             was
             a
             Doctor
             of
             Divinity
             ,
             Reciding
             in
             England
             ,
             and
             ignorant
             of
             the
             Law
             of
             Scotland
             ,
             and
             who
             never
             enjoyed
             the
             least
             benefite
             of
             Mr.
             Richards
             Estate
             ,
             and
             the
             Defender
             was
             content
             to
             restore
             the
             Charter
             Chist
             
               re
               integra
            
             ,
             and
             to
             instruct
             by
             the
             Oaths
             of
             the
             Friends
             Consenters
             in
             his
             Discharge
             ,
             that
             there
             was
             nothing
             wanting
             ,
             but
             it
             was
             in
             the
             same
             case
             he
             Received
             it
             ;
             as
             for
             the
             taking
             out
             of
             Breevs
             ,
             albeit
             it
             signified
             the
             Doctors
             purpose
             to
             have
             been
             Heir
             ,
             yet
             behaviour
             must
             include
             an
             Act
             of
             immixtion
             ,
             or
             medling
             with
             the
             Heretage
             ,
             and
             
               animus
               adeundi
            
             ,
             as
             having
             no
             other
             Title
             or
             intent
             but
             as
             Heir
             ;
             and
             as
             for
             the
             Revocation
             it
             is
             a
             null
             Act
             ,
             operative
             of
             nothing
             ,
             but
             for
             Reduction
             which
             was
             not
             Intented
             ,
             and
             is
             no
             medling
             with
             the
             Heretage
             .
             The
             Pursuer
             answered
             ,
             that
             there
             could
             be
             no
             more
             palpable
             and
             unquestionable
             immixtion
             ,
             then
             by
             the
             Receipt
             of
             the
             Defuncts
             whole
             Writs
             and
             Evidences
             ,
             and
             that
             without
             so
             much
             as
             making
             an
             Inventar
             thereof
             ,
             to
             have
             been
             Subscribed
             by
             the
             Haver
             of
             the
             Charter
             Chist
             and
             him
             ,
             neither
             has
             he
             qualified
             his
             Receipt
             so
             as
             that
             he
             might
             Deliberat
             ,
             but
             bears
             him
             as
             appearand
             Heir
             ,
             to
             have
             Received
             the
             same
             simply
             ;
             likeas
             he
             detained
             the
             same
             two
             years
             ;
             and
             as
             to
             his
             Ignorance
             ,
             
               Ignorantia
               juris
               n●minem
               excusat
            
             ,
             and
             the
             Pursuer
             is
             in
             this
             also
             favourable
             ,
             that
             this
             Bond
             is
             a
             Provision
             granted
             to
             Mr.
             Richards
             Sister
             ,
             and
             Heir
             of
             Line
             ,
             and
             the
             Doctor
             ,
             and
             this
             Defender
             were
             but
             Heirs
             of
             Tailzy
             of
             a
             further
             Degree
             .
          
           
             The
             Lords
             found
             the
             condescendence
             Relevant
             conform
             to
             the
             Receipt
             of
             the
             Tenor
             foresaid
             ,
             and
             the
             retention
             of
             the
             Charter
             Chist
             without
             Inventar
             so
             long
             ;
             and
             whereas
             it
             was
             moved
             amongst
             the
             Lords
             ,
             that
             they
             had
             oftimes
             refused
             vitious
             Intromission
             against
             any
             Representing
             the
             Intrometter
             ,
             unless
             Sentence
             or
             Pursuit
             had
             been
             against
             the
             Intrometters
             in
             their
             own
             Life
             ,
             whether
             that
             should
             be
             extended
             to
             behaviour
             as
             Heir
             ,
             where
             there
             was
             no
             Pursuit
             against
             the
             Behaver
             in
             his
             own
             Life
             ,
             but
             the
             Behaviour
             being
             so
             considerable
             and
             universal
             ,
             with
             all
             the
             Evidents
             without
             Inventar
             ,
             it
             did
             not
             take
             with
             the
             Lords
             ,
             neither
             did
             the
             Party
             plead
             it
             ,
             but
             the
             Lords
             did
             not
             find
             that
             the
             taking
             out
             of
             Breevs
             ,
             or
             the
             Revocation
             Imported
             Behaviour
             .
          
        
         
           
             Greigs
             contra
             Iames
             Weems
             ,
             Iune
             30.
             1670.
             
          
           
             BY
             Contract
             of
             Marriage
             betwixt
             
               Iames
               Weems
            
             and
             umquhile
             
               Iudith
               Nairn
            
             :
             It
             was
             agreed
             that
             the
             Means
             and
             the
             Estate
             of
             either
             Party
             ,
             contained
             in
             an
             Inventar
             of
             the
             date
             of
             the
             Contract
             ,
             should
             return
             to
             either
             Party
             ,
             
             failzying
             Bairns
             of
             the
             Marriage
             ,
             and
             should
             not
             be
             under
             communion
             .
             Thereafter
             the
             Wife
             provides
             a
             Daughter
             of
             a
             former
             Marriage
             ,
             to
             a
             part
             of
             her
             Means
             in
             the
             Inventar
             ,
             with
             her
             Husbands
             consent
             .
             By
             which
             Contract
             it
             is
             provided
             ,
             that
             in
             case
             the
             Marriage
             dissolve
             within
             year
             and
             day
             ,
             or
             in
             case
             at
             any
             time
             thereafter
             ,
             there
             being
             no
             Children
             ,
             the
             Tocher
             should
             return
             to
             the
             said
             
               Iudith
               Nairn
            
             :
             And
             the
             said
             Iudith
             leaves
             in
             Legacy
             1200.
             
             Dollars
             due
             by
             the
             Estates
             of
             Bremen
             ,
             which
             was
             a
             part
             of
             her
             Inventar
             ,
             to
             her
             Husband
             and
             her
             three
             Children
             of
             the
             first
             Marriage
             ,
             there
             being
             no
             Children
             of
             the
             second
             Marriage
             ;
             whereupon
             
               Iohn
               ,
               Charles
            
             and
             
               Iudith
               Greigs
            
             pursues
             the
             Husband
             for
             the
             Legacy
             ,
             as
             having
             uplifted
             this
             Sum
             from
             the
             Estates
             of
             Bremen
             .
             The
             Defender
             alleadged
             ,
             First
             ,
             That
             the
             Clause
             in
             the
             Contract
             of
             Marriage
             ,
             taking
             away
             the
             communion
             of
             Goods
             ,
             and
             making
             even
             the
             moveable
             Estate
             of
             either
             Party
             to
             return
             ,
             is
             against
             the
             Law
             of
             Scotland
             ,
             inconsistent
             and
             ineffectual
             ;
             for
             any
             Reservation
             or
             Provision
             in
             favours
             of
             the
             Wife
             ,
             doth
             
               ipso
               facto
            
             return
             to
             the
             Husband
             
               jure
               mariti
            
             ,
             which
             
               jus
               mariti
            
             neither
             is
             nor
             can
             be
             Discharged
             ▪
             2dly
             ,
             Albeit
             the
             first
             Contract
             of
             Marriage
             were
             consistent
             ,
             yet
             the
             Sum
             in
             question
             being
             provided
             to
             one
             of
             the
             Daughters
             of
             the
             first
             Marriage
             by
             her
             Contract
             ,
             upon
             condition
             to
             return
             to
             the
             Wife
             if
             the
             Marriage
             dissolved
             ,
             the
             Marriage
             dissolving
             ▪
             it
             comes
             back
             to
             the
             Wife
             
               tanquam
               novum
               jus
               ex
               pacto
               acquisitum
               ,
            
             and
             so
             it
             falls
             under
             the
             Husbands
             
               jus
               mariti
            
             ,
             as
             well
             as
             any
             Sum
             acquired
             would
             .
             3dly
             ,
             The
             Husband
             uplifted
             this
             Sum
             by
             Commission
             from
             his
             Wife
             ,
             and
             so
             it
             must
             be
             presumed
             to
             have
             been
             spent
             
               in
               oneribus
               matrimonij
            
             ,
             at
             least
             the
             Husband
             must
             have
             Retention
             of
             his
             Expences
             in
             recovery
             thereof
             .
             The
             Pursuers
             answered
             ,
             that
             albeit
             Provisions
             in
             Contracts
             of
             Marriage
             ,
             stating
             Rights
             in
             the
             Wifes
             Person
             ,
             to
             be
             enjoyed
             by
             her
             during
             the
             Marriage
             ,
             have
             not
             been
             Sustained
             in
             some
             cases
             ,
             yet
             this
             being
             a
             Provision
             of
             a
             return
             after
             the
             dissolution
             of
             the
             Marriage
             ,
             it
             is
             most
             consistent
             ,
             especially
             in
             this
             case
             ,
             where
             the
             Estate
             Contracted
             was
             abroad
             ,
             and
             the
             Contract
             it self
             made
             abroad
             ,
             where
             by
             the
             civil
             Law
             current
             there
             ,
             the
             Means
             of
             either
             Party
             doth
             return
             
               hinc
               inde
            
             ,
             and
             the
             profit
             thereof
             is
             only
             common●
             
               stante
               matrimonio
            
             ,
             neither
             is
             the
             case
             altered
             by
             the
             Daughters
             Contract
             ,
             for
             both
             by
             the
             Law
             and
             that
             Paction
             ,
             the
             Tocher
             returning
             to
             the
             Mother
             who
             gave
             it
             ,
             in
             the
             same
             case
             it
             was
             ,
             it
             is
             hers
             by
             her
             first
             Right
             ,
             the
             second
             Right
             by
             the
             Marriage
             becoming
             void
             ,
             both
             by
             Law
             and
             Provision
             ;
             neither
             doth
             it
             import
             that
             the
             Husband
             lifted
             the
             Sum
             ,
             for
             by
             the
             Contract
             he
             is
             obliged
             to
             repay
             it
             ,
             and
             could
             only
             employ
             the
             Profit
             of
             it
             ,
             
               in
               oneribus
               matrimonij
            
             .
          
           
             The
             Lords
             Repelled
             all
             these
             Defenses
             ,
             but
             allowed
             Expences
             to
             the
             Husband
             laid
             out
             by
             him
             in
             Recovery
             of
             the
             Sum.
             
          
        
         
           
             Lindsay
             and
             Swintoun
             her
             Spouse
             contra
             Inglish
             Supplicants
             ,
             Iuly
             .
             5.
             1670.
             
          
           
             〈…〉
             Pursues
             his
             Debitor
             ,
             and
             craved
             him
             to
             be
             holden
             as
             Confest
             ,
             who
             not
             Compearing
             ,
             the
             Clerk
             was
             not
             clear
             to
             give
             out
             an
             Decreet
             ,
             because
             the
             Messengers
             Execution
             did
             not
             bear
             ,
             that
             the
             Defender
             was
             Personally
             Apprehended
             ,
             but
             that
             the
             Messeger
             came
             to
             his
             House
             and
             knew
             he
             was
             within
             ,
             and
             was
             forcibly
             keeped
             out
             by
             his
             Wife
             ,
             and
             thereupon
             Protested
             that
             the
             Defender
             might
             be
             holden
             as
             Personally
             Apprehended
             ▪
             upon
             the
             Clerks
             stop
             ,
             the
             Pursuer
             gives
             in
             a
             Supplication
             ,
             desiring
             that
             he
             might
             either
             have
             out
             his
             Decreet
             ,
             holding
             the
             Defender
             as
             Confest
             upon
             this
             Execution
             ,
             or
             that
             he
             might
             have
             a
             Warrand
             to
             Cite
             the
             Defender
             
             at
             the
             Mercat
             Crosse
             of
             the
             Shire
             or
             Burgh
             where
             he
             dwells
             ,
             as
             being
             
               difficilis
               conventionis
            
             ,
             some
             were
             of
             opinion
             that
             he
             should
             be
             holden
             as
             Confest
             ,
             the
             Messenger
             proving
             that
             he
             was
             within
             ,
             or
             if
             the
             Execution
             had
             born
             that
             he
             and
             the
             Witnesses
             also
             had
             given
             a
             particular
             evidence
             of
             their
             Knowledge
             of
             his
             being
             within
             ;
             others
             thought
             that
             he
             should
             be
             holden
             as
             Confest
             ,
             unlesse
             the
             Defender
             could
             instruct
             he
             was
             alibi
             in
             regard
             of
             the
             Contumacy
             ,
             but
             the
             most
             resolved
             that
             holding
             as
             Confest
             ,
             being
             a
             solemn
             and
             important
             Certification
             ,
             peculiar
             to
             Scotland
             ,
             that
             this
             Assertion
             of
             the
             Messengers
             ,
             and
             his
             Execution
             should
             not
             be
             sufficient
             ,
             nor
             should
             put
             the
             Defender
             to
             alleadge
             alibi
             ,
             but
             that
             he
             should
             have
             a
             Warrand
             to
             Cite
             at
             the
             Mercat
             Crosse
             ,
             with
             Certification
             to
             be
             holden
             as
             Confest
             .
          
        
         
           
             Arch-bishop
             and
             Presbitry
             of
             St.
             Andrews
             contra
             George
             Pittillo
             ,
             Iuly
             6.
             1670.
             
          
           
             
               GEorge
               Pittillo
            
             being
             called
             before
             the
             Prisbitry
             of
             St.
             Andrews
             ,
             for
             Scandalous
             Conversation
             with
             
               Agnes
               Mitchel
            
             ,
             two
             Ministers
             of
             the
             Presbitry
             were
             appointed
             to
             speak
             with
             him
             ,
             to
             whom
             he
             proponed
             he
             was
             Married
             to
             the
             said
             
               Agnes
               Mitchel
            
             ,
             and
             produced
             a
             Testificat
             of
             some
             Persons
             ,
             bearing
             that
             they
             were
             Witnesses
             to
             the
             Marriage
             ,
             but
             neither
             Designing
             themselves
             nor
             the
             Minister
             ,
             which
             being
             reported
             to
             the
             Presbitry
             they
             rejected
             the
             Testimonial
             ,
             unless
             the
             Minister
             and
             Witnesses
             were
             Designed
             ,
             and
             if
             they
             were
             Designed
             ,
             ordained
             the
             Party
             to
             make
             satisfaction
             for
             privat
             Marrying
             without
             Warrand
             ,
             and
             the
             said
             George
             not
             Compearing
             before
             the
             Presbitry
             so
             to
             do
             ,
             they
             for
             his
             Contumacy
             appoints
             the
             Process
             to
             be
             seen
             by
             the
             Arch-bishop
             ,
             who
             ordained
             the
             Party
             to
             be
             Excommunicat
             ,
             and
             accordingly
             he
             was
             Excommu●icat
             ,
             and
             now
             the
             Arch-bishop
             and
             Presbitry
             caused
             present
             a
             common
             Bill
             for
             Horning
             against
             the
             Excommunicat
             Person
             ,
             for
             Charging
             him
             to
             answer
             ,
             submit
             and
             obey
             the
             Censure
             of
             the
             Kirk
             ,
             this
             being
             brought
             by
             the
             Ordinar
             to
             the
             Lords
             ,
             to
             know
             whether
             they
             would
             pass
             the
             Horning
             in
             course
             ,
             or
             if
             they
             would
             consider
             whether
             the
             Sentence
             of
             Excomunication
             was
             orderly
             proceeded
             .
             The
             Lords
             ordained
             two
             of
             their
             number
             to
             consider
             the
             Process
             of
             Excommunication
             ,
             and
             to
             hear
             any
             that
             did
             compear
             for
             the
             Party
             Excommunicat
             ,
             to
             Debate
             whether
             Horning
             should
             be
             direct
             thereon
             .
             Before
             whom
             Compearance
             was
             made
             for
             the
             said
             
               George
               Pittillo
            
             ,
             who
             alleadged
             that
             Horning
             ought
             not
             to
             be
             direct
             ,
             because
             the
             Sentence
             was
             disorderly
             and
             unjust
             ,
             and
             because
             there
             was
             an
             Appeal
             to
             the
             Council
             yet
             undiscust
             ,
             and
             founded
             upon
             the
             late
             Act
             of
             Supremacy
             ,
             alleadging
             that
             the
             King
             and
             his
             Council
             were
             Supream
             in
             all
             Causes
             Ecclesiastick
             ,
             so
             that
             Appeals
             might
             be
             lawfully
             made
             (
             from
             any
             Church-man
             ,
             or
             Church
             Judicature
             )
             to
             the
             King
             and
             his
             Council
             :
             And
             further
             alleadged
             ,
             that
             he
             being
             unclear
             to
             acknowledge
             the
             Bishop
             or
             his
             Presbitry
             ;
             and
             the
             King
             having
             now
             granted
             an
             Indulgence
             to
             many
             that
             did
             not
             acknowledge
             Episcopal
             Authority
             ,
             it
             could
             not
             be
             Contumacy
             in
             him
             not
             to
             Appear
             ;
             but
             he
             was
             content
             that
             it
             should
             be
             now
             cognosced
             whether
             he
             was
             in
             the
             Fault
             ,
             and
             if
             he
             were
             found
             Guilty
             ,
             he
             should
             Submit
             and
             make
             satisfaction
             ;
             which
             being
             Reported
             to
             the
             Lords
             and
             there
             being
             several
             other
             nullities
             in
             the
             Process
             of
             Excommunication
             ,
             which
             behoved
             to
             be
             cleared
             by
             the
             Warrands
             of
             the
             Process
             ,
             and
             having
             heard
             these
             of
             their
             number
             that
             are
             upon
             the
             Council
             declare
             that
             upon
             the
             Appeal
             ,
             the
             Council
             Remitted
             the
             Matter
             to
             the
             Arch-bishop
             .
          
           
           
             The
             Lords
             ordained
             Letters
             of
             Horning
             ,
             unless
             Pittillo
             would
             presently
             offer
             satisfaction
             ,
             in
             which
             case
             they
             would
             give
             him
             a
             time
             ,
             and
             superceed
             the
             out-giving
             of
             the
             Letters
             .
          
        
         
           
             Lady
             Lucie
             Hamiltoun
             contra
             Boid
             of
             Pitcon
             and
             others
             ,
             Iuly
             8.
             1670.
             
          
           
             THe
             Earl
             of
             Abercorn
             having
             Sold
             the
             Lands
             of
             Mountcastle
             to
             
               George
               Hay
            
             ;
             he
             gave
             the
             Earl
             a
             Bond
             of
             4000.
             
             Merks
             ,
             bearing
             borrowed
             Money
             ,
             but
             being
             a
             part
             of
             the
             Price
             ,
             and
             bearing
             this
             provision
             ,
             that
             it
             sholud
             not
             be
             payable
             till
             the
             Earl
             obtained
             George
             Infeft
             by
             his
             Superior
             .
             The
             Earl
             Assigns
             the
             Bond
             to
             Lady
             Lucy
             his
             Sister
             ,
             who
             having
             raised
             Inhibition
             upon
             the
             Bond
             against
             
               George
               Hay
            
             ,
             and
             having
             thereafter
             Charged
             him
             ,
             he
             Suspended
             ,
             alleadging
             that
             the
             Condition
             was
             not
             fulfilled
             he
             not
             being
             Infeft
             ,
             and
             the
             Lady
             offering
             a
             part
             of
             the
             Sum
             to
             purge
             that
             Condition
             ,
             
               pro
               damno
               &
               interesse
            
             ,
             and
             to
             procure
             his
             Infeftment
             ,
             George
             accepted
             of
             the
             offer
             ,
             and
             thereupon
             the
             Letters
             were
             found
             orderly
             proceeded
             for
             3000.
             
             Merks
             of
             the
             Sum
             ,
             and
             Suspended
             for
             the
             rest
             in
             place
             of
             the
             Condition
             ,
             upon
             this
             Decreet
             the
             Lady
             Apprizes
             the
             Lands
             of
             Mountcastle
             ,
             and
             now
             Insists
             in
             a
             Reduction
             of
             a
             Disposition
             of
             the
             same
             Lands
             ,
             granted
             to
             Dunlap
             and
             Pitcon
             for
             themselves
             ,
             and
             to
             the
             use
             and
             behove
             of
             the
             Disponers
             other
             Creditors
             underwritten
             ,
             viz.
             Where
             there
             was
             a
             blank
             of
             several
             Lines
             ,
             which
             is
             now
             filled
             up
             by
             another
             Hand
             ;
             and
             though
             this
             Disposition
             was
             anterior
             to
             the
             Inhibition
             ,
             and
             did
             prefer
             Dunlap
             and
             Titcon
             for
             any
             Sums
             due
             to
             themselves
             ,
             or
             for
             which
             they
             were
             Cautioners
             the
             time
             of
             the
             Disposition
             ;
             Yet
             the
             Lords
             found
             by
             a
             former
             Interlocutor
             ,
             that
             as
             to
             the
             other
             Creditors
             filled
             up
             in
             the
             blank
             ,
             it
             should
             be
             repute
             as
             posterior
             to
             the
             Inhibition
             ,
             and
             filled
             up
             after
             the
             same
             ,
             unless
             the
             Creditors
             prove
             by
             the
             Witnesses
             insert
             ,
             or
             other
             Witnesses
             above
             exception
             ,
             that
             they
             were
             filled
             up
             before
             the
             Executing
             of
             the
             Inhibition
             .
             The
             Cause
             being
             called
             this
             day
             ,
             the
             Creditors
             repeated
             their
             former
             alleadgeance
             ,
             and
             offered
             to
             prove
             that
             their
             Debts
             were
             anterior
             to
             the
             Inhibition
             ,
             and
             also
             that
             at
             the
             Subscribing
             thereof
             ,
             it
             was
             communed
             and
             agreed
             that
             Dunlap
             and
             Pitcon
             should
             undertake
             the
             remainder
             Creditors
             Debts
             ,
             at
             least
             they
             promised
             to
             give
             Dispositions
             of
             parts
             of
             the
             Estate
             effeirand
             to
             their
             Debts
             ,
             and
             accordingly
             they
             had
             done
             the
             same
             after
             the
             Inhibition
             ,
             but
             being
             upon
             a
             promise
             before
             the
             Inhibition
             they
             were
             valide
             ,
             having
             
               causam
               anteriorem
            
             ,
             and
             they
             offered
             to
             prove
             the
             Communing
             and
             Promise
             by
             the
             Writter
             and
             Witnesses
             insert
             .
             2dly
             ,
             They
             offered
             to
             purge
             and
             satisfie
             the
             Pursuers
             Interest
             .
             3dly
             ,
             They
             alleadged
             that
             their
             Disposition
             from
             the
             common
             Author
             of
             the
             Property
             of
             the
             Lands
             in
             question
             did
             comprehend
             all
             Right
             the
             Disponer
             had
             ,
             and
             consequently
             the
             Condition
             and
             Provision
             in
             the
             Bond
             ,
             that
             before
             payment
             
               George
               Hay
            
             should
             be
             Infeft
             ,
             for
             the
             Disposition
             would
             no
             doubt
             carry
             any
             obligement
             for
             Infefting
             the
             common
             Author
             .
             The
             Pursuer
             opponed
             the
             former
             Interlocutor
             ,
             and
             alleadged
             that
             she
             was
             not
             obliged
             to
             Assign
             her
             Right
             ,
             seing
             she
             had
             now
             Apprized
             ,
             and
             that
             her
             Apprizing
             was
             now
             expired
             ,
             and
             yet
             of
             consent
             she
             was
             content
             to
             Renunce
             her
             Right
             ,
             but
             would
             not
             Assign
             it
             to
             exclude
             other
             Creditors
             ,
             or
             to
             distresse
             the
             Cautioners
             ;
             and
             as
             for
             the
             Condition
             of
             the
             Bond
             ,
             the
             Defenders
             Disposition
             gave
             them
             no
             Right
             thereto
             ,
             because
             there
             was
             no
             obligement
             in
             the
             Bond
             to
             obtain
             the
             common
             Author
             Infeft
             ,
             but
             only
             a
             suspensive
             Condition
             ,
             that
             payment
             should
             not
             be
             made
             till
             he
             were
             procured
             to
             be
             Infeft
             ,
             for
             hat
             the
             provision
             to
             obtain
             the
             Infeftment
             ,
             being
             only
             an
             Condition
             ,
             and
             not
             an
             Disposition
             ,
             after
             the
             Disposition
             
             to
             the
             Defenders
             ,
             the
             Pursuer
             might
             have
             payed
             the
             Bond
             ,
             or
             transacted
             thereanent
             with
             
               George
               Hay
            
             ,
             and
             was
             not
             obliged
             to
             know
             the
             Defenders
             .
          
           
             The
             Lords
             adhered
             to
             their
             former
             Interlocutor
             ,
             and
             found
             the
             offer
             not
             sufficient
             ,
             and
             that
             the
             Pursuer
             was
             not
             obliged
             to
             Assign
             her
             Right
             ,
             though
             she
             had
             offered
             of
             her
             own
             accord
             to
             Renunce
             it
             ,
             and
             found
             the
             Persons
             Intrusted
             their
             undertaking
             the
             Creditors
             Debts
             before
             the
             Inhibition
             Relevant
             ,
             only
             to
             be
             proven
             by
             Writ
             ,
             or
             by
             the
             Ladies
             Oath
             of
             Knowledge
             ,
             and
             would
             not
             make
             up
             such
             a
             material
             Clause
             by
             the
             Oaths
             of
             the
             Witnesses
             insert
             ,
             nor
             of
             the
             Persons
             Intrusted
             ,
             and
             if
             they
             had
             made
             any
             such
             promise
             it
             was
             their
             own
             fault
             ,
             that
             they
             caused
             not
             put
             it
             in
             Writ
             ,
             knowing
             that
             their
             Oaths
             ,
             albeit
             they
             might
             prove
             against
             them
             ,
             yet
             that
             they
             would
             not
             prove
             for
             them
             ,
             for
             the
             Lords
             thought
             that
             if
             such
             blanks
             and
             clandestine
             Promises
             were
             allowed
             ,
             they
             might
             disappoint
             the
             Diligences
             of
             all
             Creditors
             .
          
        
         
           
             Thomas
             Kennedy
             contra
             Archibald
             Kennedy
             of
             Culzean
             ,
             Eodem
             die
             .
          
           
             THe
             Laird
             of
             Culzean
             having
             three
             Sons
             ,
             
               Iohn
               Archibald
            
             and
             Alexander
             ,
             for
             a
             Provision
             to
             Archibald
             the
             second
             ,
             Dispones
             his
             Lands
             of
             Corrowa
             and
             others
             ,
             with
             this
             provision
             ,
             that
             if
             Iohn
             should
             die
             ,
             and
             Archibald
             Succeed
             to
             be
             Heir
             ,
             Archibald
             should
             denude
             himself
             of
             the
             Lands
             in
             favours
             of
             Alexander
             ,
             and
             if
             Archibald
             wanted
             Heirs
             of
             his
             Body
             ,
             Alexander
             should
             be
             his
             Heir
             ,
             notwithstanding
             of
             any
             Law
             or
             Custom
             to
             the
             contrare
             ;
             thereafter
             a
             few
             Moneths
             before
             the
             Fathers
             Death
             ,
             this
             fourth
             Son
             called
             Thomas
             was
             Born
             ,
             Iohn
             the
             eldest
             ,
             and
             Alexander
             the
             third
             are
             both
             dead
             Infants
             ,
             Archibald
             falls
             to
             be
             Heir
             ,
             and
             so
             the
             Condition
             exists
             ,
             in
             which
             he
             was
             obliged
             to
             Dispone
             to
             
               Alexander
               .
               Thomas
            
             enters
             Heir
             of
             Line
             to
             Alexander
             ,
             and
             pursues
             Archibald
             to
             Dispone
             the
             Lands
             to
             him
             .
             It
             was
             answered
             for
             Archibald
             ,
             that
             Thomas
             as
             Heir
             of
             Line
             to
             Alexander
             can
             have
             no
             Right
             to
             this
             Provision
             .
             First
             ,
             Because
             the
             Provision
             is
             only
             in
             favours
             of
             Alexander
             ,
             without
             mention
             of
             his
             Heirs
             .
             2dly
             ,
             Though
             it
             could
             be
             extended
             to
             Alexanders
             Heirs
             ,
             yet
             it
             being
             no
             Heretage
             to
             which
             Alexander
             could
             Succeed
             ;
             it
             is
             Conquest
             ,
             and
             would
             not
             descend
             to
             
               Thomas
               ,
               Alexanders
            
             Heir
             of
             Line
             ,
             but
             would
             ascend
             to
             Archibald
             as
             Heir
             of
             Conquest
             to
             Alexander
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             in
             this
             case
             the●meaning
             and
             intention
             of
             the
             Father
             must
             be
             considered
             by
             his
             Provision
             
               inter
               liberos
            
             ,
             which
             is
             clear
             to
             have
             been
             that
             Archibald
             should
             not
             both
             have
             his
             Estate
             ,
             and
             these
             Lands
             of
             Corrowa
             ,
             but
             that
             the
             same
             should
             descend
             to
             Alexander
             ,
             and
             if
             Thomas
             had
             been
             then
             Born
             ,
             he
             would
             no
             doubt
             have
             provided
             that
             failzying
             of
             
               Alexander
               ,
               Archibalds
            
             Portion
             should
             fall
             to
             
               Thomas
               ▪
            
             and
             if
             he
             had
             declared
             that
             the
             Lands
             of
             Corrowa
             should
             only
             belong
             to
             the
             Heirs
             of
             Line
             ,
             it
             would
             undoubtedly
             have
             excluded
             the
             Heirs
             of
             Conquest
             :
             He
             has
             done
             the
             equivalent
             ,
             for
             having
             provided
             the
             Lands
             to
             Archibald
             and
             his
             Heirs
             whatsomever
             ;
             he
             does
             by
             a
             posterior
             explicatory
             Clause
             ,
             declare
             that
             if
             Archibald
             died
             without
             Heirs
             of
             his
             Body
             ,
             Alexander
             should
             be
             Archibalds
             Heir
             therein
             ,
             notwithstanding
             of
             any
             Law
             or
             Custom
             to
             the
             contrare
             ,
             which
             can
             have
             no
             other
             meaning
             then
             that
             ,
             notwithstanding
             by
             the
             Law
             ,
             Iohn
             as
             Heir
             of
             Conquest
             would
             Succeed
             to
             Archibald
             ,
             wanting
             Heirs
             of
             his
             own
             ,
             yet
             Alexander
             the
             younger
             ,
             who
             would
             be
             Heir
             of
             Line
             should
             Suceeed
             ,
             which
             is
             as
             much
             as
             to
             say
             that
             this
             Provision
             should
             belong
             to
             Archibalds
             Heirs
             of
             Line
             ,
             and
             not
             to
             his
             Heirs
             of
             Conquest
             ,
             and
             consequently
             having
             made
             no
             mention
             of
             Alexanders
             Heirs
             ,
             he
             did
             also
             mean
             
             Alexanders
             Heirs
             of
             Line
             ,
             who
             is
             the
             Pursuer
             Thomas
             ,
             and
             the
             case
             is
             so
             much
             the
             more
             favourable
             ,
             that
             if
             this
             failed
             ,
             Thomas
             hath
             neither
             Provision
             nor
             Aliment
             .
          
           
             The
             Lords
             considering
             that
             both
             Parties
             were
             Infants
             ,
             and
             that
             if
             Archibald
             should
             die
             ,
             Thomas
             would
             get
             all
             ,
             superceeded
             to
             give
             answer
             anent
             the
             Heretable
             Right
             of
             Succession
             until
             both
             Parties
             were
             Major
             ,
             and
             in
             the
             mean
             time
             allowed
             Thomas
             to
             Possesse
             the
             Profits
             of
             the
             Lands
             ,
             who
             had
             no
             Aliment
             nor
             Provision
             .
          
        
         
           
             Kennedy
             contra
             Cunningham
             and
             Wallace
             ,
             Iuly
             12.
             1670.
             
          
           
             THere
             being
             an
             Apprizing
             of
             the
             Lands
             of
             Garleith
             ,
             belonging
             to
             
               Iohn
               Kennedy
            
             ,
             at
             the
             Instance
             of
             
               Edward
               Wallace
            
             ;
             the
             said
             Edward
             by
             his
             Back-bond
             declared
             that
             the
             Apprizing
             was
             to
             the
             behove
             of
             
               William
               Wallace
            
             of
             Burnbank
             his
             Brother
             ,
             and
             obliges
             him
             to
             denude
             himself
             thereof
             in
             his
             favours
             :
             Thereafter
             the
             said
             Edward
             Assigns
             the
             Comprizing
             ,
             and
             Dispones
             the
             Lands
             to
             
               Adam
               Cunningham
            
             ,
             who
             stands
             Infeft
             ,
             and
             in
             a
             Debate
             for
             the
             Interest
             of
             this
             Apprizing
             ,
             It
             was
             alleadged
             that
             
               Edward
               Wallace
            
             the
             Apprizer
             ,
             having
             by
             his
             Back-bond
             declared
             ,
             that
             the
             Apprizing
             was
             to
             William
             his
             Brothers
             behove
             ,
             conform
             to
             his
             Back-bond
             produced
             ,
             the
             said
             William
             was
             satisfied
             by
             Payment
             or
             Intromission
             ,
             so
             that
             the
             Apprizing
             is
             extinct
             .
             It
             was
             answered
             for
             Cunningham
             ,
             that
             the
             alleadgeance
             is
             not
             Relevant
             against
             him
             ,
             who
             stands
             Infeft
             as
             a
             singular
             Successor
             ,
             so
             that
             his
             real
             Right
             cannot
             be
             taken
             away
             by
             any
             Personal
             Back-bond
             granted
             by
             his
             Author
             ,
             whereby
             he
             was
             not
             denuded
             ,
             for
             though
             his
             Author
             had
             granted
             Assignation
             to
             the
             Apprizing
             ,
             if
             it
             had
             not
             been
             Intimat
             ,
             a
             posterior
             Assignation
             Intimat
             much
             more
             a
             Disposition
             and
             Infeftment
             would
             be
             preferred
             thereto
             ,
             for
             albeit
             satisfaction
             of
             an
             Apprizing
             ,
             by
             Intromission
             with
             the
             Mails
             and
             Duties
             be
             sufficient
             to
             extinguish
             ,
             even
             against
             a
             singular
             Successor
             ,
             though
             there
             was
             no
             Resignation
             made
             ,
             which
             the
             Lords
             had
             extended
             to
             any
             payment
             made
             by
             the
             Debitor
             ,
             yet
             this
             was
             never
             extended
             to
             any
             Personal
             Declaration
             of
             Trust
             ,
             or
             obligement
             to
             denude
             ,
             which
             cannot
             be
             valide
             against
             a
             singular
             Successor
             .
             It
             was
             answered
             for
             Kennedy
             ,
             that
             Apprizings
             and
             Infeftments
             thereon
             ,
             do
             differ
             from
             other
             Infeftments
             ,
             in
             this
             ,
             that
             they
             require
             no
             Resignation
             or
             Re-seising
             to
             extinguish
             them
             ,
             but
             whatever
             may
             take
             away
             a
             Personal
             Right
             ,
             either
             by
             Intromission
             ,
             Payment
             ,
             or
             compensation
             will
             take
             them
             away
             even
             by
             exception
             ;
             and
             what
             is
             Relevant
             against
             the
             Author
             ,
             is
             Relevant
             against
             the
             singular
             Successor
             ,
             except
             as
             to
             the
             manner
             of
             Probation
             ,
             that
             it
             cannot
             be
             Proven
             by
             the
             Authors
             Oath
             ,
             but
             by
             Writ
             or
             Witnesses
             ;
             neither
             is
             there
             any
             odds
             as
             to
             this
             ,
             whether
             there
             be
             Infeftment
             on
             the
             Apprizing
             or
             not
             ,
             so
             then
             if
             Cunningham
             were
             but
             Assigney
             to
             the
             Decreet
             of
             Apprizing
             ,
             it
             would
             be
             Relevant
             against
             him
             ,
             that
             before
             his
             Assignation
             his
             Cedent
             had
             declared
             that
             the
             Apprizing
             was
             to
             the
             behove
             of
             another
             ,
             to
             whom
             the
             Debitor
             had
             made
             payment
             ;
             which
             Declaration
             being
             instructed
             by
             Writ
             anterior
             to
             the
             Assignation
             ,
             is
             valide
             against
             Cunningham
             the
             Assigney
             ,
             and
             whether
             he
             be
             Infeft
             on
             his
             Assignation
             and
             Disposition
             of
             the
             Apprizing
             or
             not
             ,
             as
             to
             this
             Point
             ,
             Law
             and
             Custom
             makes
             no
             difference
             ,
             neither
             doth
             the
             case
             quadrat
             with
             an
             Assignation
             unintimat
             ,
             compeating
             with
             a
             posterior
             Assignation
             intimat
             ,
             which
             might
             be
             preferred
             ;
             but
             if
             the
             Debitor
             made
             payment
             to
             the
             Assigney
             ,
             though
             he
             had
             not
             intimat
             it
             ,
             it
             would
             extinguish
             the
             Apprizing
             ,
             and
             no
             posterior
             Assignation
             ,
             though
             intimat
             ,
             would
             make
             the
             Debitor
             pay
             again
             ,
             and
             in
             this
             
             case
             there
             is
             a
             real
             Declaration
             of
             Trust
             ,
             which
             is
             most
             ordinar
             ,
             when
             Parties
             having
             small
             sums
             ▪
             assign
             them
             all
             to
             one
             who
             Compryzeth
             for
             all
             ,
             and
             by
             several
             Back-bonds
             ,
             Declares
             that
             the
             Appryzing
             is
             to
             the
             behove
             of
             the
             several
             Creditors
             according
             to
             their
             sums
             ,
             who
             have
             alwayes
             rested
             therein
             ,
             and
             have
             sought
             no
             further
             ,
             and
             if
             this
             Back-bond
             were
             not
             sufficient
             against
             singular
             Successors
             ,
             the
             Appryzer
             might
             at
             any
             time
             thereafter
             Dispone
             ,
             and
             clearly
             exclude
             them
             .
          
           
             The
             Lords
             found
             that
             the
             Back-bond
             was
             Relevant
             against
             singular
             Successors
             ,
             and
             that
             payment
             made
             to
             him
             ,
             to
             whose
             behove
             the
             appryzing
             was
             Deduced
             ,
             was
             sufficient
             against
             a
             singular
             Successor
             ,
             having
             right
             to
             the
             appryzing
             ,
             or
             Lands
             from
             the
             Appryzer
             ,
             after
             he
             granted
             his
             Back-bond
             .
          
        
         
           
             The
             Daughters
             of
             Soutray
             contra
             The
             Eldest
             Daughter
             .
             Iuly
             13.
             1670.
             
          
           
             THe
             Laird
             of
             Soutray
             having
             granted
             a
             Writ
             in
             favours
             of
             his
             Eldest
             Daughter
             ,
             beginning
             in
             the
             Stile
             of
             a
             Testament
             ,
             and
             after
             a
             blank
             ,
             Disponing
             his
             Lands
             of
             Soutray
             ,
             and
             his
             whole
             Moveables
             to
             the
             said
             Eldest
             Daughter
             ,
             with
             the
             burden
             of
             ten
             thousand
             merks
             to
             be
             payed
             to
             the
             remanent
             Daughters
             :
             The
             saids
             remanent
             Daughters
             pursue
             a
             Declarator
             of
             the
             nullity
             of
             the
             Writ
             .
             First
             ,
             In
             so
             far
             as
             being
             a
             Testament
             ,
             it
             contains
             a
             Disposition
             of
             the
             Lands
             .
             2dly
             ,
             In
             so
             far
             as
             the
             Eldest
             Daughter
             is
             nominate
             Executrix
             ,
             and
             universal
             Legatrix
             ,
             because
             by
             ocular
             inspection
             ,
             that
             part
             of
             the
             Writ
             was
             blank
             ,
             and
             is
             filled
             up
             with
             another
             hand
             ,
             which
             is
             offered
             to
             be
             proven
             to
             have
             been
             done
             since
             the
             Defuncts
             Death
             ,
             so
             that
             the
             Executor
             and
             Legator
             not
             being
             filled
             up
             by
             the
             Defunct
             in
             his
             own
             time
             ,
             and
             these
             being
             the
             Essentials
             of
             the
             Testament
             wanting
             ,
             the
             whole
             Falls
             ,
             even
             as
             to
             the
             Disposition
             of
             the
             Moveables
             .
             The
             Defender
             answered
             ,
             that
             the
             Testament
             was
             valide
             ,
             albeit
             the
             Name
             of
             the
             Legator
             and
             universal
             Executor
             ,
             were
             filled
             up
             after
             the
             Defuncts
             Death
             ;
             yet
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Defunct
             when
             he
             subscribed
             the
             Testament
             ,
             did
             nominat
             his
             Eldest
             Daughter
             ,
             as
             Executrix
             and
             Legatrix
             ,
             and
             gave
             warrand
             to
             the
             Nottar
             to
             fill
             up
             the
             Name
             ,
             which
             though
             he
             neglected
             then
             ,
             and
             has
             done
             it
             since
             ,
             it
             ought
             not
             to
             prejudge
             her
             .
             It
             was
             answered
             ,
             that
             our
             Law
             allows
             of
             no
             Nuncupative
             Testaments
             ,
             or
             nominations
             of
             Executors
             of
             Legators
             ,
             unless
             the
             Testament
             be
             perfected
             in
             Writ
             ,
             and
             therefore
             if
             the
             Executor
             or
             Legator
             be
             not
             filled
             up
             by
             the
             Defunct
             ,
             the
             Testament
             is
             not
             perfeited
             in
             Writ
             ,
             albeit
             the
             Defunct
             has
             Subscribed
             the
             same
             ,
             as
             he
             might
             have
             done
             in
             a
             blank
             Paper
             ,
             and
             given
             warrand
             to
             the
             Nottar
             to
             fill
             up
             his
             Testament
             upon
             such
             Terms
             ,
             which
             could
             not
             subsist
             ,
             though
             the
             Nottar
             and
             Witnesses
             should
             astruct
             the
             same
             ,
             as
             not
             being
             done
             ,
             
               habili
               modo
            
             .
          
           
             The
             Lords
             found
             the
             Testament
             null
             as
             to
             the
             nomination
             of
             the
             Executor
             and
             Legator
             ;
             and
             also
             as
             to
             the
             Lands
             ,
             but
             they
             found
             it
             valide
             as
             to
             the
             Disposition
             of
             the
             Moveables
             ,
             with
             the
             burden
             of
             the
             ten
             thousand
             merks
             ;
             and
             found
             that
             the
             want
             of
             the
             nomination
             of
             the
             Executor
             or
             universal
             Legator
             ,
             did
             not
             hinder
             ,
             but
             that
             the
             Defunct
             might
             in
             any
             way
             Dispone
             his
             Moveables
             in
             Testament
             ,
             or
             on
             Death-bed
             ,
             which
             would
             stand
             valide
             as
             a
             Legacy
             ,
             which
             by
             our
             Law
             might
             consist
             without
             nomination
             of
             Executors
             but
             would
             extend
             to
             that
             part
             of
             the
             Moveables
             only
             ,
             the
             Defunct
             might
             Legat.
             
          
        
         
           
           
             Anna
             Raith
             and
             Iohn
             Wauchop
             of
             Edmistoun
             contra
             Wolmet
             and
             Major
             Bigger
             .
             Eodem
             die
             .
          
           
             IN
             Anno
             1641.
             there
             was
             a
             Minute
             of
             Contract
             betwixt
             umquhil
             
               Wolmet
               ,
               Iames
            
             and
             Mr.
             
               Iames
               Raiths
            
             of
             Edmistoun
             ,
             and
             their
             Spouses
             ,
             whereby
             a
             Marriage
             was
             Contracted
             betwixt
             
               Iames
               Edmistoun
               Wolmets
            
             Son
             ,
             and
             Mr.
             
               Iames
               Raiths
            
             Eldest
             Daughter
             ,
             and
             in
             case
             of
             the
             Decease
             of
             either
             of
             these
             two
             ,
             the
             next
             Son
             and
             next
             Daughter
             to
             make
             a
             perpetual
             Friendship
             :
             In
             Contemplation
             of
             which
             Marriage
             ,
             the
             said
             
               Iames
               Raith
            
             and
             Mr.
             
               Iames
               Raith
            
             his
             Son
             ,
             were
             obliged
             to
             pay
             10000.
             pounds
             of
             portion
             to
             Wolmet
             himself
             ,
             and
             to
             lend
             another
             Sum
             ,
             for
             Redeeming
             of
             a
             Wodset
             upon
             the
             Estate
             ,
             which
             being
             done
             ,
             Wolmet
             was
             obliged
             to
             Infeft
             his
             Son
             ,
             and
             to
             provide
             eight
             hundreth
             merks
             of
             Joynture
             to
             his
             Good-daughter
             ,
             Raiths
             Eldest
             Daughter
             Dies
             ,
             and
             the
             said
             
               Iames
               Edmistoun
               ,
               Wolmets
            
             Eldest
             Son
             Marries
             Raiths
             second
             Daughter
             ,
             but
             there
             was
             no
             Contract
             or
             consent
             of
             her
             Parents
             ,
             and
             they
             having
             lived
             seven
             years
             together
             ,
             James
             Died
             without
             Children
             ,
             and
             Raiths
             third
             Daughter
             is
             Married
             to
             
               John
               Wauchop
               ,
               Niddries
            
             Son
             ,
             and
             Raiths
             Estate
             provided
             to
             her
             ,
             whereupon
             they
             to
             liberate
             Raiths
             Heirs
             and
             Estate
             of
             the
             10000.
             pounds
             contained
             in
             the
             Contract
             ,
             raised
             Declarator
             ,
             that
             the
             minute
             was
             null
             and
             void
             ,
             in
             two
             Grounds
             :
             First
             ,
             Because
             there
             was
             no
             Marriage
             following
             by
             consent
             of
             the
             Parents
             ,
             conform
             to
             the
             Minute
             .
             2dly
             ,
             Because
             Raiths
             obligement
             to
             pay
             the
             Tocher
             ,
             was
             to
             Wolmet
             himself
             ,
             and
             for
             his
             mutual
             obligement
             ,
             of
             Infefting
             his
             Son
             ,
             and
             providing
             a
             Joynture
             ,
             which
             neither
             was
             ,
             nor
             can
             be
             done
             ,
             Major
             Bigger
             now
             standing
             in
             the
             full
             Right
             of
             Wolmets
             Estate
             ,
             and
             no
             Person
             to
             Represent
             Wolmet
             .
             The
             Defenders
             alleadged
             absolvitor
             from
             the
             first
             Ground
             ,
             because
             there
             was
             a
             Marriage
             conform
             to
             the
             Minute
             ;
             and
             albeit
             Raith
             did
             not
             consent
             ,
             yet
             being
             obliged
             ,
             he
             had
             no
             just
             Ground
             to
             disassent
             .
             And
             to
             the
             second
             Ground
             ,
             seing
             there
             was
             no
             Clause
             irritant
             in
             the
             Minute
             ,
             albeit
             the
             obligements
             therein
             were
             mutual
             Causes
             each
             of
             other
             ,
             it
             might
             be
             Declared
             ,
             that
             neither
             Party
             should
             be
             obliged
             to
             fulfil
             ,
             till
             the
             other
             fulfilled
             their
             part
             ,
             but
             could
             not
             annul
             the
             Minute
             .
          
           
             The
             Lords
             found
             that
             seing
             Wolmet
             was
             in
             no
             capacity
             to
             perform
             his
             part
             ,
             that
             the
             Heirs
             and
             Estate
             of
             Raith
             were
             free
             of
             their
             part
             ,
             providing
             that
             the
             Pursuer
             who
             is
             Assigney
             to
             the
             Liferent
             Right
             of
             the
             said
             
               Iames
               Edmonstoun
            
             ,
             his
             Wife
             should
             Discharge
             the
             said
             Liferent
             ,
             and
             declare
             that
             it
             should
             never
             burden
             Wolmets
             Heirs
             or
             Estate
             .
          
        
         
           
             Beation
             of
             Bandoch
             contra
             Ogilbie
             of
             Martoun
             .
             Eodem
             die
             .
          
           
             BEaiton
             of
             Bandoch
             having
             a
             Miln
             upon
             a
             Burn
             ,
             running
             by
             the
             Lands
             of
             Greendykes
             and
             Martoun
             ,
             the
             Tennents
             of
             these
             Lands
             did
             by
             Sheuchs
             and
             Casts
             ,
             divert
             the
             Water
             ,
             and
             therewith
             watered
             their
             Ground
             ,
             which
             thereafter
             returned
             to
             the
             Burn
             ,
             before
             it
             came
             to
             Bandochs
             Dam.
             Bandoch
             pursues
             a
             Declarator
             ,
             that
             he
             and
             his
             Predecessors
             and
             Authors
             ,
             having
             been
             in
             immemorial
             Possession
             of
             the
             Miln
             ,
             and
             having
             had
             the
             free
             use
             of
             the
             Burn
             ,
             until
             of
             late
             the
             Tennents
             of
             Greendyke
             and
             Martoun
             have
             diverted
             the
             same
             to
             water
             their
             Ground
             ,
             whereby
             so
             much
             thereof
             is
             drunk
             up
             by
             the
             Ground
             ,
             that
             there
             remains
             not
             Water
             sufficient
             for
             his
             Miln
             .
          
           
             In
             this
             Process
             the
             Lords
             having
             before
             answer
             allowed
             Witnesses
             to
             be
             adduced
             on
             either
             part
             .
             It
             was
             proven
             that
             Bandoch
             was
             in
             Possession
             of
             the
             Miln
             ,
             with
             the
             free
             use
             of
             the
             Burn
             these
             threescore
             years
             ,
             and
             that
             it
             
             was
             commonly
             known
             ,
             that
             he
             and
             his
             Predecessors
             had
             been
             in
             immemorial
             Possession
             thereof
             till
             the
             diversion
             .
             It
             was
             also
             proven
             ,
             that
             the
             Tennents
             of
             Greendykes
             had
             been
             fourty
             years
             in
             use
             to
             water
             their
             Ground
             ,
             as
             now
             they
             do
             .
             It
             was
             also
             proven
             that
             the
             Tennents
             of
             Martoun
             have
             been
             in
             use
             to
             water
             their
             Ground
             this
             34
             ,
             or
             35.
             years
             ,
             whereupon
             it
             occurred
             to
             the
             Lords
             to
             consider
             ,
             whether
             the
             watering
             of
             the
             Ground
             being
             the
             most
             natural
             and
             ordinar
             effect
             of
             Burns
             and
             Waters
             ,
             the
             building
             of
             a
             Miln
             beneath
             ,
             could
             hinder
             that
             liberty
             ,
             or
             at
             least
             ,
             if
             34.
             years
             Possession
             were
             not
             sufficient
             to
             continue
             the
             watering
             .
          
           
             The
             Lords
             did
             not
             consider
             what
             effect
             the
             building
             of
             a
             Miln
             ,
             with
             a
             short
             possession
             of
             the
             Water
             free
             of
             diversion
             would
             hinder
             the
             Heretors
             from
             diverting
             the
             Water
             from
             watering
             their
             Ground
             ;
             but
             finding
             that
             the
             ancient
             and
             immemorial
             Possession
             of
             this
             Miln
             ,
             and
             full
             injoyment
             of
             the
             Water
             was
             as
             much
             proven
             ,
             as
             could
             be
             known
             to
             preceed
             the
             34.
             years
             ,
             during
             which
             ,
             the
             diversions
             upon
             the
             Lands
             of
             Martoun
             was
             proven
             ,
             they
             found
             that
             the
             Miln
             and
             her
             priviledge
             being
             once
             so
             Constitute
             ,
             no
             less
             then
             40.
             years
             peaceable
             Possession
             of
             diverting
             the
             Water
             for
             watering
             ,
             was
             sufficient
             ,
             that
             being
             the
             only
             legal
             Term
             ,
             and
             therefore
             allowed
             the
             Lands
             of
             Greendykes
             to
             continue
             the
             watering
             ,
             but
             discharged
             the
             Lands
             of
             Martoun
             to
             continue
             the
             same
             .
          
        
         
           
             Sir
             Alexander
             Hume
             .
             contra
             The
             Earl
             of
             Hume
             .
             July
             14.
             1670.
             
          
           
             THe
             Right
             of
             the
             Erected
             Barony
             of
             Coldinghame
             being
             derived
             from
             
               John
               Stuart
            
             of
             Coldinghame
             ,
             and
             Sir
             
               Alexander
               Hume
            
             younger
             of
             Rentoun
             ,
             he
             pursues
             a
             Declarator
             against
             this
             Earl
             of
             Hume
             ;
             and
             the
             Creditors
             and
             Appryzers
             of
             the
             Estate
             of
             Hume
             ,
             to
             this
             effect
             ,
             that
             there
             being
             a
             Contract
             betwixt
             umquhil
             James
             Earl
             of
             Hume
             and
             Stuart
             and
             others
             ,
             whereby
             it
             was
             Declared
             ,
             that
             the
             Earl
             being
             Infeft
             in
             an
             Annualrent
             of
             200.
             pounds
             Sterling
             out
             of
             the
             said
             Barony
             ,
             there
             was
             nineteen
             thousand
             pounds
             of
             bygons
             ,
             of
             the
             said
             Annualrent
             ,
             at
             the
             Date
             of
             the
             Contract
             ,
             in
             Anno
             1631.
             
             Therefore
             it
             was
             agreed
             ,
             that
             the
             Earl
             of
             Hume
             should
             be
             put
             in
             Possession
             of
             the
             said
             Barony
             ,
             for
             payment
             of
             the
             said
             Annualrent
             ,
             for
             Terms
             subsequent
             ,
             and
             for
             the
             nineteen
             thousand
             Pounds
             made
             up
             of
             the
             bygone
             Annualrents
             ,
             
               fructibus
               non
               compurandis
               in
               sortem
            
             ,
             and
             that
             the
             Earl
             of
             Hume
             ,
             who
             last
             Deceased
             ,
             having
             Assignation
             to
             the
             said
             Contract
             from
             the
             Heirs
             of
             Line
             ,
             of
             the
             said
             umquhil
             James
             Earl
             of
             Hume
             ,
             recovered
             a
             Decreet
             of
             Possession
             upon
             the
             said
             Contract
             ,
             in
             Anno
             1643.
             and
             entered
             in
             Possession
             accordingly
             ,
             and
             that
             the
             said
             Annualrent
             of
             200.
             pounds
             Sterling
             ,
             after
             the
             Decease
             of
             the
             said
             James
             Earl
             of
             Hume
             did
             cease
             ,
             being
             only
             provided
             to
             the
             Heirs-male
             of
             his
             Body
             ,
             which
             failzing
             ,
             &c.
             that
             therefore
             the
             200.
             pounds
             Sterling
             affecting
             the
             Barony
             in
             the
             first
             place
             ,
             and
             being
             free
             ,
             did
             satisfie
             the
             nineteen
             thousand
             pounds
             ,
             and
             freed
             the
             Barony
             thereof
             .
             Compearance
             being
             made
             for
             the
             Earl
             of
             Hume
             ,
             and
             the
             Creditors
             who
             had
             Appryzed
             the
             Barony
             of
             Coldinghame
             .
             It
             was
             alleadged
             that
             the
             Earls
             intromission
             was
             not
             to
             be
             ascribed
             to
             his
             Decreet
             of
             Possession
             in
             Anno
             1648.
             because
             he
             had
             another
             anterior
             Title
             in
             his
             Person
             ,
             viz.
             A
             former
             Contract
             betwixt
             the
             Deceast
             James
             Earl
             of
             Hume
             ,
             and
             the
             Heretors
             of
             Coldinghame
             ,
             by
             which
             he
             was
             allowed
             to
             Possess
             ,
             till
             he
             were
             payed
             of
             4000.
             pounds
             Sterling
             ,
             payable
             at
             four
             Terms
             ,
             for
             which
             ,
             or
             any
             of
             the
             Terms
             ,
             he
             was
             to
             enjoy
             without
             an
             accompt
             
               fructibus
               non
               imputandis
               in
               sortem
            
             ,
             of
             which
             Contract
             there
             was
             a
             thousand
             pound
             Sterling
             unpayed
             ▪
             and
             upon
             which
             Contract
             Iames
             Earl
             of
             Hume
             had
             obtained
             Possession
             ,
             
             in
             Anno
             1630.
             
             So
             that
             the
             late
             Earl
             having
             right
             to
             both
             these
             Contracts
             and
             Decreets
             from
             the
             Heirs
             of
             Line
             ,
             and
             having
             entred
             to
             the
             Possession
             ,
             without
             any
             Porcess
             of
             Removing
             ,
             or
             Mails
             and
             Duties
             against
             the
             Tennents
             ,
             but
             the
             former
             Possessors
             leaving
             the
             Possession
             ,
             the
             Earl
             entered
             without
             opposition
             ,
             and
             might
             ascribe
             his
             Possession
             to
             either
             of
             these
             Rights
             he
             pleased
             ,
             and
             does
             most
             rationally
             ascribe
             the
             same
             to
             the
             first
             ,
             especially
             seing
             he
             had
             both
             the
             Rights
             from
             the
             same
             Party
             ,
             and
             was
             not
             introduced
             to
             the
             Possession
             by
             them
             ,
             more
             upon
             the
             one
             Right
             than
             upon
             the
             other
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             albeit
             Parties
             may
             make
             use
             of
             any
             Right
             they
             have
             to
             Defend
             their
             Possession
             ,
             without
             interverting
             the
             same
             ,
             yet
             that
             must
             always
             be
             where
             the
             posterior
             Right
             doth
             not
             derogat
             from
             the
             former
             ,
             either
             as
             to
             Right
             or
             Possession
             .
             But
             here
             the
             second
             Contract
             and
             Decreet
             is
             inconsistent
             with
             ,
             and
             derogatory
             to
             the
             former
             ;
             for
             the
             Earl
             having
             power
             to
             enter
             by
             the
             first
             ,
             till
             he
             were
             payed
             of
             one
             thousand
             pound
             Sterling
             ,
             resting
             of
             four
             ,
             
               fructibus
               non
               computandis
               in
               sortem
            
             ,
             taking
             a
             posterior
             Right
             ,
             whereby
             he
             was
             to
             enter
             for
             payment
             of
             nineteen
             thousand
             pounds
             ,
             
               fructibus
               non
               computandis
               in
               sort●●
            
             ,
             he
             derogat
             so
             far
             from
             the
             first
             ,
             that
             he
             must
             Possess
             
               primo
               loco
            
             by
             the
             last
             ,
             seing
             the
             first
             is
             not
             reserved
             .
             2dly
             ,
             The
             late
             Earl
             could
             only
             be
             understood
             to
             enter
             in
             Possession
             by
             that
             Right
             ,
             or
             the
             former
             Heretors
             ,
             to
             relinquish
             the
             Possession
             to
             him
             upon
             that
             Right
             ,
             which
             then
             had
             
               paratam
               executionem
            
             ,
             and
             could
             then
             instantly
             have
             forced
             them
             to
             quite
             the
             Possession
             ;
             but
             that
             was
             only
             the
             last
             Contract
             ,
             and
             last
             Decreet
             ,
             whereupon
             the
             late
             Earl
             had
             obtained
             Sentence
             in
             his
             own
             Person
             ,
             in
             Anno
             1643.
             when
             he
             entered
             in
             Possession
             :
             But
             as
             for
             the
             first
             Contract
             and
             Decreet
             of
             Possession
             ,
             it
             had
             not
             then
             
               paratam
               executionem
            
             ,
             never
             being
             Established
             in
             the
             Persons
             of
             the
             Heirs
             of
             Line
             ,
             much
             less
             in
             the
             Person
             of
             the
             late
             Earl
             ,
             who
             had
             Right
             from
             the
             Heirs
             of
             Line
             by
             Assignation
             himself
             ,
             being
             only
             Heir-male
             .
          
           
             The
             Lords
             found
             that
             the
             Possession
             was
             only
             to
             be
             ascribed
             to
             the
             last
             Decreet
             ,
             which
             only
             had
             
               paratam
               executionem
               primo
               loco
            
             ,
             without
             prejudice
             to
             the
             Earl.
             if
             that
             Right
             were
             Exhausted
             ,
             to
             defend
             himself
             with
             the
             first
             Right
             in
             the
             next
             place
             .
          
        
         
           
             Major
             Bigger
             contra
             David
             Cuninghame
             of
             Dankeith
             .
             Iuly
             15.
             1670.
             
          
           
             MAjor
             Bigger
             having
             Right
             to
             the
             Teinds
             of
             Wolmet
             from
             the
             Earl
             of
             Lauderdail
             ,
             pursues
             
               David
               Cunninghame
            
             of
             Dankeith
             and
             
               Iean
               Dowglas
            
             ,
             Relict
             of
             Wolmet
             ,
             his
             Spouse
             ,
             for
             Spuilzie
             of
             the
             Teinds
             ,
             restricted
             to
             wrongous
             Intromission
             ,
             and
             insists
             for
             the
             fifth
             of
             the
             Rent
             .
             The
             Defenders
             alleadge
             absolvitor
             ,
             because
             they
             produce
             a
             Valuation
             of
             the
             Teinds
             of
             Wolmet
             ,
             obtained
             at
             the
             instance
             of
             umquhil
             
               Patrick
               Edmonstonn
            
             of
             Wolmet
             ,
             before
             the
             Commission
             for
             Valuation
             in
             Anno
             1636.
             
             The
             Pursuer
             answered
             that
             the
             Defense
             ought
             to
             be
             Repelled
             :
             First
             ,
             Because
             Swintoun
             standing
             then
             in
             the
             Right
             of
             these
             Teinds
             ,
             had
             raised
             Reduction
             and
             Improbation
             of
             this
             Decreet
             of
             Valuation
             ,
             against
             
               Iames
               Edmonstoun
            
             ,
             as
             Heir
             to
             Wolmet
             ,
             and
             thereupon
             had
             obtained
             a
             Decreet
             of
             Certification
             ,
             which
             is
             now
             produced
             .
             2ly
             ,
             By
             Articles
             betwixt
             Dankeith
             and
             Major
             Bigger
             produced
             Dankeith
             Compts
             for
             a
             greater
             Duty
             than
             this
             Valuation
             ,
             and
             so
             passes
             therefrom
             ,
             and
             Homologats
             the
             Majors
             Right
             .
             3dly
             ,
             The
             Decreet
             of
             Valuation
             took
             never
             effect
             ,
             there
             having
             never
             been
             payment
             made
             conform
             thereto
             ,
             but
             Tacks
             accepted
             by
             the
             same
             Defenders
             ,
             and
             Duties
             payed
             by
             
             them
             of
             a
             greater
             quantity
             .
             The
             Defender
             answered
             ,
             that
             the
             Certification
             could
             have
             no
             effect
             against
             the
             Defenders
             ,
             because
             it
             was
             only
             obtained
             against
             Wolmets
             appearand
             Heir
             ,
             who
             had
             only
             the
             Right
             of
             Reversion
             ,
             the
             Wodsetter
             who
             was
             Proprietar
             publickly
             Infeft
             ,
             and
             the
             said
             
               Iames
               Dowglas
            
             Liferenter
             ,
             by
             a
             publick
             Infeftment
             ,
             never
             being
             Called
             ,
             who
             do
             now
             produce
             the
             Decreet
             of
             Valuation
             quarrelled
             :
             And
             as
             to
             the
             Articles
             .
             they
             can
             import
             no
             Homologation
             ,
             because
             the
             Article
             anent
             the
             Teind
             bears
             only
             such
             a
             sum
             ,
             without
             relating
             to
             the
             fifth
             of
             the
             Rent
             ,
             or
             to
             the
             price
             of
             the
             valued
             Bolls
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Valuation
             having
             been
             obtained
             at
             the
             Instance
             of
             Wolmet
             ,
             and
             not
             of
             his
             Wife
             ,
             he
             might
             Reduce
             the
             same
             by
             Calling
             only
             Wolmets
             Heir
             ,
             who
             had
             not
             only
             the
             Reversion
             ,
             but
             a
             Back-tack
             ,
             and
             he
             was
             obliged
             to
             Call
             no
             other
             ,
             especially
             seing
             they
             had
             no
             Right
             to
             the
             Teinds
             the
             Defender
             answered
             ,
             that
             the
             Heretor
             has
             undoubtedly
             Interest
             in
             the
             Valuation
             ,
             though
             they
             had
             no
             Right
             to
             the
             Teind
             ,
             because
             it
             Liquidats
             the
             Teind
             ,
             and
             Liberats
             the
             Stock
             of
             any
             further
             ,
             and
             so
             hath
             the
             Liferenter
             for
             the
             Liferent
             Right
             ,
             especially
             she
             being
             publickly
             Infeft
             :
             so
             that
             though
             the
             Decreet
             was
             obtained
             at
             umquhil
             Wolmets
             Instance
             ,
             yet
             he
             being
             Denuded
             of
             the
             Property
             by
             a
             publick
             Infeftment
             of
             Wodset
             with
             his
             Wifes
             Liferent
             ,
             reserved
             therein
             ,
             they
             could
             not
             be
             miskenned
             ,
             and
             their
             Right
             taken
             away
             by
             a
             Process
             against
             Wolmets
             appearand
             Heir
             ,
             who
             was
             Denuded
             of
             the
             Property
             ,
             and
             who
             did
             now
             produce
             the
             Decreet
             of
             Valuation
             ,
             and
             abode
             by
             it
             as
             a
             true
             Deed.
             
          
           
             The
             Lords
             Sustained
             the
             Defense
             upon
             the
             Decreet
             of
             Valuation
             ,
             and
             found
             the
             Certification
             could
             not
             take
             away
             the
             Liferenters
             Interest
             in
             the
             Valuation
             ,
             she
             not
             being
             Called
             ;
             and
             found
             the
             Articles
             to
             infer
             no
             Homologation
             ,
             but
             found
             the
             third
             member
             of
             the
             reply
             Relevant
             ,
             that
             Tacks
             were
             taken
             by
             the
             Defenders
             ,
             and
             Duty
             payed
             of
             a
             greater
             quantity
             since
             the
             Valuation
             .
          
        
         
           
             Lady
             Lucie
             Hamiltoun
             .
             contra
             Bold
             of
             Pitcon
             .
             Eodem
             die
             .
          
           
             LAdy
             
               Lucie
               Hamiltoun
            
             insists
             in
             her
             Reduction
             ,
             before
             Debated
             on
             the
             eight
             of
             Iuly
             instant
             ,
             against
             Pitcon
             on
             this
             Ground
             ,
             that
             abbeit
             the
             Disposition
             granted
             to
             him
             by
             
               George
               Hay
            
             ,
             the
             Common
             Debitor
             be
             anterior
             to
             the
             Pursuers
             Inhibition
             ;
             yet
             it
             must
             be
             Reduced
             on
             this
             Ground
             ,
             that
             it
             is
             without
             any
             equivalent
             onerous
             Cause
             ,
             and
             that
             albeit
             in
             bear
             an
             onerous
             Cause
             ,
             yet
             that
             will
             not
             instruct
             the
             same
             ,
             but
             it
             must
             be
             instucted
             otherwise
             than
             by
             Pitcons
             own
             Oath
             ,
             because
             it
             is
             betwixt
             conjunct
             Persons
             ,
             two
             Good-brothers
             ;
             and
             because
             it
             bears
             not
             only
             to
             be
             in
             favours
             of
             Pitcon
             himself
             ,
             but
             for
             the
             use
             and
             behave
             of
             the
             Creditors
             ,
             whose
             Names
             were
             then
             blank
             ,
             and
             thereupon
             are
             now
             excluded
             ,
             as
             being
             filled
             up
             after
             the
             Pursuers
             Inhibition
             ,
             so
             that
             the
             Disposition
             being
             in
             so
             far
             fraudulent
             ,
             and
             not
             totally
             granted
             to
             Pitcon
             for
             himself
             ,
             the
             proportion
             of
             his
             Interest
             cannot
             be
             known
             ,
             but
             by
             instructing
             the
             Debts
             due
             to
             him
             ,
             and
             for
             which
             he
             was
             ingaged
             the
             time
             of
             the
             Disposition
             .
             It
             was
             answered
             for
             Pitcon
             ,
             that
             he
             was
             ready
             to
             instruct
             the
             Debts
             scripto
             ,
             and
             for
             some
             few
             to
             whom
             he
             had
             undertaken
             payment
             ,
             at
             the
             time
             of
             the
             Disposition
             he
             offered
             to
             produce
             their
             Bonds
             ,
             and
             to
             Depone
             that
             he
             undertook
             payment
             of
             them
             ,
             as
             said
             is
             ,
             which
             is
             all
             that
             is
             required
             by
             the
             Act
             of
             Parliament
             anent
             fraudulent
             Dispositions
             ,
             whereby
             the
             defect
             of
             an
             onerous
             Cause
             ,
             is
             to
             be
             proven
             by
             the
             Parties
             Oath
             ,
             who
             gets
             the
             Disposition
             .
          
           
           
             The
             Lords
             Repelled
             the
             Alleageance
             ,
             and
             found
             that
             Pitcon
             behoved
             to
             instruct
             the
             Cause
             of
             the
             Disposition
             ,
             otherwise
             than
             by
             the
             saids
             Bonds
             ,
             and
             his
             own
             Oath
             .
          
           
             It
             was
             alleadged
             for
             Kelburn
             ,
             another
             of
             the
             Creditors
             ,
             that
             he
             had
             Right
             by
             an
             Appryzing
             ,
             proceeding
             upon
             sums
             anterior
             to
             the
             Inhibition
             .
             It
             was
             Replyed
             ,
             that
             the
             Appryzing
             was
             null
             .
             First
             ,
             Because
             the
             Denunciation
             whereon
             it
             proceeded
             ,
             was
             not
             at
             the
             Mercat
             Cross
             of
             the
             Shire
             ,
             but
             at
             the
             Mercat
             Cross
             of
             the
             Regality
             ;
             in
             the
             English
             time
             ,
             when
             Regalities
             were
             supprest
             .
             2dly
             ,
             That
             the
             Appryzing
             was
             led
             at
             Glasgow
             ;
             and
             neither
             within
             the
             Shire
             of
             Air
             ,
             where
             the
             Lands
             ly
             ,
             nor
             by
             Dispensation
             at
             Edinburgh
             :
             And
             albeit
             the
             Letters
             bear
             a
             Dispensation
             to
             Appryz●
             at
             Glasgow
             ,
             and
             that
             the
             Denunciation
             was
             made
             accordingly
             ,
             for
             the
             Parties
             to
             appear
             at
             Glasgow
             ,
             yet
             there
             was
             neither
             Law
             nor
             Custom
             for
             such
             a
             Dispensation
             ,
             and
             Parties
             are
             not
             obliged
             to
             attend
             but
             at
             the
             head
             Burgh
             of
             the
             Shire
             ,
             or
             
               in
               communia
               patria
            
             ,
             at
             
               Edinburgh
               .
               3dly
            
             ,
             The
             Pursuer
             has
             also
             an
             Appryzing
             ,
             though
             posterior
             ,
             yet
             preferable
             ,
             because
             solemn
             and
             orderly
             according
             to
             the
             Custom
             then
             being
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Custom
             under
             the
             Usurper
             might
             excuse
             the
             want
             of
             Denunciations
             at
             the
             head
             Burghs
             of
             Regalities
             ,
             which
             were
             then
             supprest
             ,
             where
             they
             were
             used
             at
             the
             head
             Burgh
             of
             the
             Shire
             according
             to
             the
             Custom
             then
             ,
             and
             so
             validats
             such
             Appryzings
             ;
             yet
             this
             Defender
             having
             according
             to
             the
             standing
             Law
             of
             the
             Land
             ,
             Denunced
             at
             the
             head
             Burgh
             of
             the
             Regality
             ,
             the
             contrair
             unwarrantable
             Custom
             cannot
             annul
             his
             Appryzing
             ,
             proceeding
             according
             to
             Law.
             And
             as
             to
             the
             Dispensation
             at
             Glasgow
             ,
             which
             was
             nearer
             the
             Lands
             then
             Edinburgh
             ,
             whatsoever
             might
             have
             been
             said
             to
             the
             inconveniency
             of
             granting
             such
             a
             Dispensation
             ,
             yet
             being
             granted
             ,
             it
             is
             valide
             ,
             and
             was
             then
             frequent
             to
             grant
             such
             Dispensations
             .
          
           
             The
             Lords
             found
             that
             the
             Pursuers
             Apprizing
             being
             according
             to
             the
             ordinar
             Custom
             for
             the
             time
             ,
             at
             the
             head
             Burgh
             of
             the
             Shire
             upon
             Denunciation
             ,
             that
             it
             was
             more
             solemn
             and
             preferable
             ,
             as
             to
             the
             manner
             of
             Denunciation
             ,
             than
             that
             which
             was
             upon
             Denunciation
             at
             the
             head
             Burgh
             of
             the
             Regality
             ,
             at
             that
             time
             .
             But
             the
             Lords
             did
             not
             determine
             ,
             whether
             such
             an
             Appryzing
             would
             have
             been
             valide
             ,
             if
             there
             had
             not
             been
             a
             more
             formall
             one
             ;
             Nor
             whether
             the
             Dispensation
             being
             granted
             at
             Glasgow
             ,
             was
             valide
             .
          
        
         
           
             Margaret
             Scrimzeor
             contra
             Alexander
             Wedderburn
             of
             Kingennie
             .
             Iuly
             19.
             1670.
             
          
           
             UMquhil
             Major
             
               William
               Scrimzeor
            
             having
             nominat
             
               Alexander
               Wedderburn
            
             of
             Kingennie
             ,
             and
             two
             others
             to
             be
             Tutors
             to
             his
             Daughter
             .
             She
             now
             pursues
             a
             Tutor
             Accompt
             ,
             wherein
             this
             Question
             arose
             ,
             and
             was
             reported
             to
             the
             Lords
             by
             the
             Auditors
             ,
             viz.
             The
             Defunct
             having
             Died
             in
             September
             1650.
             
             The
             Tutor
             did
             not
             accept
             the
             Nomination
             ,
             or
             begin
             to
             Act
             till
             the
             end
             of
             the
             year
             1653.
             
             In
             which
             time
             the
             Tutor
             alleadged
             that
             a
             part
             of
             the
             Pupils
             Means
             perished
             ,
             and
             became
             Insolvent
             ,
             and
             craved
             to
             be
             liberate
             thereof
             ,
             on
             that
             Ground
             in
             his
             Discharge
             .
             It
             was
             alleadged
             for
             the
             Pupil
             ,
             that
             the
             Tutor
             must
             be
             lyable
             from
             the
             time
             that
             he
             knew
             that
             he
             was
             Nominat
             Tutor
             ,
             for
             albeit
             he
             might
             have
             abstained
             absolutely
             ,
             yet
             once
             accepting
             the
             Tutory
             by
             Nomination
             of
             a
             Testament
             ,
             wherein
             a
             Legacy
             was
             left
             to
             himself
             ,
             he
             must
             compt
             as
             if
             he
             had
             accepted
             it
             at
             the
             first
             ,
             for
             which
             there
             was
             adduced
             many
             Citations
             of
             Law.
             It
             was
             answered
             for
             the
             Tutor
             ,
             that
             in
             the
             Roman
             Law
             ,
             Tutors
             were
             obliged
             to
             accept
             
             so
             soon
             as
             they
             knew
             their
             Nomination
             ,
             unless
             they
             could
             free
             themselves
             by
             the
             excuses
             allowed
             in
             that
             Law
             :
             But
             with
             us
             it
             is
             absolutely
             free
             to
             accept
             or
             refuse
             ,
             without
             any
             excuse
             ;
             and
             it
             is
             only
             the
             acceptance
             that
             obliges
             ,
             and
             so
             can
             have
             no
             effect
             
               ad
               preterita
            
             as
             to
             that
             which
             perished
             before
             acceptance
             ,
             especially
             in
             this
             case
             ,
             the
             Defender
             being
             but
             one
             of
             three
             Tutors
             Nominate
             ,
             he
             ought
             to
             have
             had
             a
             time
             to
             endeavour
             with
             the
             rest
             to
             accept
             ,
             and
             his
             lying
             out
             was
             in
             such
             a
             time
             ,
             in
             which
             Judicatures
             did
             cease
             by
             War
             and
             Troubles
             ,
             the
             English
             after
             the
             Battel
             of
             Dumbar
             in
             September
             1650.
             being
             possest
             of
             Edinburgh
             ,
             and
             the
             publick
             Records
             ,
             there
             was
             no
             Session
             keeped
             till
             the
             year
             1652
             ,
             or
             1653.
             
          
           
             The
             Lords
             found
             the
             Tutor
             was
             not
             lyable
             for
             any
             thing
             that
             perished
             before
             his
             acceptance
             .
          
        
         
           
             The
             Executors
             of
             Walter
             Hamiltoun
             contra
             The
             Executors
             of
             Andrew
             Reid
             .
             Iuly
             20.
             1670.
             
          
           
             THe
             Executors
             of
             
               Walter
               Hamiltoun
            
             pursue
             the
             Executors
             of
             
               Andrew
               Reid
            
             ,
             for
             payment
             of
             a
             Bond
             of
             122.
             pounds
             Sterling
             ,
             and
             of
             a
             Bond
             of
             eighteen
             pounds
             Sterling
             ,
             due
             by
             the
             said
             umquhil
             
               Andrew
               Reid
            
             ,
             to
             the
             said
             umquhil
             
               Walter
               Hamiltoun
            
             .
             The
             Defenders
             alleadged
             ,
             that
             they
             ought
             to
             have
             allowance
             of
             fifty
             pounds
             Sterling
             ,
             payed
             to
             Walter
             by
             
               Iohn
               Fleeming
            
             ,
             by
             
               Andrew
               Reids
            
             Order
             ,
             and
             of
             Sterling
             ,
             payed
             to
             Mckneich
             ,
             upon
             a
             Bill
             drawn
             by
             
               Walter
               Hamiltoun
            
             upon
             
               Andrew
               Reid
            
             ,
             to
             be
             payed
             to
             Mckneich
             ,
             and
             for
             proving
             thereof
             ,
             produced
             missive
             Letters
             ,
             Written
             by
             
               Walter
               Hamiltoun
            
             to
             
               Andrew
               Reid
            
             ,
             the
             one
             bearing
             ,
             that
             Fleeming
             had
             payed
             a
             part
             of
             the
             50.
             pound
             ,
             and
             he
             doubted
             not
             but
             that
             he
             would
             pay
             the
             rest
             :
             And
             the
             other
             bearing
             ,
             that
             Mckneich
             had
             got
             payment
             .
             It
             was
             answered
             for
             the
             Pursuers
             ,
             that
             the
             Missive
             Letters
             could
             not
             instruct
             a
             Discharge
             ,
             or
             abate
             those
             clear
             Bonds
             ,
             because
             they
             did
             relate
             to
             Bills
             and
             Orders
             ,
             upon
             which
             payment
             was
             made
             ,
             and
             except
             those
             Bills
             and
             Orders
             can
             be
             produced
             ,
             the
             Letters
             relating
             thereto
             ,
             can
             have
             no
             effect
             ,
             for
             it
             must
             be
             presumed
             ,
             that
             the
             Bills
             and
             Orders
             have
             been
             retired
             by
             
               Walter
               Hamiltoun
            
             ,
             as
             having
             been
             allowed
             in
             other
             Bonds
             ,
             which
             then
             have
             been
             delivered
             by
             VValter
             to
             
               Andrew
               Reid
            
             ,
             it
             being
             the
             ordinar
             course
             amongst
             Merchants
             ,
             to
             interchange
             Bills
             and
             Bonds
             ,
             without
             any
             other
             Discharge
             ,
             neither
             do
             they
             take
             notice
             of
             their
             Missives
             ,
             relating
             to
             such
             Bills
             or
             Orders
             ,
             nor
             can
             it
             be
             supposed
             they
             can
             remember
             the
             same
             .
             The
             Auditors
             in
             this
             Accompt
             ,
             having
             taken
             the
             opinion
             of
             several
             knowing
             Merchan's
             anent
             their
             Customs
             in
             this
             point
             ,
             they
             did
             all
             report
             in
             Writ
             ,
             and
             did
             all
             agree
             in
             this
             ,
             that
             missive
             Letters
             relating
             to
             Bills
             ,
             Orders
             ,
             or
             Discharges
             ,
             had
             no
             effect
             ,
             unless
             the
             Bills
             ,
             Orders
             ,
             or
             Discharges
             were
             produced
             ,
             and
             that
             Merchants
             neither
             did
             ,
             nor
             could
             have
             notice
             of
             such
             Missives
             to
             retire
             ,
             or
             interchange
             the
             same
             ;
             they
             did
             also
             visit
             
               Walter
               Hamiltouns
            
             Compt
             Book
             ,
             by
             which
             there
             appeared
             several
             other
             Bonds
             and
             Accompts
             betwixt
             the
             Parties
             ,
             beside
             these
             :
             And
             in
             which
             also
             ,
             the
             sums
             contained
             in
             these
             Letters
             ,
             were
             set
             down
             as
             payment
             ,
             in
             part
             of
             the
             other
             Bonds
             and
             Compts
             ,
             whereby
             it
             appeared
             ,
             that
             the
             Bill
             and
             Order
             mentioned
             in
             the
             Letter
             ,
             were
             interchanged
             with
             the
             former
             Bonds
             .
          
           
             The
             Lords
             found
             that
             the
             missive
             Letters
             relating
             to
             the
             Bill
             and
             Order
             ,
             had
             no
             Effect
             ,
             unless
             the
             Bill
             and
             Order
             were
             produced
             .
          
        
         
           
           
             Hugh
             Moncrief
             of
             Tippermalloch
             contra
             Magistrates
             of
             Pearth
             .
             Iuly
             26.
             1670.
             
          
           
             
               HVgh
               Moncrief
            
             of
             Tippermalloch
             having
             Incarcerate
             Ogilbie
             of
             Channaly
             in
             the
             Tolbooth
             of
             Pearth
             ,
             from
             whence
             he
             having
             escaped
             ;
             he
             pursues
             the
             Magistrates
             of
             Pearth
             for
             payment
             of
             the
             Debt
             ,
             who
             alleadged
             absolvitor
             :
             First
             ,
             Because
             their
             Tolbooth
             was
             sufficient
             ,
             and
             the
             Rebel
             had
             escaped
             
               vi
               majori
            
             ,
             having
             broken
             the
             Stone
             ,
             in
             which
             the
             Bolt
             of
             the
             Tolbooth
             Door
             entered
             ,
             and
             forced
             the
             Lock
             in
             the
             time
             of
             Sermon
             ,
             and
             that
             immediately
             after
             the
             Rebel
             escaped
             out
             of
             the
             Town
             ,
             and
             was
             met
             with
             Friends
             that
             were
             trysted
             there
             at
             the
             time
             of
             his
             escape
             .
             2dly
             ,
             They
             had
             laid
             out
             all
             wayes
             thereafter
             to
             search
             for
             him
             ,
             and
             had
             at
             last
             found
             him
             in
             the
             Tolbooth
             of
             Edinburgh
             for
             the
             same
             Debt
             ,
             where
             he
             yet
             was
             in
             as
             good
             condition
             ,
             as
             when
             he
             first
             escaped
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Rebel
             had
             escaped
             by
             the
             fault
             or
             neglect
             of
             the
             Jaylour
             ,
             for
             whom
             the
             Town
             was
             answerable
             ,
             in
             so
             far
             as
             they
             had
             given
             him
             the
             liberty
             of
             all
             the
             Rooms
             in
             the
             Tolbooth
             ,
             and
             that
             when
             he
             escaped
             ,
             he
             was
             left
             in
             the
             outmost
             Room
             ,
             and
             his
             Brother
             Son
             was
             permitted
             to
             abide
             within
             with
             him
             ,
             and
             the
             Catband
             on
             the
             outside
             of
             the
             Tolbooth
             Door
             was
             not
             put
             on
             and
             Locked
             ,
             which
             would
             have
             so
             secured
             the
             Door
             ,
             that
             nothing
             the
             Prisoner
             could
             have
             done
             within
             ,
             could
             have
             opened
             the
             same
             ;
             and
             that
             the
             Tolbooth
             Lock
             had
             a
             double
             and
             single
             Cast
             ,
             and
             when
             it
             was
             Locked
             only
             with
             the
             single
             Cast
             ,
             the
             Bolt
             might
             be
             thrust
             back
             ,
             but
             when
             with
             the
             double
             Cast
             ,
             it
             had
             a
             strong
             Backsprent
             ,
             and
             could
             not
             be
             thrust
             back
             :
             and
             that
             at
             the
             time
             of
             the
             escape
             ,
             the
             Lock
             had
             but
             the
             single
             Cast
             ,
             so
             that
             the
             edge
             of
             the
             Stone
             being
             broken
             off
             ,
             there
             was
             access
             to
             press
             back
             the
             Bolt
             .
             To
             the
             second
             it
             was
             answered
             ,
             that
             the
             Rebel
             having
             escaped
             through
             the
             Town
             or
             their
             Servants
             neglect
             ,
             
               jus
               erat
               acquisitum
            
             to
             the
             Pursuer
             ,
             making
             them
             lyable
             ,
             which
             could
             not
             be
             taken
             off
             by
             any
             Incarceration
             thereafter
             ,
             unless
             the
             Magistrates
             had
             followed
             him
             in
             the
             very
             Act
             of
             escape
             ,
             and
             recovered
             him
             ;
             but
             now
             they
             have
             six
             Moneths
             after
             his
             escape
             put
             him
             ,
             not
             in
             the
             Tolbooth
             of
             Pearth
             ,
             but
             in
             the
             Tolbooth
             of
             Edinburgh
             .
          
           
             The
             Lords
             being
             unwilling
             to
             give
             either
             Party
             the
             choose
             of
             Witnesses
             for
             Probation
             ,
             had
             before
             answer
             ,
             appointed
             either
             Party
             to
             adduce
             Witnesses
             anent
             the
             condition
             of
             the
             Tolbooth
             ,
             and
             the
             manner
             of
             the
             Rebels
             escape
             ,
             which
             being
             now
             advised
             .
          
           
             The
             Lords
             found
             that
             by
             the
             most
             pregnent
             Probation
             ,
             it
             was
             proven
             that
             the
             Catband
             used
             sometimes
             to
             be
             on
             in
             the
             day
             time
             ,
             and
             sometimes
             not
             ,
             and
             that
             Prisoners
             for
             Debt
             had
             the
             liberty
             in
             the
             Day
             time
             of
             all
             the
             Rooms
             of
             the
             Tolbooth
             ,
             the
             Probation
             was
             very
             contrair
             ,
             as
             to
             the
             breaking
             of
             the
             Stone
             wherein
             the
             Bolt
             entered
             ,
             but
             it
             seemed
             access
             could
             not
             be
             had
             to
             the
             Bolt
             without
             some
             breach
             of
             the
             Stone
             .
             It
             was
             also
             proven
             the
             Catband
             was
             not
             then
             on
             ,
             and
             that
             the
             Bolt
             when
             it
             got
             the
             double
             Cast
             ,
             could
             not
             be
             prest
             back
             ,
             and
             could
             when
             it
             got
             the
             single
             Cast
             ;
             and
             therefore
             the
             Lords
             found
             that
             the
             Magistrates
             proved
             not
             their
             first
             Exception
             ,
             that
             the
             Rebel
             had
             escaped
             
               vi
               majori
            
             ,
             without
             their
             fault
             or
             negligence
             ,
             and
             found
             the
             second
             Exception
             of
             puting
             him
             again
             in
             Prison
             ,
             not
             Relevant
             .
          
        
         
           
           
             The
             Lady
             Halliburtoun
             contra
             The
             Creditors
             of
             Halliburtoun
             ,
             Iuly
             27.
             1670.
             
          
           
             THe
             Lady
             Halliburtoun
             being
             provided
             by
             her
             Contract
             of
             Marriage
             to
             the
             M●ins
             of
             Halliburtoun
             ,
             with
             the
             Miln
             and
             Pertinents
             ,
             and
             her
             Precept
             of
             Seizing
             bearing
             warrand
             to
             Infeft
             her
             in
             the
             Mains
             and
             Miln
             ,
             by
             Earth
             and
             Stone
             of
             the
             Land
             ,
             and
             by
             the
             Clap
             of
             the
             Miln
             ,
             her
             Seising
             having
             the
             said
             Precept
             ingros●ed
             ,
             bears
             her
             by
             vertue
             thereof
             to
             be
             Infeft
             by
             the
             Earth
             and
             Stone
             of
             the
             Land
             ,
             but
             mentions
             nothing
             of
             any
             Symbol
             for
             the
             Miln
             ,
             or
             of
             any
             Reason
             that
             Seising
             was
             not
             taken
             of
             the
             Miln●
             because
             it
             was
             Demolished
             ,
             the
             Miln
             being
             thereafter
             Built
             or
             Re-edified
             ,
             the
             Creditors
             having
             Apprized
             ,
             did
             take
             Infeftment
             of
             the
             Mains
             by
             Earth
             and
             Stone
             ,
             and
             of
             the
             Miln
             by
             Clap
             and
             Happer
             ,
             and
             now
             in
             a
             competition
             betwixt
             the
             Lady
             and
             them
             anent
             the
             Rents
             of
             the
             Miln
             .
             It
             was
             alleadged
             for
             the
             Creditors
             ,
             that
             they
             ought
             to
             be
             preferred
             ,
             because
             they
             were
             Infeft
             in
             the
             Miln
             ,
             and
             the
             Lady
             was
             never
             Infeft
             therein
             ,
             albeit
             her
             Precept
             of
             Seising
             buir
             an
             express
             Warrand
             to
             Infeft
             her
             therein
             by
             Clap
             and
             Happer
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             that
             her
             infeftment
             of
             the
             Land
             ,
             with
             the
             Miln
             and
             other
             Pertinents
             ,
             is
             anterior
             to
             the
             Creditors
             ,
             and
             must
             extend
             to
             the
             Miln
             ,
             albeit
             she
             took
             no
             special
             Seising
             thereof
             ,
             because
             there
             was
             no
             standing
             Miln
             at
             the
             time
             of
             her
             Seising
             ,
             so
             that
             the
             Miln
             being
             Builded
             by
             her
             Husband
             thereafter
             ,
             
               solo
               cedit
            
             ,
             and
             belongs
             to
             her
             as
             a
             Pertinent
             ,
             for
             though
             ,
             where
             a
             Miln
             is
             before
             Infeftment
             ,
             it
             cannot
             passe
             as
             a
             Pertinent
             without
             a
             special
             Seising
             ,
             yet
             where
             it
             is
             only
             Built
             thereafter
             ,
             it
             accresces
             to
             any
             Party
             Infeft
             in
             the
             Land
             ,
             especially
             being
             Infeft
             in
             the
             Land
             ,
             with
             the
             Miln
             thereof
             .
          
           
             The
             Lords
             preferred
             the
             Lady
             ,
             she
             proving
             the
             Miln●
             the
             time
             of
             her
             Contract
             and
             Infeftment
             ,
             was
             not
             at
             all
             Built
             ,
             or
             having
             been
             Built
             was
             Demolished
             .
          
        
         
           
             Charles
             Charters
             contra
             Cornelius
             Neilson
             ,
             Iuly
             29.
             1670.
             
          
           
             
               CHarles
               Charters
            
             and
             
               Cornelius
               Neilson
            
             ,
             both
             having
             Arrested
             their
             Debitors
             Money
             in
             the
             same
             hand
             ,
             Cornelius
             Arrestment
             was
             upon
             the
             24.
             of
             Iune
             ,
             and
             Charles
             Arrestment
             upon
             the
             28
             ,
             But
             Cornelius
             Arrestment
             was
             upon
             a
             Bond
             ,
             whereof
             the
             Term
             of
             payment
             was
             not
             come
             ,
             and
             the
             Term
             of
             payment
             of
             Charles
             his
             Bond
             was
             come
             ,
             both
             Parties
             having
             their
             Citation
             before
             the
             Bailzies
             of
             Edinburhg
             in
             one
             day
             ,
             where
             Cornelius
             alleadged
             preference
             ,
             because
             his
             Arrestment
             was
             prior
             ,
             
               Charles
               Charters
            
             answered
             ,
             that
             albeit
             his
             Arrestment
             was
             four
             days
             posterior
             ,
             yet
             it
             ought
             to
             be
             preferred
             ,
             because
             the
             Term
             of
             payment
             of
             Cornelius
             Debt
             was
             not
             come
             whereas
             Charles
             his
             Term
             being
             past
             ,
             he
             has
             
               paratam
               executionem
            
             ,
             this
             being
             ready
             to
             be
             Advised
             by
             the
             Bailzies
             .
             Cornelius
             raises
             Advocation
             ,
             and
             the
             Cause
             being
             Advocat
             ,
             the
             same
             Debate
             was
             repeated
             before
             the
             Lords
             ,
             and
             Cornelius
             added
             that
             now
             the
             Term
             of
             payment
             of
             his
             Sum
             was
             past
             ,
             and
             alleadged
             that
             albeit
             his
             Term
             were
             not
             come
             ,
             his
             first
             Arrestment
             is
             preferable
             ,
             though
             the
             Decreet
             thereupon
             could
             only
             be
             to
             pay
             after
             the
             Term
             were
             past
             ,
             and
             now
             his
             Term
             being
             also
             past
             before
             Sentence
             there
             needs
             no
             such
             limitation
             .
             It
             was
             answered
             ,
             that
             it
             is
             not
             the
             Arrestment
             that
             constitutes
             the
             Right
             ,
             but
             the
             Sentence
             making
             forthcoming
             ,
             and
             though
             ordinarly
             the
             first
             Arrestment
             is
             preferred
             ,
             yet
             oftimes
             posterior
             Arrestments
             are
             preferred
             upon
             more
             timous
             or
             more
             orderly
             Diligence
             ,
             and
             the
             Diligence
             done
             ,
             by
             
             Charters
             is
             done
             more
             orderly
             ,
             because
             it
             was
             after
             the
             Term
             ,
             for
             if
             it
             were
             Sustained
             ,
             that
             Arrestments
             made
             before
             the
             Term
             of
             payment
             ,
             should
             be
             preferred
             to
             these
             made
             after
             the
             Term
             ,
             Creditors
             who
             has
             ready
             Execution
             should
             be
             postponed
             to
             others
             ,
             whose
             Debts
             were
             payable
             after
             a
             Liferent
             of
             20.
             years
             time
             ,
             but
             as
             the
             second
             Arrester
             may
             Poind
             his
             Debitors
             Goods
             ,
             though
             Arrested
             formerly
             by
             another
             ,
             so
             may
             he
             crave
             Sentence
             to
             make
             forthcoming
             to
             take
             present
             effect
             by
             Poinding
             ,
             and
             cannot
             be
             excluded
             by
             an
             other
             Creditor
             ,
             upon
             pretence
             of
             a
             prior
             Arrestment
             ,
             which
             cannot
             receive
             present
             Execution
             ;
             and
             albeit
             the
             prior
             Arresters
             Term
             be
             now
             come
             ,
             yet
             he
             ought
             not
             to
             be
             preferred
             ,
             because
             he
             procured
             Advocation
             of
             the
             Cause
             ,
             without
             any
             just
             Reason
             ,
             either
             of
             Incompetency
             or
             Iniquity
             ,
             only
             to
             procure
             delay
             till
             his
             Term
             were
             past
             ,
             and
             therefore
             the
             Cause
             being
             now
             Advocat
             of
             consent
             ,
             the
             Sentence
             must
             now
             be
             of
             the
             same
             manner
             ,
             as
             it
             would
             have
             been
             before
             the
             Bailzies
             when
             the
             Cause
             was
             Advocat
             ,
             at
             which
             time
             Cornelius
             Term
             of
             payment
             was
             not
             come
             .
          
           
             The
             Lords
             found
             that
             the
             unwarrantable
             delay
             by
             the
             Advocation
             should
             not
             prejudge
             Charters
             ,
             and
             that
             the
             case
             should
             be
             considered
             as
             it
             was
             the
             time
             that
             the
             Advocation
             was
             raised
             ,
             and
             preferred
             
               Charles
               Charters
            
             upon
             his
             posterior
             Arrestment
             ,
             in
             respect
             the
             Term
             of
             payment
             of
             his
             Debt
             was
             come
             ,
             to
             the
             prior
             Arrestment
             laid
             on
             upon
             a
             Debt
             the
             Term
             of
             payment
             whereof
             was
             not
             come
             ,
             whereupon
             Citation
             was
             used
             before
             the
             Term
             came
             .
          
           
             The
             Advocats
             having
             withdrawn
             from
             the
             House
             upon
             the
             Oath
             prescribed
             by
             the
             Regulation
             ,
             nothing
             was
             Called
             until
             the
             midle
             of
             December
             .
          
        
         
           
             Murray
             of
             Achtertire
             contra
             Gray
             ,
             December
             16.
             1670.
             
          
           
             MVrray
             of
             Achtertire
             having
             pursued
             a
             Contravention
             against
             Gray
             upon
             several
             Deeds
             ,
             whereof
             one
             was
             ,
             that
             Achtertire
             having
             procured
             liberty
             from
             a
             Neighbour
             Heretor
             to
             make
             a
             Cast
             upon
             that
             Heretors
             Ground
             ,
             wherein
             some
             little
             Burns
             were
             gathered
             to
             a
             Head
             ,
             and
             thence
             were
             conveyed
             through
             Achtertires
             own
             Ground
             to
             his
             Miln
             Lade
             ,
             and
             that
             Gray
             had
             broken
             down
             that
             Cast
             ,
             whereby
             the
             Burns
             were
             diverted●
             Gray
             having
             compeared
             and
             proponed
             nothing
             ,
             the
             Libel
             was
             found
             Relevant
             ,
             and
             admitted
             to
             Achtertires
             Probation
             ,
             who
             by
             several
             Witnesses
             proved
             that
             the
             Defender
             had
             broken
             down
             that
             Cast
             ,
             of
             whom
             some
             Deponed
             simply
             ,
             but
             two
             of
             them
             Deponed
             thus
             ,
             that
             Gray
             had
             broken
             down
             the
             new
             Cast
             ,
             but
             that
             the
             Burns
             gathered
             therein
             in
             the
             time
             of
             Floods
             did
             water
             Gray●s
             own
             Lands
             ;
             and
             that
             by
             the
             new
             Cast
             they
             were
             keeped
             in
             ,
             and
             could
             not
             water
             the
             same
             ,
             whence
             it
             arose
             to
             the
             Lords
             consideration
             ,
             whether
             that
             Deed
             of
             Contravention
             was
             sufficiently
             proven
             ,
             or
             whether
             the
             Testimonies
             of
             the
             Witnesses
             ,
             being
             qualified
             that
             the
             Defender
             had
             done
             the
             Deed
             ,
             but
             in
             continuation
             of
             his
             former
             Possession
             of
             the
             watering
             of
             the
             Burns
             ,
             whether
             respect
             ought
             to
             be
             had
             to
             that
             qualification
             ,
             some
             thought
             not
             ,
             because
             the
             Fact
             ,
             as
             it
             was
             Libelled
             ,
             was
             found
             Relevant
             ,
             and
             proven
             ,
             and
             the
             qualification
             ought
             to
             have
             been
             proponed
             by
             way
             of
             Defense
             ,
             but
             it
             was
             found
             that
             the
             Testimonies
             being
             so
             qualified
             ,
             did
             not
             sufficiently
             prove
             to
             infer
             a
             Contravention
             ,
             for
             if
             the
             Contravention
             had
             been
             proven
             by
             Writ
             or
             Oath
             ,
             such
             a
             quality
             either
             in
             the
             Writ
             or
             Oath
             would
             hinder
             the
             same
             to
             prove
             sufficiently
             the
             Contravention
             .
          
           
             But
             because
             the
             Testimonies
             were
             not
             to
             be
             considered
             by
             the
             Parties
             ,
             the
             Lords
             ordained
             the
             Sentence
             to
             expresse
             the
             foresaid
             Reason
             of
             
             it
             ,
             that
             the
             Pursuer
             before
             Extract
             ,
             might
             alleadge
             any
             thing
             thereanent
             he
             thought
             fit
             .
          
        
         
           
             Nicol
             Langtoun
             contra
             Robert
             Scot
             ,
             Decem.
             17.
             1670.
             
          
           
             
               JOhn
               Graham
            
             of
             Gillesby
             ,
             having
             Set
             a
             Track
             of
             his
             Lands
             of
             Graystoneflat
             to
             
               Nicol
               Langtoun
            
             ,
             and
             being
             at
             that
             time
             at
             the
             Horn
             ,
             
               Robert
               Scot
            
             obtains
             a
             Gift
             of
             his
             Escheat
             and
             Liferent
             from
             Annandale
             his
             Superior
             ,
             and
             thereupon
             obtains
             general
             and
             special
             Declarator
             ,
             Decerning
             Langtoun
             to
             pay
             the
             Duties
             to
             him
             as
             Donator
             .
             Langtoun
             Suspends
             ,
             and
             raises
             Reduction
             on
             this
             Reason
             ,
             that
             the
             Gift
             was
             simulat
             to
             the
             behove
             of
             Graham
             the
             Rebel
             procured
             by
             his
             own
             Means
             and
             Moyen
             ;
             and
             it
             being
             answered
             by
             Scot
             ,
             that
             he
             being
             a
             lawful
             Creditor
             of
             the
             Rebels
             ,
             might
             lawfully
             accept
             and
             make
             use
             of
             this
             Gift
             for
             his
             own
             security
             ,
             albeit
             the
             Rebel
             had
             procured
             the
             same
             ,
             and
             Scot
             the
             Donator
             having
             Deponed
             anent
             the
             simulation
             of
             the
             Gift
             ,
             did
             acknowledge
             that
             the
             Rebel
             had
             procured
             the
             Gift
             ,
             and
             that
             he
             had
             it
             blank
             in
             the
             Donators
             Name
             ,
             and
             that
             he
             did
             fill
             up
             Scots
             Name
             ,
             and
             delivered
             it
             to
             him
             .
          
           
             The
             Lords
             found
             the
             Oath
             to
             prove
             the
             simulation
             of
             the
             Gift
             ,
             and
             that
             it
             having
             been
             in
             the
             Rebels
             own
             hands
             blank
             in
             the
             Donators
             Name
             ,
             it
             was
             equivalent
             to
             an
             Assignation
             from
             the
             Rebel
             ,
             and
             that
             Scot
             accepting
             of
             it
             so
             from
             him
             ,
             could
             not
             justly
             or
             
               bona
               fide
            
             make
             use
             of
             it
             ,
             even
             for
             security
             of
             a
             just
             Debt
             in
             prejudice
             of
             the
             Tacks-man
             ,
             who
             had
             before
             gotten
             his
             Tack
             from
             the
             Rebel
             .
          
        
         
           
             Alison
             Kello
             contra
             Kinneir
             ,
             Ianuary
             5.
             1671.
             
          
           
             
               ALison
               Kello
            
             as
             Heir
             to
             her
             Mother
             
               Margaret
               Nisbet
            
             ,
             having
             pursued
             a
             Reduction
             of
             an
             Apprizing
             of
             the
             Lands
             of
             Paxtoun
             ,
             Led
             at
             the
             Instance
             of
             Mr.
             
               Samuel
               Hume
            
             ,
             against
             the
             said
             Margaret
             in
             Anno
             1622.
             and
             Assigned
             to
             Mr.
             
               Alexander
               Kinneir
            
             in
             Anno
             1623.
             upon
             this
             Reason
             ,
             that
             the
             said
             Mr.
             Alexander
             was
             satisfied
             by
             his
             Intromission
             within
             the
             Legal
             ;
             this
             pursuit
             ,
             being
             against
             Mr.
             
               Alexander
               Kinneirs
            
             Son
             ,
             who
             is
             Minor
             ,
             and
             being
             stopped
             upon
             his
             Minority
             ,
             
               quid
               Minor
               non
               tenetur
               placitare
               de
               hereditate
               paterna
               .
            
             The
             Lords
             did
             upon
             the
             Pursuers
             Petition
             ,
             grant
             Commission
             to
             Examine
             Witnesses
             upon
             the
             Intromssion
             ,
             to
             remain
             
               in
               retentis
            
             till
             the
             Cause
             might
             be
             Determined
             ,
             in
             respect
             the
             Witnesses
             might
             die
             in
             the
             mean
             time
             ,
             which
             being
             reported
             ,
             the
             Lords
             remitted
             to
             an
             Auditor
             to
             state
             the
             Compt
             of
             the
             Intromission
             according
             to
             the
             Probation
             ,
             that
             the
             stated
             Accompt
             might
             remain
             
               in
               retentis
            
             .
             The
             Defender
             being
             heard
             again
             before
             the
             Lords
             ,
             did
             alleadge
             that
             the
             Accompt
             could
             not
             be
             stated
             upon
             this
             Probation
             ,
             but
             that
             there
             being
             yet
             no
             Litiscontestation
             in
             the
             Cause
             ,
             neither
             can
             be
             ,
             through
             the
             Defenders
             Minority
             ,
             and
             this
             Probation
             being
             but
             before
             answer
             to
             remain
             
               in
               retentis
            
             ,
             and
             taken
             by
             Commission
             ,
             the
             Defender
             not
             being
             present
             at
             the
             Examination
             ,
             and
             the
             matter
             being
             very
             ancient
             ,
             fifty
             years
             agoe
             ,
             the
             Lords
             ought
             to
             give
             the
             Defender
             the
             sole
             or
             conjunct
             probation
             of
             this
             alleadgeance
             ,
             viz.
             That
             he
             offered
             him
             to
             prove
             ,
             that
             during
             the
             years
             of
             the
             Legal
             ,
             the
             Lands
             were
             Possest
             by
             several
             Persons
             ,
             by
             Dispositions
             or
             Tacks
             ,
             both
             under
             Reversion
             ,
             for
             certain
             Sums
             of
             Money
             ,
             due
             by
             the
             said
             
               Margaret
               Nisbet
            
             ,
             which
             Rights
             were
             granted
             by
             her
             ,
             and
             were
             now
             produced
             by
             the
             Defender
             ,
             which
             with
             the
             saids
             Rights
             produced
             ,
             is
             much
             more
             pregnant
             nor
             the
             Pursuers
             Probation
             ,
             by
             
             some
             inconsiderable
             Countrey
             People
             ,
             without
             any
             Adminicle
             in
             Writ
             .
             It
             was
             answered
             for
             the
             Pursuer
             ,
             that
             the
             alleadgeance
             was
             no
             way
             Relevant
             ,
             being
             contrare
             to
             her
             Libel
             ,
             and
             founded
             
               super
               jure
               tertij
            
             ,
             for
             this
             Defender
             hath
             no
             interest
             in
             the
             Wodset
             Rights
             ,
             nor
             doth
             any
             Person
             appear
             for
             them
             ,
             or
             own
             them
             ,
             and
             if
             this
             were
             sustained
             ,
             it
             would
             afford
             a
             current
             evasion
             in
             all
             kind
             of
             Pursuits
             upon
             Intromission
             ,
             by
             offering
             still
             to
             prove
             that
             the
             Defender
             did
             not
             ,
             but
             that
             a
             third
             Party
             did
             Intromet
             ,
             and
             therefore
             the
             Lords
             have
             never
             Sustained
             such
             a
             Defense
             upon
             the
             Defenders
             sole
             Probation
             ,
             and
             in
             no
             case
             have
             allowed
             a
             conjunct
             probation
             .
             It
             was
             answered
             ,
             that
             in
             a
             matter
             so
             old
             ,
             and
             where
             the
             sole
             probation
             of
             a
             thing
             of
             so
             great
             Moment
             was
             to
             be
             by
             Witnesses
             the
             Lords
             
               ex
               officio
            
             might
             Examine
             Witnesses
             for
             either
             Party
             ,
             and
             have
             oft
             so
             done
             ,
             especially
             the
             same
             ought
             to
             be
             done
             here
             ,
             where
             the
             probation
             is
             by
             inconsiderable
             Persons
             ,
             and
             so
             suspect
             and
             exorbitant
             ,
             proving
             ●●nneirs
             Intromssion
             to
             be
             before
             he
             had
             any
             Right
             ,
             and
             the
             quantities
             to
             be
             much
             higher
             then
             the
             written
             Tack
             of
             the
             Lands
             produced
             .
          
           
             The
             Lords
             found
             that
             they
             could
             not
             admit
             a
             Probation
             for
             the
             Defender
             ,
             upon
             the
             Possession
             of
             any
             third
             Party
             ,
             from
             whom
             he
             derived
             no
             Right
             ,
             but
             that
             upon
             the
             consideration
             alleadged
             ,
             they
             would
             Sustain
             no
             Probation
             for
             the
             Pursuer
             ,
             but
             that
             which
             were
             clear
             and
             pregnant
             ,
             and
             allowed
             the
             Defender
             to
             give
             in
             any
             Objections
             against
             the
             hability
             of
             the
             Witnesses
             ,
             yet
             having
             considered
             their
             Testimonies
             ,
             they
             found
             that
             they
             did
             not
             prove
             Kinneirs
             Intromission
             to
             be
             before
             his
             Right
             ,
             but
             that
             after
             his
             Assignation
             he
             had
             Removed
             and
             Dispossessed
             
               Margaret
               Nisbet
            
             ,
             and
             entered
             in
             the
             natural
             Possession
             ,
             and
             Labouring
             himself
             ,
             which
             is
             a
             Fact
             more
             palpable
             then
             the
             lifting
             of
             Duties
             from
             Tennents
             .
          
        
         
           
             Ianuary
             17.
             1671.
             
             Stair
             was
             Admitted
             President
             of
             the
             Session
             .
             Drummond
             of
             Rickartoun
             contra
             The
             Feuars
             of
             Bothkennel
             ,
             Eodem
             die
             .
          
           
             
               THomas
               Drummond
            
             of
             Rickartoun
             pursues
             a
             Poinding
             of
             the
             Ground
             against
             the
             Tennents
             of
             the
             Lands
             of
             Bothkennel
             wherein
             the
             Feuars
             alleadged
             no
             Process
             ,
             because
             the
             Pursuer
             being
             Pupil
             ,
             he
             is
             not
             sufficiently
             Authorized
             ,
             the
             Tutory
             produced
             being
             to
             his
             Mother
             and
             Uncle
             jointly
             ,
             and
             his
             Mother
             being
             dead
             ,
             his
             Uncle
             is
             no
             more
             Tutor
             ,
             the
             Tutory
             being
             granted
             to
             them
             ,
             and
             bearing
             expresly
             to
             them
             jointly
             .
             It
             was
             answered
             ,
             that
             in
             Tutories
             ,
             Curatories
             ,
             Executories
             ,
             the
             death
             of
             one
             Person
             doth
             not
             evacuate
             the
             Office
             ,
             but
             it
             accresces
             to
             the
             rest
             .
          
           
             The
             Lords
             found
             that
             in
             respect
             of
             the
             Tenor
             of
             the
             Tutory
             ,
             bearing
             to
             two
             conjunctim
             ,
             the
             death
             of
             one
             evacuats
             the
             Office
             ;
             Nevertheless
             they
             declared
             that
             they
             would
             give
             a
             Curator
             
               ad
               hanc
               litem
            
             ,
             to
             Authorize
             the
             Pupil
             ,
             but
             that
             none
             could
             uplift
             or
             discharge
             ,
             till
             there
             were
             a
             new
             Gift
             of
             Tutory
             .
          
        
         
           
             Mr.
             Robert
             Dickson
             contra
             Iames
             Graham
             ,
             Ianuary
             19.
             1671
          
           
             MAster
             
               Robert
               Dickson
            
             Advocat
             having
             granted
             Bond
             to
             
               James
               Graham
            
             ,
             for
             a
             Sum
             of
             Money
             furnished
             to
             his
             Brother
             upon
             an
             Accompt
             ,
             he
             raises
             Reduction
             of
             the
             Bond
             ,
             as
             to
             a
             part
             thereof
             ,
             upon
             fraud
             and
             circumvention
             ,
             
             alleadging
             that
             the
             true
             cause
             of
             the
             Bond
             was
             the
             causing
             answer
             his
             Brother
             Money
             ,
             and
             that
             he
             had
             made
             an
             agreement
             before
             the
             hand
             ,
             for
             so
             much
             the
             
               French
               Floren
            
             ;
             but
             his
             Brother
             having
             some
             Moneys
             answered
             in
             Vinnice
             ,
             without
             any
             agreement
             before
             the
             hand
             ;
             when
             the
             Parties
             came
             to
             Accompt
             ,
             
               Iames
               Graham
            
             being
             wholly
             Trusted
             by
             the
             Pursuer
             did
             give
             an
             Accompt
             ,
             and
             did
             Affirm
             to
             the
             Pursuer
             that
             the
             Rate
             of
             answering
             Money
             in
             Vinnice
             was
             at
             that
             time
             so
             much
             dearer
             then
             the
             same
             truly
             was
             ,
             if
             it
             had
             been
             only
             answered
             in
             France
             ,
             wherein
             he
             now
             understands
             he
             was
             deceived
             ,
             because
             it
             was
             equal
             or
             less
             value
             to
             furnish
             it
             in
             Vinnice
             then
             France
             ,
             and
             offered
             to
             prove
             the
             value
             of
             the
             Money
             by
             Witnesses
             ,
             and
             the
             rest
             by
             Oath
             .
             The
             Defender
             answered
             ,
             that
             it
             was
             lawful
             for
             him
             ,
             being
             a
             Merchant
             ,
             to
             take
             what
             value
             for
             the
             Floren
             he
             could
             agree
             ,
             and
             that
             it
             would
             be
             of
             evil
             consequence
             ,
             if
             Bonds
             upon
             Merchants
             Accounts
             were
             Reduceable
             ,
             and
             they
             held
             as
             Circumveeners
             ,
             if
             they
             had
             taken
             a
             greater
             Rate
             then
             the
             ordinar
             Rate
             at
             that
             time
             ,
             especially
             here
             the
             agreement
             of
             the
             Rate
             being
             with
             a
             prudent
             Party
             ,
             and
             a
             Lawyer
             .
             2dly
             ,
             The
             Pursuer
             had
             Homologat
             the
             Bond
             by
             paying
             a
             part
             of
             it
             ,
             and
             could
             not
             quarrel
             the
             rest
             .
          
           
             The
             Lords
             found
             the
             Reason
             of
             Circumvention
             Relevant
             ,
             in
             these
             terms
             ,
             that
             there
             being
             no
             agreement
             before
             the
             hand
             ,
             wherein
             the
             Merchant
             might
             take
             any
             Rate
             he
             could
             get
             ,
             but
             after
             the
             Money
             was
             furnished
             ,
             the
             Defender
             had
             fraudulently
             affirmed
             to
             the
             Pursuer
             ,
             that
             the
             furnishing
             of
             the
             Floren
             to
             Vinnice
             ,
             was
             more
             then
             the
             furnishing
             of
             it
             to
             France
             ,
             although
             he
             knew
             the
             contrare
             at
             that
             time
             ,
             but
             would
             not
             find
             the
             main
             error
             in
             that
             Article
             of
             the
             Rate
             to
             be
             Relevant
             ,
             and
             they
             Repelled
             the
             Homologation
             ,
             because
             the
             Pursuer
             might
             be
             deceived
             in
             one
             Article
             ,
             and
             not
             in
             the
             rest
             .
          
        
         
           
             Captain
             Ramsay
             contra
             William
             Henderson
             ,
             Ianuary
             20.
             1671.
             
          
           
             CAptain
             Ramsay
             as
             Assigney
             Constitute
             by
             
               Eupham
               Scot
            
             ,
             to
             a
             Sum
             of
             two
             thousand
             Merks
             ,
             Addebted
             by
             umquhile
             Mr.
             
               Charles
               Henderson
            
             pursues
             his
             Heir
             for
             payment
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             this
             Debt
             being
             due
             originally
             by
             Mr.
             
               Charles
               Henderson
            
             ,
             and
             by
             the
             said
             
               Eupham
               Scot
            
             ,
             who
             being
             vitious
             Intromissatrix
             with
             his
             Goods
             and
             Geir
             ,
             and
             having
             been
             Assigned
             to
             this
             Sum
             her self
             ,
             she
             became
             Creditrix
             ,
             as
             Assigney
             and
             Debitrix
             as
             vitious
             Intrometter
             ,
             
               &
               confusione
               tollitur
               obligatio
            
             ,
             and
             this
             Pursuer
             having
             Right
             from
             her
             ,
             can
             be
             in
             no
             better
             case
             then
             she
             .
             It
             was
             answered
             ,
             that
             vitious
             Intromission
             was
             not
             competent
             by
             way
             of
             Defense
             .
          
           
             The
             Lords
             found
             that
             whatever
             might
             be
             said
             ,
             if
             the
             vitious
             Intrometter
             had
             been
             pursuing
             whether
             the
             Defense
             might
             have
             been
             competent
             ,
             yet
             found
             it
             not
             competent
             against
             the
             Assigney
             ,
             seing
             the
             Cedent
             was
             not
             
               in
               campo
            
             ,
             and
             Probation
             behoved
             to
             be
             used
             against
             her
             .
          
        
         
           
             Sandilands
             contra
             Sandilands
             ,
             Ianuary
             25.
             1671.
             
          
           
             THe
             Children
             of
             
               Alexander
               Sandilands
            
             pursue
             
               Agnes
               Sandilands
            
             their
             Mother
             ,
             for
             Compt
             and
             payment
             of
             their
             Fathers
             Means
             ,
             the
             Tutory
             being
             now
             finished
             by
             her
             Marriage
             ;
             In
             which
             Accompt
             the
             Mother
             gave
             up
             in
             defalcation
             the
             third
             of
             all
             moveable
             Sums
             ,
             as
             Ships
             ,
             Merchant
             Goods
             ,
             Houshold
             Plinishing
             ,
             &c.
             
             It
             was
             answered
             for
             the
             Children
             ,
             that
             she
             can
             have
             no
             part
             of
             the
             moveable
             Sums
             ,
             or
             moveable
             Goods
             ,
             because
             by
             the
             contract
             of
             Marriage
             produced
             ,
             she
             is
             provided
             to
             the
             Annualrent
             of
             
             5000.
             
             Merks
             which
             was
             her
             own
             Tocher
             ,
             and
             ten
             thousand
             Pounds
             more
             of
             her
             Husbands
             ,
             which
             is
             her
             Husbands
             ,
             and
             was
             the
             whole
             Fortune
             he
             then
             had
             ;
             and
             as
             to
             the
             Conquest
             ,
             it
             is
             provided
             that
             all
             Sums
             of
             Money
             ,
             Lands
             ,
             Annualrents
             ,
             Tacks
             and
             others
             whatsomever
             Conquest
             during
             the
             Marriage
             ,
             shall
             be
             taken
             to
             the
             Husband
             in
             Liferent
             ,
             and
             to
             the
             Bairns
             in
             Fee
             ;
             and
             because
             the
             Wife
             is
             provided
             to
             be
             a
             Bairn
             in
             her
             Fathers
             House
             ,
             what
             shall
             come
             that
             way
             is
             provided
             to
             be
             taken
             to
             the
             Husband
             and
             Wife
             ,
             the
             longest
             Liver
             of
             them
             two
             ,
             and
             the
             Bairns
             of
             the
             Marriage
             ,
             so
             that
             all
             the
             Sums
             ,
             and
             Moveables
             in
             question
             ,
             being
             Conquest
             during
             the
             Marriage
             ,
             they
             are
             by
             the
             Contract
             destinate
             to
             the
             Husband
             in
             Liferent
             ,
             and
             the
             Bairns
             in
             Fee
             ,
             and
             which
             Provision
             is
             a
             Debt
             upon
             the
             Husband
             ,
             his
             Heirs
             and
             Executors
             ,
             so
             that
             the
             Wife
             can
             have
             no
             third
             thereof
             .
             The
             Defender
             answered
             ,
             First
             ,
             That
             her
             Right
             of
             the
             third
             of
             the
             Moveables
             being
             Constitute
             by
             the
             Law
             ,
             cannot
             be
             taken
             away
             ,
             but
             by
             an
             expresse
             clear
             Deed
             Renuncing
             the
             same
             ,
             or
             accepting
             such
             Provisions
             in
             satisfaction
             thereof
             ,
             which
             being
             a
             Clause
             now
             ordinarly
             adjected
             in
             Contracts
             ,
             and
             not
             put
             in
             this
             Contract
             ,
             albeit
             in
             the
             same
             the
             Wifes
             Tocher
             bears
             in
             full
             satisfaction
             ,
             the
             Clause
             can
             never
             be
             so
             interpret
             as
             to
             exclude
             her
             third
             ,
             especially
             a
             Contract
             of
             Marriage
             being
             so
             favourable
             ,
             that
             words
             are
             always
             understood●
             therein
             according
             to
             the
             meaning
             of
             Parties
             ,
             and
             here
             the
             meaning
             of
             the
             Parties
             may
             be
             cleared
             ,
             by
             this
             ,
             that
             the
             Defunct
             who
             was
             a
             very
             intelligent
             Man
             ,
             did
             declare
             that
             he
             would
             leave
             to
             his
             Wife
             so
             much
             of
             his
             Moveables
             in
             full
             satisfaction
             of
             her
             third
             ,
             so
             that
             he
             thought
             she
             was
             not
             excluded
             ,
             and
             if
             need
             beis
             the
             Parties
             alive
             ,
             Writters
             and
             Witnesses
             in
             the
             Contract
             may
             be
             yet
             Examined
             to
             clear
             the
             meaning
             of
             the
             Clause
             .
             2dly
             ,
             Albeit
             the
             Clause
             could
             not
             exclude
             her
             from
             a
             third
             of
             Money
             ,
             which
             is
             expresse
             therein
             ,
             yet
             not
             from
             a
             third
             of
             Moveable
             Goods
             and
             Geir
             ,
             which
             is
             not
             exprest
             ,
             and
             albeit
             the
             Clause
             bears
             ,
             (
             and
             others
             )
             it
             can
             only
             be
             understood
             of
             Rights
             due
             by
             a
             stated
             Security
             ,
             and
             the
             intent
             of
             the
             Clause
             has
             only
             been
             to
             substitute
             the
             Bairns
             of
             this
             Marriage
             ,
             Heirs
             of
             the
             Conquest
             ,
             and
             to
             exclude
             the
             Bairns
             of
             any
             other
             Marriage
             ,
             but
             did
             neither
             exclude
             the
             Father
             ,
             but
             that
             he
             might
             dispone
             on
             his
             Moveables
             ,
             albeit
             the
             Clause
             expresseth
             him
             but
             Liferenter
             thereof
             ;
             neither
             does
             it
             exclude
             the
             Mother
             from
             the
             third
             thereof
             :
             And
             there
             was
             adduced
             a
             Decision
             in
             the
             Case
             of
             the
             Lady
             Oxenfoord
             ,
             wherein
             ,
             albeit
             by
             her
             Contract
             of
             Marriage
             she
             accepted
             certain
             Lands
             in
             full
             satisfaction
             of
             her
             Terce
             ,
             and
             third
             of
             all
             Lands
             ,
             Annualrents
             and
             others
             ,
             yet
             that
             was
             not
             found
             to
             exclude
             her
             from
             a
             third
             of
             Moveables
             ,
             but
             only
             from
             a
             Terce
             ,
             or
             third
             of
             Heretable
             Rights
             .
             It
             was
             answered
             for
             the
             Children
             ,
             that
             their
             Mother
             having
             consented
             by
             the
             Contract
             of
             Marriage
             ,
             that
             all
             Conquest
             during
             the
             Marriage
             should
             be
             provided
             to
             their
             Father
             in
             Liferent
             ,
             and
             to
             them
             in
             Fee
             ,
             she
             had
             excluded
             her self
             as
             clearly
             ,
             and
             effectually
             ,
             as
             if
             she
             had
             Renunced
             her
             third
             thereof
             ,
             or
             accepted
             of
             her
             Jointer
             in
             full
             satisfaction
             ;
             neither
             is
             there
             a
             necessity
             that
             these
             words
             must
             always
             be
             used
             ,
             nor
             is
             this
             alleadged
             as
             a
             consequential
             Renunciation
             ,
             but
             as
             an
             expresse
             Obligation
             ,
             or
             Destination
             of
             the
             Husband
             consented
             to
             by
             the
             Wife
             ,
             which
             must
             have
             its
             native
             effect
             ,
             and
             so
             the
             Children
             must
             be
             Feears
             of
             the
             whole
             Conquest
             ,
             and
             therefore
             the
             Wife
             cannot
             be
             Feear
             of
             a
             third
             of
             it
             ,
             and
             albeit
             moveable
             Geir
             be
             not
             exprest
             ,
             the
             generality
             (
             others
             )
             must
             necessarily
             comprehend
             them
             ,
             being
             of
             the
             same
             nature
             with
             Sums
             which
             are
             exprest
             ,
             and
             may
             be
             Moveable
             ,
             and
             of
             less
             importance
             then
             they
             ,
             and
             the
             case
             wholly
             differs
             from
             that
             of
             the
             Lady
             Oxenfoord
             ,
             wherein
             nothing
             but
             Heretable
             Rights
             are
             exprest
             ,
             and
             it
             is
             an
             unaccustomed
             Clause
             amongst
             Persons
             of
             that
             quality
             to
             exclude
             Ladies
             from
             a
             third
             of
             Moveables
             ;
             
             but
             here
             Sums
             are
             exprest
             ,
             and
             it
             is
             most
             ordinar
             for
             Merchants
             to
             exclude
             their
             Wives
             from
             their
             Merchant
             Goods
             ,
             which
             is
             the
             greatest
             part
             of
             their
             Estate
             ,
             as
             to
             the
             meaning
             of
             the
             Parties
             ,
             clear
             Clauses
             cannot
             be
             enervat
             upon
             that
             ground
             ,
             and
             as
             for
             any
             thing
             exprest
             by
             the
             Husband
             ,
             It
             was
             on
             Death-bed
             in
             a
             great
             Fever
             whereof
             he
             Died
             ,
             and
             no
             Testament
             followed
             .
          
           
             The
             Lords
             found
             that
             the
             foresaid
             Clause
             in
             the
             Contract
             did
             exclude
             the
             Relict
             from
             a
             Terce
             of
             Moveable
             Sums
             ,
             or
             Moveable
             Goods
             during
             the
             Marriage
             ,
             which
             could
             be
             understood
             ,
             to
             be
             meaned
             to
             be
             put
             upon
             Security
             at
             any
             time
             ,
             but
             that
             it
             did
             not
             exclude
             her
             from
             a
             third
             of
             the
             Houshold
             Plenishing
             .
          
        
         
           
             Charles
             Casse
             contra
             Sir
             Robert
             Cunningham
             ,
             Ianuary
             26.
             1671.
             
          
           
             
               CHarles
               Casse
            
             having
             Sold
             to
             Sir
             
               Robert
               Cunningham
            
             his
             Right
             to
             the
             Lands
             of
             Achinhervy
             in
             his
             Minority
             ,
             pursues
             a
             Reduction
             of
             the
             same
             Disposition
             upon
             Lesion
             ,
             and
             condescends
             upon
             his
             Lesion
             ,
             thus
             ,
             that
             being
             Infeft
             for
             security
             of
             fourty
             thousand
             Merks
             ,
             and
             in
             an
             Annualrent
             effeirrand
             thereto
             ,
             whereof
             there
             were
             many
             bygone
             years
             Annualrent
             resting
             ,
             and
             yet
             he
             got
             only
             fourty
             thousand
             Merks
             for
             all
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuer
             was
             satisfied
             of
             all
             his
             bygone
             Annualrents
             ,
             in
             so
             far
             as
             he
             having
             Apprized
             for
             five
             years
             Annualrents
             preceeding
             the
             Apprizing
             ,
             which
             was
             in
             Anno
             1655.
             he
             had
             entered
             in
             Possession
             by
             vertue
             of
             the
             said
             Apprizing
             of
             the
             whole
             Lands
             of
             Achinhervie
             ,
             and
             so
             is
             Comptable
             therefore
             according
             to
             the
             Rental
             ,
             untill
             he
             cease
             to
             Possesse
             the
             same
             ,
             which
             will
             fully
             satisfie
             all
             his
             bygones
             ,
             so
             that
             he
             will
             have
             no
             Lesion
             2dly
             ,
             He
             had
             not
             only
             in
             his
             Person
             the
             said
             Apprizing
             ,
             but
             the
             Infeftment
             of
             Annualrent
             ,
             upon
             which
             he
             being
             preferred
             in
             a
             double
             Poinding
             ,
             and
             excluding
             other
             Parties
             having
             also
             real
             Rights
             ,
             he
             is
             thereby
             obliged
             to
             do
             Diligence
             ,
             and
             be
             Comptable
             not
             only
             for
             what
             he
             intrometted
             with
             ,
             but
             for
             what
             he
             ought
             to
             have
             intrometted
             with
             .
             The
             Pursuer
             answered
             ,
             that
             he
             was
             content
             to
             Compt
             for
             what
             he
             had
             Intrometted
             with
             ,
             but
             upon
             neither
             ground
             was
             he
             obliged
             to
             Compt
             for
             any
             further
             ,
             especially
             as
             to
             his
             Apprizing
             ,
             albeit
             Law
             and
             Custom
             had
             oblidged
             him
             to
             Compt
             for
             the
             whole
             Rental
             ,
             till
             the
             Apprizing
             were
             satisfied
             ,
             yet
             he
             could
             not
             be
             Comptable
             but
             for
             his
             Intromission
             after
             he
             was
             satisfied●
             for
             then
             he
             had
             no
             title
             in
             his
             Person
             ,
             and
             it
             is
             clear
             that
             any
             Intrometter
             without
             a
             title
             is
             only
             lyable
             for
             his
             Intromission
             ,
             and
             all
             Parties
             having
             Interest
             might
             have
             hindred
             him
             to
             have
             Intrometted
             after
             he
             was
             satisfied
             ;
             and
             albeit
             a
             Tennent
             or
             Factor
             ,
             after
             the
             expiring
             of
             the
             Tack
             ,
             or
             Factory
             may
             be
             Comptable
             for
             a
             full
             Rental
             ,
             yet
             that
             is
             because
             they
             have
             a
             title
             
               per
               tacitam
               relocationem
            
             ,
             or
             
               tacitam
               commissionem
            
             ;
             but
             after
             the
             extinction
             of
             the
             Apprizing
             then
             no
             title
             remains
             ,
             and
             neither
             is
             he
             lyable
             as
             an
             Annualrenter
             ,
             even
             though
             he
             did
             exclude
             others
             to
             do
             any
             Diligence
             ,
             because
             all
             the
             effect
             of
             an
             Annualrent
             can
             only
             be
             to
             distresse
             the
             Ground
             ,
             or
             Poind
             the
             Tennents
             for
             as
             much
             of
             their
             Rent
             as
             is
             equivalent
             to
             the
             current
             Annualrents
             ,
             after
             which
             any
             other
             Party
             having
             Right
             may
             li●t
             the
             superplus
             ,
             and
             in
             this
             case
             the
             Annualrenter
             hath
             not
             been
             preferred
             as
             to
             any
             bygone
             Rents
             ,
             but
             only
             in
             timecoming
             ,
             and
             for
             his
             current
             Annualrents
             ,
             and
             the
             bygones
             are
             appointed
             to
             be
             brought
             in
             Accompt
             ,
             which
             was
             never
             determined
             .
             The
             Defender
             answered
             ,
             that
             it
             were
             against
             all
             Reason
             that
             an
             Apprizer
             after
             he
             is
             satisfied
             ,
             should
             be
             in
             better
             condition
             
             then
             before
             he
             is
             satisfied
             ,
             and
             so
             as
             long
             as
             he
             meddles
             ,
             he
             must
             Compt
             by
             the
             Rental
             ,
             and
             it
             is
             his
             proper
             part
             ,
             who
             knows
             when
             he
             is
             satisfied
             ,
             to
             relinquish
             the
             Possession
             ,
             which
             other
             Parties
             cannot
             know
             ,
             till
             by
             a
             long
             Process
             of
             Compt
             and
             Reckoning
             it
             be
             determined
             ,
             and
             it
             were
             most
             absurd
             that
             in
             the
             mean
             time
             he
             should
             continue
             in
             Possession
             ,
             and
             though
             the
             Rents
             did
             in
             a
             great
             part
             perish
             ,
             he
             should
             not
             be
             Comptable
             therefore
             ,
             but
             only
             for
             what
             he
             actually
             lifted
             .
          
           
             The
             Lords
             found
             the
             Pursuer
             as
             Apprizer
             Comptable
             according
             to
             the
             Rental
             ,
             not
             only
             for
             Intromission
             ,
             but
             Omission
             ,
             both
             till
             the
             Apprizing
             be
             satisfied
             ,
             and
             thereafter
             for
             all
             years
             of
             which
             he
             lifted
             any
             part
             ,
             but
             found
             not
             the
             Annualrenter
             lyable
             for
             Diligence
             ,
             albeit
             he
             did
             exclude
             others
             ,
             but
             the
             Case
             came
             not
             to
             be
             Determined
             if
             the
             Annualrenter
             had
             by
             a
             Personal
             Action
             insisted
             for
             more
             years
             Annualrent
             past
             ,
             to
             be
             preferred
             to
             the
             whole
             Rents
             ,
             till
             these
             bygones
             were
             satisfied
             ,
             that
             not
             being
             the
             case
             here
             in
             question
             .
          
           
             In
             this
             Cause
             it
             had
             been
             formerly
             alleadged
             that
             the
             Pursuer
             after
             his
             Majority
             ,
             had
             Received
             a
             part
             of
             the
             price
             of
             the
             Lands
             ,
             in
             so
             far
             as
             having
             in
             his
             Minority
             granted
             a
             Commission
             to
             Mr.
             
               Iohn
               Smith
            
             ,
             one
             of
             his
             Curators
             ,
             to
             uplift
             all
             Sums
             due
             to
             him
             ,
             and
             he
             having
             uplifted
             a
             part
             of
             the
             price
             of
             the
             Land
             from
             the
             Defender
             ,
             and
             bonds
             for
             the
             rest
             ;
             the
             Pursuer
             after
             his
             Majority
             ,
             had
             by
             his
             Discharge
             produced
             ,
             Received
             from
             his
             Curator
             and
             Factor
             the
             said
             Money
             and
             Bonds
             ,
             and
             Discharged
             him
             thereof
             ,
             and
             acknowledged
             that
             he
             and
             the
             remainent
             Curators
             had
             acted
             faithfully
             in
             all
             their
             Intromissions
             ,
             whereby
             the
             Pursuer
             hath
             approven
             ,
             and
             Homologat
             the
             Disposition
             of
             the
             Land
             ,
             made
             by
             him
             and
             his
             Curators
             ,
             which
             he
             now
             quarrels
             .
             The
             Pursuer
             answered
             ,
             First
             ,
             That
             the
             Defense
             is
             not
             Relevant
             ,
             for
             Homologation
             being
             a
             presumed
             or
             conjectured
             Consent
             ,
             not
             by
             Word
             or
             Writ
             ,
             but
             by
             Deeds
             done
             ,
             which
             import
             the
             adhering
             to
             the
             Disposition
             quarrelled
             ,
             it
             cannot
             be
             inferred
             by
             any
             Deeds
             ,
             but
             such
             as
             can
             have
             no
             other
             intent
             or
             purpose
             consistent
             with
             the
             Rejecting
             ,
             or
             disapproving
             the
             Disposition
             ,
             but
             here
             the
             Receiving
             of
             the
             Money
             and
             Bonds
             from
             the
             Factor
             hath
             a
             consistency
             and
             congruity
             with
             this
             Reduction
             ,
             for
             the
             Pursuer
             knowing
             that
             he
             could
             not
             be
             restored
             against
             his
             Disposition
             ,
             unless
             he
             did
             restore
             what
             was
             Received
             by
             his
             Warrand
             ,
             might
             justly
             take
             up
             the
             same
             from
             his
             Factor
             ,
             that
             he
             might
             be
             in
             capacity
             to
             Consign
             the
             same
             at
             the
             Bar
             ,
             as
             if
             a
             Minor
             having
             Bought
             Lands
             to
             his
             Lesion
             ,
             and
             having
             Wodset
             a
             part
             of
             the
             same
             ,
             he
             might
             after
             his
             Majority
             Redeem
             the
             Lands
             Wodset
             by
             himself
             ,
             which
             although
             it
             behoved
             to
             proceed
             upon
             the
             Disposition
             as
             his
             Title
             ,
             yet
             it
             being
             a
             Deed
             necessar
             to
             purge
             the
             Wodset
             ,
             and
             repone
             the
             Disponer
             to
             his
             own
             Land
             free
             thereof
             ,
             it
             would
             never
             importan
             Homologation
             ,
             or
             if
             he
             had
             in
             his
             Minority
             excambed
             Lands
             ,
             and
             Wodset
             a
             part
             of
             the
             Lands
             he
             acquired
             thereby
             ,
             the
             Redeeming
             or
             purging
             of
             the
             Wodset
             after
             his
             Majority
             would
             import
             no
             Homologation
             ,
             so
             neither
             can
             any
             Deed
             import
             Homologation
             ,
             which
             upon
             any
             account
             can
             be
             consistent
             with
             the
             annulling
             of
             the
             Right
             quarrelled
             upon
             Minority
             .
             2dly
             ,
             This
             Dicharge
             does
             bear
             expresly
             relation
             to
             Mr.
             
               Iohn
               Smiths
            
             Accompt
             of
             Intromission
             Subscribed
             at
             the
             same
             time
             ,
             and
             bears
             that
             the
             Discharge
             should
             be
             alse
             sufficient
             as
             if
             the
             Accompt
             were
             insert
             ,
             
               Ita
               est
            
             in
             the
             Charge
             of
             the
             Accompt
             ,
             wherein
             only
             mention
             is
             made
             of
             the
             Sums
             payed
             by
             the
             Defender
             ,
             there
             is
             an
             express
             Reservation
             ,
             that
             the
             Accompt
             shall
             be
             but
             prejudice
             to
             the
             Pursuer
             to
             insist
             in
             his
             Reduction
             of
             the
             Disposition
             ,
             And
             as
             to
             that
             Clause
             in
             the
             Discharge
             ,
             that
             the
             Curators
             and
             Factor
             had
             done
             faithfully
             ▪
             It
             relates
             only
             to
             their
             Intromission
             ,
             and
             not
             to
             their
             Omission
             ,
             and
             albeit
             it
             
             had
             born
             simply
             ,
             that
             they
             had
             acted
             faithfully
             ,
             that
             can
             only
             import
             that
             they
             had
             not
             acted
             Fraudulently
             ,
             and
             that
             they
             had
             done
             for
             the
             Minor
             what
             they
             conceived
             best
             :
             but
             does
             not
             import
             that
             they
             had
             acted
             providently
             and
             skilfully
             ,
             so
             that
             the
             Minor
             may
             still
             Reduce
             their
             Deed.
             The
             Defender
             answered
             ,
             that
             his
             Defence
             was
             most
             Relevant
             ,
             being
             founded
             upon
             the
             Pursuers
             consent
             ,
             after
             his
             Majority
             :
             for
             consent
             may
             be
             Adhibite
             ,
             not
             only
             by
             Word
             or
             Writ
             ,
             but
             by
             any
             Deed
             importing
             the
             consent
             ,
             as
             if
             a
             Minor
             giving
             a
             Bond
             in
             his
             Minority
             ,
             should
             pay
             a
             Terms
             Annualrent
             thereof
             after
             his
             Majority
             :
             Or
             if
             a
             Minor
             intrometting
             with
             his
             Fathers
             moveable
             Heirship
             ,
             or
             Rents
             of
             his
             Lands
             in
             his
             Minority
             ,
             should
             continue
             to
             intromet
             for
             one
             Term
             ,
             or
             one
             Point
             further
             after
             his
             Majority
             ,
             in
             neither
             case
             would
             he
             be
             restored
             ▪
             and
             yet
             such
             Deeds
             might
             be
             consistent
             ,
             and
             might
             be
             done
             to
             other
             intents
             ,
             as
             if
             his
             payment
             of
             the
             Annualrent
             did
             bear
             ,
             le●t
             before
             his
             Reduction
             he
             might
             be
             Distressed
             ,
             or
             that
             he
             continued
             his
             Possession
             ,
             lest
             the
             Rents
             or
             Goods
             might
             perish
             to
             the
             dammage
             of
             his
             party
             :
             Yea
             ,
             though
             these
             were
             expresly
             mentioned
             in
             his
             Discharge
             ;
             and
             his
             Reduction
             were
             reserved
             ,
             it
             would
             be
             
               protestatio
               contraria
               facto
            
             ,
             and
             would
             not
             free
             him
             :
             so
             neither
             can
             the
             Reservation
             in
             this
             accompt
             ,
             though
             it
             were
             repeated
             in
             the
             Discharge
             ,
             be
             sufficient
             ;
             especially
             seing
             he
             might
             have
             caused
             the
             Factor
             Consign
             the
             Money
             in
             the
             Clerks
             hands
             ,
             that
             it
             might
             be
             restored
             at
             the
             Discussing
             of
             the
             Reduction
             :
             So
             that
             inconsistent
             Reservations
             or
             Protestations
             ,
             operate
             nothing
             .
             3dly
             ,
             The
             charge
             of
             this
             Accompt
             ,
             wherein
             only
             the
             Reservation
             is
             mentioned
             ,
             is
             a
             louse
             sheet
             of
             Paper
             ,
             subscribed
             with
             another
             Hand
             than
             the
             Discharge
             ,
             and
             has
             neither
             Date
             nor
             Witnesses
             ,
             and
             so
             cannot
             instruct
             that
             this
             is
             the
             very
             Accompt
             mentioned
             in
             the
             Discharge
             .
          
           
             The
             Lords
             did
             not
             determine
             the
             Point
             of
             Homologation
             ,
             but
             before
             answer
             ordained
             the
             Curators
             and
             Witnesses
             in
             the
             Accompt
             to
             be
             Examined
             upon
             Oath
             ,
             whether
             the
             Charge
             produced
             be
             the
             same
             that
             was
             subscribed
             ,
             abinitio
             ,
             bearing
             the
             said
             Reservation
             ,
             But
             they
             inclined
             that
             the
             Reservation
             would
             take
             off
             the
             Homologation
             ,
             and
             would
             not
             be
             void
             ,
             as
             contraria
             facto
             .
          
        
         
           
             Keir
             contra
             Nicolson
             .
             Ianuary
             28.
             1671.
             
          
           
             
               JOhn
               Keir
            
             as
             Assigney
             by
             the
             Earl
             of
             Mar
             to
             some
             Feu-duties
             ,
             pursues
             a
             Poinding
             of
             the
             Ground
             against
             Nicolson
             of
             Tillicutrie
             ,
             who
             alleadged
             no
             Process
             ,
             because
             the
             Earl
             of
             Mar
             his
             Cedent
             ,
             had
             no
             right
             to
             thir
             Feu-duties
             ,
             which
             were
             due
             in
             his
             Fathers
             Lifetime
             ,
             whose
             Liferent
             was
             reserved
             ●whereupon
             compearance
             was
             made
             for
             
             Scotscraig's
             Heir
             ,
             who
             was
             Donator
             to
             the
             old
             Earl
             of
             
             Mar's
             Escheat
             and
             Liferent
             ,
             and
             concurred
             .
             The
             Defender
             answered
             ,
             that
             the
             concourse
             could
             not
             be
             effectual
             ,
             because
             their
             bygone
             Feu-duties
             being
             moveable
             ,
             belonged
             to
             Scotscraigs
             Executor
             ,
             and
             not
             to
             his
             Heir
             :
             and
             though
             the
             Concurrer
             was
             both
             Heir
             and
             Executor
             ,
             yet
             thir
             bygones
             belonging
             to
             Scotscraig
             as
             Donator
             ,
             being
             for
             years
             wherein
             Scotscraig
             lived
             ,
             they
             are
             moveable
             ,
             and
             ought
             to
             have
             been
             contained
             in
             the
             Inventar
             of
             his
             Testament
             ,
             as
             they
             are
             not
             .
             It
             was
             answered
             ,
             that
             a
             Liferent-Escheat
             having
             
               tractum
               futuri
               temporis
            
             ,
             belongs
             not
             to
             the
             Executor
             ,
             even
             as
             to
             the
             bygones
             ,
             before
             the
             Donators
             Death
             ,
             unless
             they
             had
             been
             liquide
             and
             established
             in
             his
             Life
             ;
             but
             the
             Gift
             and
             all
             following
             thereon
             belongs
             to
             his
             Heir
             .
          
           
           
             The
             Lords
             found
             that
             the
             bygones
             of
             the
             Liferent
             preceeding
             the
             Donators
             Death
             ,
             did
             belong
             to
             his
             Executor
             ,
             albeit
             in
             his
             Life
             he
             had
             obtained
             no
             sentence
             therefore
             .
          
        
         
           
             Dowglas
             of
             Kelhead
             contra
             The
             Vassals
             of
             the
             Barony
             of
             Kelhead
             and
             others
             .
             Ianuary
             30.
             1671.
             
          
           
             THe
             Earl
             of
             Queensberry
             being
             Superiour
             to
             certain
             Vassals
             of
             the
             Barony
             of
             Kelhead
             ,
             who
             did
             Dispone
             the
             Feu
             Duties
             and
             whole
             Casualities
             of
             the
             Superiority
             to
             Kelhead
             his
             Brother
             ,
             to
             the
             effect
             that
             Kelhead
             might
             be
             his
             immediat
             Vassal
             ,
             and
             that
             the
             Feuars
             might
             hold
             of
             Kelhead
             ,
             whereupon
             Kelhead
             was
             Infeft
             ,
             holding
             of
             Queensberry
             ,
             and
             thereupon
             pursues
             a
             Declarator
             of
             Non-entry
             ,
             both
             generally
             and
             specially
             in
             the
             said
             Summons
             .
             It
             was
             alleadged
             for
             the
             Defenders
             absolvitor
             ,
             because
             they
             were
             not
             the
             Pursuers
             Vassals
             ,
             for
             albeit
             he
             was
             Infeft
             holding
             of
             Queensberry
             ,
             to
             the
             effect
             he
             might
             become
             their
             Superiour
             ,
             yet
             that
             Infeftment
             was
             null
             ,
             because
             no
             Superiour
             could
             interpose
             any
             Person
             betwixt
             him
             and
             his
             immediate
             Vassals
             :
             Likeas
             the
             Non-entry
             could
             only
             infer
             the
             Feu
             Duty
             till
             Decreet
             or
             Declarator
             were
             pronunced
             ,
             which
             used
             to
             be
             
               per
               se
            
             ,
             but
             here
             both
             special
             and
             general
             Declarator
             being
             joynt
             ,
             could
             only
             conclude
             the
             Feu
             Duties
             for
             bygones
             till
             Litiscontestation
             .
          
           
             The
             Lords
             found
             that
             albeit
             the
             Pursuers
             Title
             upon
             his
             Infeftment
             ,
             by
             which
             he
             was
             interposed
             ,
             was
             invalide
             ;
             yet
             seing
             it
             contained
             a
             Disposition
             and
             Assignation
             to
             the
             Feu
             Duties
             ,
             and
             Casualities
             of
             the
             Superiority
             ,
             that
             the
             Pursuer
             had
             sufficient
             Title
             thereby
             ,
             as
             Donator
             by
             Queensberry
             the
             Superiour
             ,
             and
             found
             that
             the
             Non-entry
             carryed
             only
             the
             Feu
             Duty
             before
             the
             Citation
             ,
             but
             after
             the
             Citation
             ,
             the
             whole
             Profites
             ,
             seing
             the
             Vassals
             did
             not
             upon
             the
             Citation
             ,
             obtain
             themselves
             Infeft
             by
             Queensberry
             .
          
        
         
           
             Laird
             of
             Milntoun
             contra
             Lady
             Milntoun
             .
             Ianuary
             31.
             1671.
             
          
           
             
               JOhn
               Maxwel
            
             younger
             of
             Calderwood
             having
             Married
             the
             Lady
             Miltoun
             Sir
             
               Iohn
               Whitefoord
            
             of
             Milntoun
             her
             Stepson
             Acquired
             from
             him
             his
             Right
             to
             her
             Joynture
             of
             Milntoun
             ,
             as
             her
             H●sband
             
               jure
               mariti
            
             ,
             thereafter
             
               Iohn
               Maxwel
            
             having
             gone
             out
             of
             the
             Countrey
             ,
             the
             Lady
             pursues
             a
             Divorce
             against
             him
             ,
             upon
             Adultery
             committed
             with
             
               Margaret
               Davidson
            
             ,
             in
             which
             Process
             ▪
             Milntoun
             as
             having
             interest
             in
             the
             Joynture
             ,
             which
             would
             return
             to
             the
             Lady
             from
             him
             upon
             the
             Divorce
             ,
             craves
             to
             be
             admitted
             in
             the
             Process
             ,
             but
             was
             not
             admitted
             ,
             so
             the
             Process
             proceeded
             ,
             and
             the
             Decreet
             of
             Divorce
             pronunced
             :
             whereupon
             Milntoun
             raises
             Reduction
             of
             the
             Commissars
             Decreet
             upon
             iniquity
             ,
             because
             he
             was
             unjustly
             excluded
             from
             Defending
             ,
             and
             if
             he
             had
             been
             admitted
             ,
             he
             would
             have
             proponed
             pertinent
             Interrogators
             to
             the
             Witnesses
             which
             were
             omitted
             ,
             and
             would
             have
             proponed
             Objections
             against
             their
             Hability
             ,
             which
             would
             have
             excluded
             them
             from
             being
             Witnesses
             .
          
           
             In
             this
             Process
             the
             Lords
             Ordained
             the
             Witnesses
             to
             be
             Re-examined
             upon
             all
             such
             pertinent
             Interrogators
             as
             Miltoun
             should
             propose
             ,
             and
             they
             being
             Re-examined
             ,
             did
             acknowledge
             that
             the
             Lady
             prompted
             them
             how
             to
             Depone
             ,
             as
             to
             their
             knowledge
             of
             
               Margaret
               Davidson
            
             ,
             and
             gave
             them
             Tokens
             
             of
             her
             by
             her
             Cloaths
             and
             Stature
             ,
             and
             that
             she
             promised
             them
             a
             good
             Deed
             to
             Depone
             .
          
           
             In
             which
             Process
             the
             Lords
             found
             that
             the
             Witnesses
             upon
             Re-examination
             ,
             after
             Sentence
             ,
             could
             not
             by
             their
             posterior
             Deposition
             ,
             Derogat
             from
             the
             first
             Deposition
             ,
             and
             therefore
             Assoilzied
             from
             the
             Reduction
             ,
             reserving
             and
             allowing
             to
             Milntoun
             his
             Action
             of
             Reprobator
             ,
             wherein
             he
             now
             insists
             on
             these
             Grounds
             ,
             First
             ,
             That
             the
             Witnesses
             ,
             Paterson
             and
             Clerk
             who
             only
             proved
             ,
             were
             
               viles
               personae
            
             ,
             having
             no
             means
             worth
             the
             Kings
             Unlaw
             .
             2dly
             ,
             That
             they
             were
             Persons
             infamous
             ,
             and
             of
             very
             evil
             Repute
             ,
             and
             in
             their
             Examination
             before
             ,
             they
             had
             prevaricat
             and
             contradicted
             themselves
             .
             3dly
             ,
             That
             the
             Lady
             had
             Suborned
             and
             Corrupted
             the
             Witnesses
             ,
             by
             Prompting
             and
             Instructing
             them
             how
             to
             Depone
             .
             4thly
             ,
             That
             she
             had
             Corrupted
             the
             Witnesses
             before
             their
             Testimonies
             before
             the
             Commissars
             ,
             by
             giving
             some
             of
             them
             twenty
             Dollers
             to
             bear
             Witness
             ,
             which
             is
             far
             above
             their
             ordinar
             allowance
             of
             Witnesses
             for
             their
             Charges
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             First
             ,
             no
             Objection
             was
             now
             competent
             against
             the
             Hability
             or
             Sufficiency
             of
             the
             Witnesses
             ,
             because
             Objections
             were
             given
             in
             against
             them
             by
             the
             Pursuer
             ,
             and
             they
             have
             Deponed
             thereanent
             ,
             so
             that
             albeit
             Reprobators
             be
             competent
             ,
             where
             the
             Pursuer
             cannot
             instantly
             verifie
             his
             Objections
             against
             the
             Witnesses
             ,
             and
             protests
             for
             Reprobator
             ;
             yet
             if
             either
             he
             forbear
             to
             protest
             ,
             or
             refer
             his
             Objections
             to
             the
             Witnesses
             Oaths
             ,
             he
             can
             never
             be
             heard
             by
             way
             of
             Reprobator
             against
             them
             :
             And
             here
             this
             Pursuer
             neither
             Protested
             for
             Reprobators
             at
             the
             first
             ,
             nor
             at
             the
             Re-examination
             ,
             but
             upon
             his
             own
             desire
             ,
             they
             were
             purged
             ,
             and
             did
             Depone
             anent
             these
             Objections
             .
             2dly
             ,
             Having
             made
             use
             of
             the
             Witnesses
             upon
             the
             said
             Interrogators
             ,
             he
             has
             approven
             them
             ,
             and
             cannot
             quarrel
             their
             Testimonies
             .
             And
             as
             to
             the
             particular
             Objection
             of
             their
             poverty
             ,
             they
             have
             already
             Deponed
             that
             they
             are
             worth
             the
             Kings
             Unlaw
             ,
             and
             it
             being
             a
             Negative
             ,
             which
             is
             not
             presumed
             that
             persons
             are
             so
             poor
             ,
             it
             cannot
             be
             proven
             by
             Witnesses
             ,
             and
             though
             it
             could
             ,
             and
             were
             a
             sufficient
             Objection
             ordinarly
             ,
             yet
             in
             a
             Crime
             of
             this
             Nature
             ,
             which
             is
             so
             Clandestine
             ,
             Objections
             of
             Poverty
             would
             not
             be
             sufficient
             ,
             and
             as
             to
             that
             Member
             of
             the
             Reprobator
             ,
             that
             they
             are
             persons
             of
             evil
             Fame
             ,
             it
             is
             not
             Relevant
             ,
             unless
             they
             were
             infamous
             ,
             
               infamia
               juris
            
             ,
             either
             by
             such
             Deeds
             ,
             as
             the
             Law
             Declares
             to
             infer
             Infamy
             ,
             or
             by
             a
             Sentence
             of
             a
             Judge
             ,
             declaring
             them
             infamous
             .
             As
             to
             that
             Member
             of
             the
             Reprobator
             upon
             Subornation
             ,
             it
             is
             not
             Relevant
             ,
             unless
             it
             were
             Libelled
             ,
             that
             the
             Witnesses
             undertook
             so
             to
             Depone
             ,
             or
             that
             they
             had
             Deponed
             accordingly
             ,
             for
             the
             Witnesses
             might
             be
             far
             above
             exception
             ,
             as
             no
             offer
             of
             Subornation
             could
             Canvel
             the
             Faith
             of
             their
             Testimony
             ,
             and
             so
             infer
             a
             blemish
             upon
             them
             .
             And
             it
             was
             answered
             to
             all
             the
             Members
             of
             the
             Reprobator
             that
             they
             are
             not
             proven
             by
             Witnesses
             ,
             but
             by
             Oath
             of
             Party
             ,
             otherwayes
             such
             Processes
             could
             never
             end
             ,
             for
             if
             Witnesses
             were
             Receiveable
             to
             prove
             the
             Inhability
             or
             Corruption
             of
             the
             first
             Witnesses
             in
             the
             principal
             Cause
             ,
             then
             the
             Testimonies
             of
             the
             Witnesses
             in
             the
             Reprobator
             might
             be
             Canvelled
             by
             Witnesses
             in
             a
             second
             Reprobator
             ,
             against
             the
             Witnesses
             in
             the
             first
             Reprobator
             ,
             and
             so
             Reprobator
             upon
             Reprobator
             without
             end
             .
             It
             was
             answered
             for
             the
             Pursuer
             to
             the
             first
             ,
             that
             he
             cannot
             be
             excluded
             from
             Reprobators
             against
             the
             Commissars
             Decreet
             ,
             though
             he
             protested
             not
             therefore
             ,
             in
             respect
             it
             is
             evident
             by
             the
             Decreet
             ,
             that
             he
             was
             not
             admitted
             to
             compear
             ,
             but
             he
             did
             Protest
             in
             the
             Reduction
             before
             the
             Lords
             ,
             who
             have
             expresly
             allowed
             him
             his
             Reprobators
             ,
             neither
             doth
             the
             taking
             of
             the
             Oaths
             of
             the
             Witnesses
             
               de
               initialibus
               testimoniorum
            
             ,
             exclude
             Reprobators
             ,
             albeit
             
             the
             Party
             desire
             them
             to
             be
             Re-examined
             upon
             Oath
             thereupon
             ,
             for
             that
             Oath
             is
             not
             an
             Oath
             upon
             the
             Parties
             Reference
             ,
             as
             stating
             the
             sole
             Probation
             thereupon
             ,
             but
             it
             is
             a
             judicial
             Oath
             ,
             
               &
               partis
               judicis
            
             ,
             for
             the
             Judge
             may
             ,
             and
             ought
             so
             to
             Examine
             the
             Witnesses
             ,
             whether
             the
             Party
             require
             or
             not
             ,
             so
             that
             the
             Party
             refers
             not
             these
             Points
             to
             the
             Witnesses
             ,
             but
             requires
             it
             of
             the
             Judges
             as
             a
             part
             of
             his
             Office.
             And
             as
             to
             these
             Points
             ,
             every
             Witness
             is
             
               testis
               singularis
            
             ,
             for
             he
             Depones
             only
             his
             own
             Hability
             ,
             and
             so
             there
             is
             no
             Probation
             thereby
             ,
             except
             in
             so
             far
             as
             may
             militate
             against
             the
             Witnesse
             himself
             ,
             so
             that
             contrary
             Probation
             may
             well
             be
             admitted
             against
             such
             an
             Oath
             ,
             as
             well
             as
             against
             Executors
             upon
             Super-intromission
             ,
             Tutors
             or
             Curators
             upon
             negligence
             or
             Malversation
             :
             and
             if
             it
             were
             otherwise
             ,
             Reprobators
             could
             be
             Sustained
             in
             no
             case
             against
             Decreets
             of
             the
             Lords
             ,
             because
             of
             Course
             ,
             they
             take
             the
             Parties
             Oath
             to
             purge
             themselves
             of
             partial
             Counsel
             ,
             and
             of
             Corruption
             by
             promise
             ,
             or
             receiving
             of
             good
             Deed
             ,
             &c.
             
             Neither
             doth
             the
             Pursuers
             making
             use
             of
             the
             Testimonies
             of
             thir
             Witnesses
             in
             their
             Re-examination
             ,
             import
             his
             Approbation
             of
             their
             Hability
             and
             Integrity
             ,
             for
             Parties
             may
             give
             Interrogators
             to
             Witnesses
             not
             adduced
             by
             themselves
             .
             To
             the
             second
             ,
             this
             Process
             being
             of
             so
             great
             importance
             ,
             all
             lawful
             Objections
             against
             the
             Witnesses
             are
             competent
             ,
             and
             there
             is
             none
             more
             ordinar
             than
             that
             they
             are
             pauperes
             ,
             not
             worth
             the
             Kings
             Unlaw
             ,
             and
             so
             lyable
             to
             great
             Temptation
             of
             Corruption
             .
             And
             as
             to
             the
             attempt
             of
             Suborning
             ,
             or
             Brybing
             the
             Witnesses
             ,
             it
             is
             most
             Relevant
             and
             express
             in
             Law
             
               l.
               33.
               ff
               .
               de
               re
               judicata
               ,
            
             bearing
             
               testibus
               pecunia
               corruptis
               conspiratione
               adversariorum
            
             ,
             &c.
             which
             being
             
               pessimi
               exempli
               in
               odium
               corrumpentis
            
             ,
             not
             only
             are
             the
             Witnesses
             punishable
             ,
             but
             the
             Sentence
             annullable
             ,
             which
             is
             confirmed
             
               toto
               titulo
               Codicis
               si
               ex
               falsis
               instrumentis
               ,
            
             and
             that
             without
             regard
             whether
             they
             undertake
             or
             Depone
             falsly
             or
             not
             ,
             as
             is
             observed
             by
             
               Bartol
               l.
               in
               princ
               .
               ff
               .
               de
               falsis
               &
               adict
               l.
               divans
               33.
               de
               re
               judicata
               Num.
            
             7.
             and
             
               Covaruvias
               in
               repet
               .
               C.
               quamvis
               fol.
               57.
               
               Col.
            
             3.
             which
             he
             attests
             to
             be
             the
             common
             opinion
             ;
             and
             which
             is
             likewise
             attested
             by
             
               Boss.
               in
               tit
               .
               de
               falsis
               num
               .
            
             1608.
             and
             by
             
               Will.
               66.
               com
               .
               opin
               .
               fol.
            
             2991.
             and
             especially
             by
             
               Hartman
               tit
               .
               15.
               de
               testibus
               observ
               .
            
             16.
             where
             he
             doth
             expresly
             maintain
             ,
             that
             it
             is
             not
             so
             much
             a
             lawful
             to
             instruct
             a
             Witness
             ,
             
               excitandae
               memoriae
               causa
               non
               si
               subito
               deprehendatur
               haesitet
               &
               titubet
               ,
            
             in
             respect
             any
             such
             instruction
             is
             
               subornationis
               velamentum
            
             :
             and
             which
             Opinion
             hath
             been
             likewise
             Confirmed
             by
             the
             Decisions
             of
             the
             most
             eminent
             and
             famous
             Courts
             of
             Justice
             ,
             as
             may
             appear
             
               per
               Capell
               .
               tholos
               .
               deces
               .
            
             2804.
             and
             others
             .
             And
             which
             is
             likewise
             the
             Opinion
             of
             
               Clarus
               ,
               viz.
            
             That
             the
             foresaid
             Acts
             of
             Corruption
             are
             disjunctive
             and
             separatim
             Relevant
             ,
             as
             may
             appear
             by
             
               Fassum
               .
               Num.
               12
               ,
               &
               13.
               &
               qu●st
               .
               53.
               de
               exceptionibus
               quae
               contra
               testes
               opponi
               possunt
               .
            
             And
             to
             the
             last
             alleadgeance
             against
             the
             Probation
             by
             Witnesses
             ,
             that
             it
             would
             infer
             an
             endless
             course
             of
             Reprobators
             :
             It
             was
             answered
             ,
             that
             by
             the
             same
             Reason
             ,
             Reductions
             might
             be
             taken
             away
             ;
             because
             the
             Decreet
             Reductive
             might
             be
             Reduced
             ,
             and
             that
             Decreet
             by
             another
             Reduction
             without
             end
             :
             But
             Reprobators
             have
             every
             where
             been
             Sustained
             ,
             and
             no
             such
             inconvenience
             ever
             found
             ;
             neither
             can
             it
             be
             imagined
             ,
             that
             every
             Pursuer
             of
             a
             Reprobator
             will
             prevail
             ,
             which
             this
             infinite
             progress
             must
             suppose
             ,
             only
             it
             may
             infer
             ,
             that
             Witnesses
             in
             Reprobators
             ought
             to
             be
             more
             unquestionable
             ,
             than
             the
             Witnesses
             called
             in
             question
             thereby
             .
          
           
             The
             Lords
             found
             that
             Reprobators
             were
             competent
             ,
             albeit
             the
             Witnesses
             upon
             Oath
             Deponed
             upon
             their
             own
             Hability
             ,
             at
             the
             desire
             of
             the
             Party
             :
             and
             albeit
             the
             Party
             Protested
             not
             for
             Reprobators
             ,
             seing
             he
             was
             not
             admitted
             
             to
             compear
             ,
             and
             found
             that
             Member
             of
             the
             Reprobators
             upon
             the
             poverty
             not
             Relevant
             in
             this
             Clandestine
             Crime
             :
             neither
             that
             Member
             upon
             their
             alleadged
             Infamy
             ,
             unless
             it
             were
             alleadged
             that
             they
             were
             infamous
             ,
             
               infamia
               juris
            
             ,
             by
             any
             Deed
             which
             the
             Law
             expresly
             declares
             to
             infer
             Infamy
             ,
             or
             were
             declared
             infamous
             
               sententia
               judicis
            
             :
             and
             found
             that
             Member
             of
             the
             Reprobators
             upon
             instructing
             or
             prompting
             the
             Witnesses
             Relevant
             ,
             without
             necessity
             to
             alleadge
             the
             Witnesses
             undertaking
             or
             Deponing
             conform
             ,
             and
             that
             
               in
               odium
               corrumpenti●
            
             ,
             without
             inferring
             any
             blemish
             upon
             the
             Witnesses
             so
             prompted
             ,
             who
             consented
             not
             ,
             or
             swore
             falsly
             :
             and
             found
             that
             Member
             Relevant
             of
             Corrupting
             the
             Witnesses
             ,
             by
             giving
             or
             promising
             of
             good
             Deed
             ,
             more
             than
             might
             be
             suitable
             to
             the
             Witnesses
             for
             their
             Charges
             :
             but
             as
             to
             the
             manner
             of
             Probation
             by
             Oath
             or
             Witnesses
             ,
             The
             Lords
             superceeded
             to
             give
             answer
             ,
             till
             a
             Practique
             alleadged
             upon
             were
             produced
             .
          
        
         
           
             Pringle
             contra
             Pringle
             .
             February
             1
             ▪
             1971.
             
          
           
             PRingle
             of
             Soutray
             having
             only
             three
             Daughters
             ,
             does
             in
             his
             Testament
             done
             upon
             Death-bed
             ,
             Dispone
             his
             whole
             Lands
             to
             his
             eldest
             Daughter
             ,
             and
             Constitute
             her
             universal
             Legator
             ▪
             with
             this
             provision
             ,
             that
             she
             pay
             10000.
             merks
             to
             the
             other
             two
             Daughters
             ,
             the
             Disposition
             as
             to
             the
             Lands
             being
             Reduced
             ,
             as
             being
             in
             Testament
             ,
             and
             on
             Death-bed
             ,
             the
             universal
             Legacy
             was
             Sustained
             ,
             to
             give
             the
             eldest
             Daughter
             the
             Right
             of
             the
             Deads
             part
             ,
             whereupon
             it
             was
             alleadged
             for
             the
             other
             two
             Daughters
             ,
             that
             if
             the
             eldest
             insisted
             for
             the
             universal
             Legacy
             ,
             she
             behoved
             to
             have
             it
             with
             the
             burden
             of
             the
             ten
             thousand
             merks
             ,
             which
             was
             a
             burden
             both
             upon
             the
             Land
             and
             Moveables
             ,
             and
             doth
             no
             more
             relate
             to
             the
             one
             than
             the
             other
             ,
             so
             that
             albeit
             the
             Right
             of
             the
             Land
             be
             Evicted
             ,
             the
             Moveables
             remains
             burdened
             ,
             as
             if
             a
             Father
             should
             Dispone
             certain
             Lands
             to
             a
             Son
             ,
             with
             the
             burden
             of
             Portions
             to
             the
             other
             Children
             ,
             albeit
             a
             part
             of
             the
             Lands
             were
             Evicted
             ,
             the
             Portions
             would
             be
             wholly
             due
             without
             abatement
             .
             It
             was
             answered
             for
             the
             eldest
             Daughter
             ,
             that
             in
             latter
             Wills
             ,
             the
             mind
             of
             the
             Defunct
             is
             chiefly
             regarded
             ,
             not
             only
             as
             to
             what
             is
             exprest
             ,
             but
             to
             what
             is
             implyed
             or
             presumed
             ,
             and
             here
             it
             is
             evident
             ,
             that
             the
             mind
             of
             the
             Defunct
             was
             ,
             that
             his
             two
             younger
             Daughters
             should
             only
             have
             ten
             thousand
             merks
             in
             satisfaction
             to
             all
             Rights
             of
             Lands
             or
             Moveables
             :
             Now
             seing
             they
             have
             gotten
             two
             third
             parts
             of
             the
             Land
             ,
             which
             is
             much
             better
             than
             ten
             thousand
             merks
             .
             It
             cannot
             be
             thought
             to
             be
             his
             meaning
             to
             give
             them
             any
             share
             of
             his
             Moveables
             also
             ,
             but
             that
             the
             half
             thereof
             ,
             which
             was
             at
             his
             disposal
             ,
             should
             belong
             to
             the
             eldest
             Daughter
             without
             burden
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             declared
             the
             same
             to
             belong
             to
             the
             eldest
             Daughter
             ,
             without
             burden
             of
             the
             Provisions
             .
          
        
         
           
             Alexander
             Ferguson
             contra
             Parochioners
             of
             Kingarth
             .
             Eodem
             die
             .
          
           
             
               ALexander
               Ferguson
            
             being
             one
             of
             the
             Prebands
             of
             the
             Chapel-Royal
             ,
             by
             His
             Majesties
             Presentation
             and
             Collation
             ,
             pursues
             the
             Heretors
             of
             the
             Paroch
             of
             Kingarth
             for
             the
             Teinds
             ,
             as
             being
             annexed
             to
             the
             Chappel-Royal
             ,
             as
             appears
             by
             the
             Books
             of
             Assumption
             ,
             and
             three
             Presentations
             from
             the
             King
             produced
             .
             Compearance
             is
             made
             for
             the
             Minister
             of
             Rothsay
             ,
             who
             alleadged
             that
             he
             had
             Presentation
             to
             the
             Kirk
             of
             Kingarth
             from
             the
             King
             ,
             and
             Collation
             thereupon
             ,
             and
             so
             had
             best
             right
             to
             the
             Teinds
             of
             his
             Paroch
             ,
             because
             
               de
               jure
               communi
               decima
               debentur
               p●rocho
               ,
            
             and
             as
             for
             the
             Pursuer
             ,
             he
             
             shews
             no
             Right
             by
             any
             Mortification
             of
             these
             Teinds
             to
             the
             Chappel-Royal
             ;
             Neither
             can
             he
             make
             it
             appear
             ,
             that
             ever
             he
             ,
             or
             any
             other
             Prebander
             were
             in
             Possession
             civil
             or
             natural
             thereof
             .
             2dly
             ,
             Albeit
             the
             Prebanders
             had
             had
             a
             Right
             ,
             the
             same
             is
             now
             taken
             off
             by
             Prescription
             ,
             because
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Minister
             hath
             been
             40.
             years
             in
             peaceable
             Possession
             ,
             before
             the
             Pursuers
             Citation
             ,
             which
             not
             only
             takes
             away
             the
             bygones
             ,
             but
             the
             whole
             Right
             ,
             and
             establishes
             the
             same
             in
             the
             Ministers
             person
             .
          
           
             The
             Lords
             found
             the
             Books
             of
             Assumption
             ,
             and
             the
             three
             Presentations
             from
             the
             King
             ,
             sufficient
             to
             instruct
             the
             Pursuers
             Title
             ,
             and
             found
             the
             Defense
             of
             Prescription
             Relevant
             ,
             as
             to
             the
             bygones
             before
             the
             Citation
             ,
             but
             not
             to
             Establish
             the
             Right
             in
             the
             Minister
             ,
             or
             to
             take
             it
             from
             the
             Chappel-Royal
             ,
             as
             to
             years
             after
             the
             Citation
             ,
             and
             in
             time
             coming
             ,
             in
             respect
             of
             the
             Act
             of
             Parliament
             ,
             providing
             that
             the
             Kings
             Interest
             shall
             not
             be
             prejudged
             by
             the
             neglect
             of
             His
             Officers
             .
          
        
         
           
             Blair
             of
             Bagillo
             contra
             Blair
             of
             Denhead
             .
             February
             3.
             1671.
             
          
           
             BLair
             of
             Bagillo
             having
             granted
             Bond
             to
             Blair
             of
             Denhead
             ,
             he
             did
             Assign
             the
             same
             to
             Guthrie
             of
             
               Collistoun
               .
               Bagilio
            
             raised
             Suspension
             against
             Collistoun
             as
             Assigney
             ,
             in
             Anno
             1632.
             and
             now
             Collistoun
             insists
             in
             a
             Transferring
             of
             the
             old
             Suspension
             and
             Decreet
             Suspended
             against
             
             Bagillo's
             Heirs
             ,
             to
             the
             effect
             the
             Cautioner
             in
             the
             Suspension
             may
             be
             reached
             .
             It
             was
             alleadged
             no
             Transferrence
             ,
             because
             
             Bagillo
             ●s
             Father
             obtained
             a
             general
             Discharge
             from
             Denhead
             ,
             before
             any
             Intimation
             upon
             Collistouns
             Assignation
             ;
             and
             albeit
             the
             Discharge
             be
             posterior
             to
             the
             Assignation
             produced
             ,
             it
             must
             liberat
             the
             Debitor
             ,
             who
             was
             not
             obliged
             to
             know
             the
             Assigney
             before
             Intimation
             .
             It
             was
             answered
             ,
             that
             the
             Debitor
             might
             pay
             to
             the
             Cedent
             
               bona
               fide
            
             ,
             before
             Intimation
             :
             yet
             a
             Discharge
             obtained
             from
             the
             Cedent
             after
             Assignation
             ,
             would
             not
             liberate
             against
             the
             Assigney
             ,
             though
             it
             were
             before
             Intimation
             :
             and
             this
             general
             Discharge
             bears
             no
             onerous
             Cause
             .
             2dly
             ,
             This
             general
             Discharge
             being
             only
             of
             all
             Processes
             and
             Debts
             betwixt
             Bagillo
             and
             Denhead
             ,
             at
             that
             time
             ,
             it
             cannot
             extend
             to
             this
             sum
             assigned
             by
             Denhead
             long
             before
             ,
             and
             who
             could
             not
             know
             whether
             the
             Assigney
             had
             intimate
             or
             not
             ,
             and
             cannot
             be
             thought
             contrair
             the
             Warrandice
             of
             his
             own
             Assignation
             ,
             to
             have
             Discharged
             the
             sum
             Assigned
             ,
             especially
             seing
             there
             was
             an
             Assignation
             long
             before
             ,
             which
             was
             lost
             ,
             and
             the
             Intimation
             thereof
             yet
             remains
             ▪
             and
             this
             second
             Assignation
             bears
             to
             have
             been
             made
             in
             respect
             of
             the
             losse
             of
             the
             former
             ,
             and
             yet
             it
             is
             also
             before
             this
             general
             Discharge
             .
          
           
             The
             Lords
             found
             the
             general
             Discharge
             of
             the
             Cedent
             could
             not
             take
             away
             this
             sum
             ,
             formerly
             assigned
             to
             him
             ,
             though
             not
             Intimat
             ,
             unlesse
             it
             were
             proven
             that
             payment
             or
             satisfaction
             was
             truely
             made
             for
             this
             Sum.
             
          
        
         
           
             Alexander
             Wishart
             contra
             Elizabeth
             Arthure
             .
             February
             4.
             1671.
             
          
           
             UMquhil
             Mr.
             
               William
               Arthure
            
             being
             Infeft
             in
             an
             Annualrent
             out
             of
             some
             Tenements
             in
             Edinburgh
             ,
             and
             having
             entered
             in
             Possession
             ,
             by
             lifting
             of
             Mails
             and
             Duties
             ,
             some
             of
             his
             Discharges
             being
             produced
             .
             
               Alexander
               Wishart
            
             as
             now
             having
             right
             to
             the
             Tenements
             ,
             pursues
             a
             Declarator
             against
             
               Elizabeth
               Arthure
            
             ,
             only
             Daughter
             to
             Mr.
             William
             ,
             for
             declaring
             that
             the
             sum
             whereupon
             the
             Annualrent
             was
             Constitute
             ,
             was
             satisfied
             by
             Intromission
             with
             the
             Mails
             and
             Duties
             of
             the
             Tenements
             .
             The
             Defender
             alleadged
             
             that
             this
             was
             only
             probable
             
               scripto
               vel
               juramento
            
             ,
             and
             not
             by
             Witnesses
             ,
             for
             an
             Annualrenter
             having
             no
             Title
             to
             Possess
             ,
             out-put
             and
             in-put
             Tennents
             ,
             cannot
             be
             presumed
             to
             uplift
             more
             than
             his
             annualrent
             ,
             especially
             seing
             his
             Discharges
             produced
             for
             many
             years
             ,
             are
             far
             within
             his
             annualrent
             ,
             and
             it
             were
             of
             dangerous
             consequence
             ,
             if
             Witnesses
             ,
             who
             cannot
             prove
             an
             hundreth
             pounds
             ,
             were
             admitted
             ,
             not
             only
             to
             prove
             Intromission
             with
             the
             Rents
             ,
             so
             far
             as
             might
             extend
             to
             the
             Annualrent
             ,
             but
             so
             much
             more
             as
             might
             satisfie
             the
             Principal
             ,
             and
             thereby
             take
             away
             an
             Infeftment
             :
             for
             albeit
             that
             Probation
             has
             been
             Sustained
             to
             extinguish
             Appryzings
             ,
             which
             are
             rigorous
             Rights
             ,
             yet
             not
             to
             take
             away
             Infeftments
             of
             Annualrent
             .
             It
             was
             answered
             ,
             that
             albeit
             Witnesses
             are
             not
             admitted
             where
             Writ
             may
             ,
             and
             uses
             to
             be
             adhibite
             ,
             
               in
               odium
               negligentis
            
             ,
             who
             neglected
             to
             take
             Writ
             :
             Yet
             this
             is
             no
             such
             case
             ;
             and
             therefore
             in
             all
             such
             ,
             Witnesses
             are
             admitted
             :
             for
             if
             the
             Pursuer
             had
             insisted
             against
             the
             Defender
             ,
             for
             intrometting
             with
             his
             Mails
             and
             Duties
             ,
             of
             whatever
             quantity
             and
             time
             within
             Prescription
             ,
             Witnesses
             would
             have
             been
             admitted
             :
             The
             Defender
             could
             only
             have
             excepted
             upon
             his
             Annualrent
             ,
             which
             would
             have
             been
             Sustained
             ,
             
               pro
               tanto
            
             ;
             but
             the
             Pursuer
             would
             have
             been
             admitted
             to
             prove
             further
             intromission
             ,
             which
             being
             by
             vertue
             of
             his
             Security
             for
             a
             Sum
             ,
             and
             in
             his
             hand
             would
             Compense
             and
             Extinguish
             that
             Sum
             ,
             which
             is
             all
             that
             is
             here
             craved
             ,
             and
             whereupon
             the
             Witnesses
             are
             already
             Adduced
             .
          
           
             The
             Lords
             Sustained
             the
             Probation
             by
             Witnesses
             ,
             for
             the
             whole
             intromission
             ,
             to
             be
             imputed
             in
             satisfaction
             of
             the
             Principal
             Sum
             and
             Annualrents
             .
          
        
         
           
             Lowrie
             contra
             Gibson
             .
             Eodem
             die
             .
          
           
             LOwrie
             being
             Superiour
             to
             Gibson
             in
             a
             Feu
             ,
             pursued
             him
             before
             the
             Sheriff
             ,
             for
             annulling
             his
             Feu
             ,
             for
             not
             payment
             of
             the
             Feu-duty
             ,
             and
             obtained
             Decreet
             against
             him
             ,
             and
             thereafter
             Pursued
             him
             before
             the
             Lords
             for
             Mails
             and
             Duties
             ,
             wherein
             Compearance
             being
             made
             ,
             Gibson
             made
             an
             offer
             ,
             that
             if
             Lowrie
             would
             free
             him
             of
             bygones
             ,
             and
             pay
             him
             1600.
             merks
             ,
             he
             and
             his
             Authour
             would
             Dispone
             their
             whole
             Right
             ,
             which
             being
             accepted
             by
             the
             Superiour
             ,
             Decreet
             was
             pronunced
             against
             Gibson
             ,
             to
             denude
             himself
             upon
             payment
             :
             Shortly
             thereafter
             ,
             Gibson
             drew
             up
             a
             Disposition
             ,
             and
             Subscribed
             it
             in
             the
             Terms
             of
             the
             Decreet
             ,
             and
             offered
             it
             to
             Lowrie
             ,
             who
             refused
             it
             ,
             because
             his
             Author
             had
             not
             Subscribed
             .
             Thereafter
             Gibson
             Suspended
             upon
             Obedience
             ,
             and
             Consigned
             the
             Disposition
             which
             was
             never
             Discussed
             ;
             but
             Gibson
             continued
             in
             Possession
             still
             from
             the
             Decreet
             ,
             which
             was
             in
             Anno
             1650.
             
             Now
             Gibson
             raises
             a
             Reduction
             of
             the
             Sheriffs
             Decreet
             of
             Declarator
             ,
             annulling
             his
             Feu
             ,
             because
             the
             Sheriff
             was
             not
             a
             competent
             Judge
             to
             such
             Processes
             ,
             and
             because
             Gibson
             had
             offered
             the
             Feu-duty
             ,
             which
             was
             refused
             ,
             so
             that
             the
             not
             payment
             was
             not
             through
             his
             fault
             :
             and
             also
             insisted
             for
             Reduction
             of
             the
             Lords
             Decreet
             ,
             as
             built
             upon
             the
             Sheriffs
             Decreet
             ,
             and
             falling
             in
             consequence
             therewith
             .
             And
             as
             for
             any
             offer
             or
             consent
             ,
             the
             assertion
             of
             a
             Clerk
             could
             not
             instruct
             the
             same
             ,
             unless
             it
             had
             been
             warranted
             by
             the
             Parties
             Subscription
             .
             It
             was
             answered
             ,
             that
             Gibson
             having
             Homologate
             the
             Decreet
             ,
             by
             an
             offer
             of
             the
             Disposition
             ,
             conform
             thereto
             ,
             which
             was
             only
             refused
             ,
             because
             it
             wanted
             the
             Authors
             Subscription
             ;
             and
             having
             Suspended
             upon
             Obedience
             ,
             he
             cannot
             now
             object
             ,
             either
             against
             the
             Decreets
             or
             Consent
             .
             It
             was
             answered
             ,
             that
             so
             long
             as
             the
             Decreets
             of
             the
             Sheriff
             and
             the
             
             Lords
             were
             standing
             ,
             Gibson
             might
             be
             compelled
             thereby
             to
             Consign
             the
             said
             Disposition
             ;
             but
             that
             is
             only
             on
             these
             Terms
             ,
             to
             be
             given
             up
             if
             the
             Lords
             saw
             Cause
             ;
             and
             hinders
             not
             Gibson
             to
             alleadge
             ,
             why
             it
             should
             not
             be
             given
             up
             .
             And
             as
             to
             the
             offer
             to
             deliver
             the
             Disposition
             ,
             the
             Instrument
             of
             the
             Nottar
             could
             not
             instruct
             the
             same
             ,
             but
             only
             
             Gibson's
             own
             Oath
             .
          
           
             The
             Lords
             found
             that
             albeit
             the
             Consignation
             for
             the
             Suspension
             would
             not
             have
             prejudged
             Gibson
             ,
             yet
             the
             simple
             offer
             to
             deliver
             the
             Disposition
             ,
             did
             so
             Homologate
             the
             Decreets
             and
             Consent
             ,
             that
             he
             could
             not
             quarrel
             the
             same
             ;
             but
             they
             found
             it
             not
             proven
             by
             the
             Instrument
             ,
             without
             the
             Oaths
             of
             the
             Witnesses
             insert
             in
             the
             Instrument
             :
             And
             in
             regard
             that
             Lowrie
             had
             letten
             the
             matterly
             over
             for
             more
             than
             twenty
             years
             ,
             they
             Declared
             that
             the
             Agreement
             should
             only
             take
             effect
             from
             this
             time
             ,
             and
             that
             Gibson
             should
             not
             be
             comptable
             for
             the
             bygone
             Duties
             .
          
        
         
           
             Ninian
             Home
             contra
             Francis
             Scot.
             February
             7.
             1671.
             
          
           
             
               NInian
               Hume
            
             having
             Charged
             
               Francis
               Scot
            
             upon
             a
             Bond
             of
             550.
             merks
             ;
             He
             Suspends
             on
             this
             Reason
             ,
             that
             both
             Parties
             having
             referred
             the
             matter
             verbally
             to
             an
             Arbiter
             ,
             he
             had
             determined
             200.
             merks
             to
             be
             payed
             for
             all
             ,
             whereupon
             Hume
             had
             pursued
             .
             It
             was
             answered
             ,
             that
             verbal
             Submissions
             and
             Decreets
             Arbitral
             are
             not
             binding
             ,
             but
             either
             Party
             may
             resile
             before
             Writ
             be
             adhibite
             .
          
           
             The
             Lords
             found
             the
             Reason
             was
             Relevant
             to
             be
             proven
             thus
             ,
             by
             the
             Chargers
             Oath
             that
             he
             did
             submit
             ;
             and
             by
             the
             Arbiters
             Oaths
             ,
             that
             they
             did
             accordingly
             determine
             .
          
        
         
           
             Lowrie
             of
             Blackwood
             contra
             Sir
             John
             Drummond
             .
             Eodem
             die
             .
          
           
             SIr
             
               Robert
               Drummond
            
             of
             Meidhope
             having
             Disponed
             his
             Lands
             of
             Scotstoun
             to
             Sir
             
               Iohn
               Drummond
            
             ,
             for
             love
             and
             favour
             ,
             and
             for
             better
             incouraging
             Sir
             Iohn
             to
             pay
             his
             Debt
             ,
             as
             the
             Disposition
             bears
             ,
             and
             under
             Reversion
             of
             a
             Rosenoble
             to
             Sir
             Robert
             in
             his
             own
             Life
             .
             Mr.
             
               John
               Drummond
            
             Sir
             Roberts
             appearand
             Heir
             ,
             grants
             a
             Bond
             to
             Lowrie
             of
             Blackwood
             ,
             whereupon
             he
             Adjudges
             the
             Land
             from
             the
             appearand
             Heir
             ,
             and
             pursues
             a
             Reduction
             of
             the
             Disposition
             ,
             as
             done
             on
             Death-bed
             .
             In
             which
             Pursuit
             Witnesses
             were
             appointed
             to
             be
             Examined
             ,
             
               hinc
               inde
            
             ,
             concerning
             Sir
             Roberts
             condition
             ,
             when
             he
             made
             the
             Disposition
             ,
             and
             thereafter
             till
             his
             Death
             ;
             the
             sum
             of
             the
             Probation
             was
             ,
             that
             before
             the
             Disposition
             Sir
             Robert
             had
             contracted
             an
             Apoplexie
             ,
             whereby
             he
             remained
             senseless
             for
             a
             time
             ,
             but
             by
             Cure
             there
             remained
             a
             Palsie
             in
             his
             Tongue
             ,
             and
             a
             Vertigo
             in
             his
             Head
             ,
             which
             continued
             till
             his
             Death
             ,
             and
             about
             a
             year
             after
             that
             the
             sickness
             affected
             his
             Brain
             ,
             so
             that
             he
             lost
             the
             remembrance
             of
             Names
             of
             things
             ,
             and
             most
             of
             the
             Witnesses
             Depones
             ,
             that
             he
             was
             not
             found
             thereafter
             in
             his
             Judgement
             ,
             but
             that
             he
             keeped
             on
             his
             Cloathes
             ,
             and
             was
             not
             affixed
             to
             his
             Bed
             ,
             and
             went
             frequently
             and
             walked
             in
             his
             Garden
             ,
             and
             to
             the
             Court-hill
             ,
             half
             a
             pair
             of
             Butts
             off
             ;
             and
             one
             of
             the
             Witnesses
             Deponed
             ,
             that
             he
             came
             to
             his
             House
             alone
             ,
             a
             quarter
             of
             a
             mile
             off
             :
             but
             that
             he
             went
             never
             to
             the
             Kirk
             nor
             Mercat
             ,
             nor
             any
             publick
             place
             :
             Whereupon
             it
             was
             alleadged
             for
             the
             Defender
             ,
             that
             the
             Defunct
             continued
             in
             health
             at
             and
             after
             the
             Disposition
             ,
             and
             that
             his
             going
             so
             frequently
             abroad
             ,
             was
             equivalent
             to
             his
             going
             to
             Kirk
             and
             Mercat
             ,
             which
             was
             sufficient
             to
             eleid
             the
             Reason
             of
             Death-bed
             ,
             and
             that
             the
             Palsie
             being
             but
             in
             his
             Tongue
             ,
             albeit
             he
             misnamed
             things
             ,
             
             it
             did
             not
             import
             his
             being
             on
             Death-bed
             ,
             especially
             seing
             he
             Disponed
             for
             payment
             of
             his
             Debt
             ,
             equivalent
             to
             the
             worth
             of
             the
             Land
             ,
             his
             Disposition
             being
             to
             a
             Friend
             of
             his
             Name
             ,
             who
             Relieved
             him
             of
             his
             Debt
             ,
             his
             Heir
             not
             being
             his
             Son
             ,
             nor
             Descendent
             ,
             and
             uncapable
             to
             Relieve
             him
             of
             his
             Debt
             .
             It
             was
             answered
             ,
             that
             the
             contracting
             of
             his
             sickness
             being
             sufficiently
             proven
             to
             be
             before
             this
             Disposition
             ,
             and
             the
             continuance
             thereof
             to
             affect
             his
             Brain
             ,
             in
             that
             case
             nothing
             could
             purge
             the
             same
             ,
             but
             his
             going
             to
             Kirk
             and
             Mercat
             ,
             which
             were
             the
             acts
             required
             in
             Law
             ,
             and
             could
             not
             be
             supplied
             by
             his
             going
             privatly
             abroad
             ,
             and
             not
             to
             any
             popular
             publick
             meeting
             ;
             and
             as
             to
             his
             Debts
             they
             could
             not
             validat
             the
             Disposition
             by
             exception
             ,
             though
             the
             Defender
             might
             by
             way
             of
             action
             affect
             therewith
             the
             Estate
             ,
             or
             Burden
             the
             Heir
             ,
             on
             whose
             Bond
             it
             was
             adjudged
             ,
             especially
             seing
             the
             Disposition
             buir
             for
             Love
             and
             Favour
             ,
             and
             Redeemable
             for
             a
             Rose-noble
             .
          
           
             The
             Lords
             found
             the
             Reason
             of
             Death-bed
             sufficiently
             proven
             ,
             and
             that
             his
             private
             going
             abroad
             (
             though
             unsupported
             )
             was
             not
             equivalent
             to
             going
             abroad
             to
             Kirk
             and
             Mercat
             ,
             or
             publick
             meeting
             ,
             where
             the
             Disease
             continued
             to
             affect
             the
             Brain
             ;
             But
             they
             found
             the
             paying
             of
             Debts
             equivalent
             to
             the
             worth
             of
             the
             Land
             Relevant
             by
             way
             of
             exception
             ,
             in
             regard
             the
             Disposition
             buir
             to
             be
             for
             payment
             of
             his
             Debt
             .
          
        
         
           
             Mr.
             Iohn
             Wat
             contra
             Campbel
             of
             Kilpont
             ,
             Feb.
             8.
             1671.
             
          
           
             SIr
             
               Archibald
               Campbel
            
             being
             Debitor
             to
             
               Adam
               Wat
            
             in
             a
             Sum
             of
             Money
             ,
             he
             did
             thereafter
             Contract
             his
             Son
             Mr.
             Archibald
             in
             Marriage
             with
             
               Thomas
               Moodies
            
             Daughter
             ,
             and
             by
             the
             Contract
             
               Thomas
               Moodie
            
             acknowledges
             the
             Receipt
             of
             fourty
             thousand
             Pound
             from
             Sir
             Archibald
             ,
             and
             is
             obliged
             for
             twenty
             thousand
             Merks
             of
             Tocher
             ,
             all
             to
             be
             imployed
             for
             Mr.
             Archibald
             in
             Fee
             ;
             but
             
               Thomas
               Moodies
            
             Daughter
             Dying
             ,
             and
             leaving
             no
             Children
             behind
             her
             ,
             
               Thomas
               Moodie
            
             did
             restore
             the
             Sums
             ,
             and
             there
             is
             a
             Discharge
             granted
             by
             Sir
             Archibald
             and
             his
             Spouse
             ,
             and
             Mr.
             Archibald
             bearing
             them
             to
             have
             Received
             the
             Sums
             ,
             and
             to
             have
             Discharged
             the
             same
             ;
             Whereupon
             Mr.
             
               Iohn
               Wat
            
             as
             Heir
             to
             Adam
             ,
             pursues
             Mr.
             Archibald
             to
             pay
             him
             the
             Sum
             due
             to
             his
             Father
             ,
             upon
             this
             ground
             ,
             that
             he
             having
             Received
             fourty
             thousand
             Pounds
             of
             his
             Fathers
             Means
             ,
             after
             Contracting
             of
             the
             Debt
             ,
             ought
             to
             make
             so
             much
             of
             it
             forthcoming
             as
             will
             pay
             the
             Pursuer
             ;
             which
             Action
             was
             founded
             upon
             the
             Act
             of
             Parliament
             ,
             1621.
             whereby
             all
             Deeds
             done
             by
             Debitors
             in
             prejudice
             of
             their
             Creditors
             ,
             without
             a
             Cause
             Onerous
             are
             declared
             null
             ,
             and
             all
             Parties
             that
             by
             vertue
             thereof
             Intromets
             ,
             are
             declared
             lyable
             to
             restore
             to
             the
             Creditors
             .
             It
             was
             answered
             for
             the
             Defender
             ;
             First
             ,
             That
             the
             Libel
             was
             not
             Relevant
             ,
             there
             being
             no
             part
             of
             the
             Act
             of
             Parliament
             1621.
             that
             Incapacitats
             Debitors
             to
             Gift
             or
             Dispone
             Sums
             of
             Money
             ,
             or
             Moveables
             ,
             especially
             if
             the
             Disponer
             at
             that
             time
             be
             not
             insolvent
             ,
             but
             have
             a
             sufficient
             Estate
             for
             satisfying
             his
             Debt
             ;
             and
             it
             is
             offered
             to
             be
             proven
             ,
             that
             Sir
             Archibald
             had
             at
             the
             time
             of
             this
             Contract
             a
             sufficient
             Estate
             for
             all
             his
             Debt
             ,
             in
             the
             hands
             of
             the
             Earl
             of
             Argile
             and
             Glenorchie
             ;
             and
             albeit
             by
             the
             superveening
             Forefaulture
             ,
             Argiles
             Debt
             be
             insufficient
             ,
             it
             was
             a
             good
             Debt
             the
             time
             of
             the
             Contract
             ,
             so
             that
             there
             can
             be
             no
             ground
             to
             make
             a
             Child
             lyable
             to
             Restore
             a
             Portion
             given
             by
             a
             Father
             who
             was
             solvent
             .
             2dly
             ,
             Albeit
             the
             Defender
             could
             be
             lyable
             ,
             if
             it
             were
             clear
             that
             he
             had
             the
             Sum
             foresaid
             by
             his
             Father
             yet
             remaining
             to
             the
             fore
             ,
             yet
             if
             it
             had
             been
             lost
             or
             spent
             before
             the
             Intenting
             of
             this
             Cause
             ,
             he
             or
             any
             subsequent
             Estate
             acquired
             aliunde
             is
             not
             lyable
             ,
             
               ita
               est
            
             anything
             
             he
             has
             is
             a
             Wodset
             of
             fourty
             thousand
             Merks
             on
             Kilpont
             ,
             and
             the
             two
             Tochers
             he
             had
             viz.
             twenty
             thousand
             Merks
             from
             
               Thomas
               Moodie
            
             ,
             and
             ten
             thousand
             Merks
             of
             Legacy
             ,
             and
             twelve
             thousand
             Merk
             of
             Tocher
             with
             Sir
             
               William
               Gray's
            
             Daughter
             ,
             was
             sufficient
             to
             acquire
             the
             Right
             of
             Kilpont
             ,
             without
             any
             thing
             from
             his
             Father
             .
             3dly
             ,
             The
             Discharge
             produced
             cannot
             instruct
             that
             Mr.
             Archibald
             Received
             the
             Money
             ,
             because
             it
             bears
             indefinitly
             that
             payment
             was
             made
             to
             Sir
             Archibald
             and
             his
             Spouse
             ,
             and
             to
             Mr.
             Archibald
             ,
             and
             all
             of
             them
             do
             Discharge
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Libel
             was
             very
             Relevant
             ,
             for
             whatsoever
             might
             be
             alleadged
             of
             Bairns
             Portions
             by
             a
             solvent
             Father
             ,
             yet
             this
             being
             so
             considerable
             a
             Fortune
             provided
             to
             the
             only
             Son
             ,
             and
             appearand
             Heir
             ,
             if
             it
             did
             not
             make
             him
             lyable
             to
             satisfie
             the
             Fathers
             Debt
             
               pro
               tanto
            
             ,
             it
             were
             a
             patent
             way
             to
             defraud
             all
             Creditors
             and
             elude
             the
             Act
             of
             Parliament
             ,
             for
             the
             Father
             might
             Sell
             his
             Estate
             ,
             and
             provide
             the
             Moneys
             in
             this
             manner
             ;
             and
             as
             to
             the
             Discharge
             ,
             albeit
             it
             be
             indefinite
             ,
             yet
             it
             must
             be
             presumed
             that
             Mr.
             Archibald
             Received
             the
             Sums
             ,
             because
             they
             belong
             to
             him
             in
             Fee
             by
             the
             Contract
             of
             Marriage
             .
          
           
             The
             Lords
             found
             the
             Libel
             Relevant
             ,
             and
             that
             the
             Discharge
             produced
             did
             presume
             that
             Mr.
             Archibald
             the
             Feear
             did
             Receive
             the
             Money
             ,
             but
             seing
             the
             Probation
             was
             not
             expresse
             ,
             but
             presumptive
             ,
             they
             allowed
             Mr.
             Archibald
             to
             condescend
             upon
             what
             Evidences
             he
             could
             give
             ,
             that
             the
             Money
             or
             Surety
             thereof
             was
             Delivered
             to
             his
             Father
             .
          
        
         
           
             Iohn
             Will
             contra
             The
             Town
             of
             Kirkaldy
             ,
             Feb.
             11.
             1671.
             
          
           
             
               JOhn
               Will
            
             pursues
             the
             Magistrats
             of
             Kirkaldy
             for
             paying
             the
             Debt
             of
             a
             Person
             Incarcerat
             in
             their
             Tolbooth
             ,
             who
             was
             letten
             escape
             by
             them
             .
             It
             was
             alleadged
             for
             the
             Town
             ,
             that
             the
             Person
             Incarcerat
             had
             escaped
             
               vi
               majore
            
             ,
             and
             that
             they
             had
             not
             failed
             in
             their
             duty
             ,
             having
             had
             a
             sufficient
             Tolbooth
             ,
             having
             four
             Doors
             ,
             and
             the
             inmost
             an
             Iron
             Door
             ,
             and
             that
             all
             being
             Locked
             ;
             the
             Person
             Incarcerat
             having
             gotten
             secretly
             conveyed
             in
             some
             Mason
             or
             Wrights
             Tools
             ,
             had
             in
             the
             night
             broken
             all
             the
             Locks
             ,
             and
             escaped
             .
             It
             was
             answered
             ,
             that
             the
             Defense
             was
             not
             Relevant
             ,
             neither
             had
             the
             Magistrats
             done
             their
             duty
             and
             diligence
             ,
             for
             they
             ought
             to
             have
             had
             Chains
             ,
             and
             Cat-bands
             upon
             the
             utter-sides
             of
             the
             Doors
             ,
             with
             Locks
             thereon
             ,
             unto
             which
             the
             Incarcerat
             Person
             could
             not
             reach
             ;
             and
             it
             was
             alike
             how
             many
             Doors
             they
             had
             upon
             the
             Tolbooth
             ,
             with
             their
             Locks
             inward
             ,
             for
             the
             same
             means
             that
             would
             break
             up
             one
             ,
             would
             break
             up
             twenty
             ,
             and
             if
             such
             a
             pretence
             should
             liberat
             the
             Magistrats
             ,
             it
             were
             an
             easie
             way
             to
             elide
             all
             Captions
             ,
             and
             let
             all
             Persons
             for
             Debt
             free
             .
             It
             was
             answered
             for
             the
             Town
             ,
             that
             the
             having
             of
             Cat-bands
             without
             ,
             Closed
             and
             Locked
             ,
             was
             not
             the
             custom
             of
             their
             Tolbooth
             ,
             who
             past
             all
             memory
             did
             never
             Lock
             the
             outward
             Chains
             but
             upon
             Malefactors
             ,
             and
             such
             is
             the
             custom
             of
             Edinburgh
             ,
             and
             other
             Burghs
             of
             Scotland
             .
          
           
             The
             Lords
             having
             before
             answer
             ,
             ordained
             Witnesses
             to
             be
             Examined
             on
             both
             parts
             ,
             anent
             the
             condition
             of
             the
             Tolbooth
             ,
             and
             finding
             thereby
             that
             there
             was
             no
             Cat-bands
             or
             outward
             Chains
             Locked
             when
             this
             Prisoner
             escaped
             ,
             they
             found
             the
             Magistrats
             had
             not
             done
             their
             duty
             ,
             and
             so
             Decerned
             against
             them
             .
          
        
         
           
           
             Alexander
             Naper
             contra
             The
             Earl
             of
             Eglintoun
             ,
             Feb.
             14.
             1671.
             
          
           
             THere
             was
             a
             Bond
             granted
             by
             the
             Laird
             of
             Minto
             as
             principal
             ,
             
               Lugtoun
               Iames
               Creichtoun
            
             ,
             and
             the
             Earl
             of
             Eglintoun
             Cautioners
             ,
             in
             Anno
             1641.
             to
             
               Adam
               Naper
            
             and
             his
             Spouse
             in
             Conjunct
             Fee
             ;
             
               Alexander
               Naper
            
             as
             Heir
             to
             his
             Father
             ,
             pursues
             this
             Earl
             of
             Eglintoun
             as
             Heir
             to
             his
             Father
             for
             payment
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             Minto
             having
             Disponed
             his
             Estate
             to
             his
             Son
             ,
             under
             express
             Provision
             to
             pay
             the
             Debt
             ,
             the
             same
             was
             satisfied
             by
             Minto
             younger
             ,
             and
             was
             retired
             lying
             by
             him
             a
             long
             time
             ,
             or
             by
             
               Robert
               Vrie
            
             ,
             who
             had
             the
             Trust
             of
             Minto's
             Affairs
             and
             Writs
             ,
             and
             Minto
             younger
             being
             
               lapsus
               bonis
            
             ,
             and
             
               Robert
               Vrie
            
             being
             dead
             ,
             the
             Pursuer
             had
             either
             practised
             with
             Minto
             upon
             his
             necessity
             ,
             or
             upon
             
               Robert
               Vries
            
             Friends
             to
             give
             him
             back
             the
             Bond
             ,
             and
             for
             evidence
             that
             the
             Bond
             has
             been
             satisfied
             and
             retired
             .
             First
             ,
             It
             had
             lyen
             dormant
             above
             this
             thirty
             years
             ,
             without
             either
             payment
             of
             Annualrent
             ,
             or
             any
             Diligence
             .
             2dly
             ,
             The
             late
             Earl
             of
             Eglintoun
             being
             Forefault
             by
             the
             Usurpers
             ,
             his
             Creditors
             were
             appointed
             to
             give
             in
             their
             Claims
             ,
             or
             else
             to
             be
             excluded
             ,
             and
             yet
             no
             Claim
             was
             given
             in
             for
             this
             Debt
             ,
             and
             therefore
             craved
             that
             Witnesses
             might
             be
             Examined
             
               ex
               ●fficio
            
             for
             proving
             of
             the
             points
             foresaid
             .
             The
             Pursuer
             answered
             ,
             that
             it
             was
             an
             uncontroverted
             principle
             in
             our
             Law
             ,
             that
             Witnesses
             could
             not
             prove
             payment
             of
             any
             Debt
             due
             by
             writ
             ,
             nor
             take
             the
             same
             away
             ;
             and
             as
             to
             the
             pretences
             adduced
             by
             the
             Defender
             ,
             they
             import
             nothing
             ,
             for
             the
             delay
             of
             seeking
             payment
             or
             Claiming
             the
             Sum
             ,
             was
             because
             the
             said
             
               Adam
               Naper
            
             was
             with
             Montrose
             in
             the
             War
             ,
             and
             his
             Heir
             remained
             a
             Minor
             ,
             and
             his
             Wife
             was
             Married
             to
             another
             Husband
             .
             The
             Defender
             answered
             ,
             that
             the
             Wife
             was
             Liferenter
             of
             the
             Sum
             ,
             and
             she
             and
             her
             second
             Husband
             would
             certainly
             have
             sought
             her
             Annualrent
             ,
             or
             Claimed
             the
             Sum
             ,
             which
             takes
             off
             the
             excuse
             of
             the
             Pursuers
             Minority
             ;
             and
             albeit
             Writ
             be
             not
             taken
             away
             by
             Witnesses
             ordinarly
             ,
             yet
             where
             the
             matter
             is
             so
             ancient
             ,
             and
             the
             Evidences
             so
             pregnant
             ,
             the
             Lords
             uses
             not
             to
             refuse
             to
             Examine
             Witnesses
             
               ex
               officio
            
             .
          
           
             The
             Lords
             
               ex
               officio
            
             ordained
             Witnesses
             to
             be
             Examined
             anent
             the
             being
             of
             the
             Bond
             in
             the
             Custody
             of
             Minto
             ,
             or
             his
             Doers
             ,
             being
             a
             matter
             of
             Fact
             ,
             but
             would
             not
             Examine
             them
             anent
             the
             payment
             made
             thereof
             .
          
        
         
           
             George
             Bain
             contra
             The
             Bailzies
             of
             Culrosse
             ,
             Eodem
             die
             .
          
           
             
               GEorge
               Bain
            
             pursues
             the
             Bailzies
             of
             Culrosse
             for
             payment
             of
             the
             Debt
             of
             a
             Rebel
             ,
             whom
             they
             had
             suffered
             to
             go
             free
             up
             and
             down
             their
             Streets
             ,
             whereupon
             he
             had
             taken
             Instruments
             against
             them
             ,
             and
             protested
             that
             they
             should
             be
             lyable
             for
             the
             Debt
             ;
             seing
             
               squalor
               carceris
            
             is
             justly
             introduced
             against
             Debitors
             that
             will
             not
             pay
             their
             Debt
             ,
             and
             the
             Magistrats
             of
             Burghs
             may
             not
             take
             it
             off
             in
             whole
             or
             in
             part
             ,
             and
             produced
             a
             Practique
             observed
             by
             Durie
             upon
             the
             27.
             of
             
               March
               1623.
               
               Smith
            
             against
             the
             Bailzies
             of
             Elgine
             ,
             where
             the
             Prisoner
             being
             suffered
             to
             walk
             freely
             upon
             the
             Streets
             ,
             till
             he
             obtained
             a
             Charge
             to
             set
             to
             Liberty
             ,
             the
             Magistrates
             were
             found
             lyable
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             he
             offers
             to
             prove
             that
             this
             Prisoner's
             going
             out
             was
             necessary
             ,
             viz.
             He
             being
             a
             Person
             altogether
             Indigent
             ,
             was
             permitted
             sometimes
             to
             go
             and
             mendicat
             his
             Bread
             ,
             and
             once
             to
             go
             to
             the
             Burial
             of
             a
             Child
             of
             his
             own
             ,
             and
             immediatly
             thereafter
             ;
             the
             Pursuers
             having
             taken
             Instruments
             ,
             the
             Rebel
             was
             put
             in
             Waird
             ,
             and
             continued
             there
             till
             he
             Died.
             
          
           
             Which
             the
             Lords
             found
             Relevant
             to
             Liberat
             the
             Burgh
             .
          
        
         
           
           
             Apilgirth
             contra
             Locarbie
             .
             Eodem
             die
             .
          
           
             IN
             a
             Compt
             and
             Reckoning
             at
             the
             instance
             of
             Apilgirth
             ,
             for
             declaring
             two
             Apprizings
             Led
             by
             Lockerbie
             satisfied
             ,
             this
             Query
             was
             moved
             by
             the
             Auditor
             ,
             whether
             a
             Sum
             Consigned
             by
             umquhile
             Apilgirth
             ,
             for
             Redeeming
             a
             part
             of
             the
             Lands
             Wodset
             to
             Lockerbie
             ,
             conform
             to
             the
             Reversion
             in
             the
             Wodset
             ,
             might
             be
             proven
             to
             be
             uplifted
             by
             Apilgirth
             from
             the
             Consignator
             ,
             by
             the
             Oath
             of
             the
             Consignator
             ,
             and
             of
             the
             Clerk
             of
             the
             Process
             who
             Received
             the
             Money
             ,
             or
             only
             by
             Writ
             ,
             Apilgirth
             the
             Consignator
             being
             Dead
             .
          
           
             The
             Lords
             considering
             that
             it
             was
             ordinar
             to
             take
             up
             Sums
             Consigned
             for
             Redemption
             of
             Wodsets
             ,
             being
             upon
             the
             peril
             of
             the
             Consigner
             ,
             did
             appoint
             the
             Oath
             of
             the
             Consignator
             and
             Clerk
             to
             be
             taken
             ,
             for
             proving
             that
             the
             Money
             was
             taken
             up
             by
             Apilgirth
             from
             the
             Consignator
             ,
             and
             that
             Apilgirth
             and
             not
             the
             Consignator
             put
             it
             in
             the
             Clerks
             hands
             ,
             and
             that
             the
             Clerk
             gave
             it
             up
             again
             to
             Apilgirth
             .
          
        
         
           
             The
             Earl
             of
             Argile
             contra
             The
             Laird
             of
             Mcnaughtan
             .
             Feb.
             15.
             1671.
             
          
           
             THe
             Earl
             of
             Argile
             pursues
             the
             Laird
             of
             Mcnaughtan
             to
             Remove
             from
             the
             Lands
             of
             Benbowie
             ,
             as
             being
             a
             part
             of
             the
             Earls
             Barony
             of
             Lo●how
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             he
             pr●duces
             a
             Seising
             ,
             dated
             in
             Anno
             1527.
             proceeding
             upon
             a
             Precept
             of
             
               clare
               constat
            
             from
             the
             Earl
             of
             Argile
             ,
             in
             favours
             of
             
               Alexander
               Mcnaughtan
            
             as
             Heir
             to
             
               Giller
               Mcnaughtan
            
             ,
             of
             the
             four
             Merk
             Land
             of
             Benbowie
             ,
             by
             vertue
             whereof
             ,
             the
             said
             Alexander
             and
             his
             Successors
             to
             this
             day
             have
             Possessed
             ,
             and
             so
             have
             a
             sufficient
             Defense
             upon
             prescription
             by
             the
             Act
             of
             Parliament
             1617.
             anent
             prescription
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Defense
             is
             not
             Relevant
             ,
             as
             it
             is
             founded
             upon
             the
             naked
             Seising
             only
             ,
             because
             by
             the
             said
             Act
             of
             Parliament
             there
             is
             required
             to
             all
             prescriptions
             of
             Land
             a
             Title
             in
             Writ
             ,
             preceeding
             the
             40.
             years
             Possession
             ,
             which
             Title
             is
             d●stinguished
             in
             two
             cases
             ;
             First
             ,
             In
             relation
             to
             Rights
             acquired
             
               titulo
               singlari
            
             ,
             whereunto
             is
             required
             not
             only
             a
             Seising
             ,
             but
             a
             Charter
             ,
             which
             although
             they
             may
             be
             excluded
             by
             an
             anterior
             or
             better
             Right
             ,
             yet
             if
             Possession
             hath
             been
             had
             thereafter
             ,
             for
             the
             space
             of
             fourty
             years
             uninterrupted
             ,
             it
             becomes
             an
             unquestionable
             Right
             ,
             and
             all
             other
             Rights
             are
             excluded
             .
             But
             ,
             Secondly
             ,
             A
             greater
             favour
             is
             showen
             as
             to
             the
             Title
             of
             prescription
             of
             Lands
             belonging
             to
             any
             Party
             
               titulo
               universali
            
             as
             Heirs
             to
             their
             Predecessors
             ,
             in
             which
             their
             is
             no
             Charter
             required
             ,
             but
             Seisings
             one
             or
             moe
             continued
             ,
             and
             standing
             together
             for
             the
             space
             of
             fourty
             years
             ,
             either
             proceeding
             upon
             Retours
             ,
             or
             upon
             Precepts
             of
             
               clare
               constat
            
             ,
             so
             that
             the
             Seising
             in
             question
             proceeding
             upon
             a
             Precept
             of
             
               clare
               constat
            
             cannot
             be
             a
             sufficient
             Title
             for
             prescription
             ,
             unless
             the
             Precept
             of
             clare
             constat
             ●which
             is
             the
             Warrand
             thereof
             were
             produced
             .
             2dly
             ,
             The
             said
             provision
             of
             the
             Act
             requires
             that
             the
             Seising
             one
             or
             moe
             must
             stand
             ,
             and
             be
             continued
             for
             the
             space
             of
             fourty
             years
             ,
             which
             cannot
             be
             alleadged
             in
             this
             case
             ,
             because
             by
             the
             Defenders
             production
             it
             is
             clear
             that
             the
             said
             
               Alexander
               Mcnaughtan
            
             ,
             to
             whom
             the
             Seising
             was
             granted
             ,
             Lived
             not
             for
             fourty
             years
             after
             the
             Seising
             ,
             so
             that
             unless
             his
             Heir
             had
             been
             entered
             ,
             and
             had
             Possest
             by
             vertue
             of
             the
             Heirs
             Seising
             to
             perfyt
             the
             fourty
             years
             ,
             the
             Defense
             of
             prescription
             is
             not
             Relevantly
             alleadged
             .
             The
             Defender
             answered
             ,
             that
             his
             Defense
             of
             prescription
             stands
             Relevant
             upon
             this
             one
             
             Seising
             only
             ;
             and
             he
             oppones
             the
             foresaid
             Clause
             in
             the
             Act
             of
             Parliament
             where
             an
             Heirs
             Title
             of
             prescription
             ,
             is
             a
             Seising
             proceeding
             upon
             a
             Retour
             or
             Precept
             of
             
               clare
               constat
            
             ,
             and
             does
             not
             mention
             that
             the
             Seising
             and
             Precept
             shall
             be
             a
             sufficient
             Title
             ,
             as
             it
             does
             in
             the
             case
             of
             Lands
             acquired
             ,
             where
             it
             expresly
             requireth
             both
             a
             Charter
             and
             Seising
             ,
             and
             it
             had
             been
             as
             easie
             in
             this
             Clause
             to
             have
             required
             a
             Seising
             ,
             and
             Retour
             or
             Precept
             ,
             whereas
             it
             doth
             only
             require
             a
             Seising
             on
             a
             Retour
             or
             Precept
             ,
             so
             that
             the
             Seising
             relating
             the
             Retour
             or
             Precept
             is
             sufficient
             ,
             and
             by
             long
             course
             of
             time
             sufficiently
             instructs
             the
             being
             of
             the
             Retour
             or
             Precept
             .
             As
             to
             the
             second
             answer
             ,
             the
             meaning
             of
             the
             Act
             of
             Parliament
             by
             a
             Seising
             one
             or
             moe
             standing
             together
             ,
             is
             that
             the
             said
             Seising
             be
             not
             Reduced
             ,
             for
             our
             Law
             doth
             ordinarly
             oppose
             standing
             and
             falling
             by
             Reduction
             ,
             so
             that
             albeit
             the
             Party
             Seised
             Died
             within
             fourty
             years
             after
             the
             Seising
             ,
             his
             appearand
             Heir
             continued
             his
             Possession
             ,
             and
             being
             one
             Person
             in
             Law
             with
             him
             ,
             did
             Possess
             by
             his
             Seising
             ,
             and
             if
             it
             were
             otherewise
             understood
             ,
             many
             absurdities
             would
             follow
             ;
             for
             if
             a
             Person
             were
             Infeft
             as
             Heir
             ,
             and
             did
             Possess
             thirty
             nine
             years
             ,
             thereafter
             Dying
             ,
             then
             if
             his
             Heir
             were
             not
             Infeft
             within
             the
             year
             ,
             he
             should
             have
             no
             Title
             of
             prescription
             ,
             though
             within
             the
             fourty
             year
             six
             Heirs
             consequently
             were
             Infeft
             ,
             all
             their
             six
             Seisings
             with
             thirty
             nine
             years
             Possession
             ,
             though
             their
             appearand
             Heir
             should
             continue
             an
             hundreth
             years
             thereafter
             in
             Possession
             ,
             would
             not
             induce
             pre●cription
             ,
             yea
             ,
             taking
             the
             Act
             Literally
             ,
             it
             can
             never
             have
             effect
             ,
             unless
             the
             Heir
             Infeft
             Live
             and
             Possess
             after
             his
             Infeftment
             fourty
             years
             ,
             which
             is
             very
             rare
             ,
             for
             if
             there
             be
             more
             Heirs
             that
             Succeed
             ,
             there
             must
             be
             still
             an
             intervale
             betwixt
             the
             Death
             of
             the
             one
             ,
             and
             the
             Seising
             of
             the
             other
             ,
             and
             so
             the
             Seisings
             could
             not
             be
             said
             to
             be
             continued
             ,
             but
             discontinued
             or
             interrupted
             ,
             for
             Possession
             is
             not
             continued
             ,
             if
             the
             Possessor
             cease
             to
             Possess
             one
             year
             ,
             so
             that
             prescription
             being
             of
             common
             Interest
             and
             Advantage
             to
             the
             Leiges
             ,
             the
             same
             ought
             to
             be
             ampliate
             in
             the
             interpretation
             thereof
             ,
             and
             not
             straitned
             .
             The
             Pursuer
             answered
             ,
             that
             he
             opponed
             the
             clear
             words
             of
             the
             Act
             of
             Parliament
             ,
             which
             does
             not
             only
             require
             fourty
             years
             continual
             Possession
             ,
             but
             also
             that
             it
             be
             by
             Seisings
             sta●ding
             ,
             continuing
             together
             fourty
             years
             ,
             and
             that
             upon
             very
             solide
             Reason
             ,
             for
             if
             both
             Charter
             and
             Seising
             be
             required
             for
             a
             Title
             to
             prescription
             in
             Rights
             acquired
             :
             It
             cannot
             be
             imagined
             that
             an
             single
             Seising
             should
             be
             sufficient
             in
             Rights
             devolved
             by
             Succession
             ,
             without
             requiring
             any
             thing
             in
             place
             of
             the
             Charter
             ,
             so
             that
             if
             neither
             the
             Precept
             nor
             Retour
             be
             required
             ,
             nor
             yet
             the
             continuance
             of
             the
             Seising
             ,
             either
             standing
             in
             the
             Person
             of
             the
             first
             Heir
             ,
             or
             renewed
             in
             the
             Persons
             of
             the
             subsequent
             Heirs
             ,
             which
             certainly
             is
             of
             purpose
             put
             to
             astruct
             the
             Right
             in
             place
             of
             a
             Charter
             ,
             or
             other
             Adminicle
             of
             the
             Seising
             ,
             and
             therefore
             the
             standing
             of
             the
             Seisings
             is
             not
             here
             opposed
             to
             their
             being
             Reduced
             ,
             but
             their
             falling
             by
             the
             Death
             of
             the
             Person
             Infeft
             ,
             whereby
             according
             to
             the
             ordinar
             Terms
             of
             Law
             ,
             the
             Fee
             falleth
             in
             Waird
             or
             Nonentry
             in
             the
             hands
             of
             the
             Superior
             ;
             neither
             can
             a
             subsequent
             Heir
             Possess
             by
             the
             Seising
             of
             a
             prior
             Heir
             ,
             because
             Seisings
             are
             not
             given
             to
             Heirs
             ,
             but
             to
             the
             individual
             Person
             Seised
             ;
             but
             Charters
             and
             other
             Rights
             given
             to
             Parties
             and
             their
             Heirs
             may
             be
             a
             Title
             to
             their
             Heirs
             to
             Possess
             ,
             but
             not
             a
             naked
             Seising
             ;
             and
             as
             to
             the
             inconvenience
             ,
             it
             would
             be
             far
             greater
             if
             one
             single
             Seising
             were
             sufficient
             ,
             and
             would
             open
             the
             Door
             to
             all
             Forgery
             ,
             after
             Parties
             and
             Witnesses
             are
             Dead
             ,
             but
             if
             more
             Seisings
             be
             required
             ,
             if
             the
             first
             Person
             Die
             ,
             it
             is
             much
             more
             difficult
             to
             Forge
             diverse
             Seisings
             ,
             by
             diverse
             Nottars
             ,
             and
             diverse
             Witnesses
             ,
             which
             may
             be
             redargued
             by
             the
             Hand-writ
             of
             some
             of
             the
             Nottars
             ,
             or
             survivance
             of
             some
             of
             the
             Witnesses
             ;
             and
             what
             is
             alleadged
             upon
             
             a
             Seising
             continuing
             thirty
             nine
             years
             ,
             or
             of
             six
             subsequent
             Seisings
             within
             that
             time
             is
             easily
             retorted
             by
             consideration
             of
             one
             Seising
             ,
             whereby
             the
             Party
             Infeft
             Lived
             and
             Bruiked
             but
             a
             year
             ,
             whethet
             that
             would
             be
             a
             sufficient
             Title
             for
             prescription
             ,
             or
             if
             six
             consequent
             Seisings
             proceeding
             upon
             Charters
             and
             thirty
             nine
             years
             Possession
             ,
             yea
             ,
             or
             a
             hundred
             years
             Possession
             ,
             all
             which
             would
             make
             no
             Title
             of
             prescription
             ,
             unless
             a
             Charter
             were
             also
             produced
             ,
             as
             is
             clear
             by
             the
             Act
             ,
             so
             we
             are
             not
             to
             consider
             equivalencies
             ,
             but
             in
             a
             Statute
             must
             take
             it
             as
             it
             is
             made
             ,
             and
             not
             make
             it
             ;
             and
             as
             for
             the
             inconvenience
             alleadged
             that
             there
             must
             necessarly
             be
             intervales
             ,
             it
             imports
             not
             ,
             for
             the
             continuance
             of
             Seisings
             is
             not
             required
             to
             be
             so
             exact
             as
             the
             continuance
             of
             Possession
             ,
             but
             subsequent
             Heirs
             being
             Infeft
             ,
             albeit
             there
             be
             an
             intervale
             ,
             their
             Seising
             as
             in
             many
             other
             cases
             will
             be
             drawn
             back
             to
             the
             Death
             of
             their
             Predecessor
             ,
             if
             there
             be
             no
             
               medium
               impedimentum
            
             by
             any
             Process
             intented
             in
             the
             interim
             ;
             so
             that
             at
             least
             there
             must
             be
             a
             Seising
             standing
             when
             the
             Possession
             begane
             ,
             and
             a
             Seising
             standing
             when
             the
             first
             fourty
             years
             is
             compleat
             ,
             but
             here
             there
             was
             no
             Seising
             renewed
             ,
             though
             there
             be
             a
             hundred
             years
             after
             the
             first
             fourty
             years
             ,
             and
             a
             full
             progress
             as
             to
             all
             other
             Lands
             .
          
           
             The
             Lords
             found
             that
             there
             was
             no
             necessity
             to
             produce
             ,
             or
             instruct
             that
             there
             was
             a
             Precept
             or
             Retour
             ,
             otherewise
             then
             by
             the
             relation
             of
             the
             Seising
             ,
             but
             found
             that
             a
             Seising
             not
             having
             fourty
             years
             Possession
             ,
             by
             the
             Life
             and
             Bruiking
             of
             the
             Person
             Seised
             ,
             and
             never
             being
             renewed
             in
             his
             Successors
             ,
             is
             not
             a
             suffient
             Title
             of
             prescription
             ,
             and
             therefore
             Repelled
             the
             Defense
             :
             in
             this
             Process
             the
             Defender
             was
             permitted
             to
             alleadge
             the
             Lands
             in
             question
             to
             be
             Part
             and
             Pertinent
             of
             his
             other
             Lands
             ,
             whereof
             he
             shew
             a
             full
             Progress
             ,
             and
             alleadged
             a
             continual
             Possession
             ,
             by
             doing
             all
             Deeds
             of
             Property
             that
             the
             Subject
             was
             capable
             of
             ,
             and
             the
             Pursuer
             alleadging
             that
             these
             Lands
             were
             severally
             kend
             and
             known
             from
             all
             the
             Defenders
             Lands
             contained
             in
             the
             said
             Progress
             ,
             and
             that
             he
             and
             his
             Predecessors
             had
             exercised
             all
             acts
             of
             Property
             that
             could
             be
             done
             in
             the
             case
             of
             a
             Forrestry
             ,
             such
             as
             the
             Lands
             in
             question
             were
             ,
             and
             that
             after
             the
             Defenders
             alleadging
             on
             a
             several
             Infeftment
             ,
             by
             the
             foresaid
             Seising
             ,
             and
             so
             acknowledging
             these
             Lands
             to
             be
             
               separ●●●m
               ten●mentum
            
             ,
             he
             could
             not
             return
             to
             alleadge
             Part
             and
             Pertinent
             so
             considerable
             a
             tract
             of
             Ground
             ,
             six
             or
             seven
             Miles
             long
             ,
             yet
             the
             Lords
             would
             prefer
             neither
             Party
             to
             the
             probation
             ,
             but
             before
             answer
             ordained
             either
             Party
             to
             adduce
             Witnesses
             anent
             their
             Possession
             ,
             and
             the
             several
             specialities
             by
             them
             alleadged
             ,
             that
             by
             the
             probation
             the
             Lords
             might
             see
             the
             just
             Interest
             of
             either
             Party
             ,
             which
             might
             resolve
             into
             a
             promiscuous
             Commonty
             ,
             or
             into
             a
             Property
             to
             the
             one
             ,
             and
             a
             Pasturage
             or
             other
             Servitude
             to
             the
             other
             .
          
        
         
           
             Marion
             Dods
             contra
             Lawrence
             Scot.
             Feb.
             16.
             1671.
             
          
           
             BY
             Contract
             of
             Marriage
             betwixt
             
               Iames
               Scot
            
             and
             
               Marion
               Dods
               ,
               Marion
            
             is
             obliged
             to
             pay
             in
             Tocher
             a
             thousand
             pound
             to
             the
             said
             Iames
             at
             the
             next
             Candlemass
             ,
             and
             the
             said
             Iames
             is
             obliged
             to
             imploy
             the
             same
             to
             him
             and
             her
             in
             Conjunct
             Fee
             ,
             and
             to
             the
             Heirs
             of
             the
             Marriage
             ,
             which
             failzing
             to
             her
             Heirs
             ,
             and
             Iames
             having
             Died
             without
             Children
             ;
             the
             said
             Marion
             pursues
             
               Lawrence
               Scot
            
             as
             his
             Heir
             ,
             to
             imploy
             the
             Sum
             conform
             to
             the
             said
             obligement
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Pursuer
             has
             yet
             the
             Tocher
             in
             her
             own
             hand
             ,
             unless
             she
             can
             show
             a
             Discharge
             .
             It
             was
             answered
             ,
             First
             ,
             That
             the
             Parties
             having
             lived
             together
             22.
             years
             ,
             it
             must
             be
             presumed
             that
             the
             Husband
             was
             payed
             ,
             and
             had
             the
             Custody
             of
             the
             Discharge
             .
             
             2dly
             .
             The
             Husband
             by
             his
             Testament
             acknowledges
             that
             the
             Sum
             was
             payed
             .
             It
             was
             answered
             ,
             that
             this
             written
             Obligation
             cannot
             be
             taken
             away
             by
             such
             a
             presumption
             ,
             and
             the
             Assertion
             of
             the
             Defunct
             in
             the
             Testament
             ,
             has
             been
             procured
             by
             the
             Wifes
             importunity
             in
             her
             Husbands
             weakness
             ,
             and
             however
             cannot
             prejudge
             the
             Heir
             ,
             and
             can
             import
             no
             more
             then
             as
             
               legatum
               liberationis
            
             ,
             which
             can
             only
             affect
             the
             Deads-part
             of
             the
             free
             Geir
             .
          
           
             The
             Lords
             found
             the
             presumption
             with
             the
             acknowledgement
             in
             the
             Testament
             a
             sufficient
             payment
             of
             the
             Tocher
             ,
             against
             all
             Parties
             having
             interest
             .
          
        
         
           
             William
             Gordon
             contra
             Sir
             Alexander
             Mcculloch
             of
             Ardual
             .
             February
             ,
             17.
             1671.
             
          
           
             
               WIlliam
               Gordon
            
             as
             Donator
             to
             the
             Recognition
             of
             the
             Barony
             of
             Cardines
             ,
             by
             allienation
             of
             the
             Major
             part
             thereof
             ,
             pursues
             a
             Declarator
             of
             the
             Recognition
             against
             Sir
             
               Alexander
               Mcculloch
            
             ,
             who
             stands
             now
             Infeft
             therein
             ,
             who
             alleadged
             no
             Process
             ,
             because
             the
             Pursuer
             produces
             no
             Charter
             to
             show
             the
             Lands
             to
             hold
             Waird
             ,
             neither
             doth
             he
             produce
             the
             Infeftments
             Libelled
             ,
             by
             which
             the
             Recognition
             is
             alleadged
             to
             be
             procured
             ,
             and
             if
             he
             shall
             get
             a
             Term
             to
             prove
             ,
             and
             so
             Litiscontestation
             be
             made
             ,
             the
             Defender
             will
             either
             be
             excluded
             from
             his
             Defenses
             ,
             which
             he
             cannot
             propone
             or
             know
             before
             he
             see
             the
             Infeftments
             ,
             or
             otherwise
             two
             Litiscontestations
             may
             be
             in
             the
             same
             Cause
             ,
             by
             admitting
             of
             exceptions
             after
             the
             Term
             ,
             and
             albeit
             these
             Infeftments
             be
             not
             the
             Pursuers
             own
             Writs
             ,
             yet
             he
             ought
             to
             have
             used
             an
             incident
             upon
             his
             Summons
             ,
             to
             have
             compelled
             the
             Havers
             to
             produce
             the
             same
             ,
             and
             so
             before
             Litiscontestation
             ,
             the
             Defender
             might
             have
             proponed
             his
             Defense
             .
             It
             was
             answered
             ,
             that
             the
             Pursuer
             is
             obliged
             to
             produce
             no
             more
             
               in
               initio
               litis
            
             then
             his
             Gift
             of
             Recognition
             from
             the
             King
             ,
             for
             the
             Law
             presumeth
             that
             the
             King
             is
             Superior
             ,
             and
             that
             the
             Lands
             are
             Waird
             ,
             unless
             the
             Defender
             offer
             to
             prove
             the
             contrare
             .
             As
             for
             the
             Infeftments
             ,
             whereby
             Recognition
             is
             incurred
             ,
             they
             are
             not
             the
             Pursuers
             Title
             ,
             but
             
               media
               concludendi
               ▪
            
             which
             he
             may
             produce
             
               ad
               modum
               probationis
            
             .
          
           
             The
             Lords
             Sustained
             the
             Process
             ,
             and
             assigned
             a
             Term
             to
             prove
             the
             Infeftments
             Libelled
             for
             inferring
             the
             Recognition
             ,
             and
             reserved
             all
             the
             Defenders
             Defenses
             after
             the
             production
             thereof
             ,
             in
             the
             same
             manner
             as
             if
             they
             were
             now
             produced
             .
          
        
         
           
             Mrs.
             Katharin
             Mcgil
             contra
             The
             Viscount
             of
             Oxenfoord
             .
             Eodem
             die
             .
          
           
             THe
             Deceased
             Viscount
             of
             Oxenfoord
             having
             named
             his
             Son
             Executor
             and
             universal
             Legator
             ,
             he
             gives
             a
             Bond
             of
             Provision
             to
             umquhile
             Mistrisse
             Mary
             ,
             one
             of
             his
             Daughters
             ,
             in
             satisfaction
             of
             her
             Portion
             natural
             and
             Bairns
             part
             ,
             there
             are
             yet
             three
             Children
             beside
             the
             Heir
             ,
             and
             the
             said
             Mrs.
             Mary
             did
             survive
             her
             Father
             ,
             and
             in
             the
             Compt
             and
             Reckoning
             of
             his
             Executory
             ,
             the
             three
             surviving
             Children
             claimed
             half
             of
             the
             Moveables
             as
             the
             Bairns
             part
             .
             It
             was
             alleadged
             for
             the
             Viscount
             the
             universal
             Legator
             ,
             that
             a
             fourth
             part
             of
             the
             Bairns
             part
             behoved
             to
             belong
             to
             him
             ,
             which
             would
             have
             belonged
             to
             Mrs.
             Mary
             ,
             because
             the
             Bond
             granted
             by
             the
             Defunct
             being
             in
             satisfaction
             of
             M●ries
             Bairns
             part
             ,
             her
             Bairns
             part
             must
             come
             in
             place
             of
             it
             ,
             and
             not
             accresce
             to
             the
             rest
             of
             the
             Bairns
             ,
             but
             must
             belong
             to
             
             him
             as
             Executor
             and
             universal
             Legator
             ,
             especially
             this
             Bond
             being
             granted
             on
             Death-bed
             ,
             is
             only
             effectual
             as
             a
             Legacy
             ,
             whereby
             the
             Defunct
             did
             burden
             his
             own
             Deeds
             part
             ,
             which
             can
             be
             no
             otherways
             understood
             then
             thus
             ,
             that
             he
             would
             make
             up
             Maries
             Portion
             to
             ten
             thousand
             Pounds
             ,
             her
             Bairns
             part
             being
             in
             the
             first
             end
             thereof
             ,
             and
             it
             cannot
             be
             thought
             his
             meaning
             to
             exhaust
             his
             Deads
             part
             further
             or
             to
             gift
             any
             thing
             to
             the
             rest
             of
             the
             Bairns
             by
             the
             accrescence
             of
             Maries
             part
             .
             It
             was
             answered
             ,
             that
             such
             Bonds
             of
             Provision
             are
             most
             ordinar
             ,
             bearing
             it
             to
             be
             in
             satisfaction
             of
             their
             Bairns
             part
             ,
             which
             has
             ever
             been
             so
             interpret
             ,
             that
             the
             Portion
             of
             the
             Bairn
             so
             satisfied
             accresceth
             to
             the
             rest
             of
             the
             Bairns
             ,
             and
             it
             was
             never
             heard
             that
             the
             Heir
             or
             Executor
             burdened
             with
             such
             Bonds
             of
             Provision
             ,
             did
             thereupon
             recur
             to
             seek
             that
             share
             of
             the
             Bairns
             part
             ,
             which
             was
             satisfied
             by
             the
             Bond
             of
             Provision
             ,
             neither
             is
             there
             any
             odds
             whether
             the
             Provision
             were
             by
             Legacy
             or
             Bond
             ,
             for
             the
             Reason
             of
             recourse
             being
             ,
             because
             the
             Heir
             or
             Executor
             is
             burdened
             to
             satisfie
             that
             Bairn
             ,
             and
             so
             in
             either
             case
             doth
             claim
             the
             share
             of
             that
             Bairn
             ,
             neither
             was
             it
             ever
             so
             understood
             ,
             that
             Fathers
             granting
             such
             Bonds
             of
             Provision
             ,
             did
             not
             thereby
             leave
             intire
             the
             Bairns
             part
             to
             the
             remanent
             Bairns
             .
          
           
             The
             Lords
             found
             that
             Mrs.
             Maries
             share
             of
             her
             Bairns
             part
             did
             accresce
             to
             the
             rest
             of
             the
             Bairns
             ,
             and
             did
             not
             belong
             to
             the
             Executor
             either
             as
             a
             part
             ,
             or
             in
             place
             of
             any
             part
             of
             the
             ten
             thousand
             pound
             ,
             but
             the
             samine
             did
             solely
             burden
             the
             Deads
             part
             .
          
        
         
           
             Agnes
             Dundasse
             contra
             The
             Laird
             of
             Ardrosse
             ,
             and
             the
             Laird
             of
             Touch.
             February
             18.
             1671.
             
          
           
             THe
             Laird
             of
             Ardrosse
             having
             granted
             Bond
             to
             umquhile
             Mr.
             
               Henry
               Mauld
            
             and
             his
             Spouse
             ,
             and
             their
             Heirs
             ,
             of
             8000.
             
             Merks
             ,
             and
             after
             his
             Decease
             he
             granted
             a
             Bond
             to
             the
             Relict
             ,
             bearing
             to
             have
             borrowed
             two
             thousand
             Merks
             from
             her
             ,
             and
             obliging
             him
             to
             pay
             the
             same
             to
             her
             in
             Liferent
             ,
             for
             her
             Liferent
             use
             only
             ,
             and
             after
             her
             Decease
             to
             
               William
               Mauld
            
             her
             Son
             ,
             and
             his
             Heirs
             ;
             and
             another
             Bond
             ,
             bearing
             him
             to
             have
             Received
             from
             the
             Relict
             a
             thousand
             Merks
             in
             name
             of
             
               Henry
               Mauld
            
             her
             Son
             ,
             and
             obliging
             him
             to
             pay
             to
             the
             said
             Henry
             and
             his
             Heirs
             ;
             and
             after
             all
             he
             granted
             a
             Bond
             of
             ten
             thousand
             Merks
             to
             the
             Relict
             ,
             her
             Heirs
             and
             Assigneys
             ,
             which
             was
             made
             up
             of
             what
             remained
             due
             of
             all
             the
             three
             ,
             this
             Bond
             the
             Relict
             Assigned
             to
             the
             Laird
             of
             Touch
             ,
             who
             having
             Charged
             Ardrosse
             ,
             and
             he
             having
             Suspended
             ,
             there
             arose
             a
             Competition
             betwixt
             Touch
             as
             Assigney
             ,
             and
             
               Agnes
               Dundasse
            
             as
             Heir
             and
             Executrix
             to
             Mr.
             
               Henry
               ,
               William
            
             ,
             and
             
               Henry
               Maulds
            
             ,
             and
             thereupon
             a
             division
             of
             the
             Sums
             betwixt
             the
             Parties
             ;
             thereafter
             
               Agnes
               Dundasse
            
             pursues
             Ardrosse
             to
             make
             payment
             to
             her
             as
             Heir
             and
             Executrix
             to
             William
             and
             
               Henry
               Maulds
            
             ,
             of
             two
             thousand
             Merks
             ,
             which
             he
             was
             Addebted
             to
             the
             said
             William
             ,
             and
             of
             one
             thousand
             he
             was
             Addebted
             to
             the
             said
             Henry
             ;
             Whereupon
             he
             hath
             Deponed
             that
             he
             was
             Debitor
             by
             all
             the
             saids
             Bonds
             before
             related
             ,
             and
             no
             otherways
             ,
             and
             that
             in
             the
             former
             Decreet
             by
             mistake
             it
             was
             exprest
             ,
             that
             the
             ten
             thousand
             Merks
             Bond
             was
             made
             up
             of
             the
             eight
             thousand
             Merks
             Bond
             ,
             and
             of
             two
             thousand
             Merks
             of
             Annualrent
             thereof
             ,
             whereas
             the
             truth
             was
             ,
             it
             was
             made
             up
             by
             what
             was
             resting
             of
             the
             two
             Bonds
             due
             to
             William
             and
             Henry
             ,
             which
             he
             produced
             cancelled
             of
             the
             Tenor
             foresaid
             .
             It
             was
             alleadged
             for
             
               Agnes
               Dundasse
            
             ,
             that
             the
             Sums
             of
             these
             Bonds
             behoved
             only
             to
             belong
             to
             her
             as
             Heir
             and
             Executrix
             to
             William
             and
             
               Henry
               Maulds
            
             ,
             and
             not
             to
             Touch
             as
             Assigney
             by
             the
             Relict
             .
             It
             was
             answered
             ,
             First
             .
             That
             the
             said
             Agnes
             had
             Homologat
             the
             prior
             Decreet
             ,
             and
             division
             therein
             
             made
             ,
             by
             giving
             Discharges
             accordingly
             ,
             could
             not
             claim
             any
             more
             .
             2dly
             ,
             Another
             having
             taken
             a
             Bond
             in
             the
             Name
             of
             her
             two
             Sons
             ,
             being
             Bairns
             in
             her
             Family
             ,
             might
             lawfully
             alter
             the
             same
             at
             her
             pleasure
             ,
             there
             being
             nothing
             more
             ordinar
             then
             that
             Fathers
             gives
             Bonds
             of
             Provision
             to
             their
             Children
             ,
             or
             takes
             Bonds
             from
             their
             Creditors
             in
             their
             Names
             ,
             yet
             these
             being
             never
             Delivered
             ,
             the
             Parents
             may
             Dispose
             of
             them
             at
             their
             pleasure
             .
             It
             was
             answered
             for
             the
             Executrix
             ,
             that
             the
             alleadgeance
             of
             Homologation
             is
             not
             Relevant
             ,
             because
             it
             is
             Emergent
             by
             Ardrosse
             his
             Oath
             ,
             that
             the
             ten
             thousand
             merks
             Bond
             ,
             was
             not
             made
             up
             by
             the
             Annualrent
             ,
             but
             by
             the
             said
             two
             Bonds
             ,
             so
             that
             there
             could
             be
             no
             Homologation
             of
             that
             ,
             whereof
             the
             Executrix
             was
             excusably
             ignorant
             .
             To
             the
             second
             ,
             That
             albeit
             Fathers
             granting
             Bonds
             of
             Provision
             in
             Name
             of
             their
             Children
             ,
             may
             alter
             the
             same
             at
             any
             time
             before
             Delivery
             :
             Yet
             where
             they
             lend
             out
             the
             Sum
             to
             a
             Creditor
             ,
             and
             take
             him
             obliged
             to
             a
             Child
             in
             Fee
             that
             cannot
             be
             ●ltered
             ,
             especially
             where
             the
             Parent
             is
             naked
             Liferenter
             ,
             and
             hath
             not
             reserved
             a
             power
             to
             lift
             and
             Dispone
             ;
             but
             whatsoever
             be
             in
             the
             case
             of
             a
             Father
             providing
             his
             Children
             ,
             who
             can
             by
             no
             presumption
             be
             thought
             to
             have
             any
             Means
             ;
             yet
             after
             the
             Fathers
             Death
             ,
             a
             Mother
             taking
             a
             Bond
             in
             the
             Name
             of
             a
             Bairn
             ,
             it
             must
             be
             presumed
             to
             be
             the
             Bairn●
             Money
             ,
             coming
             by
             the
             Father
             or
             otherwise
             ,
             and
             the
             Mother
             having
             stated
             her self
             naked
             Liferentrix
             in
             the
             one
             Bond
             ,
             and
             having
             no
             interest
             in
             the
             other
             Bond
             ,
             she
             could
             not
             recal
             or
             alter
             the
             same
             in
             prejudice
             of
             the
             Children
             ,
             especially
             seing
             they
             were
             Infants
             ,
             and
             had
             not
             Tutors
             to
             care
             for
             them
             .
             It
             was
             answered
             ,
             that
             the
             Mother
             had
             held
             count
             for
             the
             whole
             Means
             of
             the
             Father
             ,
             and
             so
             had
             cleared
             any
             presumption
             that
             thir
             Bo●●s
             could
             be
             of
             his
             Means
             ,
             but
             she
             Liferented
             the
             whole
             Estate
             ,
             and
             made
             up
             thir
             Bonds
             out
             of
             the
             Rents
             and
             Annualrents
             ,
             and
             denyed
             to
             be
             Tutrix
             ,
             or
             Pro-tutrix
             ,
             so
             that
             the
             Money
             being
             freely
             her
             own
             ,
             and
             her
             Children
             having
             died
             before
             her
             ,
             ,
             she
             might
             warrantably
             alter
             the
             Bond.
             
          
           
             The
             Lords
             found
             that
             the
             Mother
             could
             not
             alter
             the
             Bonds
             taken
             in
             favours
             of
             her
             Children
             from
             a
             Debitor
             ,
             being
             of
             the
             Tenors
             above-written
             ,
             wherein
             she
             was
             naked
             Liferenter
             of
             the
             one
             ,
             and
             had
             not
             so
             much
             as
             a
             Liferent
             of
             the
             other
             ,
             and
             that
             the
             Sums
             were
             rather
             presumed
             to
             be
             of
             the
             Bairns
             Means
             then
             her
             own
             ,
             seing
             they
             had
             no
             Tutor
             ,
             and
             any
             medling
             with
             their
             Means
             was
             by
             her self
             ,
             and
             that
             their
             Executrix
             could
             not
             now
             be
             put
             to
             instruct
             what
             Means
             they
             had
             ,
             or
             be
             countable
             thereupon
             .
          
        
         
           
             Iohn
             Armour
             contra
             Iames
             Lands
             .
             February
             21.
             1671.
             
          
           
             
               IOhn
               Armour
            
             pursues
             his
             Tennents
             of
             some
             Tenements
             in
             Edinburgh
             ,
             for
             Meals
             and
             Duties
             .
             Compearance
             is
             made
             for
             
               Iames
               Lands
            
             ,
             who
             produces
             a
             Bond
             granted
             by
             umquhil
             
               George
               Armour
            
             ,
             bearing
             that
             
               George
               Armour
            
             as
             Tutor
             Testamentar
             to
             
               Iohn
               Armour
            
             ,
             had
             borrowed
             500.
             merks
             from
             
               Iames
               Lands
            
             ,
             and
             obliges
             him
             ,
             his
             Heirs
             ,
             Executors
             and
             Assigneys
             ,
             to
             repay
             the
             same
             ,
             and
             thereby
             sets
             some
             of
             the
             saids
             Tenements
             to
             
               Iames
               Lands
            
             ,
             ay
             and
             while
             he
             be
             satisfied
             of
             the
             500.
             merks
             ,
             and
             thereupon
             alleadges
             he
             must
             be
             preferred
             to
             the
             Mails
             and
             Duties
             till
             he
             be
             payed
             .
             It
             was
             answered
             ,
             this
             Bond
             and
             Tack
             were
             not
             sufficient
             ,
             in
             respect
             he
             does
             not
             bind
             himself
             as
             Tutor
             ,
             nor
             the
             Pupil
             ,
             but
             his
             own
             Executor
             and
             Assigneys
             ,
             and
             so
             it
             must
             be
             the
             Tutors
             own
             Debt
             .
             2dly
             ,
             This
             Debt
             cannot
             burden
             the
             Pupil
             simply
             upon
             the
             Assertion
             of
             the
             Tutor
             ;
             but
             the
             Creditor
             ought
             to
             have
             seen
             the
             Sum
             applyed
             to
             the
             Pupils
             use
             :
             and
             therefore
             must
             
             yet
             alleadge
             
               in
               rem
               versam
            
             .
             Otherways
             ,
             if
             the
             naked
             Assertion
             of
             Tutors
             may
             burden
             the
             Pupils
             ,
             when
             they
             borrow
             their
             Name
             ,
             it
             is
             a
             patent
             way
             to
             destroy
             all
             Pupils
             ,
             Tutors
             being
             oftimes
             
               insolvent
               .
               3dly
            
             ,
             The
             Tutor
             could
             not
             set
             a
             Tack
             of
             the
             Pupils
             Lands
             ,
             Longer
             than
             he
             had
             Interest
             as
             Tutor
             ,
             
               Ita
               est
            
             ,
             the
             Tutory
             is
             ceassed
             by
             the
             Tutors
             Death
             .
          
           
             The
             Lords
             found
             that
             this
             Creditor
             behoved
             to
             instruct
             the
             Sum
             applyed
             to
             the
             Pupils
             behove
             ,
             which
             being
             proven
             ,
             they
             Sustained
             the
             Tack
             .
          
        
         
           
             Alexander
             Pit●●irn
             contra
             February
             22.
             1671.
             
          
           
             
               ALexander
               Pitcairn
            
             having
             Right
             by
             progress
             to
             a
             Wodset
             granted
             by
             
               Iames
               Kininmouth
            
             to
             Mr.
             
               Iames
               Gordoun
            
             ,
             and
             by
             him
             Disponed
             to
             Sir
             
               Archibald
               Sydserf
            
             ,
             and
             by
             him
             to
             the
             Pursuer
             ,
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             ,
             who
             alleadged
             that
             Gordoun
             or
             Sydserf
             were
             satisfied
             by
             intromission
             with
             the
             Rents
             ,
             for
             which
             they
             were
             comptable
             .
             It
             was
             Replyed
             ,
             that
             Sir
             
               Archibald
               Sydserf
            
             had
             obtained
             Declarator
             of
             the
             expyring
             of
             the
             Reversion
             ,
             and
             was
             neither
             Countable
             nor
             Redeemable
             ,
             and
             for
             proving
             thereof
             ,
             produced
             the
             Decreet
             of
             Declarator
             ,
             in
             Anno
             1637.
             against
             which
             it
             was
             objected
             ,
             that
             it
             was
             null
             ,
             because
             albeit
             the
             Libel
             was
             upon
             a
             Clause
             irritant
             ,
             whereby
             it
             is
             provided
             ,
             if
             the
             Money
             were
             required
             ,
             and
             not
             payed
             within
             such
             a
             time
             ,
             the
             Reversion
             should
             expire
             ;
             yet
             at
             the
             Compearance
             and
             Production
             ,
             there
             is
             no
             mention
             thereof
             ,
             albeit
             at
             the
             Conclusion
             ,
             the
             Decreet
             bears
             ,
             because
             the
             Libel
             was
             sufficiently
             proven
             by
             Production
             of
             the
             Writs
             aforesaid
             ,
             which
             can
             be
             only
             understood
             of
             the
             Writs
             in
             the
             Production
             ,
             and
             it
             is
             not
             enough
             only
             that
             they
             were
             libelled
             upon
             ;
             for
             in
             all
             Decreets
             ,
             the
             whole
             production
             is
             specially
             insert
             .
             It
             was
             answered
             ,
             that
             the
             Requisition
             was
             truly
             produced
             ,
             and
             that
             the
             omission
             of
             the
             Clerk
             to
             repeat
             it
             in
             the
             Production
             cannot
             annul
             the
             Decreet
             after
             so
             long
             a
             time
             without
             a
             Reduction
             thereof
             .
             It
             was
             answered
             ,
             that
             albeit
             
               in
               favorabilibus
            
             ,
             the
             Lords
             may
             supply
             Defects
             upon
             Production
             ,
             
               ex
               post
               facto
            
             :
             yet
             
               in
               odiosis
            
             ,
             such
             as
             Clauses
             irritant
             of
             Reversions
             ,
             the
             Lords
             ought
             not
             to
             admit
             the
             same
             .
          
           
             The
             Lords
             found
             the
             Decreet
             of
             Declarator
             null
             .
          
        
         
           
             Sir
             David
             Dumbar
             of
             Baldoun
             contra
             David
             Dick
             and
             others
             .
             February
             22.
             1671.
             
          
           
             BAldoun
             pursues
             ●he
             Tennents
             of
             Bombie
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             
               David
               Dick
            
             ,
             who
             produced
             an
             Apprizing
             of
             the
             saids
             Lands
             ,
             against
             the
             Lord
             Kirkcudbright
             ,
             within
             year
             and
             day
             of
             the
             Pursuers
             Appryzing
             ,
             and
             craves
             to
             come
             in
             
               pari
               passu
            
             with
             the
             Pursuer
             ,
             conform
             to
             the
             Act
             1661.
             anent
             Creditor
             and
             Debitor
             .
             It
             was
             answered
             that
             by
             the
             same
             Act
             it
             is
             provided
             ,
             that
             where
             Comprizings
             are
             acquired
             by
             the
             appearand
             Heir
             ,
             or
             to
             his
             behove
             ,
             that
             the
             same
             should
             be
             satisfiable
             for
             such
             Sums
             as
             the
             appearand
             Heir
             payed
             ,
             and
             offers
             to
             satisfie
             the
             same
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Act
             doth
             so
             provide
             ,
             as
             to
             the
             Estate
             that
             might
             belong
             to
             the
             appearand
             Heir
             ,
             it
             can
             extend
             no
             further
             .
             But
             this
             Appryzing
             is
             not
             only
             of
             the
             Estate
             of
             Orchartoun
             ,
             but
             of
             the
             Estate
             of
             Kirkcudbright
             ,
             wherein
             Sir
             
               Robert
               Maxwel
            
             ,
             appearand
             Heir
             of
             Orchartoun
             hath
             no
             interest
             ,
             the
             Appryzing
             must
             be
             valide
             as
             to
             that
             .
             It
             was
             answered
             ,
             that
             Kirkcudbright
             was
             but
             Cautioner
             for
             Orchartoun
             ,
             and
             that
             the
             Act
             bears
             ,
             that
             such
             Appryzings
             shall
             be
             satisfied
             by
             what
             the
             appearand
             Heir
             
             payed
             :
             and
             such
             Appryzings
             being
             satisfied
             ,
             it
             is
             simply
             extinct
             and
             can
             have
             no
             effect
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             seing
             
               David
               Dicks
            
             Appryzing
             is
             Assigned
             to
             Sir
             Roberts
             own
             Brother
             ,
             the
             Lords
             allowed
             Witnesses
             ,
             
               ex
               officio
            
             ;
             to
             be
             adduced
             ,
             for
             proving
             that
             it
             was
             for
             Sir
             Roberts
             behove
             .
          
        
         
           
             William
             Gordoun
             contra
             Sir
             Alexander
             Mcculloch
             .
             Eodem
             die
             .
          
           
             
               WIlliam
               Gordoun
            
             pursues
             Sir
             
               Alexander
               Mcculloch
            
             for
             Spuilzying
             of
             certain
             Corns
             :
             Who
             alleadged
             Absolvitor
             ,
             because
             the
             Defender
             having
             right
             by
             Appryzing
             to
             the
             Lands
             whereon
             the
             Corns
             grew
             ,
             did
             warn
             the
             Pursuer
             ,
             and
             obtained
             Decreet
             of
             Removing
             against
             him
             ;
             and
             thereupon
             dispossessed
             him
             ,
             and
             finding
             the
             Cropt
             upon
             the
             Ground
             ,
             he
             might
             lawfully
             intromet
             therewith
             ,
             
               nam
               sata
               cedunt
               solo
            
             ,
             especially
             where
             the
             Sower
             is
             
               in
               mala
               fide
            
             ;
             but
             here
             he
             was
             in
             Violence
             after
             a
             Warning
             ,
             and
             did
             continue
             to
             Sow
             after
             Decreet
             of
             Removing
             :
             yea
             a
             part
             was
             Sown
             after
             he
             was
             Dispossessed
             by
             Letters
             of
             Ejection
             .
             The
             Pursuer
             answered
             ,
             that
             by
             the
             Law
             and
             Custom
             of
             Scotland
             ,
             the
             Cropt
             of
             Corns
             ,
             or
             industrial
             Fruits
             are
             never
             accounted
             as
             
               pars
               soli
            
             ,
             or
             any
             accessory
             ,
             but
             are
             still
             moveable
             ,
             even
             when
             they
             are
             growing
             ,
             so
             that
             they
             belong
             not
             to
             the
             Heir
             ,
             but
             to
             the
             Executor
             ;
             and
             in
             case
             of
             a
             Disposition
             ,
             without
             mention
             of
             the
             Cropt
             ,
             albeit
             the
             Acquirer
             were
             Infeft
             after
             they
             were
             Sown
             ,
             and
             upon
             the
             Ground
             ,
             he
             would
             not
             have
             Right
             thereto
             ,
             neither
             doth
             
               mala
               fides
            
             ,
             or
             violent
             Possession
             alter
             the
             case
             ,
             for
             which
             the
             Law
             hath
             provided
             a
             special
             Remeid
             ,
             viz.
             the
             violent
             Profits
             :
             but
             it
             can
             be
             no
             ground
             to
             meddle
             with
             the
             Parties
             Cropt
             ,
             
               brevi
               manu
            
             ,
             as
             accessory
             to
             the
             Ground
             ,
             for
             then
             the
             Parties
             should
             both
             lose
             the
             Cropt
             ,
             as
             
               pars
               soli
            
             ,
             and
             be
             lyable
             to
             the
             violent
             profits
             ,
             neither
             is
             there
             any
             Ground
             from
             the
             Warning
             ,
             nor
             yet
             from
             the
             Decreet
             of
             Removing
             ,
             which
             was
             Suspended
             before
             it
             attained
             full
             effect
             ,
             and
             the
             Defender
             continued
             in
             Possession
             of
             a
             House
             upon
             the
             Ground
             ,
             albeit
             he
             was
             put
             out
             of
             the
             principal
             House
             .
             It
             was
             answered
             that
             the
             Decreet
             had
             attained
             full
             effect
             before
             the
             Suspension
             ,
             all
             the
             Pursuers
             Goods
             being
             off
             the
             Ground
             ,
             and
             he
             out
             of
             the
             Mansion-house
             ,
             wherein
             the
             Defender
             entered
             ;
             and
             brought
             all
             his
             Goods
             upon
             the
             Ground
             :
             and
             though
             the
             Pursuers
             Mother
             being
             a
             valitudinary
             impotent
             Woman
             ,
             was
             suffered
             to
             remain
             in
             a
             Coat-house
             ,
             and
             the
             Pursuer
             with
             her
             ,
             upon
             that
             account
             ,
             that
             imports
             no
             continuance
             of
             Possession
             of
             the
             Land.
             
          
           
             The
             Lords
             Repelled
             the
             Defense
             as
             to
             that
             part
             of
             the
             Cropt
             that
             was
             Sowen
             before
             the
             Appryzer
             entered
             by
             the
             Letters
             of
             Possession
             ,
             reserving
             to
             him
             the
             violent
             Profits
             for
             that
             time
             :
             But
             found
             the
             Defense
             Relevant
             ,
             as
             to
             what
             the
             Pursuer
             did
             after
             the
             Defenders
             Dispossession
             ;
             and
             found
             the
             Defender
             only
             lyable
             for
             the
             Expences
             of
             the
             Labouring
             and
             the
             Seed
             ,
             as
             being
             
               eatenus
               Locupletior
               factus
            
             .
          
        
         
           
             Lord
             Iustice
             Clerk
             contra
             Mr.
             Iohn
             Fairholm
             .
             February
             23.
             1671.
             
          
           
             THe
             Earl
             of
             Levin
             being
             Debitor
             to
             Lambertoun
             in
             fourty
             thousand
             merks
             ,
             and
             having
             Infeft
             him
             in
             an
             Annualrent
             out
             of
             his
             Lands
             in
             security
             thereof
             ,
             Mr.
             
               Iohn
               Fairholm
            
             did
             upon
             a
             Debt
             due
             by
             Lambertoun
             Appryze
             the
             foresaid
             Heretable
             Bond
             and
             Annualrent
             ,
             which
             was
             holden
             of
             the
             Earl
             of
             Levin
             himself
             ,
             who
             was
             Charged
             upon
             the
             Appryzing
             ▪
             but
             unwarrantably
             to
             Infeft
             Fairholm
             in
             the
             Lands
             ,
             whereas
             the
             Annual
             
             rent
             only
             was
             Appryzed
             ,
             and
             the
             Charge
             should
             have
             been
             to
             Infeft
             Fairholm
             in
             the
             Annualrent
             :
             thereafter
             Fairholm
             did
             Arrest
             the
             bygone
             Annualrents
             in
             the
             Earl
             of
             Levins
             hands
             ,
             and
             after
             all
             ,
             did
             upon
             a
             Decreet
             against
             Lambertoun
             ,
             arrest
             the
             bygone
             Rents
             in
             Levins
             hand
             ,
             and
             Lambertouns
             Liferent
             of
             the
             Annualrent
             having
             fallen
             by
             his
             being
             year
             and
             day
             at
             the
             Horn
             ,
             the
             Justice
             Clerk
             as
             Donator
             to
             the
             Liferent
             ,
             and
             as
             Arrester
             competing
             with
             Fairholm
             ,
             did
             alleadge
             that
             Fairholms
             Appryzing
             being
             an
             incompleat
             Diligence
             ,
             and
             no
             Infeftment
             nor
             valide
             Charge
             thereon
             ,
             and
             having
             lyen
             over
             so
             many
             years
             ,
             the
             Arrester
             must
             be
             preferred
             ,
             for
             which
             he
             adduced
             a
             Practique
             observed
             by
             Dury
             the
             14.
             of
             
               February
               1623.
               
               Salicots
            
             contra
             Brown
             ,
             where
             it
             was
             so
             found
             :
             and
             albeit
             Fairholm
             be
             the
             prior
             Arrester
             ,
             yet
             he
             hath
             done
             no
             Diligence
             upon
             his
             Arrestment
             ;
             whereas
             the
             Justice
             Clerk
             hath
             obtained
             Decreet
             ,
             and
             as
             Donator
             to
             the
             Liferent
             Escheat
             ,
             he
             is
             preferable
             for
             years
             after
             the
             Rebellion
             ,
             because
             the
             Liferent
             Escheat
             falling
             before
             any
             Infeftment
             ,
             or
             Charge
             on
             the
             Appryzing
             ,
             which
             was
             not
             used
             within
             year
             and
             day
             ,
             the
             Liferent
             excludes
             the
             Appryzer
             .
          
           
             The
             Lords
             found
             the
             Appryzing
             preferable
             to
             the
             posterior
             Arrestment
             ,
             though
             no
             legal
             Diligence
             was
             done
             thereon
             for
             the
             space
             of
             nine
             years
             thereafter
             ,
             in
             respect
             the
             Appryzing
             being
             a
             Judicial
             Assignation
             ,
             required
             no
             Intimation
             ,
             and
             being
             prior
             ,
             it
             is
             preferable
             :
             and
             they
             did
             not
             respect
             that
             single
             Practique
             ,
             the
             constant
             Custom
             since
             being
             contrary
             :
             But
             found
             the
             Liferent
             Escheat
             preferable
             to
             the
             anterior
             Appryzing
             ,
             being
             without
             Infeftment
             or
             Charge
             ,
             as
             to
             the
             years
             after
             the
             Rebellion
             ,
             and
             preferred
             the
             Appryzer
             as
             to
             years
             preceeding
             .
          
        
         
           
             Arnold
             of
             Barncaple
             contra
             Gordoun
             of
             Holm
             .
             Eodem
             die
             .
          
           
             THere
             being
             four
             Cautioners
             in
             a
             Bond
             ,
             and
             the
             principal
             Debitor
             having
             Suspended
             ,
             and
             found
             a
             Cautioner
             in
             the
             Suspension
             ,
             who
             having
             been
             Distressed
             and
             payed
             the
             Debt
             ,
             and
             having
             gotten
             Assignation
             from
             the
             Creditor
             ,
             Charges
             one
             of
             the
             Cautioners
             in
             the
             first
             Bond
             ,
             Gordoun
             of
             Holm
             ,
             who
             Suspends
             on
             this
             Reason
             ,
             that
             payment
             being
             made
             by
             the
             Cautioner
             in
             the
             Suspension
             ,
             he
             can
             only
             have
             recourse
             against
             him
             for
             whom
             he
             was
             Cautioner
             ,
             but
             not
             against
             his
             Cautioners
             in
             the
             principal
             Bond
             ,
             for
             us
             to
             them
             it
             is
             all
             one
             as
             if
             the
             principal
             Debitor
             had
             payed
             .
             2dly
             ,
             Though
             the
             Cautioner
             in
             the
             Suspension
             could
             have
             access
             against
             the
             Cautioners
             in
             the
             principal
             Bond
             ;
             yet
             all
             of
             them
             being
             Cautioners
             for
             the
             same
             Principal
             ,
             they
             must
             bear
             equal
             burden
             ,
             and
             so
             he
             must
             allow
             his
             own
             fifth
             part
             in
             the
             same
             manner
             ,
             as
             Cautioners
             in
             a
             Bond
             of
             Corroboration
             ,
             bear
             equal
             burden
             with
             the
             Cautioners
             in
             the
             principal
             Bond.
             
          
           
             The
             Lords
             found
             that
             the
             Cautioner
             in
             the
             Suspension
             had
             access
             against
             the
             Cautioners
             in
             the
             principal
             Bond
             ,
             he
             alwayes
             deducing
             his
             own
             fifth
             part
             .
          
        
         
           
             Earl
             of
             Northesk
             contra
             Viscount
             of
             Stormond
             .
             February
             28.
             1671.
             
          
           
             THe
             Earl
             of
             Northesk
             pursues
             the
             Viscount
             of
             Stormond
             on
             this
             Ground
             ,
             that
             he
             having
             sent
             100.
             pound
             Sterling
             to
             London
             ,
             to
             the
             umquhil
             Viscount
             of
             Stormond
             ,
             to
             be
             imployed
             for
             Houshold
             Furniture
             ,
             the
             most
             part
             thereof
             was
             not
             imployed
             ,
             and
             for
             instructing
             his
             Libel
             ,
             produces
             several
             missive
             Letters
             of
             the
             Viscounts
             ,
             one
             Holograph
             ,
             another
             having
             an
             Holograph
             Postscript
             ,
             and
             a
             third
             Written
             with
             another
             hand
             ,
             which
             
             did
             state
             the
             Accompt
             ,
             and
             acknowledged
             the
             Debt
             .
             It
             was
             alleadged
             for
             the
             Defender
             ,
             that
             the
             only
             Letter
             which
             had
             any
             special
             Probation
             in
             it
             ,
             was
             the
             last
             ,
             which
             is
             not
             Holograph
             .
             It
             was
             answered
             ,
             that
             the
             Subject
             Matter
             being
             a
             Sum
             sent
             for
             Furniture
             ,
             which
             uses
             not
             to
             be
             redacted
             in
             Writ
             ,
             the
             Viscounts
             Letter
             Subscribed
             by
             him
             ,
             though
             not
             Holograph
             ,
             is
             sufficient
             to
             prove
             ,
             for
             Bills
             of
             Exchange
             so
             Subscribed
             ,
             or
             Letters
             among
             M●●chants
             are
             sufficient
             :
             and
             this
             Letter
             being
             amongst
             Noble
             Persons
             in
             such
             a
             small
             particular
             ,
             which
             requires
             not
             ordinarly
             Writ
             ,
             must
             be
             of
             the
             same
             force
             ,
             especially
             seing
             there
             is
             also
             produced
             two
             other
             missives
             not
             controverted
             ,
             which
             
               comparatione
               literarum
            
             ,
             are
             clearly
             the
             same
             with
             this
             Letter
             in
             question
             .
          
           
             The
             Lords
             found
             that
             this
             Letter
             ,
             though
             not
             Holograph
             ,
             was
             a
             sufficient
             Instruction
             ,
             having
             compared
             the
             same
             with
             the
             other
             not
             controverted
             Subscriptions
             ;
             The
             Pursuer
             making
             Faith
             ,
             that
             this
             is
             the
             same
             Letter
             which
             he
             received
             from
             the
             Deceast
             Viscount
             ,
             his
             Servant
             ,
             or
             Messenger
             .
          
        
         
           
             Steil
             contra
             Hay
             of
             Rattray
             .
             Iune
             6.
             1671.
             
          
           
             UMquhil
             Steil
             having
             a
             Feu
             of
             some
             Aikers
             of
             the
             Barony
             of
             Rattray
             ,
             Chancellour
             Hay
             as
             Superiour
             ,
             and
             Baron
             of
             the
             Barony
             ,
             pursued
             Reduction
             and
             Improbation
             against
             Steil
             and
             other
             Vassals
             ,
             and
             in
             Iuly
             1624.
             obtained
             Certification
             ,
             the
             Chancellours
             Right
             being
             Transmitted
             to
             Doctor
             
               Patrick
               Hay
            
             ,
             he
             accepts
             of
             the
             Feu-duty
             and
             gives
             a
             Discharge
             of
             the
             year
             1624.
             and
             thereafter
             in
             Anno
             1628.
             having
             obtained
             Decreet
             of
             Removing
             against
             Steils
             Relict
             ;
             he
             by
             a
             Transaction
             with
             her
             passes
             from
             it
             ,
             and
             gives
             her
             other
             Lands
             in
             lieu
             thereof
             ,
             but
             without
             any
             mention
             of
             the
             Improbation
             .
             Steils
             Heir
             attains
             Possession
             of
             the
             saids
             Aikers
             of
             Land
             ;
             and
             Hay
             of
             Rattray
             ,
             as
             now
             having
             Right
             to
             the
             Barony
             ,
             pursues
             a
             Removing
             against
             Steils
             Tennent
             ,
             and
             obtains
             Decreet
             of
             Removing
             ,
             without
             Calling
             Steil
             ;
             whereupon
             Steil
             pursues
             Ejection
             and
             Intrusion
             against
             Hay
             of
             Rattray
             ,
             wherein
             in
             respect
             that
             Rattrays
             interest
             was
             by
             a
             Sentence
             ,
             though
             unwarrantably
             given
             ,
             without
             Calling
             the
             Tenuents
             Master
             .
          
           
             The
             Lords
             restricted
             the
             Letters
             to
             Re-possession
             and
             ordinar
             profits
             wherein
             it
             was
             alleadged
             for
             Rattry
             Absolvitor
             ,
             because
             the
             Defenders
             Author
             having
             obtained
             Certification
             in
             the
             Improbation
             ,
             at
             Chancellour
             Hays
             Instance
             ,
             produces
             the
             same
             ,
             which
             did
             evacuate
             the
             Pursuers
             Fathers
             and
             Predecessours
             Right
             .
          
           
             The
             Pursuer
             Replyed
             ,
             First
             ,
             That
             the
             Decreet
             of
             Certification
             produced
             ,
             was
             not
             Relevant
             ,
             because
             it
             was
             not
             a
             Certification
             in
             an
             Improbation
             ,
             which
             was
             not
             concluded
             by
             the
             Summons
             ,
             as
             they
             are
             exprest
             in
             the
             Decreet
             ,
             which
             bear
             ,
             That
             the
             Writs
             called
             for
             ,
             should
             be
             cancelled
             ,
             and
             declared
             null
             ,
             but
             bears
             not
             that
             the
             same
             should
             make
             no
             Faith
             ,
             or
             should
             be
             declared
             as
             False
             ,
             Forged
             or
             Feinzied
             .
             2dly
             ,
             Doctor
             Hay
             the
             Defenders
             Author
             ,
             by
             accepting
             of
             the
             Feu-duty
             for
             a
             Term
             after
             the
             Decreet
             ,
             did
             pass
             therefrom
             ,
             and
             did
             acknowledge
             and
             Homologate
             the
             Pursuers
             Right
             ,
             and
             did
             acknowledge
             the
             Liferenters
             Right
             ,
             by
             Excambion
             therewith
             .
             The
             Defender
             answered
             ,
             that
             he
             opponed
             his
             Decreet
             of
             Certification
             ,
             the
             Decernator
             whereof
             ,
             is
             expresly
             in
             the
             Terms
             of
             an
             Improbation
             :
             And
             likewise
             the
             beginning
             of
             the
             Libel
             ▪
             being
             both
             at
             the
             Chancellour
             and
             Kings
             Advocats
             Instance
             ;
             and
             at
             the
             Compearance
             ,
             the
             Pursuer
             
             insisted
             for
             improving
             the
             Writs
             called
             for
             ,
             so
             that
             the
             Repetition
             of
             the
             Conclusion
             of
             the
             Libel
             ,
             hath
             been
             only
             through
             Inadvertence
             ,
             not
             fully
             set
             down
             .
             And
             as
             to
             the
             Discharge
             of
             the
             Feu-duty
             ,
             First
             ,
             It
             is
             Vitiat
             in
             the
             Date
             .
             2dly
             ,
             It
             wants
             Writer
             and
             Witnesses
             ,
             and
             albeit
             it
             were
             Holograph
             ,
             it
             cannot
             instruct
             the
             true
             Date
             ,
             and
             it
             can
             never
             import
             a
             passing
             from
             the
             Improbation
             further
             ,
             then
             for
             the
             Term
             Discharged
             ,
             especially
             seing
             it
             was
             granted
             by
             Doctor
             Hay
             ,
             who
             was
             singular
             Successor
             to
             the
             Chancellour
             ,
             and
             perhaps
             knew
             not
             of
             the
             Improbation
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Certification
             being
             granted
             in
             absence
             ,
             the
             Obtainer
             thereof
             might
             frame
             it
             as
             he
             pleased
             ;
             but
             it
             cannot
             be
             supposed
             to
             be
             truly
             better
             then
             as
             it
             stands
             :
             and
             though
             Improbations
             being
             in
             absence
             ,
             are
             very
             much
             adhered
             to
             ,
             yet
             they
             are
             odious
             Rights
             and
             very
             Reduceable
             upon
             any
             Defect
             or
             Informality
             ,
             seing
             it
             is
             formality
             that
             gives
             them
             all
             their
             strength
             .
             And
             as
             to
             the
             Discharge
             ,
             the
             Date
             of
             it
             hath
             been
             altered
             at
             the
             Subscription
             by
             the
             Subscribers
             hand
             ,
             as
             appears
             by
             comparing
             the
             Date
             and
             Subscription
             .
             2dly
             ,
             In
             the
             very
             Body
             of
             the
             Discharge
             ,
             no
             ways
             altered
             ,
             it
             bears
             to
             Discharge
             the
             year
             1624.
             after
             the
             Certification
             ,
             and
             the
             Discharge
             as
             it
             stands
             ,
             is
             in
             the
             ordinar
             way
             as
             Discharges
             uses
             to
             be
             given
             to
             Tennents
             and
             Vassals
             ,
             for
             small
             Feu-duties
             ,
             and
             therefore
             must
             be
             sufficient
             in
             a
             case
             so
             favourable
             for
             the
             Pursuer
             who
             has
             a
             clear
             Right
             ,
             and
             should
             not
             be
             eleided
             by
             this
             dubious
             Certification
             ,
             which
             must
             be
             restricted
             to
             a
             Certification
             in
             a
             Reduction
             ,
             which
             is
             only
             Reducing
             the
             Rights
             till
             they
             be
             produced
             ,
             and
             so
             falls
             ,
             they
             being
             now
             produced
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             upon
             the
             Certification
             ,
             in
             respect
             of
             the
             Reply
             ,
             and
             Discharge
             produced
             ,
             and
             Decerned
             the
             Defender
             to
             Re-possesse
             the
             Pursuer
             ;
             but
             Assoylzied
             him
             from
             the
             bygone
             Profits
             ,
             seing
             he
             Possest
             by
             a
             Title
             ,
             and
             had
             just
             Reason
             to
             Defend
             in
             a
             matter
             so
             dubious
             .
          
        
         
           
             Sir
             William
             Stuart
             of
             Kirkhil
             contra
             Sir
             George
             Mckenzie
             and
             Kettlestoun
             .
             Iune
             8.
             1671.
             
          
           
             SIr
             
               William
               Stuart
            
             as
             Heir
             by
             progress
             to
             Sir
             
               Lewis
               Stuart
            
             ,
             his
             Goodsire
             pursues
             Improbation
             of
             a
             Bond
             ,
             bearing
             to
             be
             granted
             to
             
               Mr.
               Iohn
               Stuart
            
             of
             Kettlestoun
             ,
             his
             Son
             granting
             an
             Annuity
             of
             3000.
             merks
             yearly
             during
             his
             life
             ,
             and
             some
             other
             Provisions
             :
             Which
             Bond
             is
             Assigned
             by
             Keitlestoun
             to
             Sir
             
               George
               Mckenzie
            
             ,
             and
             being
             produced
             ,
             Kettlestoun
             has
             abidden
             by
             the
             same
             ,
             and
             has
             declared
             upon
             Oath
             ,
             that
             he
             was
             not
             present
             when
             it
             was
             Subscribed
             ,
             but
             that
             he
             received
             it
             from
             his
             Father
             ,
             as
             now
             it
             is
             ,
             one
             of
             the
             Witnesses
             insert
             being
             then
             Kettlestouns
             Servant
             depon'd
             ,
             that
             the
             Subscription
             to
             this
             Bond
             as
             Witness
             is
             his
             Subscription
             ,
             but
             that
             he
             did
             not
             see
             Sir
             Lewis
             Subscribe
             ,
             nor
             any
             of
             the
             other
             Witnesses
             ;
             and
             remembers
             nothing
             of
             the
             matter
             ,
             and
             that
             he
             knows
             not
             
               Iohn
               Carnagie
            
             ,
             Serviture
             to
             the
             Earl
             of
             Southesk
             ,
             another
             Witness
             insert
             .
             The
             Pursuer
             thereupon
             craved
             that
             the
             Defender
             would
             more
             particularly
             design
             the
             other
             Witness
             
               John
               Carnagie
               ▪
            
             Serviture
             to
             the
             Earl
             of
             Southesk
             ,
             because
             there
             were
             several
             persons
             Servants
             ,
             or
             Attendents
             upon
             the
             Earl
             at
             that
             time
             of
             the
             same
             name
             ,
             and
             condescends
             upon
             two
             of
             them
             having
             several
             Designations
             ,
             beside
             this
             common
             one
             .
             The
             Defender
             alleadged
             that
             he
             was
             obliged
             to
             condescend
             no
             further
             ,
             seing
             the
             Act
             of
             Parliament
             required
             no
             more
             than
             the
             Name
             ,
             Sirname
             and
             Designation
             .
             It
             was
             answered
             ,
             that
             the
             intent
             of
             Designations
             being
             to
             find
             out
             the
             Person
             of
             the
             Witness
             ,
             that
             he
             might
             be
             adduced
             in
             the
             Improbation
             ,
             a
             general
             Designation
             would
             not
             suffice
             ,
             but
             behoved
             to
             be
             
             made
             special
             ,
             or
             otherways
             if
             the
             Pursuer
             should
             Cite
             any
             Person
             of
             that
             Designation
             ,
             and
             that
             Person
             should
             deny
             the
             Subscription
             ,
             his
             Testimony
             would
             improve
             ,
             or
             at
             the
             best
             ,
             the
             Defender
             behoved
             then
             to
             Design
             specially
             another
             of
             the
             same
             common
             Designation
             ,
             otherwise
             it
             were
             a
             compendious
             way
             to
             all
             Forgery
             ,
             as
             if
             Witnesses
             should
             be
             insert
             of
             such
             a
             Name
             ,
             Indwellers
             in
             Edinburgh
             ,
             or
             any
             other
             Town
             :
             In
             that
             case
             ,
             if
             the
             Testimonie
             of
             none
             of
             them
             should
             Improve
             ,
             there
             were
             no
             remeed
             for
             the
             Falshood
             .
          
           
             The
             Lords
             found
             that
             all
             the
             persons
             that
             were
             the
             Earl
             of
             Southesks
             Servants
             or
             Attendantsat
             that
             time
             ,
             and
             were
             called
             
               Iohn
               Carnagie
            
             that
             were
             alive
             should
             be
             Cited
             ,
             and
             the
             Hand-writs
             of
             any
             that
             wereso
             Designed
             ,
             that
             were
             dead
             ,
             should
             be
             produced
             by
             either
             Party
             to
             be
             compared
             with
             this
             Subscription
             ,
             that
             thereby
             it
             might
             appear
             if
             the
             Subscription
             could
             be
             astructed
             by
             the
             Testimony
             or
             hand
             writ
             of
             any
             other
             .
          
        
         
           
             Sir
             ,
             Francis
             Scot
             of
             Thirlstoun
             contra
             Lord
             Drumlanrig
             .
             Iune
             10.
             1671.
             
          
           
             SIr
             
               Francis
               Scot
            
             having
             obtained
             Decreet
             of
             Adjudication
             of
             the
             Lands
             of
             Brankinside
             and
             others
             ,
             and
             having
             Charged
             the
             Lord
             Drumlanrig
             to
             receive
             and
             Infeft
             him
             .
             He
             Suspends
             on
             this
             Reason
             ,
             that
             he
             was
             willing
             to
             satisfie
             the
             Sums
             contained
             in
             the
             Adjudication
             ,
             upon
             Assignation
             made
             to
             him
             thereto
             ,
             and
             so
             was
             not
             obliged
             to
             receive
             the
             Charger
             .
             It
             was
             answered
             ,
             that
             albeit
             King
             Iames
             the
             third
             ,
             his
             Act
             of
             Parliament
             anent
             Appryzings
             ,
             doth
             provide
             ,
             that
             for
             a
             years
             Rent
             ,
             Superiours
             shall
             receive
             Appryzers
             ,
             or
             otherways
             shall
             take
             the
             Land
             to
             themselves
             and
             pay
             the
             Sums
             ;
             yet
             that
             gives
             not
             the
             Superiour
             an
             option
             ,
             but
             bears
             failzying
             of
             paying
             a
             years
             Rent
             ,
             the
             Superiour
             may
             satisfie
             the
             Sums
             ,
             and
             take
             the
             Land
             in
             his
             own
             hands
             ,
             but
             where
             that
             was
             offered
             ,
             it
             was
             never
             by
             Custom
             or
             Practique
             allowed
             ,
             that
             the
             Superiour
             should
             exclude
             an
             Appryzer
             ,
             but
             whatever
             were
             in
             the
             case
             of
             Appryzings
             ,
             that
             power
             was
             never
             granted
             to
             Superiours
             in
             Adjudications
             ,
             whereupon
             they
             were
             still
             obliged
             to
             receive
             Adjudgers
             without
             a
             years
             Rent
             ,
             until
             the
             late
             Act
             of
             Parliament
             ,
             and
             the
             said
             old
             Statute
             giving
             an
             option
             to
             the
             Superiour
             ,
             is
             not
             to
             be
             extended
             to
             Adjudications
             ;
             nor
             was
             it
             ever
             by
             any
             subsequent
             Law
             ,
             or
             Consuetude
             extended
             thereto
             .
             It
             was
             answered
             that
             by
             the
             ancient
             Feudal
             Law
             ,
             a
             Superiour
             could
             not
             have
             been
             compelled
             to
             receive
             a
             stranger
             Vassal
             ,
             albeit
             a
             Creditor
             ,
             yet
             the
             Statute
             of
             King
             Iames
             the
             3d.
             did
             remeid
             this
             in
             favours
             of
             Creditors
             ,
             and
             obliged
             Superiours
             either
             to
             receive
             Appryzers
             for
             payment
             of
             a
             years
             Rent
             ,
             or
             else
             to
             pay
             the
             Sum
             Apprysed
             for
             ;
             but
             long
             after
             that
             time
             ,
             there
             was
             no
             mention
             of
             Adjudications
             ,
             which
             were
             a
             Supplement
             of
             the
             Lords
             ,
             that
             where
             the
             appearand
             Heir
             being
             Charged
             ,
             did
             renunce
             ,
             the
             Creditor
             should
             not
             be
             frustrate
             ,
             but
             might
             obtain
             Adjudication
             of
             the
             Lands
             ,
             
               contra
               haereditatem
               jacentem
            
             ,
             which
             except
             as
             to
             that
             point
             of
             Form
             ,
             is
             the
             same
             with
             an
             Appryzing
             ,
             under
             another
             Title
             :
             and
             albeit
             as
             to
             the
             years
             Entry
             ,
             the
             Lords
             would
             not
             extend
             the
             same
             to
             an
             Adjudication
             :
             It
             was
             upon
             this
             special
             Reason
             ,
             that
             in
             the
             Act
             of
             Parliament
             1621.
             anent
             Appryzings
             ,
             the
             same
             is
             declared
             Redeemable
             upon
             the
             Sums
             Appryzed
             for
             ,
             and
             a
             years
             Rent
             for
             the
             Entry
             ;
             yet
             in
             the
             very
             next
             Act
             in
             the
             same
             Parliament
             anent
             Adjudications
             ,
             the
             years
             Entry
             is
             left
             out
             ,
             which
             was
             thought
             by
             the
             Lords
             to
             be
             done
             by
             the
             Parliament
             of
             purpose
             ,
             and
             so
             not
             to
             be
             extended
             by
             the
             Lords
             :
             But
             otherways
             the
             same
             Reason
             was
             for
             the
             Entry
             in
             Adjudications
             as
             in
             Appryzings
             ,
             which
             the
             Parliament
             has
             now
             
             found
             by
             their
             late
             Act
             ;
             and
             therefore
             the
             matter
             of
             the
             Entry
             is
             not
             to
             be
             drawn
             in
             consequence
             to
             the
             Superiours
             option
             .
          
           
             The
             Lords
             found
             that
             the
             Superiour
             had
             his
             option
             ,
             and
             might
             refuse
             to
             receive
             the
             Adjudger
             ,
             offering
             to
             satisfie
             the
             Sums
             in
             his
             Adjudication
             ,
             upon
             Assignation
             made
             to
             him
             thereof
             ,
             and
             declared
             that
             the
             same
             should
             be
             Redeemable
             from
             the
             Superiour
             upon
             the
             like
             Sums
             without
             any
             thing
             for
             a
             years
             Entry
             ;
             and
             that
             in
             all
             things
             else
             ,
             the
             Superiour
             and
             Vassal
             should
             be
             in
             the
             same
             case
             as
             if
             the
             Adjudger
             had
             been
             Entred
             to
             that
             Effect
             .
          
        
         
           
             Town
             of
             Breichen
             contra
             Town
             of
             Dundee
             .
             Iune
             14.
             1671.
             
          
           
             
               LAurence
               Dundass
            
             having
             been
             Debitor
             to
             the
             Earl
             of
             Seaforth
             in
             200.
             pound
             Sterling
             ,
             was
             incarcerat
             in
             the
             Tolbooth
             of
             Breichen
             ,
             and
             being
             suffered
             to
             go
             out
             of
             Prison
             ,
             Mr.
             
               Rory
               Mckenzie
            
             as
             Assigney
             to
             the
             Earl
             ,
             obtained
             Decreet
             against
             the
             Town
             for
             payment
             of
             the
             Sum
             ,
             and
             took
             Assignation
             to
             the
             Caption
             ,
             and
             therewith
             Incarcerat
             Laurence
             in
             the
             Tolbooth
             of
             Dundee
             ,
             and
             now
             pursues
             the
             Town
             of
             Dundee
             for
             suffering
             Laurence
             to
             go
             out
             of
             Prison
             .
             and
             condescends
             that
             they
             suffered
             him
             to
             go
             ordinarly
             to
             the
             Kirk
             on
             the
             Sabbath
             ,
             and
             that
             once
             they
             suffered
             him
             to
             go
             to
             the
             River
             by
             Boat
             ,
             and
             over
             to
             Fife
             another
             Shire
             ;
             and
             ordinarly
             to
             go
             to
             the
             Street
             ,
             and
             to
             Taverns
             without
             necessar
             Affairs
             .
             The
             Defenders
             answered
             ,
             that
             the
             Prisoner
             returned
             still
             to
             the
             Prison
             every
             night
             ,
             and
             went
             always
             abroad
             with
             a
             Guard
             ,
             and
             his
             going
             to
             the
             Water
             was
             because
             of
             his
             Indisposition
             ,
             and
             for
             his
             Health
             ,
             that
             if
             he
             touched
             upon
             the
             other
             side
             in
             Fife
             ,
             he
             did
             return
             that
             same
             night
             to
             Prison
             :
             and
             that
             his
             going
             to
             the
             Kirk
             with
             a
             Keeper
             ,
             can
             be
             no
             Relevant
             Ground
             ;
             and
             even
             the
             going
             out
             upon
             other
             occasions
             with
             a
             Keeper
             ,
             though
             not
             absolutely
             necessar
             ,
             cannot
             make
             the
             Magistrates
             lyable
             ,
             it
             being
             the
             constant
             Custom
             of
             all
             Burghs
             so
             to
             do
             ,
             and
             that
             a
             Prisoner
             being
             under
             a
             Guard
             ,
             is
             in
             Prison
             ,
             albeit
             not
             in
             the
             Tolbooth
             .
             The
             Pursuers
             answered
             ,
             that
             Magistrates
             of
             Burghs
             were
             but
             publick
             Servants
             in
             Keeping
             of
             Prisoners
             ,
             and
             were
             obliged
             to
             give
             punctual
             Obedience
             to
             the
             Letters
             of
             Caption
             ,
             bearing
             to
             keep
             the
             Rebel
             in
             sure
             Firmance
             within
             their
             Tolbooth
             ,
             which
             is
             founded
             on
             very
             good
             Reason
             ,
             that
             the
             Prisoner
             may
             be
             necessitate
             ,
             
               squalore
               carceris
            
             ,
             to
             do
             all
             Deeds
             in
             his
             power
             to
             satisfie
             his
             Debt
             ,
             which
             would
             be
             eluded
             ,
             if
             the
             Magistrates
             at
             their
             pleasure
             might
             let
             them
             go
             out
             with
             a
             Guard
             ,
             and
             would
             but
             turn
             to
             a
             Confynement
             ,
             or
             intertainment
             and
             gratification
             to
             an
             Officer
             for
             a
             Guard
             :
             and
             even
             though
             there
             were
             necessar
             Causes
             of
             the
             Prisoners
             coming
             out
             ,
             the
             Magistrate
             is
             not
             Judge
             thereof
             ,
             nor
             has
             any
             power
             of
             it
             ,
             but
             the
             Party
             ought
             to
             apply
             themselves
             to
             the
             Council
             or
             Session
             ,
             and
             obtain
             their
             Warrand
             ,
             which
             will
             not
             be
             granted
             even
             by
             them
             ,
             but
             upon
             instruction
             of
             a
             necessar
             Cause
             ,
             upon
             Oath
             of
             Physicians
             or
             others
             .
             The
             Defenders
             answered
             ,
             that
             Incarceration
             was
             a
             civil
             effect
             of
             Law
             ,
             and
             no
             punishment
             ,
             and
             that
             it
             were
             against
             all
             humanity
             ,
             to
             put
             Prisoners
             for
             civil
             Debt
             in
             that
             condition
             ,
             that
             the
             Magistrates
             could
             not
             let
             them
             out
             for
             a
             little
             ,
             even
             for
             the
             safety
             of
             their
             Life
             ,
             in
             extremity
             of
             sickness
             ,
             which
             oftimes
             would
             not
             admit
             of
             delay
             ,
             till
             application
             were
             made
             to
             the
             Council
             or
             Session
             .
             2dly
             ,
             Whatsoever
             may
             be
             found
             just
             by
             the
             Lords
             in
             time
             coming
             ,
             yet
             the
             constant
             and
             universal
             Custom
             of
             this
             and
             all
             other
             Burghs
             ,
             to
             let
             Prisoners
             go
             out
             with
             a
             Guard
             when
             they
             saw
             convenient
             cause
             ,
             did
             introduce
             a
             priviledge
             to
             Burghs
             ,
             or
             put
             the
             Defenders
             in
             
               bona
               fide
            
             ,
             to
             Act
             as
             all
             their
             Predecessors
             had
             been
             accustomed
             
             to
             do
             ,
             without
             any
             question
             or
             Decision
             in
             the
             contrair
             ,
             and
             alleadged
             a
             late
             Practique
             in
             the
             case
             of
             the
             Town
             of
             Culross
             ,
             who
             suffering
             a
             Prisoner
             that
             was
             a
             poor
             man
             ,
             to
             go
             out
             to
             an
             Hospital
             ,
             where
             he
             got
             Bread
             ,
             and
             thence
             he
             immediatly
             returned
             to
             Prison
             ,
             and
             to
             go
             and
             see
             his
             nearest
             Relation
             that
             was
             a
             dying
             in
             the
             Town
             ,
             or
             to
             their
             Burial
             ,
             was
             not
             found
             lyable
             for
             the
             Debt
             .
          
           
             The
             Lords
             considering
             the
             ordinary
             Custom
             of
             Burghs
             ,
             found
             that
             as
             to
             the
             time
             past
             they
             would
             not
             find
             them
             lyable
             for
             suffering
             Prisoners
             to
             go
             out
             with
             a
             Guard
             for
             any
             necessar
             cause
             ,
             and
             found
             the
             Defense
             Relevant
             ,
             that
             this
             Prisoner
             was
             let
             go
             out
             with
             a
             Guard
             for
             his
             health
             ,
             or
             to
             the
             Kirk
             on
             the
             Sabbath
             ,
             but
             found
             that
             Member
             of
             the
             Condescendence
             Relevant
             ,
             that
             he
             went
             out
             to
             the
             Street
             and
             Taverns
             without
             a
             necessar
             Cause
             ,
             though
             with
             a
             Guard
             ,
             Relevant
             to
             infer
             the
             Debt
             :
             But
             found
             that
             in
             time
             coming
             they
             would
             have
             no
             regard
             to
             that
             unwarrantable
             Custome
             ;
             but
             that
             Magistrates
             of
             Burghs
             should
             only
             have
             power
             to
             let
             Prisoners
             come
             out
             of
             the
             Tolbooth
             under
             a
             Guard
             in
             the
             extream
             hazard
             of
             their
             Life
             by
             sickness
             ,
             and
             not
             without
             Testificats
             by
             Physicians
             or
             skilled
             persons
             upon
             Oath
             ,
             bearing
             the
             Parties
             condition
             to
             require
             the
             same
             ,
             and
             that
             without
             great
             hazard
             ,
             they
             could
             not
             suffer
             delay
             to
             make
             Supplication
             to
             the
             Council
             or
             Session
             .
          
        
         
           
             The
             Lady
             Wolmet
             and
             Dankeith
             her
             Spouse
             contra
             Major
             Bigger
             .
             Eodem
             die
             .
          
           
             
               JEan
               Dowglas
            
             Lady
             Wolmet
             being
             by
             her
             Contract
             of
             Marriage
             Infeft
             in
             the
             half
             of
             the
             Lands
             of
             Wolmet
             ,
             did
             with
             her
             Husband
             consent
             to
             a
             Wodset
             of
             the
             whole
             Lands
             for
             28000.
             merks
             ,
             wherein
             there
             is
             a
             Back-tack
             setting
             the
             Lands
             and
             Coal
             to
             her
             Husband
             and
             her
             ,
             the
             longest
             liver
             of
             them
             two
             for
             payment
             of
             the
             Annualrent
             of
             the
             Money
             :
             which
             Wodset
             the
             said
             Iean
             in
             her
             Viduity
             as
             Tutrix
             ,
             renewed
             to
             the
             first
             Wodsetters
             Assigney
             ,
             and
             became
             personally
             obliged
             ,
             both
             for
             the
             principal
             sum
             ,
             and
             Back-tack-duty
             ,
             and
             took
             the
             Back-tack
             ,
             half
             to
             her self
             and
             half
             to
             her
             Son
             the
             Heir
             ;
             but
             after
             the
             first
             Wodset
             ,
             her
             Husband
             set
             a
             Tack
             of
             the
             whole
             Coal
             to
             his
             seven
             Children
             ,
             for
             twelve
             years
             ,
             they
             paying
             twelve
             hundreth
             merks
             yearly
             to
             the
             Wodsetter
             ,
             and
             two
             merks
             yearly
             to
             his
             Heir
             :
             which
             Tack
             expired
             in
             Anno
             1663.
             after
             which
             the
             said
             
               Iean
               Dowglas
            
             and
             
               David
               Cunninghame
            
             of
             Dankeith
             her
             Husband
             ,
             pursues
             Major
             Bigger
             as
             intrometter
             with
             the
             Coal
             for
             the
             half
             of
             the
             profite
             thereof
             ,
             conform
             to
             the
             Back-tack
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Back-tack
             ,
             in
             so
             far
             as
             it
             exceeded
             the
             Ladies
             Joynture
             ,
             was
             a
             Donation
             between
             Man
             and
             Wife
             ,
             and
             was
             Revocked
             by
             the
             Childrens
             Tack
             ,
             and
             being
             once
             Revocked
             ,
             remained
             for
             ever
             Revocked
             ,
             because
             the
             ground
             of
             Law
             prohibiting
             Donations
             between
             Man
             and
             Wife
             ,
             and
             annulling
             the
             same
             ,
             
               nisi
               morte
               confirmentur
            
             is
             introduced
             
               ne
               mutuo
               amore
               se
               spolient
            
             ;
             and
             therefore
             nothing
             can
             make
             them
             effectual
             but
             the
             Husbands
             continuing
             in
             the
             same
             mind
             to
             his
             Death
             ,
             but
             any
             signification
             of
             alteration
             of
             his
             mind
             ,
             directly
             or
             indirectly
             ,
             though
             it
             were
             in
             his
             Testament
             or
             Codicil
             ,
             or
             by
             any
             Deed
             whereby
             he
             owns
             the
             thing
             Disponed
             ,
             as
             still
             at
             his
             Disposal
             ,
             is
             sufficient
             to
             annul
             the
             Wifes
             Right
             ,
             as
             if
             he
             should
             grant
             a
             Wodset
             of
             the
             same
             Lands
             ,
             though
             without
             mention
             of
             his
             Wifes
             prior
             Liferent
             ,
             given
             
               gratis
               stante
               matrimonio
            
             ,
             It
             would
             Revock
             
             the
             same
             :
             so
             that
             though
             the
             Husband
             Redeemed
             the
             Wodset
             ,
             the
             Wifes
             Right
             would
             not
             Revive
             .
             So
             here
             the
             Bairns
             Tack
             being
             of
             the
             whole
             Coal
             for
             twelve
             years
             ,
             doth
             wholly
             Revock
             the
             Back-tack
             ,
             as
             to
             the
             Wife
             ,
             not
             only
             during
             these
             years
             ,
             but
             for
             ever
             .
             2dly
             ,
             There
             is
             a
             minute
             of
             Contract
             betwixt
             the
             Husband
             ,
             his
             Wife
             and
             Raith
             of
             Edmonstoun
             ,
             clearly
             showing
             the
             change
             of
             his
             mind
             ,
             and
             restricting
             the
             Lady
             to
             her
             first
             Liferent
             .
             It
             was
             answered
             ,
             that
             albeit
             
               in
               jure
               donationis
            
             ,
             or
             where
             there
             was
             a
             clear
             and
             liquid
             excess
             of
             the
             Right
             received
             ,
             exceeding
             the
             Right
             quite
             ,
             any
             Deed
             evidencing
             the
             Change
             of
             the
             Husbands
             Will
             ,
             might
             be
             sufficient
             to
             Recal
             it
             ▪
             Yet
             that
             holds
             not
             here
             ,
             where
             the
             Lady
             quite
             a
             certainty
             for
             a
             Casuality
             ,
             viz.
             The
             profite
             of
             a
             Coal
             ,
             which
             might
             many
             wayes
             have
             been
             ruined
             and
             unprofitable
             ,
             in
             which
             case
             she
             would
             have
             nothing
             for
             her
             Joynture
             ,
             and
             so
             it
             was
             
               permutatio
               spei
               ,
               aut
               jactus
               retis
               ,
            
             and
             at
             the
             time
             of
             the
             Wodset
             ,
             was
             not
             of
             more
             value
             in
             buying
             and
             selling
             then
             the
             Joynture
             of
             the
             Lands
             ,
             being
             certain
             .
             2dly
             ,
             This
             not
             being
             a
             pure
             Donation
             ,
             the
             Husband
             could
             not
             Recal
             it
             till
             he
             had
             Restored
             his
             Wife
             to
             her
             first
             Liferent
             ,
             and
             releaved
             her
             of
             all
             Burden
             and
             Distress
             she
             had
             sustained
             by
             the
             Wodset
             :
             neither
             had
             he
             shown
             his
             mind
             to
             Change
             ,
             but
             only
             in
             part
             .
             And
             as
             to
             the
             Contract
             with
             Raith
             ,
             it
             was
             in
             Contemplation
             of
             a
             Marriage
             ,
             and
             was
             all
             founded
             on
             advancing
             Sums
             to
             Redeem
             the
             Wodset
             ,
             whereby
             the
             Back-tack
             ceased
             .
             3dly
             ,
             The
             Defender
             connot
             exclude
             the
             Pursuer
             ,
             unless
             he
             pay
             her
             all
             bygone
             years
             of
             her
             Joynture
             she
             wants
             from
             1654
             ,
             to
             1667.
             by
             Arrestments
             and
             Processes
             upon
             the
             Back-tack
             ,
             and
             free
             her
             of
             the
             principal
             Sum
             and
             Annualrent
             ,
             and
             satisfie
             her
             of
             the
             damnage
             she
             has
             Sustained
             by
             lying
             out
             of
             her
             Liferent
             ,
             for
             all
             these
             years
             ,
             and
             sustaining
             a
             long
             pursuit
             ,
             wherein
             she
             is
             willing
             to
             acquiesce
             .
          
           
             The
             Lords
             in
             respect
             of
             this
             offer
             ,
             and
             that
             the
             Defender
             did
             also
             offer
             to
             free
             and
             relieve
             her
             ,
             rested
             therein
             ,
             and
             did
             not
             proceed
             to
             advise
             the
             former
             Points
             ,
             
               in
               jure
            
             .
          
        
         
           
             Bowers
             contra
             Lady
             Cowper
             .
             Iune
             16.
             1671.
             
          
           
             BOwers
             pursues
             the
             Lady
             Cowper
             as
             vitious
             in●●●●●er
             with
             the
             Lord
             Cowpers
             Goods
             and
             Gear
             ,
             for
             payment
             of
             a
             Debt
             of
             his
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             she
             had
             a
             Disposition
             from
             her
             Husband
             of
             his
             Moveables
             .
             It
             was
             Replyed
             that
             the
             Disposition
             being
             between
             most
             conjunct
             persons
             ,
             without
             a
             Cause
             onerous
             ,
             was
             null
             by
             Exception
             by
             the
             Act
             of
             Parliament
             1621.
             against
             fradulent
             Dispositions
             .
             It
             was
             answered
             ,
             that
             the
             Disposition
             behoved
             at
             least
             to
             purge
             the
             vitious
             Intromission
             ,
             and
             did
             stand
             ay
             and
             while
             it
             was
             Redeemed
             :
             For
             notwithstanding
             of
             the
             Tenor
             of
             the
             said
             Act
             ,
             the
             Lords
             do
             not
             Sustain
             that
             Nullity
             by
             way
             of
             Exception
             or
             Reply
             .
          
           
             The
             Lords
             found
             the
             Nullity
             competent
             by
             way
             of
             Exception
             ,
             it
             being
             no
             Heretable
             Right
             ,
             requiring
             the
             production
             of
             Authors
             Rights
             ,
             but
             in
             respect
             of
             this
             colourable
             Title
             ,
             restricted
             the
             vitious
             Intromission
             to
             the
             single
             value
             .
          
        
         
           
             Lord
             Lovet
             contra
             Lord
             Mcdonald
             .
             Eodem
             die
             .
          
           
             THe
             Lord
             Lovet
             pursues
             the
             Lord
             Mcdonald
             to
             count
             for
             the
             Superplus
             of
             a
             Wodset
             ,
             from
             the
             Date
             of
             his
             Instrument
             of
             Requisition
             ,
             in
             Anno
             1663.
             whereupon
             he
             had
             raised
             Summons
             in
             Anno
             1667.
             
             It
             was
             alleadged
             
             that
             the
             Instrument
             was
             at
             the
             Defenders
             Dwelling-house
             ,
             when
             he
             was
             out
             of
             the
             Countrey
             ,
             and
             bear
             no
             production
             of
             the
             Procutry
             ,
             and
             only
             an
             offer
             of
             a
             Bond
             ,
             with
             a
             Clause
             of
             Infeftment
             in
             all
             Lovets
             Land
             :
             and
             did
             not
             bear
             an
             offer
             of
             Caution
             .
             It
             was
             answered
             ,
             that
             the
             Act
             did
             not
             require
             Requisition
             by
             Instrument
             ,
             but
             
               quaevis
               insinuatio
               sufficit
            
             ,
             and
             the
             Instrument
             bear
             Delivery
             of
             a
             Copy
             to
             the
             Defenders
             Lady
             in
             his
             House
             ,
             there
             being
             no
             Procutry
             ,
             for
             the
             Pursuer
             offered
             now
             to
             produce
             the
             same
             ,
             and
             a
             surety
             by
             Infeftment
             was
             sufficient
             ,
             the
             Act
             of
             Parliament
             mentioning
             no
             Caution
             .
          
           
             The
             Lords
             found
             that
             the
             Requisition
             behoved
             to
             be
             by
             Letters
             of
             Supplement
             ,
             at
             the
             Cross
             of
             Edinburgh
             ,
             and
             Pear
             of
             Leith
             ,
             seing
             the
             Defender
             was
             out
             of
             the
             Countrey
             ,
             but
             Sustained
             the
             same
             ,
             as
             to
             the
             Procutry
             ,
             it
             being
             now
             produced
             ,
             and
             sustained
             the
             offer
             of
             Surety
             ,
             and
             Ordained
             it
             to
             be
             produced
             ,
             Reserving
             the
             Objections
             and
             Answers
             of
             either
             Party
             thereanent
             .
          
        
         
           
             Iohn
             Boyd
             contra
             Hugh
             Sinclar
             :
             Iune
             17.
             1671.
             
          
           
             
               JOhn
               Boyd
            
             having
             a
             Right
             to
             some
             Teinds
             in
             Orknay
             ,
             pursues
             
               Hugh
               Sinclar
            
             as
             Intrometter
             therewith
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             he
             had
             Right
             to
             a
             Tack
             ,
             set
             to
             umquhil
             Sinclar
             during
             his
             Life
             ,
             and
             to
             his
             first
             Heir
             after
             him
             ,
             during
             his
             Life
             ,
             and
             nineteen
             years
             thereafter
             ,
             which
             is
             not
             yet
             expyred
             ;
             for
             though
             the
             Defuncts
             eldect
             Son
             survived
             him
             ,
             yet
             he
             was
             never
             entered
             Heir
             to
             him
             ,
             neither
             did
             he
             possess
             thir
             Teinds
             ,
             and
             Died
             shortly
             after
             his
             Father
             ,
             but
             it
             is
             not
             nineteen
             years
             since
             the
             second
             Son
             Died
             ,
             whos
             's
             Retour
             is
             produced
             ,
             as
             Heir
             to
             his
             Father
             .
          
           
             The
             Lords
             found
             that
             the
             eldest
             Son
             Surviving
             his
             Father
             ,
             although
             he
             never
             Possest
             ,
             was
             the
             first
             Heir
             as
             to
             the
             Tack
             ,
             and
             that
             he
             needed
             not
             be
             served
             Heir
             .
          
        
         
           
             Alexander
             Alexander
             contra
             The
             Lord
             Saltoun
             .
             Iune
             20.
             1671.
             
          
           
             THe
             Earl
             of
             Hadingtoun
             having
             obtained
             a
             Gift
             of
             Bastardy
             ,
             and
             
               ultimus
               hares
            
             ,
             of
             umquhil
             
               William
               Gray
            
             ,
             Provost
             of
             Aberdere
             ,
             did
             assign
             the
             same
             to
             
               Alexander
               Alexander
            
             ,
             with
             a
             Process
             thereupon
             ,
             against
             the
             Lord
             Saltoun
             ,
             for
             payment
             of
             5000.
             merks
             due
             by
             him
             by
             Bond
             ,
             to
             the
             said
             umquhil
             
               William
               Gray
            
             .
             The
             Defender
             alleadged
             that
             this
             Bond
             being
             granted
             for
             the
             price
             of
             Land
             bought
             by
             him
             from
             the
             Bastard
             ,
             and
             of
             the
             same
             Date
             with
             the
             Contract
             of
             Alienation
             thereof
             ;
             there
             was
             a
             Back-bond
             also
             of
             the
             same
             Date
             ,
             by
             which
             the
             said
             
               William
               Gray
            
             was
             not
             only
             obliged
             in
             Warrandice
             ,
             but
             also
             to
             procure
             himself
             Infeft
             ,
             holden
             of
             the
             Earl
             of
             Mar
             ,
             to
             purge
             an
             Inhibition
             at
             the
             instance
             of
             Ramsay
             ,
             and
             to
             procure
             a
             Right
             of
             an
             Appryzing
             ,
             at
             the
             Instance
             of
             the
             Lord
             Newbeath
             .
             The
             Pursuer
             answered
             ,
             that
             the
             King
             or
             his
             Donator
             was
             not
             obliged
             to
             fulfill
             these
             Obligements
             of
             the
             Bastard
             ,
             which
             were
             not
             liquide
             nor
             special
             .
             It
             was
             answered
             ,
             that
             the
             Gift
             of
             Bastardy
             ,
             
               or
               ultimus
               haeres
            
             ,
             not
             falling
             to
             the
             King
             by
             Forefaulture
             ,
             or
             any
             Delinquence
             ,
             but
             by
             Deficience
             of
             the
             Bastards
             Heir
             ,
             the
             Donator
             was
             in
             no
             better
             case
             ,
             as
             to
             the
             fulfilling
             of
             these
             Obligements
             ,
             then
             the
             Bastard
             or
             his
             Heir
             would
             be
             ,
             if
             they
             were
             pursuing
             upon
             the
             Bond
             ,
             who
             could
             not
             seek
             payment
             till
             the
             Obligements
             in
             the
             Alienation
             ,
             or
             Back-bond
             ,
             which
             were
             the
             Causes
             of
             this
             Bond
             were
             fulfilled
             .
          
           
           
             Which
             the
             Lords
             found
             Relevant
             ,
             as
             to
             the
             special
             Obligements
             of
             obtaining
             Infeftment
             ,
             and
             purging
             the
             Inhibition
             and
             Appryzing
             ,
             but
             not
             as
             to
             the
             general
             obligement
             of
             Warrandice
             ,
             wherein
             no
             Distresse
             was
             alleadged
             .
          
        
         
           
             Thomas
             Crawford
             contra
             Iames
             Halliburtoun
             .
             Eodem
             die
             .
          
           
             
               THomas
               Crawford
            
             having
             Charged
             
               Iames
               Halliburtoun
            
             upon
             a
             Decreet
             Arbitral
             for
             payment
             of
             a
             sum
             .
             He
             Suspends
             ,
             and
             alleadged
             that
             he
             was
             Interdicted
             at
             that
             time
             ,
             and
             that
             the
             Interdicters
             did
             not
             consent
             to
             the
             Submission
             ,
             or
             Decreet
             Arbitral
             .
             The
             Pursuer
             answered
             ,
             First
             ,
             That
             the
             Alleadgeance
             was
             not
             competent
             by
             Exception
             ,
             but
             by
             Reduction
             .
             2dly
             ,
             That
             Interdictions
             had
             only
             the
             same
             Effect
             as
             Inhibitions
             ,
             and
             did
             operate
             nothing
             as
             to
             Moveables
             ,
             or
             personal
             Execution
             ,
             even
             by
             way
             of
             Reduction
             .
          
           
             Both
             which
             Defenses
             the
             Lords
             found
             Relevant
             .
          
        
         
           
             John
             Neilson
             contra
             Menzies
             of
             Enoch
             .
             Iune
             21.
             1671.
             
          
           
             
               JOhn
               Neilson
            
             as
             Assigney
             Constitute
             by
             
               Iohn
               Creightoun
            
             ,
             pursues
             Menzies
             of
             Enoch
             for
             the
             Rents
             of
             certain
             Lands
             in
             Enoch
             upon
             this
             Ground
             ,
             that
             there
             was
             a
             Tack
             set
             by
             
               James
               Menzies
            
             of
             Enoch
             of
             the
             saids
             Lands
             ,
             to
             the
             said
             
               Iohn
               Creightoun
            
             for
             nineteen
             years
             ,
             for
             payment
             of
             fourscore
             pounds
             Scots
             yearly
             of
             Tack-duty
             ,
             thereafter
             by
             a
             Decreet
             Arbitral
             ,
             betwixt
             Enoch
             and
             his
             eldest
             Son
             Robert
             ,
             he
             is
             Decerned
             to
             Denude
             himself
             of
             the
             saids
             Lands
             ,
             in
             favours
             of
             Robert
             ,
             reserving
             his
             own
             Liferent
             :
             After
             which
             Decreet
             ,
             Robert
             grants
             a
             second
             Tack
             to
             Creightoun
             ,
             relating
             and
             Confirming
             the
             first
             nineteen
             years
             Tack
             ,
             and
             setting
             the
             Land
             of
             new
             again
             for
             five
             merk
             of
             Tack
             Duty
             ,
             in
             stead
             of
             the
             fourscorepounds
             :
             After
             which
             Tack
             Robert
             Dispones
             the
             Land
             irredeemably
             to
             Birthwood
             ,
             but
             at
             that
             time
             Robert
             was
             not
             Infeft
             ,
             but
             upon
             the
             very
             same
             day
             that
             the
             Disposition
             was
             granted
             to
             
               Birthwood
               ,
               Robert
               Menzies
            
             is
             Infeft
             ,
             and
             Birthwood
             is
             also
             Infeft
             :
             Birthwoods
             Right
             by
             progress
             comes
             in
             the
             Person
             of
             
               Iames
               Menzies
            
             ,
             the
             Defender
             Roberts
             Brother
             .
             The
             Pursuer
             insisted
             for
             the
             Duties
             of
             the
             Land
             ,
             over
             and
             above
             the
             fourscore
             pounds
             ,
             during
             the
             Life
             of
             old
             
               Iames
               Menzies
            
             ,
             and
             over
             and
             above
             the
             Tack-duty
             of
             five
             merks
             after
             his
             Death
             :
             For
             which
             the
             Defender
             alleadged
             Absolvitor
             ,
             because
             he
             produces
             a
             Decreet
             at
             his
             instance
             against
             Creightoun
             the
             Tacks-man
             ,
             Decerning
             him
             to
             Remove
             ,
             because
             he
             was
             then
             resting
             several
             Terms
             Rent
             ,
             and
             failed
             to
             pay
             the
             same
             ,
             and
             to
             find
             Caution
             to
             pay
             the
             same
             in
             time
             coming
             .
             The
             Pursuer
             answered
             ,
             that
             the
             said
             Decreet
             was
             in
             absence
             ,
             and
             was
             null
             ,
             because
             the
             Defender
             Libelled
             upon
             his
             own
             Infeftment
             ,
             and
             upon
             a
             Tack
             set
             to
             Creightoun
             the
             Tacks-man
             by
             himself
             ,
             and
             there
             was
             no
             such
             Tack
             produced
             by
             him
             ,
             or
             could
             be
             produced
             ,
             because
             the
             Tack
             ,
             albeit
             it
             bear
             to
             be
             set
             by
             
               Iames
               Menzies
            
             ,
             yet
             it
             was
             only
             set
             by
             
               James
               Menzies
            
             his
             Father
             ,
             and
             not
             by
             himself
             .
          
           
             The
             Lords
             found
             the
             Decreet
             null
             by
             Exception
             .
          
           
             Whereupon
             the
             Defender
             alleadged
             that
             the
             Decreet
             at
             least
             ,
             was
             a
             colourable
             Title
             ,
             and
             he
             possessed
             by
             it
             
               bona
               fide
            
             till
             it
             was
             found
             null
             ,
             
               &
               bonae
               fidei
               possessor
               facit
               fructus
               consumptos
               suos
               .
            
             It
             was
             answered
             ,
             that
             a
             Title
             that
             needs
             Reduction
             ,
             may
             be
             the
             Ground
             for
             Possession
             
               bona
               fide
            
             :
             but
             this
             is
             absoltely
             null
             by
             Exception
             .
             2dly
             ,
             The
             obtainer
             of
             the
             Decreet
             was
             
               in
               pessima
               fide
            
             ,
             because
             
             imediatly
             after
             the
             obtaining
             it
             ,
             it
             was
             Suspended
             ,
             and
             the
             Tacks-man
             was
             able
             to
             instruct
             that
             there
             was
             no
             Duties
             resting
             at
             that
             time
             ,
             and
             though
             Protestations
             were
             obtained
             ,
             yet
             the
             Suspension
             was
             never
             Discust
             against
             the
             Tacks-man
             .
          
           
             The
             Lords
             Repelled
             this
             Defense
             also
             .
          
           
             The
             Defender
             further
             alleadged
             ,
             that
             albeit
             he
             would
             make
             no
             opposition
             against
             the
             first
             Tack
             ,
             yet
             the
             second
             Tack
             could
             have
             no
             effect
             against
             him
             ,
             because
             ,
             before
             it
             was
             cled
             with
             Possession
             ,
             
               Robert
               Menzies
            
             setter
             thereof
             ,
             was
             denuded
             in
             favours
             of
             Birthwood
             ,
             from
             whom
             the
             Defender
             has
             Right
             ,
             and
             it
             is
             unquestionable
             ,
             that
             a
             Tack
             not
             attaining
             Possession
             ,
             is
             no
             real
             Right
             ,
             and
             that
             a
             singular
             Successor
             ,
             Infeft
             before
             Possession
             on
             it
             ,
             will
             exclude
             it
             .
             2dly
             ,
             As
             the
             Tack
             was
             not
             cled
             with
             Possession
             ,
             so
             Robert
             who
             set
             it
             had
             no
             real
             Right
             in
             his
             Person
             when
             he
             set
             it
             ,
             but
             only
             the
             Decreet
             Arbitral
             .
             The
             Pursuer
             answered
             to
             the
             first
             ,
             that
             he
             opponed
             his
             new
             Tack
             ,
             which
             contained
             not
             only
             a
             Ratification
             of
             the
             old
             Tack
             ,
             but
             a
             new
             Tack
             
               de
               presenti
            
             ,
             for
             five
             merk
             ,
             and
             so
             was
             like
             a
             Charter
             by
             a
             Superiour
             with
             a
             
               novo
               damus
            
             ,
             whereby
             the
             Tacks-man
             might
             ascribe
             his
             Possession
             to
             any
             of
             the
             Tacks
             he
             pleased
             ;
             and
             if
             this
             Tack
             had
             born
             expresly
             ,
             a
             Reservation
             of
             the
             Fathers
             Liferent
             for
             eighty
             pounds
             yearly
             ,
             it
             would
             have
             been
             unquestionably
             a
             valide
             Tack
             from
             the
             Date
             ,
             and
             Payment
             to
             the
             Father
             by
             the
             Reservation
             ,
             would
             be
             by
             vertue
             of
             the
             new
             Tack
             ,
             as
             well
             as
             of
             the
             old
             :
             So
             likewise
             the
             Tacks-man
             might
             Renunce
             the
             old
             Tack
             ,
             and
             retain
             the
             new
             ;
             or
             if
             the
             new
             Tack
             had
             been
             taken
             without
             mention
             of
             the
             Old
             ,
             the
             same
             would
             have
             been
             cled
             with
             Possession
             ,
             albeit
             it
             could
             not
             effectually
             exclude
             the
             payment
             of
             fourscore
             pounds
             to
             the
             Father
             ,
             during
             his
             life
             ,
             as
             having
             a
             better
             Right
             by
             the
             Reservation
             .
             As
             to
             the
             second
             Alleadgeance
             ,
             albeit
             Robert
             who
             set
             the
             Tack
             ,
             was
             not
             Infeft
             when
             he
             set
             it
             ;
             yet
             Robert
             being
             thereafter
             Infeft
             ,
             his
             Right
             accresced
             to
             the
             Tacks-man
             in
             the
             same
             manner
             ,
             as
             if
             he
             had
             been
             Infeft
             before
             ,
             
               fictione
               juris
            
             .
             It
             was
             answered
             to
             the
             first
             ,
             that
             the
             new
             Tack
             did
             not
             bear
             a
             Reservation
             of
             the
             old
             ,
             but
             the
             Tacks-man
             having
             two
             Tacks
             in
             his
             Person
             at
             once
             ,
             although
             he
             might
             quite
             either
             of
             them
             ,
             or
             declare
             to
             which
             of
             them
             he
             ascribed
             his
             Possession
             ,
             before
             the
             interest
             of
             any
             other
             Party
             :
             yet
             not
             having
             so
             done
             ,
             he
             must
             be
             holden
             to
             Possess
             by
             the
             first
             ,
             because
             he
             continued
             to
             pay
             the
             Tack-duty
             of
             the
             first
             ,
             and
             never
             payed
             the
             Tack-duty
             of
             the
             second
             till
             the
             Setter
             was
             Denuded
             .
             To
             this
             it
             was
             answered
             ,
             that
             the
             payment
             to
             the
             Liferenter
             ,
             who
             had
             a
             better
             Right
             ,
             did
             not
             import
             the
             Possessing
             by
             the
             first
             Tack
             ,
             and
             the
             Tacks-man
             needed
             not
             declare
             his
             option
             till
             he
             was
             put
             to
             it
             ,
             but
             Law
             presumes
             that
             he
             Possessed
             by
             that
             Right
             ,
             which
             was
             most
             convenient
             for
             him
             .
          
           
             As
             to
             this
             Point
             the
             Lords
             found
             that
             the
             Tacks-man
             might
             ascribe
             his
             Possession
             to
             either
             of
             the
             Tacks
             he
             pleased
             ,
             both
             of
             them
             being
             set
             for
             a
             distinct
             Tack-duty
             ,
             and
             that
             agibatur
             by
             the
             second
             Tack
             ,
             that
             the
             Fathers
             Liferent
             should
             be
             Reserved
             .
          
           
             As
             to
             the
             other
             Point
             ,
             The
             Defender
             alleadged
             that
             the
             Infeftment
             of
             Robert
             who
             set
             the
             Tack
             ,
             could
             not
             accresce
             to
             the
             Tacks-man
             ;
             because
             the
             same
             day
             Robert
             was
             Infeft
             ,
             he
             was
             Denuded
             in
             favours
             of
             Birthwood
             ,
             and
             he
             Infeft
             ;
             so
             that
             it
             must
             be
             presumed
             ,
             that
             he
             was
             only
             Infeft
             to
             that
             effect
             ,
             that
             Birthwoods
             Right
             might
             be
             valide
             .
             2dly
             ,
             It
             was
             offered
             to
             be
             proven
             ,
             that
             Birthwood
             procured
             Roberts
             Infeftment
             by
             his
             own
             Means
             ,
             and
             so
             it
             cannot
             accresce
             to
             any
             other
             in
             his
             prejudice
             .
             It
             was
             answered
             ,
             that
             
             whoever
             procured
             the
             Infeftment
             of
             the
             Common
             Author
             ,
             the
             fiction
             of
             Law
             did
             draw
             it
             back
             to
             all
             the
             Deeds
             done
             by
             that
             Author
             ,
             that
             might
             arise
             from
             that
             Infeftment
             ,
             which
             cannot
             be
             divided
             or
             altered
             ,
             by
             the
             Acting
             or
             Declaration
             of
             either
             ,
             or
             both
             Parties
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             found
             the
             Infeftment
             did
             accresce
             to
             the
             Tacks-man
             in
             the
             first
             place
             ,
             whose
             Tack
             was
             prior
             with
             absolute
             Warrandice
             .
          
        
         
           
             Lord
             Balmerino
             contra
             Hamiltoun
             of
             Little
             Prestoun
             .
             June
             22.
             1671.
             
          
           
             Wishart
             in
             Leith
             did
             grant
             Infeftment
             of
             an
             Annualrent
             of
             fourty
             pounds
             yearly
             ,
             out
             of
             two
             Tenements
             in
             Leith
             ,
             in
             any
             part
             of
             them
             :
             Which
             Annualrent
             by
             progress
             belonged
             to
             Mr.
             
               Iohn
               Adamson
            
             ,
             and
             after
             the
             Constitution
             of
             the
             Annualrent
             ,
             the
             two
             Tenements
             were
             Transmitted
             to
             different
             Proprietars
             ,
             and
             now
             the
             one
             belongs
             to
             the
             Lord
             Balmerino
             ,
             and
             the
             other
             to
             Hamiltoun
             of
             
               Little
               Prestoun
            
             ,
             the
             Annualrenter
             did
             only
             insist
             against
             
             Balmerino's
             Tenement
             ,
             and
             upon
             an
             old
             Decreet
             of
             Poinding
             of
             the
             Ground
             of
             that
             Tenement
             ,
             hath
             continued
             in
             Possession
             ,
             and
             Distressed
             Balmerino
             :
             Who
             having
             Suspended
             on
             this
             Ground
             ,
             that
             the
             Annualrent
             being
             out
             of
             two
             Tenements
             ,
             whereof
             he
             had
             but
             the
             one
             ,
             he
             could
             be
             only
             lyable
             but
             for
             the
             one
             half
             .
          
           
             The
             Lords
             found
             that
             the
             Annualrenter
             might
             Distress
             any
             of
             the
             Tenements
             for
             the
             whole
             ,
             but
             reserved
             to
             Balmerino
             his
             Relief
             as
             accords
             .
          
           
             Whereupon
             Balmerino
             now
             pursues
             
               Little
               Prestoun
            
             to
             Repay
             him
             the
             half
             of
             the
             Annualrent
             ,
             for
             which
             he
             was
             Distressed
             ,
             because
             he
             having
             payed
             ,
             did
             liberate
             
               Little
               Prestoun
            
             of
             the
             Annualrent
             ,
             which
             affected
             both
             Tenements
             ,
             they
             being
             now
             in
             different
             Heretors
             hands
             ,
             behoved
             to
             infer
             a
             proportional
             Relief
             ,
             as
             is
             ordinar
             in
             all
             Annualrents
             ,
             Constitute
             upon
             any
             Barony
             or
             Tenement
             ,
             which
             thereafter
             comes
             to
             be
             divided
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             he
             had
             bruiked
             his
             Tenement
             much
             more
             then
             fourty
             years
             before
             this
             Pursuit
             ,
             free
             of
             any
             such
             Annualrent
             ;
             and
             therefore
             had
             prescribed
             the
             freedom
             thereof
             .
             The
             Pursuer
             answered
             ,
             that
             Prescription
             was
             hindered
             by
             the
             Annualrenters
             Possession
             ,
             in
             getting
             his
             Annualrent
             ,
             which
             though
             it
             had
             been
             but
             by
             a
             Personal
             Obligement
             ,
             it
             would
             have
             preserved
             his
             Right
             intire
             to
             all
             effects
             in
             the
             same
             manner
             ,
             as
             payment
             by
             a
             principal
             Debitor
             hinders
             the
             Cautioners
             Bond
             to
             Prescribe
             ,
             though
             he
             were
             free
             thereof
             for
             fourty
             years
             .
             It
             was
             answered
             ,
             that
             albeit
             there
             might
             be
             ground
             for
             the
             Reply
             ,
             where
             the
             Annualrent
             is
             Constitute
             out
             of
             one
             Barony
             or
             Tenement
             ,
             whereon
             Infeftment
             may
             reach
             the
             whole
             ,
             yet
             it
             cannot
             hold
             in
             this
             case
             ,
             where
             the
             Annualrent
             is
             Constitute
             upon
             two
             distinct
             Tenements
             ;
             and
             where
             there
             behoved
             Seasing
             to
             be
             taken
             upon
             both
             of
             them
             ,
             and
             if
             omitted
             upon
             one
             ,
             that
             would
             be
             free
             .
          
           
             The
             Lords
             found
             that
             payment
             of
             the
             Annualrent
             out
             of
             any
             of
             the
             Tenements
             ,
             saved
             Prescription
             as
             to
             both
             .
          
        
         
           
             Leslies
             contra
             Alexander
             Iaffray
             .
             Eodem
             die
             .
          
           
             LEslies
             pursues
             
               Alexander
               Iaffray
            
             and
             others
             ,
             for
             producing
             of
             Writs
             ,
             and
             counting
             anent
             a
             Wodset
             Right
             ,
             as
             being
             satisfied
             by
             intromission
             ,
             and
             that
             as
             appearand
             Heirs
             ,
             
               ad
               deliber●●
               dum
            
             .
          
           
             Wherein
             the
             Lords
             refused
             to
             Sustain
             the
             Summons
             for
             Compt
             and
             Reckoning
             ,
             but
             only
             for
             Exhibition
             ,
             albeit
             there
             was
             a
             Practique
             produced
             ,
             
             observed
             by
             Dury
             upon
             the
             1●
             .
             of
             March
             1637.
             betwixt
             Hume
             and
             Hume
             of
             Blackadder
             ,
             wherein
             Compt
             and
             Reckoning
             was
             Sustained
             at
             an
             appearand
             Heirs
             instance
             ,
             the
             Custom
             having
             been
             ever
             since
             contrair
             upon
             this
             Ground
             ,
             that
             no
             Party
             should
             be
             troubled
             to
             Compt
             at
             the
             Instance
             of
             those
             ,
             who
             when
             the
             Compt
             was
             closed
             ,
             cannot
             exoner
             them
             ,
             and
             yet
             may
             put
             them
             to
             make
             Litiscontestation
             and
             Probation
             in
             the
             Cause
             .
          
        
         
           
             Duke
             of
             Buccleugh
             contra
             Parochioners
             of
             Eodem
             die
             .
          
           
             THe
             Minister
             of
             Hasendein
             having
             obtained
             the
             Designation
             of
             a
             Gleib
             out
             of
             the
             Duke
             Land
             ,
             who
             alleadged
             that
             the
             Minister
             having
             a
             Gleib
             before
             ,
             extending
             at
             least
             to
             two
             Aikers
             ,
             the
             Earl
             upon
             this
             Designation
             had
             gotten
             Possession
             thereof
             ,
             and
             could
             only
             seek
             Relief
             for
             the
             Superplus
             .
             It
             was
             answered
             ,
             that
             these
             two
             Aikers
             had
             never
             been
             designed
             as
             a
             Gleib
             ;
             but
             the
             Pursuers
             Predecessors
             were
             infeft
             therein
             ,
             and
             in
             Possession
             thereof
             before
             the
             Ministers
             ,
             and
             any
             Possession
             they
             had
             ,
             was
             but
             by
             their
             sufference
             and
             con●●vance
             .
             It
             was
             answered
             ;
             that
             
               decennalis
               &
               triennalis
               possessor
               non
               tenesur
               docere
               de
               t●●u●o
            
             and
             the
             Minister
             was
             not
             only
             in
             Possession
             thirteen
             years
             ;
             but
             thirty
             years
             .
             It
             was
             answered
             ,
             that
             albeit
             Possession
             may
             be
             a
             Title
             ,
             yet
             it
             may
             be
             elided
             by
             the
             Pursuers
             Right
             ,
             which
             cannot
             be
             taken
             away
             but
             by
             Prescription
             ;
             whereupon
             the
             question
             arose
             ,
             how
             the
             Tollerance
             or
             Sufference
             of
             the
             Ministers
             Possession
             was
             probable
             ,
             whether
             by
             Witnesses
             or
             not
             ,
             seing
             Tollerances
             are
             not
             ordinarly
             so
             proven
             .
          
           
             The
             Lords
             found
             that
             if
             the
             Ministers
             Possession
             were
             alleadged
             to
             have
             been
             40.
             year
             ,
             as
             belonging
             to
             the
             Kirk
             ,
             that
             the
             Dukes
             Tollerance
             could
             only
             be
             proven
             by
             Writ
             ,
             to
             elide
             the
             same
             ,
             but
             if
             for
             fewer
             years
             ,
             they
             found
             the
             Tollerance
             or
             Sufference
             probable
             by
             Witnesses
             .
          
        
         
           
             Mr.
             Arthur
             Gordoun
             contra
             Laird
             of
             Drum.
             Eodem
             die
             .
          
           
             MR.
             
               Arthur
               Gordoun
            
             as
             Assigney
             to
             a
             Decreet
             recovered
             against
             the
             Laird
             of
             Drum
             ,
             Charges
             him
             thereupon
             .
             He
             Suspends
             on
             this
             Reason
             ,
             that
             the
             Debt
             being
             originally
             due
             to
             a
             Defunct
             ,
             his
             two
             Executors
             nominate
             ,
             recovered
             the
             Decreet
             ,
             and
             the
             one
             only
             assigned
             the
             whole
             to
             Mr.
             Arthur
             ,
             whereby
             he
             can
             only
             have
             Right
             to
             the
             half
             .
             It
             was
             answered
             ,
             that
             the
             other
             Executor
             being
             Dead
             before
             the
             Assignation
             ,
             the
             Office
             accresced
             to
             the
             Surviver
             ,
             who
             might
             uplift
             all
             that
             was
             
               in
               bonis
               defuncti
            
             ,
             not
             uplifted
             .
             It
             was
             answered
             ,
             that
             this
             Debt
             was
             no
             more
             
               in
               bonis
               defuncti
            
             ,
             but
             being
             established
             in
             the
             Executors
             Person
             by
             Sentence
             ,
             
               testamentum
               suit
               oxecatum
            
             ,
             and
             the
             Deceased
             Executor's
             half
             behoved
             to
             belong
             to
             their
             Executors
             ,
             and
             not
             to
             accresce
             .
          
           
             Which
             the
             Lords
             Sustained
             .
          
        
         
           
             Lady
             Ballagan
             contra
             Lord
             Drumlanrig
             .
             Iune
             23.
             1671.
             
          
           
             THe
             Lady
             Ballagan
             being
             by
             her
             Contract
             of
             Marriage
             provided
             to
             certain
             Lands
             ,
             and
             amongst
             others
             ,
             to
             the
             Lands
             of
             Birks
             ,
             the
             Contract
             bears
             ,
             that
             she
             accepts
             of
             the
             saids
             Lands
             in
             full
             satisfaction
             of
             all
             further
             Conjunct-Fee
             ,
             Liferent
             ,
             or
             Terce
             :
             she
             was
             Infeft
             in
             the
             Lands
             of
             Birks
             by
             her
             Husband
             ,
             but
             was
             not
             Confirmed
             by
             the
             Lord
             Drumlanrig
             Superiour
             ,
             of
             whom
             the
             Lands
             held
             Ward
             .
             The
             Lady
             pursues
             the
             Tennents
             of
             Birks
             
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             the
             Lord
             Drumlanrig
             Superiour
             ,
             who
             craved
             preference
             ,
             because
             the
             Lands
             are
             now
             by
             Ward
             in
             his
             hands
             by
             the
             Death
             of
             the
             Husband
             ,
             and
             minority
             of
             the
             Heir
             .
             And
             as
             for
             the
             Ladies
             Infeftment
             ,
             it
             can
             have
             no
             effect
             against
             the
             Ward
             ,
             because
             it
             is
             not
             Confirmed
             .
             It
             was
             answered
             ,
             that
             the
             Lands
             being
             Ward
             ,
             and
             lesse
             then
             the
             third
             part
             of
             the
             Ward
             Lands
             ,
             holden
             of
             the
             Lord
             Drumlanrig
             ,
             the
             Lady
             has
             Right
             by
             Law
             thereto
             ,
             as
             her
             Terce
             .
             It
             was
             answered
             ,
             That
             by
             her
             Contract
             of
             Marriage
             ,
             she
             had
             accepted
             the
             Lands
             provided
             therein
             ,
             in
             satisfaction
             of
             her
             Tero●
             ,
             which
             is
             the
             ordinar
             conception
             of
             a
             Renunciation
             ,
             as
             when
             a
             Sum
             is
             accepted
             in
             satisfaction
             of
             any
             prior
             Debt
             ,
             it
             imports
             a
             Renunciation
             and
             Discharge
             of
             the
             prior
             Debt
             ,
             and
             an
             Inhibition
             prior
             to
             the
             last
             Bond
             ,
             will
             Reduce
             any
             Right
             thereupon
             :
             Neither
             can
             it
             be
             maintained
             ,
             as
             having
             an
             anterior
             Cause
             by
             the
             former
             Bonds
             ;
             yea
             ,
             any
             Appryzing
             upon
             them
             would
             be
             void
             ,
             because
             they
             are
             Renunced
             .
             It
             was
             answered
             for
             the
             Lady
             ,
             First
             ,
             That
             there
             was
             here
             no
             formal
             Renunciation
             ,
             or
             Discharge
             of
             the
             Terce
             ,
             and
             the
             acceptance
             of
             Lands
             for
             it
             ,
             doth
             very
             well
             allow
             ,
             that
             the
             Land
             accepted
             ,
             may
             be
             bruiked
             as
             Terce
             ,
             at
             least
             a
             Terce
             of
             that
             Land
             must
             be
             due
             ,
             though
             no
             Terce
             of
             other
             Lands
             can
             be
             claimed
             :
             and
             albeit
             the
             Clause
             in
             satisfaction
             ,
             in
             personal
             Rights
             ,
             is
             commonly
             understood
             to
             Renunce
             and
             extinguish
             the
             prior
             Rights
             ,
             unless
             they
             be
             Reserved
             :
             Yet
             it
             is
             not
             so
             in
             real
             Rights
             ,
             for
             if
             any
             person
             have
             many
             Rights
             to
             Lands
             ,
             and
             doth
             thereafter
             accept
             a
             Disposition
             of
             a
             part
             of
             the
             Lands
             in
             satisfaction
             of
             all
             his
             interest
             ,
             that
             does
             not
             Renunce
             his
             former
             Rights
             to
             that
             Land
             ,
             but
             he
             may
             defend
             himself
             with
             them
             all
             .
             So
             here
             accepting
             of
             Lands
             in
             satisfaction
             of
             a
             Terce
             ,
             does
             not
             Renunce
             the
             Terce
             ,
             as
             to
             the
             Lands
             accepted
             .
             2dly
             ,
             Albeit
             this
             Clause
             could
             import
             the
             Renuncing
             of
             all
             Terce
             ,
             that
             can
             never
             be
             extended
             to
             the
             benefite
             of
             the
             Superiour
             ,
             nor
             can
             it
             be
             understood
             the
             Contracters
             mind
             ,
             to
             exclude
             the
             Wife
             from
             the
             Terce
             ,
             to
             make
             it
             accresce
             to
             the
             Superiour
             ,
             in
             both
             their
             prejudices
             ,
             because
             the
             Husband
             by
             the
             Warrandice
             ,
             must
             make
             out
             the
             Joynture
             .
             3dly
             ,
             Albeit
             the
             Renunciation
             could
             be
             profitable
             to
             the
             Superiour
             ,
             yet
             it
             being
             by
             this
             Clause
             in
             the
             Contract
             ,
             the
             Superiour
             cannot
             question
             the
             Ladies
             Infeftment
             ,
             which
             is
             the
             cause
             of
             the
             Renunciation
             ,
             but
             must
             adhere
             to
             the
             whole
             Clause
             ,
             
               nam
               qui
               approbat
               non
               reprobat
            
             .
             It
             was
             answered
             ,
             that
             the
             common
             Sense
             of
             this
             Clause
             of
             acceptance
             does
             still
             import
             a
             full
             Renunciation
             ,
             neither
             can
             the
             intention
             ,
             or
             meaning
             of
             the
             Parties
             import
             any
             thing
             ,
             unlesse
             they
             had
             acted
             accordingly
             ;
             for
             it
             had
             been
             easie
             for
             them
             to
             have
             said
             ,
             but
             prejudice
             of
             the
             Terce
             ,
             as
             to
             thir
             Lands
             ;
             so
             that
             the
             Terce
             being
             Renunced
             ,
             the
             Renunciation
             is
             profitable
             to
             all
             Parties
             having
             Interest
             ,
             because
             the
             Right
             thereby
             Renunced
             is
             simply
             extinct
             :
             Neither
             needs
             the
             Superiour
             approve
             the
             Infeftment
             Un-confirmed
             ,
             by
             making
             use
             of
             the
             Renunciation
             ,
             for
             as
             there
             could
             be
             no
             pretence
             for
             that
             upon
             the
             naked
             Clause
             ,
             without
             any
             Infeftment
             ,
             so
             the
             meaning
             can
             only
             be
             ,
             that
             if
             the
             Clause
             had
             been
             perfected
             by
             a
             valide
             Infeftment
             ,
             he
             could
             not
             have
             quarrelled
             it
             .
          
           
             The
             Lords
             preferred
             the
             Superiour
             ,
             and
             found
             the
             acceptance
             a
             full
             Renunciation
             of
             the
             Terce
             ,
             both
             as
             to
             the
             Lands
             accepted
             ,
             and
             others
             .
          
        
         
           
           
             Helen
             Hume
             contra
             Lord
             Iustice
             Clerk.
             Iune
             28.
             1671.
             
          
           
             UMquhile
             Hume
             of
             Rentoun
             having
             made
             several
             Provisions
             to
             his
             Children
             ,
             and
             amongst
             the
             rest
             to
             
               Helen
               Hume
            
             ,
             and
             having
             recommended
             the
             same
             to
             his
             Son
             ,
             now
             Justice
             Clerk
             ;
             he
             gave
             a
             Bond
             to
             the
             said
             Helen
             of
             two
             thousand
             Merks
             ,
             payable
             upon
             Requisition
             of
             fourty
             days
             ;
             the
             said
             Helen
             pursued
             Registration
             of
             the
             Bond
             ,
             wherein
             it
             being
             alleadged
             that
             any
             Requisition
             made
             was
             past
             from
             ,
             by
             acceptance
             of
             Annualrent
             for
             Terms
             after
             .
          
           
             The
             Lords
             Assoilzied
             from
             that
             Charge
             ,
             until
             Requisition
             were
             made
             ,
             and
             new
             Requisition
             being
             made
             since
             ,
             before
             the
             Extracting
             the
             Absolvitor
             ,
             The
             Lords
             Sustained
             the
             same
             .
             It
             was
             further
             alleadged
             Absolvitor
             ,
             because
             the
             Bonds
             granted
             by
             the
             Father
             was
             done
             on
             Death-bed
             ,
             and
             the
             Bond
             granted
             by
             the
             Defender
             his
             Son
             was
             in
             his
             Minority
             ,
             and
             he
             had
             Reduction
             depending
             upon
             the
             saids
             two
             Reasons
             .
             The
             Pursuer
             replyed
             ,
             that
             the
             Defender
             had
             Homologat
             the
             Bond
             in
             question
             by
             a
             posterior
             Contract
             ,
             whereby
             he
             had
             appointed
             a
             yearly
             payment
             to
             his
             Mother
             ,
             in
             satisfaction
             of
             this
             and
             the
             other
             Portions
             .
             The
             Defender
             duplyed
             ,
             that
             that
             Contract
             was
             no
             Homologation
             ,
             being
             Subscribed
             by
             him
             when
             he
             was
             Minor
             ,
             having
             Curators
             ,
             without
             their
             Consent
             ,
             and
             so
             is
             null
             by
             exception
             .
             The
             Pursuer
             triplyed
             ,
             that
             the
             Defender
             had
             Homologat
             the
             said
             Contract
             and
             Bond
             in
             question
             by
             these
             Deeds
             .
             First
             ,
             That
             after
             Majority
             he
             had
             payed
             Annualrent
             .
             2dly
             ,
             That
             he
             had
             pursued
             Exhibition
             and
             Registration
             of
             the
             said
             Contract
             ,
             and
             thereupon
             had
             obtained
             the
             same
             Registrat
             ,
             and
             the
             Decreet
             Decerns
             Letters
             to
             be
             Direct
             at
             his
             Instance
             thereupon
             .
             It
             was
             answered
             ,
             that
             the
             payment
             of
             the
             Annualrent
             ,
             albeit
             voluntar
             ,
             though
             it
             may
             exclude
             repetition
             of
             it self
             ,
             it
             cannot
             infer
             Homologation
             of
             the
             whole
             Bond
             ,
             especially
             the
             payment
             being
             made
             by
             a
             Brother
             to
             an
             Indigent
             Sister
             .
             3dly
             ,
             Payment
             of
             Annualrent
             cannot
             Homologat
             a
             Contract
             ,
             which
             is
             null
             by
             exception
             .
             4thly
             ,
             Any
             payment
             that
             was
             made
             ,
             was
             after
             the
             Decreet
             of
             Registration
             ,
             and
             so
             necessar
             ;
             and
             as
             to
             the
             Exhibition
             ,
             the
             pursuing
             for
             a
             Delivery
             of
             a
             Writ
             doth
             not
             import
             the
             approbation
             of
             the
             contents
             of
             it
             ,
             but
             only
             a
             calling
             for
             it
             ,
             because
             the
             Writ
             belongs
             to
             the
             Subscriber
             thereof
             ,
             though
             he
             may
             quarrel
             the
             obligement
             therein
             contained
             ,
             and
             albeit
             the
             Writ
             was
             ordained
             to
             be
             Registrat
             ,
             yet
             there
             was
             neither
             Charge
             nor
             Execution
             used
             thereupon
             .
          
           
             The
             Lords
             found
             the
             payment
             of
             the
             Annualrent
             in
             manner
             foresaid
             not
             to
             import
             Homologation
             ,
             but
             they
             found
             that
             a
             Writ
             Subscribed
             by
             a
             Minor
             without
             Consent
             of
             his
             Curators
             ,
             as
             it
             might
             be
             Ratified
             ,
             so
             it
             might
             be
             Homologat
             ,
             and
             that
             it
             was
             
               de
               facto
            
             Homologat
             by
             this
             Decreet
             of
             Registration
             ,
             containing
             neither
             Reservation
             nor
             Protestation
             for
             quarrelling
             the
             Writ
             Registrat
             .
             It
             was
             further
             alleadged
             ,
             that
             the
             new
             Requisition
             was
             null
             ,
             bearing
             to
             proceed
             on
             a
             Procutry
             ,
             and
             not
             bearing
             the
             Procutry
             produced
             .
             It
             was
             answered
             ,
             the
             Procutry
             was
             not
             called
             for
             ,
             and
             that
             the
             having
             of
             the
             Writs
             ,
             which
             the
             Requisition
             mentioned
             ,
             did
             import
             a
             Power
             to
             Require
             .
             2dly
             ,
             This
             is
             a
             Dilator
             after
             a
             Peremptor
             .
          
           
             The
             Lords
             found
             the
             alleadgeance
             upon
             the
             nullity
             of
             the
             Requisition
             Receivable
             after
             the
             Peremptor
             ,
             and
             Sustained
             the
             Requisition
             ,
             the
             Pursuer
             producing
             the
             Procutry
             ,
             which
             was
             the
             Warrand
             thereof
             before
             Extract
             .
          
        
         
           
           
             Forbes
             of
             Watertoun
             contra
             Shein
             .
             Eodem
             die
             .
          
           
             FOrbes
             of
             Watertoun
             pursues
             Reduction
             of
             an
             Apprizing
             
               ex
               capite
               inhibitionis
            
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Bond
             which
             was
             the
             ground
             of
             the
             Inhibition
             is
             satisfied
             ,
             in
             so
             far
             as
             there
             followed
             thereupon
             an
             Apprizing
             ,
             which
             came
             in
             the
             Person
             of
             the
             Debitors
             appearand
             Heir
             ,
             and
             so
             is
             Redeemable
             from
             him
             ,
             for
             the
             Sums
             he
             truly
             payed
             ,
             by
             the
             Act
             1661
             ▪
             betwixt
             Debitor
             and
             Creditor
             ;
             and
             it
             is
             offered
             to
             be
             proven
             ,
             that
             the
             Sums
             he
             payed
             are
             satisfied
             by
             Intromission
             with
             the
             Rents
             of
             the
             Apprized
             Lands
             ,
             or
             what
             is
             wanting
             the
             Defender
             will
             instantly
             satisfie
             or
             purge
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Act
             of
             Parliament
             had
             declared
             that
             Apprizings
             might
             be
             satisfied
             by
             payment
             of
             the
             true
             Sums
             payed
             for
             them
             by
             the
             appearand
             Heir
             ,
             that
             cannot
             extend
             to
             this
             Bond
             ,
             or
             Inhibition
             ,
             or
             Reduction
             thereupon
             ,
             for
             the
             Pursuer
             may
             passe
             from
             his
             Apprizing
             ,
             and
             yet
             make
             use
             of
             the
             Bond
             ,
             and
             this
             alleadgeance
             will
             only
             be
             Relevant
             when
             he
             insists
             upon
             his
             Apprizing
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             that
             the
             satisfaction
             of
             the
             Apprizing
             on
             the
             Bond
             did
             to
             all
             effects
             satisfie
             ,
             and
             extinguish
             the
             Bond
             it self
             .
          
        
         
           
             The
             Creditors
             of
             Balmerino
             contra
             The
             Lady
             Couper
             .
             Eodem
             die
             .
          
           
             THe
             Deceast
             Lord
             C●●per
             having
             made
             an
             Heretable
             and
             irredeemable
             Right
             of
             his
             whole
             Estate
             and
             Dignity
             to
             his
             Lady
             and
             her
             Heirs
             :
             The
             Lord
             Balmerino
             his
             nearest
             Heir
             in
             the
             Estate
             ,
             making
             use
             of
             the
             Names
             of
             certain
             of
             his
             Creditors
             ,
             that
             he
             might
             not
             be
             necessitate
             to
             enter
             Heir
             ,
             before
             the
             event
             of
             this
             Plea
             ,
             pursues
             a
             Reduction
             of
             the
             said
             Disposition
             ,
             as
             being
             on
             Death-bed
             .
             The
             Defender
             alleadged
             ,
             First
             ,
             That
             the
             Reason
             of
             Reduction
             ,
             as
             it
             is
             Libelled
             ,
             is
             not
             Relevant
             ,
             that
             the
             Defunct
             contracted
             a
             deadly
             Disease
             before
             the
             making
             of
             the
             Disposition
             ,
             and
             that
             he
             Died
             of
             the
             said
             Disease
             ,
             which
             is
             not
             Relevant
             ,
             unless
             the
             particular
             Disease
             were
             condescended
             upon
             ,
             otherwise
             it
             will
             remain
             conjectural
             and
             unsure
             ,
             and
             Witnesses
             cannot
             distinctly
             Depone
             whether
             he
             was
             sick
             or
             not
             ,
             specially
             he
             being
             an
             oldMan
             ,
             so
             that
             they
             could
             not
             distinguish
             betwixt
             sicknesse
             and
             weaknesse
             through
             old
             age
             .
             2dly
             ,
             The
             Reason
             is
             not
             Relevant
             ,
             unless
             the
             Disease
             were
             alleadged
             to
             be
             
               morbus
               sonticus
            
             ,
             that
             might
             affect
             the
             Mind
             ,
             and
             infer
             a
             weaknesse
             ,
             which
             is
             different
             from
             Fatuity
             or
             Insensibility
             .
             3dly
             ,
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             he
             offered
             him
             to
             prove
             that
             the
             Defunct
             was
             in
             Health
             the
             time
             of
             the
             Disposition
             ,
             at
             least
             in
             as
             good
             Health
             as
             he
             had
             been
             for
             several
             years
             or
             moneths
             before
             ,
             when
             he
             did
             go
             ordinarly
             abroad
             to
             Kirk
             and
             Mercat
             ,
             about
             all
             his
             Affairs
             ,
             at
             least
             if
             he
             had
             any
             indisposition
             ,
             it
             was
             not
             
               impedimentum
               rebus
               agendis
            
             ,
             because
             it
             is
             offered
             to
             be
             proven
             that
             he
             constantly
             put
             on
             his
             Cloaths
             ,
             and
             walked
             up
             and
             down
             his
             House
             ,
             convoyed
             Strangers
             to
             their
             Chambers
             freely
             without
             being
             helped
             or
             supported
             ,
             and
             in
             the
             same
             manner
             went
             down
             with
             others
             to
             their
             Horse
             to
             the
             Green
             ,
             made
             several
             Accompts
             and
             Bargains
             ,
             and
             frequently
             Played
             at
             Cards
             ,
             all
             which
             must
             necessarly
             infer
             his
             Health
             ,
             unless
             a
             circumstantial
             Disease
             were
             condescended
             upon
             and
             proven
             ▪
             2dly
             ,
             The
             Defender
             offered
             to
             prove
             that
             after
             the
             Disposition
             ,
             the
             Defunct
             went
             to
             Kirk
             and
             Mercat
             ,
             at
             least
             to
             one
             or
             other
             of
             them
             ,
             which
             the
             Law
             hath
             allowed
             as
             unquestionable
             evidences
             of
             Recovery
             of
             Health
             ,
             and
             which
             
             therefore
             is
             Relevant
             ,
             though
             Sicknesse
             was
             specially
             proven
             to
             have
             been
             Contracted
             before
             ,
             and
             condescends
             that
             the
             Disposition
             being
             Dated
             the
             eight
             of
             December
             1668.
             upon
             the
             Thursday
             immediatly
             after
             ,
             the
             Defunct
             went
             to
             the
             Mercat
             of
             Couper
             ,
             it
             being
             the
             Mercat
             day
             ,
             and
             upon
             the
             Sabbath
             thereafter
             heard
             Sermon
             in
             the
             Kirk
             of
             Couper
             .
             The
             Pursuer
             answered
             ,
             that
             this
             Reason
             of
             Reduction
             is
             most
             Relevant
             ,
             and
             in
             the
             same
             Terms
             ,
             that
             the
             Reason
             of
             Death-bed
             has
             alwayes
             been
             Libelled
             ;
             neither
             was
             it
             ever
             found
             necessar
             to
             condescend
             upon
             
               morbus
               sonticus
            
             ,
             but
             as
             Craig
             expresses
             it
             
               sufficit
               si
               morbus
               precedat
               &
               mors
               sequatur
               ,
            
             before
             the
             Defunct
             go
             abroad
             ,
             yet
             
               probatis
               extremis
               presumuntur
               media
            
             ,
             it
             is
             still
             presumed
             that
             so
             long
             as
             the
             Defunct
             after
             the
             Disease
             remained
             within
             Doors
             ,
             that
             the
             Disease
             continued
             ,
             and
             that
             
               presumptione
               juris
               &
               de
               jure
            
             ,
             neither
             doth
             it
             admit
             a
             contrare
             probation
             ,
             by
             alleadging
             that
             the
             Party
             convalesced
             
               medio
               tempore
            
             ,
             otherwise
             then
             by
             his
             going
             out
             to
             publick
             Meetings
             at
             Kirk
             and
             Mercat
             ,
             nor
             is
             there
             any
             necessity
             to
             condescend
             on
             the
             kinds
             of
             Diseases
             ,
             which
             even
             Physitians
             themselves
             ,
             and
             the
             most
             skilful
             can
             hardly
             determine
             .
             And
             as
             to
             the
             first
             Defense
             ,
             offering
             to
             prove
             that
             the
             Defunct
             was
             in
             Health
             ,
             it
             is
             contrare
             to
             the
             Libel
             ,
             and
             no
             ways
             competent
             ,
             for
             in
             the
             case
             of
             contrare
             alleadgeances
             ,
             the
             Pursuer
             offering
             to
             prove
             Sickness
             ,
             and
             the
             Defender
             offering
             to
             prove
             Health
             at
             the
             same
             time
             ,
             the
             Pursuer
             as
             being
             in
             the
             Libel
             must
             be
             preferred
             ,
             especially
             considering
             that
             where
             such
             Deeds
             are
             procured
             through
             importunity
             from
             Sick
             and
             Weak
             Persons
             ,
             who
             would
             do
             any
             thing
             to
             get
             leave
             to
             Die
             in
             peace
             ,
             the
             Contrivers
             by
             the
             same
             facility
             may
             debar
             the
             accesse
             of
             any
             ,
             but
             such
             as
             they
             have
             confidence
             in
             ,
             and
             who
             have
             cuncurred
             with
             them
             in
             the
             Contrivance
             ,
             so
             that
             the
             Disponers
             Sicknesse
             is
             
               difficillimae
               probationis
            
             ,
             yet
             
               quaelibet
               probatio
               sufficit
            
             ,
             as
             in
             this
             case
             within
             a
             day
             or
             two
             of
             the
             Disposition
             ,
             my
             Lord
             was
             put
             to
             violent
             nature
             to
             attempt
             to
             go
             to
             the
             Mercat
             ,
             and
             three
             days
             after
             to
             the
             Kirk
             ,
             in
             both
             which
             attempts
             he
             failed
             ,
             which
             doth
             sufficiently
             presume
             that
             he
             was
             Sick
             before
             ,
             and
             was
             not
             able
             to
             cover
             his
             Sicknesse
             for
             a
             little
             time
             to
             attain
             the
             Evidences
             that
             Law
             requires
             to
             infer
             Health
             ,
             but
             if
             a
             contrare
             probation
             should
             be
             Sustained
             ,
             or
             preferred
             as
             more
             pregnant
             ,
             and
             which
             would
             be
             by
             familiar
             Persons
             in
             the
             House
             ,
             and
             concurrers
             in
             the
             Contrivance
             ,
             this
             ancient
             and
             excellent
             Law
             would
             easily
             be
             elided
             ,
             and
             as
             to
             the
             evidences
             of
             Health
             they
             are
             no
             way
             Relevant
             ,
             neither
             are
             any
             private
             acts
             ,
             but
             the
             Law
             hath
             justly
             determined
             that
             the
             Disponer
             must
             appear
             publickly
             in
             the
             solemnest
             Meetings
             ,
             that
             thereby
             it
             may
             be
             known
             that
             he
             is
             able
             to
             abide
             the
             Air
             ,
             and
             that
             matters
             of
             this
             importance
             be
             not
             probable
             by
             two
             picked
             out
             prepared
             Witnesses
             ,
             but
             that
             the
             samine
             be
             cleared
             by
             the
             whole
             Witnesses
             of
             a
             Kirk
             or
             Mercat
             ,
             which
             cannot
             all
             be
             Brybed
             ,
             and
             no
             few
             Witnesses
             dare
             adventure
             to
             Depone
             against
             that
             common
             knowledge
             ,
             so
             that
             no
             private
             or
             domestick
             acts
             in
             or
             about
             the
             House
             can
             be
             equivalent
             to
             coming
             to
             Kirk
             and
             Mercat
             .
             And
             as
             to
             the
             second
             Defense
             ,
             that
             the
             Defunct
             came
             out
             to
             Kirk
             and
             Mercat
             ,
             it
             ought
             to
             be
             Repelled
             ,
             because
             the
             pursuer
             offers
             to
             prove
             that
             he
             was
             supported
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Reply
             was
             not
             Relevant
             ,
             unlesse
             it
             were
             condescended
             quomodo
             supported
             ,
             and
             that
             it
             was
             by
             upholding
             the
             Defunct
             under
             the
             Oxter
             ,
             or
             by
             the
             Elbow
             ,
             but
             it
             is
             not
             Relevant
             to
             alleadge
             that
             the
             Defunct
             took
             any
             of
             the
             Company
             by
             the
             hand
             ,
             or
             that
             they
             took
             him
             by
             the
             hand
             ,
             especially
             if
             it
             was
             in
             rugged
             or
             uneven
             places
             ,
             in
             respect
             of
             the
             Defuncts
             age
             ,
             and
             that
             it
             is
             offered
             to
             be
             proven
             that
             he
             was
             ordinarly
             accustomed
             to
             take
             these
             who
             walked
             with
             him
             by
             the
             hand
             in
             such
             places
             ,
             and
             for
             this
             there
             was
             alleadged
             a
             Practique
             lately
             done
             by
             the
             Lords
             betwixt
             Pargilleis
             and
             Pargilleis
             ,
             whereby
             a
             Disposition
             by
             Pargilleis
             was
             Sustained
             ,
             
             because
             he
             came
             to
             the
             Mercat
             of
             Calder
             ,
             albeit
             he
             was
             helped
             to
             and
             from
             his
             Horse
             ,
             and
             up
             and
             down
             the
             Stairs
             ,
             and
             that
             he
             was
             not
             able
             to
             tell
             Money
             ,
             and
             was
             never
             at
             the
             Kirk
             thereafter
             :
             and
             likewise
             a
             Practique
             in
             Anno
             1647.
             was
             alleadged
             ,
             whereby
             Graham
             Merchant
             in
             Edinburgh
             having
             made
             a
             Disposition
             to
             his
             Wifes
             Daughter
             ,
             the
             same
             was
             Sustained
             ,
             because
             he
             Lived
             a
             long
             time
             and
             did
             his
             Affairs
             in
             the
             House
             ,
             and
             wrote
             the
             Disposition
             ,
             being
             two
             or
             three
             sheet
             of
             Paper
             ,
             all
             with
             his
             own
             hand
             ,
             which
             is
             found
             sufficient
             though
             he
             did
             not
             go
             out
             to
             Kirk
             or
             Mercat
             .
             The
             Pursuer
             answered
             ,
             that
             the
             Reply
             was
             most
             Relevant
             ,
             even
             though
             the
             supporting
             were
             only
             by
             the
             hand
             ,
             for
             albeit
             where
             there
             were
             reiterat
             acts
             of
             going
             abroad
             without
             design
             ,
             such
             circumstances
             would
             not
             be
             noticed
             ,
             yet
             where
             the
             going
             abroad
             was
             so
             near
             to
             the
             Disposition
             ,
             and
             evidently
             done
             to
             validate
             the
             same
             ,
             it
             hath
             been
             
               ultimus
               conatus
               naturae
            
             ,
             and
             hath
             not
             been
             of
             custom
             ,
             but
             of
             necessity
             ,
             so
             that
             when
             such
             an
             attempt
             is
             made
             of
             design
             ,
             if
             the
             Disponer
             have
             not
             so
             much
             strength
             as
             to
             walk
             without
             the
             help
             of
             any
             hand
             ,
             it
             infers
             clearly
             the
             weaknesse
             and
             continuance
             of
             the
             Disease
             .
             The
             Defender
             repeated
             his
             alleadgeance
             ,
             a●d
             offered
             to
             prove
             that
             not
             only
             the
             Defunct
             went
             out
             to
             Kirk
             or
             Mercat
             ,
             but
             that
             he
             went
             freely
             by
             his
             own
             strength
             ,
             no
             Body
             touching
             him
             .
          
           
             The
             Lords
             being
             desirous
             that
             neither
             Party
             should
             have
             the
             sole
             probation
             by
             picking
             out
             such
             Witnesses
             as
             made
             most
             for
             them
             ,
             but
             that
             all
             the
             Witnesses
             might
             be
             adduced
             ,
             did
             before
             answer
             appoint
             either
             Party
             to
             adduce
             Witnesses
             to
             instruct
             the
             Defuncts
             condition
             the
             time
             of
             the
             Disposition
             ,
             and
             thereafter
             ,
             and
             anent
             the
             manner
             of
             his
             going
             abroad
             ,
             and
             there
             being
             a
             great
             multitude
             of
             Witnesses
             adduced
             by
             either
             Party
             ,
             the
             Lords
             considered
             the
             Relevancy
             and
             Probation
             both
             together
             ,
             by
             which
             the
             Lords
             found
             that
             the
             Reason
             of
             Reduction
             was
             relevantly
             Lybelled
             ,
             and
             that
             it
             was
             sufficiently
             proven
             ,
             that
             the
             Defunct
             had
             contracted
             the
             Disease
             whereof
             the
             Died
             before
             the
             Disposition
             ;
             and
             as
             to
             the
             Defense
             and
             Reply
             the
             Witnesses
             proved
             all
             clearly
             ,
             that
             he
             was
             supported
             to
             the
             Kirk
             ,
             and
             from
             it
             ,
             and
             that
             he
             fell
             a
             swoond
             in
             his
             return
             ,
             but
             the
             Lords
             found
             it
             not
             necessare
             that
             the
             Defunct
             should
             both
             go
             to
             Kirk
             and
             Mercat
             unsupported
             ,
             but
             that
             either
             was
             sufficient
             ,
             but
             that
             where
             both
             was
             attempted
             shortly
             after
             ,
             and
             upon
             design
             ,
             the
             manifest
             failing
             in
             the
             attempt
             in
             going
             to
             the
             Kirk
             ,
             did
             much
             weaken
             the
             prior
             attempt
             in
             going
             to
             the
             Mercat
             :
             As
             to
             which
             the
             Lords
             did
             consider
             that
             the
             going
             free
             to
             the
             Mercat
             behoved
             to
             include
             the
             free
             going
             to
             the
             Mercat
             place
             ,
             and
             returning
             back
             from
             the
             same
             ,
             not
             being
             supported
             in
             any
             place
             of
             the
             way
             ,
             so
             that
             albeit
             many
             Witnesses
             Deponed
             the
             Defunct
             walked
             freely
             ,
             none
             being
             by
             him
             in
             some
             parts
             of
             the
             way
             coming
             and
             going
             ,
             there
             was
             no
             number
             of
             Witnesses
             that
             proved
             his
             walking
             freely
             all
             the
             way
             coming
             and
             going
             ,
             even
             while
             he
             was
             within
             the
             Town
             ,
             but
             that
             many
             Witnesses
             proved
             that
             he
             was
             supported
             ,
             some
             in
             the
             whole
             way
             ,
             and
             some
             as
             to
             several
             places
             ,
             some
             by
             the
             Oxter
             ,
             some
             by
             the
             Elbow
             ,
             and
             most
             by
             the
             hand
             .
          
           
             Therefore
             the
             Lords
             found
             the
             Reply
             Relevant
             of
             supporting
             even
             by
             the
             hand
             ,
             in
             any
             place
             of
             the
             way
             within
             the
             Town
             ,
             whether
             Even
             or
             Rugged
             ,
             and
             found
             the
             same
             sufficiently
             proven
             ,
             and
             therefore
             Reduced
             the
             Disposition
             ,
             albeit
             the
             Defuncts
             custom
             to
             take
             those
             who
             walked
             with
             him
             by
             the
             hand
             was
             also
             proven
             ,
             whereunto
             they
             had
             no
             regard
             ,
             this
             going
             to
             Mercat
             being
             so
             soon
             after
             the
             Disposition
             ,
             and
             so
             evidently
             of
             design
             to
             validat
             it
             ,
             and
             the
             Defunct
             never
             having
             gone
             out
             after
             ,
             except
             to
             the
             Kirk
             when
             he
             was
             supported
             ,
             and
             fell
             a
             swoond
             ;
             and
             as
             to
             the
             Practique
             ,
             that
             in
             Anno
             1647.
             was
             not
             produced
             ,
             but
             it
             was
             in
             consideration
             of
             a
             
             Sum
             left
             to
             the
             Church
             by
             that
             Disposition
             ,
             and
             was
             generally
             cryed
             out
             against
             by
             all
             Persons
             ,
             yet
             
               una
               hirundo
               ,
               &c.
            
             
             And
             as
             for
             Pargilleis
             Case
             ,
             the
             Lords
             perused
             the
             whole
             Debate
             and
             Testimonies
             ,
             and
             found
             that
             Pergilleis
             Lived
             near
             a
             Mile
             from
             Calder
             ,
             and
             that
             being
             an
             old
             Guttish
             Man
             he
             was
             accustomed
             to
             be
             helped
             to
             and
             from
             his
             Horse
             ,
             and
             that
             he
             Rode
             to
             the
             Town
             ,
             but
             that
             he
             Lighted
             then
             and
             walked
             freely
             through
             the
             Mercat
             ,
             and
             up
             a
             Brae
             to
             my
             Lord
             Tarphichans
             House
             ,
             and
             returned
             again
             to
             his
             Horse
             without
             any
             help
             ,
             either
             by
             the
             hand
             or
             otherwise
             ,
             and
             regarded
             not
             that
             he
             was
             helped
             up
             and
             down
             Stairs
             ,
             or
             to
             and
             from
             his
             Horse
             ,
             which
             the
             Law
             doth
             not
             require
             ,
             but
             only
             the
             going
             freely
             from
             the
             Entry
             of
             the
             Town
             to
             the
             Mercat
             place
             ,
             and
             back
             again
             unsupported
             .
          
           
             The
             Lords
             did
             also
             find
             none
             of
             the
             private
             acts
             alleadged
             upon
             Relevant
             to
             prove
             Health
             ,
             or
             equivalent
             to
             going
             to
             Kirk
             or
             Mercat
             ,
             and
             that
             there
             was
             no
             necessity
             to
             condescend
             on
             particular
             Diseases
             .
          
        
         
           
             Ioachim
             Burnmaster
             contra
             Captain
             Dishingtoun
             .
             Iune
             29.
             1671
          
           
             
               CAptain
               Dishingtoun
            
             having
             obtained
             a
             Decreet
             before
             the
             Admiral
             ,
             Adjudging
             a
             Ship
             taken
             by
             him
             at
             Sea
             the
             time
             of
             the
             late
             War
             with
             Holland
             ,
             whereof
             
               Ioachim
               Burnmaster
            
             was
             Master
             ,
             the
             said
             Ioachim
             raised
             Reduction
             of
             the
             said
             Admirals
             Decreet
             ,
             on
             these
             Reasons
             ,
             that
             his
             Ship
             and
             whole
             Goods
             did
             belong
             to
             the
             Subjects
             of
             Sweden
             ,
             his
             Majesties
             Allies
             ,
             and
             who
             had
             a
             particular
             Treaty
             with
             the
             King
             ,
             bearing
             expresly
             ,
             that
             no
             Person
             should
             be
             Seised
             who
             had
             a
             Swedish
             Pass
             ,
             in
             the
             Terms
             particularly
             exprest
             in
             the
             Treaty
             ;
             Which
             Pass
             the
             Pursuer
             had
             ,
             and
             produced
             when
             he
             was
             taken
             ,
             and
             yet
             he
             was
             declared
             Prize
             ,
             upon
             pretence
             that
             three
             of
             his
             Company
             were
             Hollanders
             ,
             albeit
             the
             Treaty
             bears
             expresly
             that
             where
             such
             a
             Pass
             is
             found
             
               ulterius
               nihil
               exigatur
               ,
               &
               in
               bona
               aut
               homines
               nullo
               modo
               inquiratur
               ,
            
             and
             upon
             pretence
             that
             the
             Oaths
             of
             the
             Master
             and
             Company
             were
             contrare
             to
             the
             Pass
             ,
             and
             proved
             that
             there
             were
             other
             owners
             then
             these
             in
             the
             Pass
             ,
             and
             other
             Goods
             ,
             viz.
             15.
             
             Hogs-heads
             of
             Wine
             ,
             and
             a
             quantity
             of
             Wine
             and
             Brandy
             wine
             ,
             and
             Paper
             ▪
             and
             that
             the
             Ship
             in
             question
             was
             not
             then
             Bought
             by
             the
             Swedes
             ,
             nor
             did
             not
             go
             to
             ,
             or
             from
             the
             parts
             mentioned
             in
             the
             Pass
             ,
             albeit
             none
             of
             these
             saids
             points
             be
             Material
             ▪
             nor
             did
             infer
             that
             the
             Ship
             ,
             or
             Loading
             ,
             or
             any
             part
             thereof
             did
             belong
             to
             the
             Kings
             Enemies
             ,
             but
             did
             belong
             to
             the
             Swedes
             his
             Allies
             and
             Confederats
             ,
             so
             that
             albeit
             they
             had
             had
             no
             Pass
             ,
             or
             an
             unformal
             Pass
             ,
             their
             Goods
             could
             not
             be
             taken
             from
             them
             ,
             there
             being
             no
             Article
             in
             the
             Treaty
             declaring
             ,
             that
             the
             not
             having
             a
             full
             and
             formal
             Pass
             should
             make
             such
             Ships
             Prize
             ,
             but
             only
             that
             the
             having
             thereof
             should
             keep
             them
             from
             all
             question
             or
             inquiry
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             the
             Decreet
             of
             Adjudication
             was
             justly
             and
             Warrantably
             given
             ,
             for
             Contrivances
             the
             time
             of
             the
             War
             being
             most
             ordinar
             ▪
             the
             Dutch
             did
             frequently
             palliat
             their
             Trading
             under
             the
             pretence
             of
             the
             Kings
             Allies
             ;
             and
             in
             this
             Case
             it
             is
             evident
             ,
             that
             the
             time
             of
             the
             Pass
             this
             Ship
             was
             in
             Holland
             ,
             of
             a
             Dutch
             Build
             belonging
             to
             an
             Hollander
             Residing
             there
             ,
             and
             no
             pretence
             of
             Buying
             the
             same
             by
             a
             Swede
             for
             a
             long
             time
             after
             ,
             as
             appears
             by
             the
             vendition
             produced
             ,
             which
             does
             not
             bear
             that
             the
             Ship
             was
             sold
             to
             any
             Swede
             ,
             or
             for
             their
             use
             ,
             but
             to
             a
             Swedish
             Factor
             in
             Holland
             ,
             without
             mentioning
             to
             whose
             use
             ,
             and
             so
             is
             justly
             suspect
             to
             have
             been
             for
             an
             other
             Dutchmans
             use
             ,
             especially
             being
             found
             Navigable
             with
             three
             Dutchmen
             in
             the
             Company
             ,
             and
             no
             Swede
             hath
             ever
             yet
             declared
             upon
             Oath
             that
             this
             Ship
             and
             Goods
             belonged
             to
             them
             ,
             for
             by
             a
             Certificat
             of
             the
             Swedish
             Chamber
             of
             Commerce
             produced
             ,
             that
             two
             
             Swedes
             did
             declare
             that
             they
             intended
             to
             Buy
             a
             Ship
             in
             Holland
             ,
             called
             the
             blew
             Lilly
             ,
             and
             yet
             the
             Pass
             of
             the
             same
             date
             bears
             ,
             that
             they
             swore
             that
             the
             blew
             Lilly
             belongs
             to
             themselves
             and
             no
             other
             ,
             and
             by
             the
             vendition
             the
             Name
             of
             the
             Ship
             was
             not
             the
             blew
             Lilly
             ,
             so
             that
             all
             hath
             been
             but
             a
             Contrivance
             ,
             and
             that
             there
             is
             nothing
             produced
             that
             necessarly
             evinces
             that
             the
             Ship
             and
             Goods
             belonged
             to
             the
             Swedes
             only
             ,
             and
             seing
             the
             Pass
             is
             so
             palpably
             false
             in
             all
             the
             substantial
             points
             required
             by
             the
             Treaty
             ,
             and
             by
             the
             Oath
             of
             the
             Pursuer
             himself
             ,
             he
             cannot
             cloath
             himself
             with
             the
             Treaty
             ,
             which
             he
             hath
             so
             grossly
             transgressed
             ,
             nor
             hath
             he
             adduced
             sufficient
             proof
             that
             the
             Ship
             and
             Goods
             belonged
             to
             the
             Swedes
             .
             And
             whereas
             it
             is
             alleadged
             ,
             that
             the
             being
             Sailed
             with
             Hollanders
             is
             no
             ground
             of
             Seisure
             by
             the
             Treaty
             ,
             the
             same
             is
             opponed
             ,
             which
             in
             the
             next
             Article
             to
             that
             alleadged
             upon
             for
             not
             enquiring
             in
             the
             Men
             and
             Goods
             ,
             bears
             that
             Seisure
             shall
             not
             be
             made
             where
             such
             a
             Pass
             is
             
               nisi
               gravis
               suspitio
               subsit
            
             ,
             and
             there
             could
             be
             no
             better
             ground
             of
             suspition
             ,
             then
             that
             the
             Master
             when
             he
             was
             taken
             acknowledged
             the
             Contents
             of
             the
             Pass
             not
             to
             be
             true
             ,
             or
             conform
             to
             the
             Treaty
             ,
             and
             that
             a
             considerable
             part
             of
             the
             Company
             were
             Dutches
             ,
             and
             as
             for
             any
             Letters
             produced
             ,
             they
             are
             impetrate
             since
             the
             War
             upon
             misinformation
             .
          
           
             The
             Lords
             adhered
             to
             the
             Decreet
             of
             Adjudication
             ,
             and
             Assoilzied
             from
             the
             Reduction
             ,
             and
             found
             the
             verity
             of
             the
             Pass
             canvelled
             by
             the
             Testimonies
             of
             the
             Skipper
             and
             Company
             ,
             and
             the
             Certificat
             ,
             and
             that
             most
             of
             the
             material
             requisits
             in
             the
             Passe
             were
             wanting
             ,
             and
             no
             sufficient
             Evidence
             that
             the
             whole
             Ship
             and
             Loadning
             did
             truely
             belong
             to
             the
             Swedes
             .
          
        
         
           
             Beidmen
             of
             the
             Magdalen
             Chappel
             contra
             Gavin
             Drisdail
             .
             Iune
             30.
             1671.
             
          
           
             
               IAnet
               Rud
            
             having
             mortified
             an
             yearly
             Annualrent
             of
             a
             Merk
             Scots
             ,
             out
             of
             a
             Tenement
             of
             hers
             to
             the
             poor
             Beidmen
             of
             the
             Magdalen
             Chappel
             ;
             they
             pursue
             
               Gavin
               Drisdail
            
             ,
             now
             Heretor
             of
             the
             Tenement
             ,
             for
             Poinding
             of
             the
             Ground
             ▪
             Who
             alleadged
             Absolvitor
             ,
             because
             he
             has
             bruiked
             the
             Tenement
             free
             of
             that
             Annualrent
             for
             more
             then
             fourty
             years
             ,
             so
             that
             the
             Right
             thereof
             is
             prescribed
             .
             It
             was
             answered
             ,
             that
             prescription
             runs
             not
             against
             the
             Poor
             ,
             and
             things
             mortified
             for
             pious
             uses
             .
             2dly
             ,
             They
             are
             in
             the
             same
             condition
             with
             Minors
             ,
             having
             Overseers
             chosen
             yearly
             .
             3dly
             ,
             The
             years
             of
             prescription
             must
             be
             accompted
             ,
             abating
             the
             times
             of
             Pestilence
             and
             War
             ,
             when
             there
             was
             no
             Session
             .
             It
             was
             answered
             ,
             that
             prescription
             was
             the
             great
             security
             of
             the
             Leiges
             ,
             and
             hath
             no
             exception
             by
             the
             Act
             of
             of
             Parliament
             ,
             but
             only
             Minority
             ,
             and
             neither
             by
             the
             Civil
             Law
             or
             our
             Custom
             ,
             is
             the
             time
             of
             prescription
             compted
             
               per
               tempus
               utile
            
             ,
             but
             
               per
               tempus
               continuum
            
             ,
             in
             regard
             of
             the
             length
             of
             the
             longest
             prescription
             .
          
           
             The
             Lords
             Sustained
             the
             Defense
             of
             prescription
             ,
             and
             Repelled
             the
             Replyes
             .
          
        
         
           
             Brody
             of
             Lethim
             and
             the
             Laird
             of
             Riccartoun
             contra
             The
             Lord
             Kenmure
             .
             Iuly
             1.
             1671.
             
          
           
             BRody
             of
             Lethim
             as
             having
             Right
             from
             Riccartoun
             ,
             having
             several
             years
             agoe
             obtained
             Decreet
             against
             the
             Tennents
             of
             the
             Mains
             of
             Kenmure
             ,
             thereafter
             upon
             a
             motion
             for
             the
             Viscount
             of
             Kenmure
             the
             Decreet
             was
             stopped
             ,
             and
             now
             the
             Pursuers
             desire
             out
             their
             Decreet
             .
             It
             was
             alleadged
             that
             the
             Cause
             having
             lyen
             over
             several
             years
             ,
             must
             be
             wakened
             .
             It
             was
             
             answered
             that
             there
             being
             a
             Decreet
             pronunced
             ,
             there
             was
             no
             more
             Process
             depending
             ,
             and
             so
             needed
             not
             be
             wakend
             .
             It
             was
             answered
             ,
             that
             a
             Decreet
             though
             pronunced
             ,
             not
             being
             conditional
             to
             a
             day
             ,
             but
             being
             absolute
             ,
             and
             thereafter
             stopped
             ,
             in
             respect
             the
             stop
             takes
             off
             the
             Decreet
             ,
             the
             Process
             is
             
               in
               statu
               quo
               prius
            
             .
             It
             was
             answered
             ,
             that
             the
             stop
             doth
             not
             recal
             the
             Decreet
             ,
             but
             only
             hinders
             the
             Extract
             thereof
             till
             the
             Supplicant
             be
             further
             heard
             ,
             and
             it
             is
             his
             part
             to
             insist
             in
             the
             Bill
             ,
             and
             that
             it
             would
             be
             of
             very
             evil
             consequence
             if
             stopped
             Decreets
             were
             recalled
             ,
             for
             then
             not
             only
             wakening
             would
             be
             necessar
             ,
             but
             in
             case
             the
             Parties
             should
             Die
             ,
             Transferance
             should
             be
             raised
             ,
             and
             seing
             wakenings
             are
             not
             requisite
             in
             concluded
             Causes
             ,
             much
             less
             after
             Sentence
             is
             pronunced
             .
          
           
             The
             Lords
             found
             no
             necessity
             of
             wakening
             ,
             but
             allowed
             the
             Defender
             to
             propone
             what
             further
             he
             had
             to
             alleadge
             .
          
        
         
           
             Laird
             of
             Balfour
             contra
             Mr.
             William
             Dowglasse
             .
             Iuly
             4.
             1671.
             
          
           
             THe
             Earl
             of
             Airlies
             Estate
             being
             Apprized
             by
             Mr.
             
               William
               Dowglasse
            
             since
             1652.
             after
             the
             Legal
             was
             expired
             Mr.
             William
             was
             Infeft
             ,
             and
             after
             his
             Infeftment
             ,
             the
             Laird
             of
             Balfour
             Apprized
             the
             same
             Land
             ,
             and
             thereupon
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             .
             It
             was
             alleadged
             for
             the
             first
             Apprizer
             that
             he
             must
             be
             preferred
             ;
             First
             ,
             Because
             he
             has
             the
             only
             Right
             ,
             having
             an
             Apprizing
             expired
             ,
             and
             Infeftment
             thereon
             ,
             before
             the
             Pursuers
             Apprizing
             was
             Led
             ,
             so
             that
             
               eo
               momento
            
             that
             he
             was
             Infeft
             upon
             his
             expired
             Apprizing
             ,
             the
             common
             Debitor
             was
             fully
             Denuded
             ,
             and
             there
             was
             no
             Right
             of
             Reversion
             ,
             or
             any
             other
             in
             his
             Person
             that
             could
             be
             Apprized
             thereafter
             .
             It
             was
             answered
             ,
             that
             by
             the
             Act
             of
             Parliament
             1661.
             between
             Debitor
             and
             Creditor
             :
             It
             is
             provided
             that
             all
             Apprizings
             Led
             within
             year
             and
             day
             of
             the
             first
             effectual
             Apprizing
             shall
             come
             in
             therewith
             
               pari
               passu
            
             ,
             and
             therefore
             the
             Pursuer
             having
             Apprized
             within
             year
             and
             day
             after
             the
             first
             Apprizers
             Apprizing
             became
             effectual
             by
             Infeftment
             ,
             he
             must
             come
             in
             with
             him
             
               pari
               passu
            
             by
             the
             said
             Act
             ,
             which
             makes
             no
             difference
             of
             expired
             ,
             or
             unexpired
             Apprizings
             ,
             and
             by
             that
             same
             Act
             the
             Debitor
             is
             not
             so
             Denuded
             by
             the
             expiring
             of
             the
             Legal
             and
             Infeftment
             ,
             but
             that
             year
             and
             day
             is
             still
             allowed
             to
             subsequent
             Apprizers
             ,
             which
             in
             effect
             is
             a
             prorogation
             of
             the
             Legal
             as
             to
             Concreditors
             .
             It
             was
             answered
             ,
             that
             the
             Act
             of
             Parliament
             is
             opponed
             ,
             bearing
             that
             Apprizings
             before
             ,
             or
             within
             year
             and
             day
             after
             the
             first
             effective
             Apprizing
             shall
             come
             in
             
               pari
               passu
            
             ,
             as
             if
             one
             Apprizing
             had
             been
             Led
             for
             all
             ,
             which
             necessarly
             imports
             the
             calculation
             of
             the
             year
             to
             be
             from
             the
             date
             of
             the
             first
             effective
             Comprizing
             and
             not
             from
             the
             date
             of
             the
             Infeftment
             or
             Diligence
             ,
             for
             the
             coming
             in
             as
             if
             one
             Apprizing
             had
             been
             for
             all
             ,
             must
             relate
             to
             the
             Decreet
             of
             Apprizing
             ,
             which
             as
             it
             is
             clear
             by
             the
             Letter
             of
             the
             Statute
             ,
             so
             also
             by
             the
             Narrative
             and
             Motive
             thereof
             ,
             bearing
             that
             Creditors
             did
             not
             know
             the
             condition
             of
             their
             Debitors
             Estate
             ,
             which
             might
             be
             Apprized
             before
             they
             could
             do
             Diligence
             ,
             whereas
             before
             they
             had
             only
             the
             benefit
             of
             Reversion
             ,
             for
             remeed
             whereof
             the
             Parliament
             brings
             in
             all
             Apprizings
             that
             are
             before
             ,
             or
             within
             a
             year
             ,
             after
             the
             first
             effectual
             Apprizing
             ,
             which
             before
             would
             have
             carried
             the
             sole
             Propert●
             ,
             and
             
               factione
               juris
            
             ,
             states
             all
             these
             Apprizings
             as
             Led
             in
             one
             day
             ,
             so
             that
             the
             remeed
             is
             sufficient
             ,
             by
             having
             a
             full
             year
             after
             the
             date
             of
             the
             Apprizing
             ,
             and
             Correctory
             Statutes
             are
             to
             be
             strictly
             Interpret
             ,
             and
             if
             the
             date
             of
             the
             Diligence
             be
             the
             Rule
             ,
             an
             Apprizing
             after
             twenty
             year
             might
             be
             brought
             to
             admit
             a
             new
             one
             deduced
             after
             all
             that
             time
             ,
             and
             not
             only
             so
             ,
             but
             the
             Mails
             and
             Duties
             would
             belong
             proportionally
             to
             the
             last
             Apprizer
             for
             twenty
             years
             
             before
             it
             was
             Led
             .
             It
             was
             answered
             ,
             that
             the
             year
             indulged
             by
             this
             Act
             of
             Parliament
             to
             Concreditors
             ,
             must
             be
             from
             the
             time
             the
             Apprizing
             is
             effectual
             ,
             for
             the
             words
             of
             the
             Statute
             bears
             ,
             all
             Apprizings
             before
             ,
             or
             within
             a
             year
             after
             the
             first
             effectual
             Comprizing
             &c.
             so
             that
             the
             year
             must
             not
             run
             from
             its
             being
             an
             Apprizing
             ,
             but
             from
             its
             being
             an
             effectual
             Comprizing
             ,
             and
             so
             from
             the
             Infeftment
             or
             Diligence
             ,
             neither
             is
             the
             inconvenience
             shunned
             otherwise
             ,
             for
             the
             only
             way
             then
             known
             for
             publication
             of
             real
             Rights
             was
             the
             Register
             of
             Seisings
             ,
             and
             not
             the
             Register
             of
             the
             Allowance
             of
             Apprizings
             ,
             which
             is
             only
             made
             necessar
             by
             an
             Act
             since
             ,
             and
             it
             is
             very
             easie
             to
             make
             simulate
             executions
             of
             Apprizings
             ,
             by
             taking
             away
             the
             Copies
             of
             Denunciation
             of
             the
             Ground
             ,
             and
             Citation
             at
             the
             dwelling
             House
             of
             the
             Debitor
             ,
             but
             if
             once
             a
             Seising
             be
             in
             the
             Register
             ,
             all
             provident
             men
             take
             notice
             thereof
             ,
             and
             albeit
             a
             Charge
             be
             sufficient
             in
             stead
             of
             a
             Seising
             which
             is
             not
             Registrat
             ,
             yet
             the
             ordinar
             way
             of
             compleating
             Apprizings
             ,
             which
             the
             Law
             notices
             is
             Infeftment
             ,
             and
             seing
             Apprizings
             are
             now
             rigorous
             Rights
             ,
             carrying
             any
             Estate
             without
             consideration
             of
             the
             value
             ,
             Acts
             Correctory
             of
             them
             ought
             to
             be
             extended
             
               ex
               aequo
            
             ,
             and
             the
             more
             wayes
             Concreditors
             have
             for
             getting
             notice
             of
             the
             Apprizing
             of
             their
             Debitors
             Estate
             the
             better
             ,
             neither
             are
             the
             evil
             consequences
             upon
             the
             other
             hand
             of
             any
             moment
             ,
             it
             being
             the
             first
             Apprizers
             fault
             (
             if
             not
             his
             fraud
             )
             that
             he
             obtains
             not
             Infeftment
             ,
             or
             does
             Diligence
             therefore
             ,
             for
             he
             may
             of
             purpose
             lye
             dormant
             ,
             not
             only
             till
             year
             and
             day
             run
             ,
             but
             untill
             the
             Legal
             expire
             ,
             and
             thereby
             cut
             off
             the
             Diligences
             of
             all
             other
             Creditors
             ,
             as
             in
             this
             very
             case
             the
             irredeemable
             Right
             of
             an
             Earldom
             shall
             be
             carried
             for
             1500.
             pounds
             ,
             and
             all
             the
             other
             Creditors
             excluded
             ,
             so
             that
             the
             Apprizing
             is
             so
             far
             from
             making
             the
             case
             better
             ,
             that
             it
             makes
             it
             much
             worse
             ,
             as
             latent
             and
             fraudulent
             ,
             for
             it
             cannot
             be
             imagined
             that
             if
             the
             second
             Apprizer
             had
             known
             that
             the
             first
             Apprizing
             was
             Led
             ,
             but
             that
             he
             would
             have
             used
             Diligence
             within
             the
             year
             ,
             at
             least
             within
             the
             Legal
             ,
             for
             so
             soon
             as
             he
             saw
             a
             Seising
             in
             the
             Register
             ,
             he
             did
             immediatly
             Apprize
             .
          
           
             The
             Lords
             preferred
             the
             first
             Apprizer
             ,
             and
             excluded
             the
             second
             ,
             and
             found
             that
             the
             year
             is
             to
             be
             reckoned
             from
             the
             date
             of
             the
             first
             effectual
             Apprizing
             ,
             and
             not
             from
             the
             Diligence
             ,
             whereby
             it
             becomes
             effectual
             .
             In
             this
             Process
             the
             Lords
             Sustained
             this
             Reply
             ,
             that
             the
             first
             Apprizing
             was
             to
             the
             behove
             of
             the
             common
             Debitor
             ,
             or
             his
             eldest
             Son
             ,
             and
             that
             they
             would
             purge
             the
             same
             by
             payment
             of
             what
             Sums
             were
             truly
             payed
             for
             it
             to
             the
             Apprizer
             ,
             according
             to
             the
             said
             Act
             of
             Parliament
             1661.
             without
             any
             Reduction
             or
             Declarator
             .
          
        
         
           
             Helen
             Hume
             contra
             The
             Lord
             Iustice
             Clerk.
             Eodem
             die
             .
          
           
             THere
             being
             a
             Bond
             granted
             by
             the
             Laird
             of
             Rentoun
             to
             
               Helen
               Hume
            
             his
             Daughter
             ,
             obliging
             him
             and
             his
             Heirs
             to
             pay
             the
             Sum
             to
             her
             at
             her
             Age
             of
             ten
             years
             compleat
             with
             Annualrent
             ,
             so
             long
             as
             she
             should
             suffer
             the
             same
             unpayed
             ,
             and
             then
             subjoining
             this
             Clause
             ,
             that
             in
             case
             she
             should
             die
             unmarried
             the
             Bond
             should
             be
             void
             :
             Whereupon
             the
             said
             Helen
             pursues
             the
             Lord
             Justice
             Clerk
             her
             Brother
             ,
             who
             alleadged
             upon
             the
             foresaid
             Clause
             ,
             that
             the
             effect
             thereof
             must
             necessarly
             be
             ,
             that
             the
             said
             Helen
             should
             make
             no
             voluntare
             gratuitous
             Right
             in
             prejudice
             of
             her
             Father
             or
             his
             Heirs
             ,
             that
             the
             Sum
             should
             return
             if
             she
             were
             not
             Married
             .
             It
             was
             answered
             ,
             that
             this
             Clause
             not
             being
             the
             ordinar
             Clause
             of
             Substitution
             .
             Provision
             ,
             or
             Return
             ,
             cannot
             be
             understood
             a
             Suspensive
             Clause
             ,
             hindring
             the
             lifting
             of
             the
             Money
             ,
             neither
             yet
             a
             resolutive
             Clause
             in
             case
             the
             Pursuer
             
             Marry
             not
             ,
             but
             it
             can
             only
             have
             the
             effect
             of
             a
             Clause
             of
             Substitution
             ,
             that
             if
             the
             Pursuer
             died
             Un-married
             ,
             and
             the
             Sum
             un-uplifted
             ,
             or
             Disponed
             ;
             her
             Fathers
             Heir
             is
             preferred
             to
             her
             own
             Heir
             ,
             or
             nearest
             of
             Kin
             ,
             for
             the
             Term
             of
             payment
             being
             her
             age
             of
             ten
             years
             ,
             she
             might
             then
             lift
             the
             Sum
             ,
             and
             there
             is
             no
             provision
             to
             reimploy
             it
             of
             this
             Tenor
             ,
             or
             to
             find
             Caution
             to
             Restore
             ,
             if
             she
             were
             not
             Married
             .
             It
             was
             answered
             ,
             that
             this
             Clause
             cannot
             be
             interpreted
             as
             a
             naked
             Substitution
             ,
             but
             as
             a
             condition
             of
             the
             Bond
             ,
             equivalent
             to
             that
             which
             is
             frequent
             in
             Provisions
             of
             Children
             ,
             and
             Contracts
             of
             Marriage
             ,
             that
             in
             case
             the
             Party
             had
             no
             Children
             ,
             the
             sum
             should
             return
             ,
             which
             was
             always
             interpret
             more
             than
             a
             single
             Substitution
             ,
             and
             to
             import
             a
             Condition
             or
             Obligation
             against
             any
             voluntar
             Deed
             ,
             or
             Disposition
             :
             And
             though
             the
             Party
             be
             thereby
             Feear
             of
             the
             Sum
             ;
             yet
             it
             imports
             a
             limited
             Fee
             ,
             with
             a
             Provision
             to
             do
             no
             Deed
             in
             the
             contrair
             ,
             without
             a
             Cause
             onerous
             :
             and
             albeit
             Re-imployment
             of
             the
             sum
             be
             not
             exprest
             in
             this
             Bond
             ,
             it
             is
             implyed
             in
             the
             nature
             of
             it
             .
          
           
             The
             Lords
             found
             ,
             that
             seing
             the
             Bond
             had
             a
             particular
             Term
             ,
             and
             no
             Condition
             to
             Re-imploy
             :
             and
             the
             question
             now
             was
             only
             of
             voluntar
             Dispositions
             ,
             without
             Causes
             onerous
             ,
             whereof
             there
             was
             none
             at
             present
             existent
             .
             The
             Lords
             Decerned
             the
             Sum
             to
             be
             payed
             to
             the
             Pursuer
             ,
             reserving
             to
             the
             Defender
             his
             Reason
             of
             preference
             against
             any
             Disposition
             ,
             or
             Assignation
             ,
             without
             a
             Cause
             onerous
             ,
             if
             the
             same
             should
             happen
             to
             be
             made
             .
          
        
         
           
             Iohn
             Mccrae
             contra
             Lord
             Mcdonald
             .
             Iuly
             6.
             1671.
             
          
           
             
               JOhn
               Mccrae
            
             as
             Heir
             to
             
               John
               Mccrae
            
             his
             Goodsire
             ,
             pursues
             the
             Lord
             Mcdonald
             ,
             as
             Heir
             to
             his
             Goodsire
             ,
             for
             payment
             of
             a
             Bond
             of
             400.
             merks
             in
             Anno
             1629.
             granted
             by
             the
             Defenders
             Goodsire
             to
             the
             Pursuers
             Goodsire
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             Bond
             is
             prescribed
             .
             The
             Pursuer
             replyed
             ,
             that
             the
             Prescription
             was
             impeded
             ,
             partly
             by
             Minority
             ,
             and
             was
             interrupted
             by
             a
             Citation
             at
             his
             Instance
             ,
             against
             the
             Lord
             Mcdonald
             .
             It
             was
             answered
             ,
             that
             the
             first
             Citation
             made
             ,
             was
             null
             ,
             being
             at
             the
             Mercat
             Cross
             of
             the
             Shire
             ,
             by
             Dispensation
             ,
             upon
             an
             unwarrantable
             suggestion
             ,
             that
             there
             was
             not
             safe
             access
             to
             him
             ,
             which
             has
             been
             past
             of
             Course
             by
             the
             Servants
             of
             the
             Bill-Chamber
             ,
             whereas
             they
             ought
             specially
             to
             have
             represented
             the
             same
             ,
             and
             the
             consideration
             thereof
             to
             the
             Lords
             ▪
             and
             so
             being
             surreptitiously
             obtained
             ,
             
               periculo
               petentis
            
             ,
             it
             can
             import
             no
             interruption
             .
             2dly
             ,
             The
             Execution
             at
             the
             Mercat
             Cross
             ,
             bears
             no
             leaving
             ,
             or
             affixing
             of
             a
             Copy
             .
             And
             as
             for
             the
             second
             Citation
             ,
             it
             is
             but
             one
             day
             before
             the
             fourty
             years
             be
             compleat
             ,
             which
             being
             so
             small
             a
             time
             ,
             is
             not
             to
             be
             regarded
             in
             Prescription
             ,
             
               nam
               Lex
               non
               spectat
               minima
            
             ,
             and
             it
             is
             also
             null
             ,
             though
             it
             be
             done
             personally
             ,
             as
             falling
             with
             the
             first
             Execution
             .
          
           
             The
             Lords
             found
             that
             the
             first
             Citation
             was
             sufficient
             to
             interrupt
             Prescription
             ,
             although
             it
             had
             not
             been
             formal
             ,
             through
             want
             of
             a
             Copy
             ,
             and
             declared
             they
             would
             sustain
             the
             Process
             thereupon
             ,
             if
             the
             leaving
             of
             a
             Copy
             were
             added
             to
             the
             Execution
             subscribed
             by
             the
             Messenger
             ,
             and
             abidden
             by
             as
             true
             .
             They
             found
             also
             ,
             that
             the
             second
             Citation
             was
             sufficient
             interruption
             ,
             though
             within
             a
             day
             of
             compleating
             the
             prescription
             ,
             which
             was
             to
             be
             reckoned
             punctually
             
               de
               momento
               in
               momentum
            
             .
          
        
         
           
           
             Strachan
             contra
             Gordouns
             .
             Iuly
             7.
             1671.
             
          
           
             STrachan
             pursues
             Gordouns
             for
             a
             Spuilzie
             of
             four
             Oxen
             taken
             away
             from
             them
             by
             violence
             ,
             being
             then
             in
             their
             Plough
             by
             George
             and
             
               William
               Gordouns
            
             and
             others
             .
             The
             Defenders
             alleadged
             absolvitor
             ,
             because
             they
             offered
             them
             to
             prove
             ,
             that
             the
             Oxon
             were
             their
             proper
             Goods
             ,
             and
             were
             stollen
             from
             them
             ,
             and
             that
             thereafter
             they
             were
             found
             straying
             upon
             the
             Pursuers
             Ground
             ,
             and
             that
             they
             were
             proclaimed
             as
             Waith-goods
             by
             the
             Sheriff
             ,
             and
             that
             by
             the
             Sheriffs
             Order
             direct
             to
             his
             Majors
             ,
             the
             Defenders
             intrometted
             with
             them
             ,
             and
             so
             did
             no
             wrong
             .
             The
             Pursuer
             Replyed
             ,
             that
             no
             way
             granting
             the
             verity
             of
             the
             Defense
             ,
             the
             same
             ought
             to
             be
             Repelled
             ,
             because
             they
             having
             the
             Oxen
             in
             question
             ,
             in
             their
             peaceable
             Possession
             four
             Months
             ,
             they
             ought
             not
             to
             have
             been
             disturbed
             in
             their
             Peaceable
             Possession
             ,
             in
             this
             Order
             ,
             without
             the
             Citation
             or
             Sentence
             of
             a
             Judge
             :
             So
             that
             the
             Defenders
             having
             unwarrantably
             and
             violently
             Dispossessed
             them
             ,
             
               spoliatus
               ante
               omnia
               restituendus
            
             ,
             and
             they
             may
             pursue
             for
             Restitution
             as
             accords
             ;
             but
             the
             Pursuers
             are
             not
             now
             obliged
             to
             Dispute
             the
             Point
             of
             Right
             .
             2dly
             ,
             If
             need
             beis
             ,
             they
             offer
             to
             prove
             that
             they
             acquired
             the
             Goods
             from
             the
             Laird
             of
             Glenkindy
             their
             Master
             ,
             so
             that
             being
             Possessors
             
               bona
               fide
               cum
               titulo
            
             ,
             they
             could
             not
             be
             summarly
             Spuilzied
             ,
             or
             Dispossessed
             :
             For
             albeit
             stollen
             or
             strayed
             Goods
             may
             be
             summarly
             Recovered
             ,
             
               de
               recenti
            
             ,
             or
             from
             the
             Thieves
             ;
             yet
             cannot
             so
             be
             taken
             from
             a
             lawful
             Possessor
             ,
             acquiring
             
               bona
               fide
            
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             and
             admitted
             the
             same
             to
             the
             Defenders
             Probation
             :
             and
             found
             also
             that
             part
             of
             the
             Reply
             Relevant
             ,
             that
             the
             Pursuers
             did
             Possess
             
               bona
               fide
            
             ,
             by
             an
             onerous
             Title
             ,
             Relevant
             to
             elide
             the
             Defense
             though
             it
             were
             proven
             ,
             as
             to
             the
             Restitution
             of
             the
             Oxen
             to
             the
             Pursuer
             ,
             and
             the
             ordinar
             profits
             thereof
             ,
             but
             not
             the
             violent
             profits
             ,
             for
             they
             found
             the
             Sheriffs
             Warrand
             being
             instructed
             ,
             would
             excuse
             from
             the
             violent
             profits
             :
             but
             they
             found
             that
             the
             Defenders
             naked
             Possession
             ,
             though
             for
             four
             months
             ,
             by
             having
             the
             Goods
             in
             the
             Plough
             ,
             would
             not
             infer
             Restitution
             or
             Spuilzie
             ,
             but
             that
             the
             Goods
             being
             stollen
             or
             strayed
             ,
             might
             be
             recovered
             Summarly
             .
          
        
         
           
             Laird
             of
             Polmais
             contra
             The
             Tradsmen
             of
             Striveling
             .
             Eodem
             die
             .
          
           
             THe
             Tradsmen
             of
             Striveling
             having
             Charged
             and
             troubled
             the
             Laird
             of
             Polmais
             Tennents
             ,
             about
             St.
             Ninians
             Kirk
             ,
             upon
             the
             Act
             of
             Parliament
             ,
             prohibiting
             Workmen
             to
             exercise
             their
             Trades
             in
             the
             Suburbs
             of
             Royal
             Burrows
             ,
             Polmais
             raised
             a
             Declarator
             for
             freeing
             of
             himself
             and
             his
             Tennents
             of
             the
             saids
             Charges
             ,
             and
             that
             they
             might
             freely
             exercise
             all
             their
             Trades
             ,
             especially
             about
             the
             Kirk
             of
             St.
             Ninians
             ,
             which
             is
             about
             a
             Mile
             from
             Striveling
             ,
             which
             being
             Dispute
             ,
             and
             it
             condescended
             upon
             ,
             that
             St.
             Ninians
             being
             a
             mile
             from
             Striveling
             ,
             could
             no
             ways
             fall
             under
             the
             Act
             of
             Parliament
             ,
             and
             could
             not
             be
             interpret
             a
             Suburb
             ,
             being
             no
             ways
             adjacent
             to
             the
             Town
             .
          
           
             The
             Lords
             found
             the
             Declarator
             and
             Condescendence
             Relevant
             ,
             and
             Decerned
             .
          
        
         
           
           
             Andrew
             and
             Adam
             Stevins
             contra
             Cornelius
             Neilson
             .
             Iuly
             11.
             1671.
             
          
           
             
               ANdrew
               Stevin
            
             having
             made
             a
             Disposition
             of
             his
             Lands
             to
             
               Cornelius
               Neilson
            
             his
             Good-brother
             ,
             and
             thereafter
             another
             Disposition
             to
             his
             Brother
             
               Adam
               Stevin
            
             .
             They
             pursue
             a
             Reduction
             of
             Cornelius
             Disposition
             .
             First
             ,
             As
             being
             upon
             Trust
             ,
             and
             only
             for
             the
             security
             of
             a
             thousand
             merks
             ,
             whereanent
             ,
             it
             being
             Debated
             anent
             the
             manner
             of
             Probation
             and
             Witnesses
             ,
             
               ex
               officio
            
             ,
             being
             craved
             for
             clearing
             the
             Trust
             by
             the
             Writer
             ,
             Witnesses
             and
             Communers
             .
          
           
             The
             Lords
             refused
             to
             Sustain
             the
             same
             ,
             till
             first
             they
             considered
             the
             other
             Reason
             of
             Circumvention
             ,
             which
             was
             Libelled
             thus
             ,
             That
             the
             Disponer
             was
             a
             lavish
             ,
             weak
             person
             ,
             that
             the
             Disposition
             was
             elicite
             by
             his
             own
             Good-brother
             ,
             for
             a
             thousand
             merks
             only
             ,
             and
             that
             he
             keeped
             him
             privatly
             from
             the
             access
             of
             all
             other
             Friends
             ,
             and
             drank
             him
             drunk
             ,
             in
             which
             condition
             he
             was
             when
             the
             Disposition
             was
             Subscribed
             ,
             and
             that
             it
             was
             not
             Read
             unto
             him
             ,
             and
             it
             being
             excepted
             upon
             a
             Ratification
             ,
             some
             Weeks
             after
             at
             another
             place
             ,
             and
             the
             Reason
             of
             Circumvention
             repeated
             on
             the
             same
             Terms
             against
             that
             Ratification
             .
          
           
             The
             Lords
             ordained
             Witnesses
             to
             be
             Examined
             
               ex
               officio
            
             ,
             upon
             the
             Reason
             of
             Circumvention
             as
             to
             both
             ,
             and
             specially
             ,
             whether
             these
             Writs
             were
             Read
             at
             the
             Subscribing
             ,
             and
             whether
             the
             Subscriber
             was
             Drunk
             ,
             and
             whether
             he
             was
             thereby
             insensible
             or
             disordered
             in
             his
             Reason
             ,
             or
             what
             were
             the
             Motives
             induced
             him
             to
             Subscribe
             .
          
        
         
           
             Sir
             George
             Maxwel
             contra
             Maxwel
             of
             Kirkonnel
             .
             Eodem
             die
             .
          
           
             SIr
             
               George
               Maxwel
            
             of
             
               Nether
               Pollock
            
             ,
             pursues
             Maxwel
             of
             Kirkonnel
             ,
             for
             payment
             of
             a
             Debt
             of
             his
             Fathers
             ,
             as
             behaving
             himself
             as
             Heir
             by
             intromission
             with
             the
             Mails
             and
             Duties
             of
             his
             Fathers
             Lands
             of
             Kirkonnel
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             his
             Father
             was
             Denuded
             ,
             and
             an
             Appryzer
             Infeft
             ,
             and
             so
             could
             have
             no
             Heir
             in
             these
             Lands
             .
             It
             was
             Replyed
             ,
             that
             notwithstanding
             of
             the
             Appryzing
             ,
             the
             same
             remained
             Redeemable
             ,
             and
             the
             Defunct
             remained
             in
             Possession
             ,
             and
             the
             Defender
             his
             appearand
             heir
             ,
             did
             continue
             his
             Possession
             ,
             and
             so
             has
             behaved
             as
             Heir
             ;
             and
             though
             he
             had
             had
             a
             Right
             or
             Warrand
             from
             the
             Appryzer
             ,
             yet
             during
             the
             Legal
             ,
             it
             is
             immistio
             ,
             having
             no
             other
             Cause
             nor
             Title
             .
             It
             must
             be
             presumed
             to
             be
             granted
             to
             him
             as
             appearand
             Heir
             ,
             much
             more
             where
             he
             hath
             no
             Warrand
             from
             the
             Appryzers
             .
             2dly
             ,
             It
             is
             offered
             to
             be
             proven
             the
             Appryzers
             were
             satisfied
             by
             intromission
             ,
             and
             what
             is
             wanting
             ,
             the
             Pursuer
             offers
             to
             satisfie
             the
             same
             at
             the
             Bar
             ;
             for
             by
             the
             Act
             of
             Parliament
             1661.
             betwixt
             Debitor
             and
             Creditor
             ,
             Appryzings
             acquired
             by
             appearand
             Heirs
             ,
             may
             be
             satisfied
             by
             the
             Defuncts
             Creditors
             ,
             for
             the
             sums
             they
             truly
             payed
             out
             by
             the
             space
             of
             ten
             years
             :
             So
             that
             the
             Defender
             ought
             to
             condescend
             ,
             and
             Depone
             what
             he
             gave
             out
             ,
             and
             to
             count
             for
             his
             Intromission
             ,
             and
             what
             is
             wanting
             ,
             the
             Pursuer
             will
             pay
             .
             The
             Defender
             answered
             ,
             that
             behaving
             as
             Heir
             ,
             being
             an
             odious
             ,
             universal
             ,
             passive
             Title
             ,
             any
             colourable
             Ground
             is
             sufficient
             to
             restrict
             it
             to
             the
             value
             intrometted
             with
             .
             And
             as
             to
             the
             offer
             to
             satisfie
             the
             Defender
             of
             the
             Appryzing
             ,
             to
             which
             he
             has
             Right
             .
             It
             is
             not
             competent
             ,
             
               hoc
               ordine
            
             ;
             for
             by
             the
             Act
             it
             is
             only
             introduced
             in
             favours
             of
             other
             Appryzers
             ,
             and
             the
             Pursuer
             is
             a
             meer
             personal
             Creditor
             ,
             without
             any
             Appryzing
             .
             It
             was
             answered
             ,
             that
             the
             Narrative
             
             of
             that
             part
             of
             the
             Act
             ,
             bears
             it
             expresly
             to
             be
             in
             favours
             of
             Creditors
             ,
             and
             though
             the
             subsumption
             is
             only
             applyed
             to
             Appryzers
             ,
             yet
             it
             is
             not
             exclusive
             ,
             and
             by
             the
             common
             Custom
             ,
             satisfaction
             of
             Appryzings
             by
             intromission
             ,
             or
             present
             payment
             ,
             is
             ever
             received
             by
             Exception
             or
             Reply
             .
          
           
             The
             Lords
             found
             that
             behaving
             as
             Heir
             is
             sufficiently
             elided
             by
             any
             Right
             or
             Warrand
             from
             the
             Appryzers
             ,
             as
             to
             intromission
             thereafter
             ;
             or
             that
             if
             the
             Defunct
             died
             not
             in
             Possession
             ,
             But
             that
             the
             Appryzers
             had
             then
             ,
             or
             thereafter
             attained
             Possession
             ,
             before
             the
             intromission
             .
             But
             found
             that
             the
             appearand
             Heirs
             continuing
             in
             the
             Defuncts
             Possession
             without
             a
             Warrand
             ,
             did
             infer
             behaviour
             ,
             and
             that
             the
             offer
             to
             purge
             the
             Appryzing
             at
             the
             Bar
             ,
             was
             competent
             ,
             
               hoc
               ordine
               ▪
            
             without
             burdening
             the
             Creditors
             with
             the
             Expenses
             of
             Appryzing
             ,
             to
             make
             the
             appearand
             Heir
             lyable
             for
             what
             he
             intrometted
             with
             ;
             and
             that
             the
             appearand
             Heir
             should
             assign
             the
             Appryzing
             ,
             whereupon
             the
             Creditor
             might
             continue
             Possession
             till
             he
             were
             satisfied
             of
             the
             sums
             now
             payed
             out
             .
          
        
         
           
             Robert
             Lermont
             contra
             The
             Earl
             of
             Lauderdail
             .
             Iuly
             12.
             1671.
             
          
           
             SIr
             
               Alexander
               Swintoun
            
             having
             Disponed
             his
             Estate
             of
             Swintoun
             ,
             to
             
               Iohn
               Swintoun
            
             his
             Son
             ,
             in
             his
             Contract
             of
             Marriage
             ,
             there
             is
             a
             Clause
             therein
             ,
             on
             thir
             Terms
             ,
             that
             it
             shall
             be
             leisom
             to
             the
             said
             Sir
             Alexander
             ,
             to
             affect
             and
             burden
             the
             Estate
             with
             Infeftments
             of
             Wodset
             or
             Annualrent
             ,
             for
             the
             sum
             of
             fifty
             four
             thousand
             merks
             ,
             for
             his
             Creditors
             and
             Bairns
             ;
             thereafter
             Sir
             Alexander
             grants
             a
             Bond
             of
             1400.
             merks
             to
             the
             Laird
             of
             Smeatoun
             ,
             and
             declares
             it
             to
             be
             a
             part
             of
             the
             fifty
             four
             thousand
             merks
             ,
             whereof
             2000.
             merks
             being
             now
             in
             the
             Person
             of
             
               Robert
               Lermont
            
             .
             He
             pursues
             the
             Earl
             of
             Lauderdail
             ,
             as
             now
             come
             in
             the
             place
             of
             
               Iohn
               Swintoun
            
             by
             his
             Foresaulture
             ,
             to
             pay
             the
             sums
             ,
             or
             at
             least
             ,
             that
             the
             Lands
             is
             ,
             or
             may
             be
             burdened
             therewith
             ,
             because
             the
             Forefault
             Persons
             Infeftment
             being
             qualified
             with
             the
             said
             Reservation
             ,
             it
             is
             a
             real
             Burden
             affecting
             the
             Estate
             ,
             and
             Swintouns
             Infeftment
             being
             publick
             ,
             and
             thus
             qualified
             and
             burdened
             ,
             was
             as
             to
             this
             point
             ,
             the
             Creditors
             Infeftment
             ,
             and
             his
             being
             Forefault
             ,
             could
             not
             prejudge
             the
             Creditors
             ,
             as
             to
             this
             real
             Burden
             ,
             in
             a
             publick
             Infeftment
             ,
             granted
             by
             the
             King.
             The
             Defender
             alleadged
             ,
             that
             the
             Libel
             was
             not
             Relevant
             ,
             for
             the
             Reservation
             being
             a
             meer
             Power
             of
             Burdening
             by
             Infeftment
             ,
             it
             cannot
             be
             pretended
             that
             the
             Forefault
             Persons
             Infeftment
             is
             sufficient
             therefore
             .
             But
             seing
             Swintoun
             made
             no
             use
             of
             that
             power
             ,
             albeit
             it
             might
             have
             been
             sufficient
             against
             Swintoun
             the
             Contracter
             ,
             or
             his
             Heirs
             :
             It
             cannot
             militate
             against
             the
             King
             or
             his
             Donator
             ,
             to
             whom
             the
             Fee
             returns
             by
             Forefaulture
             without
             any
             Burden
             ,
             but
             what
             the
             King
             has
             consented
             to
             by
             publick
             Infeftments
             or
             Confirmations
             :
             And
             though
             old
             Swintoun
             had
             given
             the
             Pursuer
             a
             base
             Infeftment
             ,
             it
             would
             have
             fallen
             by
             the
             Forefaulture
             ,
             not
             having
             been
             Confirmed
             ,
             much
             more
             when
             there
             is
             no
             Infeftment
             .
          
           
             The
             Lords
             found
             the
             Libel
             not
             Relevant
             ,
             and
             Assoilzied
             .
          
        
         
           
             The
             Heirs
             of
             Mr.
             Thomas
             Lundy
             contra
             Earl
             of
             Southesk
             and
             others
             .
             Eodem
             die
             .
          
           
             THe
             Estate
             of
             Sir
             
               Iames
               Keith
            
             of
             Powburn
             being
             Appryzed
             by
             several
             of
             his
             Creditors
             ,
             they
             now
             compet
             for
             preference
             .
             Mr.
             
               Thomas
               Lundie
            
             who
             led
             the
             first
             Appryzing
             ,
             was
             more
             then
             year
             and
             day
             before
             the
             rest
             ,
             and
             thereupon
             his
             Heir
             craved
             preference
             .
             It
             was
             alleaged
             the
             Apprizing
             was
             null
             :
             First
             ,
             Because
             it
             proceeded
             upon
             a
             Bond
             ,
             carrying
             a
             Clause
             of
             
             Requisition
             ,
             and
             the
             Claim
             of
             the
             Appryzing
             ,
             did
             not
             Libel
             thereupon
             ,
             so
             that
             albeit
             it
             be
             now
             produced
             and
             done
             
               debito
               tempore
            
             :
             Yet
             the
             Claim
             was
             not
             sufficiently
             instructed
             without
             it
             .
             2dly
             ,
             The
             Messenger
             did
             unwarrantably
             continue
             the
             Court
             of
             Appryzing
             till
             another
             Dyet
             ,
             without
             any
             necessar
             Cause
             ,
             which
             was
             never
             accustomed
             before
             ,
             and
             is
             of
             very
             evil
             consequence
             ,
             for
             thereby
             Messengers
             at
             their
             pleasure
             may
             continue
             ,
             and
             weary
             out
             the
             Persons
             concerned
             ,
             who
             might
             propone
             Defenses
             ,
             or
             produce
             Suspensions
             ,
             and
             are
             not
             obliged
             to
             attend
             the
             pleasure
             of
             the
             Messenger
             .
             3dly
             ,
             The
             Appryzing
             was
             at
             the
             Beitch-hill
             of
             Cowper
             ,
             which
             is
             not
             within
             the
             Shire
             where
             the
             Lands
             ly
             :
             And
             albeit
             there
             be
             a
             Dispensation
             in
             the
             Letters
             ,
             that
             ought
             not
             to
             have
             been
             granted
             ,
             because
             Appryzings
             should
             only
             be
             in
             the
             head
             Burgh
             of
             the
             Shire
             ,
             or
             
               in
               communi
               patriâ
            
             at
             Edinburgh
             ,
             but
             especially
             seing
             the
             Warrand
             was
             obtained
             from
             the
             Lords
             of
             course
             ,
             among
             the
             common
             Bills
             ,
             without
             being
             Read
             or
             considered
             ,
             and
             so
             is
             
               periculo
               petentis
            
             ,
             and
             cannot
             prejudge
             the
             more
             formal
             Diligence
             of
             other
             Comprizers
             ,
             especially
             seing
             Lundy
             Appryzed
             of
             new
             for
             the
             same
             sums
             ,
             which
             will
             come
             in
             
               pari
               passu
            
             with
             the
             rest
             ,
             being
             within
             year
             and
             day
             .
             It
             was
             answered
             ,
             that
             it
             is
             inherent
             in
             all
             Jurisdictions
             to
             continue
             Processes
             to
             new
             Dyets
             ,
             having
             keeped
             the
             first
             Dyet
             ,
             and
             that
             the
             Messenger
             by
             the
             Letters
             is
             Constitute
             Sheriff
             ,
             and
             there
             is
             no
             question
             but
             Sheriffs
             might
             ,
             and
             did
             prorogate
             Dyets
             in
             Appryzings
             ,
             and
             the
             Letters
             bears
             Warrand
             to
             fix
             Courts
             ,
             one
             or
             more
             ,
             and
             for
             the
             continuation
             ,
             it
             was
             but
             to
             the
             next
             day
             ,
             in
             regard
             of
             a
             great
             Speat
             ,
             the
             Appryzing
             being
             upon
             the
             hill
             in
             the
             open
             field
             ,
             the
             time
             of
             Rain
             ,
             and
             it
             being
             
               m●dica
               mora
            
             ,
             to
             the
             next
             day
             ,
             which
             will
             give
             no
             Warrand
             to
             an
             Arbitrary
             continuation
             by
             Messengers
             ,
             to
             what
             Interval
             they
             please
             .
             And
             as
             for
             the
             place
             ,
             The
             Lords
             by
             Dispensation
             may
             appoint
             what
             place
             they
             see
             convenient
             ;
             and
             albeit
             the
             Dispensation
             had
             been
             of
             course
             ,
             and
             that
             therein
             the
             Clerks
             had
             failed
             ,
             yet
             the
             Parties
             obtainers
             of
             such
             Dispensations
             are
             secure
             thereby
             ,
             and
             ought
             not
             to
             be
             prejudged
             .
          
           
             The
             Lords
             Sustained
             the
             Appryzing
             ,
             and
             found
             the
             Requisition
             now
             produced
             sufficient
             ,
             and
             found
             that
             the
             continuing
             of
             the
             Dyet
             for
             so
             short
             a
             time
             ,
             to
             be
             no
             ground
             of
             nullity
             ,
             unless
             the
             Competitors
             could
             alleadge
             a
             special
             cause
             ,
             that
             they
             did
             or
             might
             alleadged
             ,
             whereby
             they
             were
             prejudged
             by
             leading
             the
             Appryzing
             the
             second
             day
             ,
             rather
             than
             the
             first
             .
             The
             Lords
             did
             also
             Sustain
             the
             Dispensation
             of
             the
             place
             ;
             and
             having
             perused
             the
             Practique
             produced
             ,
             at
             the
             Instance
             of
             the
             Lady
             
               Lucia
               Hamiltoun
            
             ,
             anent
             an
             Appryzing
             ,
             led
             at
             Glasgow
             by
             Dispensation
             :
             They
             found
             that
             the
             Lords
             did
             not
             annul
             the
             Appryzing
             on
             that
             Ground
             .
             But
             the
             Lords
             ordained
             ,
             that
             no
             Bill
             bearing
             Dispensation
             ,
             should
             pass
             of
             Course
             in
             time
             coming
             ,
             but
             upon
             special
             Reasons
             ,
             to
             be
             con●idered
             by
             the
             Lords
             ,
             or
             the
             Ordinary
             upon
             the
             Bills
             ;
             and
             that
             Messengers
             should
             not
             continue
             the
             Dyets
             in
             Appryzings
             ,
             but
             upon
             necessar
             Causes
             ;
             and
             ordained
             an
             Act
             to
             be
             insert
             in
             the
             Books
             of
             Sederunt
             for
             that
             effect
             .
          
        
         
           
             Adam
             Gairns
             contra
             Isobel
             Sandilands
             .
             Eodem
             die
             .
          
           
             
               ADam
               Gairns
            
             pursues
             
               Isobel
               Sandilands
            
             ,
             as
             Representing
             her
             Father
             ,
             to
             pay
             a
             Debt
             of
             his
             ,
             and
             specially
             as
             behaving
             as
             Heir
             ,
             by
             uplifting
             the
             Mails
             and
             Duties
             of
             a
             Tenement
             ,
             wherein
             the
             Father
             Died
             Infeft
             ,
             as
             of
             Fee
             ,
             in
             so
             far
             as
             by
             Contract
             of
             Marriage
             betwixt
             
               Thomas
               Sandilands
            
             her
             Father
             ,
             and
             
               Iohn
               Burn
            
             ,
             and
             
               Isobel
               Burn
            
             his
             Daughter
             ,
             The
             said
             
               Iohn
               Burn
            
             
             provided
             the
             said
             Tenement
             in
             thir
             Terms
             ,
             viz.
             after
             the
             Obligements
             upon
             the
             Husbands
             part
             ,
             it
             follows
             thus
             (
             For
             the
             which
             Cause
             the
             said
             
               Iohn
               Burn
            
             binds
             and
             obliges
             him
             to
             Inseft
             
               Thomas
               Sandilands
            
             ,
             and
             the
             said
             
               Isobel
               Burn
            
             ,
             the
             longest
             liver
             of
             them
             two
             in
             Conjunctfee
             or
             Liferent
             ,
             and
             the
             Heirs
             between
             them
             ,
             Which
             failzying
             ,
             the
             said
             Isobel
             her
             Heirs
             and
             Assigneys
             whatsomever
             )
             By
             which
             Provision
             her
             Father
             being
             Feear
             and
             Infeft
             ,
             the
             Defender
             is
             lyable
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             by
             this
             Provision
             of
             the
             Conjunctfee
             of
             this
             Tenement
             ,
             
               Isobel
               Burn
            
             the
             Defenders
             Mother
             was
             Feear
             ,
             and
             her
             Father
             was
             but
             Liferenter
             ,
             in
             respect
             the
             Termination
             of
             the
             Succession
             is
             to
             the
             Mothers
             Heirs
             ,
             yea
             ,
             and
             to
             her
             Assigneys
             ,
             which
             necessarly
             imports
             ,
             that
             she
             had
             power
             to
             Dispone
             .
             And
             it
             is
             a
             general
             Rule
             in
             Succession
             of
             Conjunct-Feears
             ,
             that
             that
             Person
             is
             Feear
             upon
             whose
             Heirs
             the
             last
             Termination
             of
             the
             Tailzie
             or
             Provision
             ended
             ,
             especially
             in
             this
             Case
             ,
             where
             the
             Right
             of
             the
             Tenement
             flowes
             from
             the
             Womans
             Father
             .
             So
             that
             if
             there
             were
             any
             doubtfulness
             ,
             it
             must
             be
             presumed
             ,
             that
             the
             Fathers
             meaning
             was
             to
             give
             the
             Fee
             to
             his
             Daughter
             ,
             having
             no
             other
             Children
             :
             Neither
             is
             this
             Land
             Disponed
             
               nomine
               dotis
            
             :
             And
             the
             Defender
             stands
             Infeft
             by
             Precept
             of
             Favour
             ,
             as
             Heir
             to
             her
             Mother
             ,
             and
             thereby
             bruiks
             
               bona
               fide
            
             ,
             and
             her
             Infeftment
             must
             Defend
             her
             till
             it
             be
             Reduced
             .
             The
             Pursuer
             answered
             ,
             that
             by
             the
             provision
             ,
             the
             Husband
             was
             Feear
             ,
             and
             the
             Wife
             was
             only
             Liferenter
             ,
             because
             though
             the
             last
             Termination
             doth
             ordinarly
             rule
             the
             Fee
             :
             yet
             this
             is
             as
             favourable
             a
             Rule
             ,
             that
             in
             Conjunct
             Provisions
             ,
             
               potior
               est
               conditio
               masculi
            
             ,
             and
             though
             the
             Termination
             be
             upon
             the
             Wifes
             Heirs
             whatsomever
             ,
             yet
             they
             are
             but
             Heirs
             of
             Provision
             to
             the
             Husband
             ,
             and
             he
             might
             have
             Disponed
             ,
             and
             his
             Creditors
             may
             affect
             the
             Land
             ,
             which
             holds
             in
             all
             Cases
             ,
             except
             the
             Lands
             had
             been
             Disponed
             by
             the
             Wife
             her self
             ,
             without
             a
             Cause
             onerous
             .
             But
             here
             the
             Husband
             is
             first
             named
             ,
             and
             it
             is
             but
             a
             small
             parcel
             of
             Land
             ,
             beside
             which
             ,
             there
             is
             no
             other
             Tocher
             ;
             So
             that
             though
             it
             be
             not
             Disponed
             ,
             
               nomine
               dotis
            
             ,
             Yet
             being
             Disponed
             (
             for
             the
             which
             Causes
             )
             it
             is
             equivalent
             ,
             and
             in
             the
             same
             Contract
             ,
             the
             Husband
             is
             obliged
             to
             provide
             all
             Lands
             that
             he
             shall
             Acquire
             ,
             or
             succeed
             to
             ,
             to
             himself
             and
             his
             Wife
             ,
             the
             longest
             liver
             of
             them
             two
             in
             Conjunct-fee
             or
             Liferent
             ,
             and
             to
             the
             Heirs
             between
             them
             ,
             Which
             failzying
             ,
             the
             one
             half
             to
             the
             Husbands
             Heirs
             ,
             and
             the
             other
             half
             to
             the
             Wifes
             Heirs
             and
             their
             Assigneys
             ,
             and
             it
             cannot
             be
             imagined
             ,
             that
             the
             meaning
             of
             these
             Clauses
             was
             ,
             that
             the
             Fee
             of
             the
             Mans
             Conquest
             and
             Succession
             ,
             should
             not
             be
             all
             Constitute
             in
             himself
             ,
             but
             that
             the
             Wife
             should
             be
             Feear
             of
             the
             half
             .
             And
             in
             like
             manner
             ,
             the
             Fathers
             meaning
             is
             clear
             ,
             because
             the
             Clause
             bears
             not
             only
             in
             Contemplation
             of
             the
             Marriage
             ,
             but
             for
             sums
             of
             Money
             received
             by
             the
             Father
             ,
             which
             albeit
             left
             blank
             in
             the
             Contract
             ,
             yet
             it
             cannot
             be
             thought
             ,
             that
             in
             such
             a
             Narrative
             ,
             he
             intended
             to
             make
             his
             Daughter
             Feear
             .
             And
             as
             for
             the
             adjection
             of
             her
             Assigneys
             ,
             it
             is
             only
             
               ex
               stilo
            
             ,
             for
             Assigneys
             is
             ever
             added
             after
             the
             last
             Termination
             of
             Heirs
             ,
             and
             does
             always
             relate
             to
             all
             the
             Feears
             ,
             and
             would
             extend
             to
             the
             Heirs
             of
             the
             Marriage
             ,
             their
             Assigneys
             as
             well
             ,
             as
             to
             the
             Wifes
             Heirs
             failing
             them
             .
             Likeas
             ,
             Assigneys
             isin
             the
             same
             way
             adjected
             to
             the
             Clause
             of
             Conquest
             ,
             wherein
             there
             is
             no
             ground
             to
             imagine
             that
             the
             Wife
             is
             Feear
             :
             and
             both
             bears
             the
             Husband
             and
             Wife
             to
             be
             Infeft
             in
             Conjunct-fee
             ,
             or
             Liferent
             .
          
           
             The
             Lords
             found
             that
             by
             this
             Provision
             ,
             and
             Infeftment
             thereon
             ,
             the
             Husband
             was
             Feear
             ,
             and
             the
             Wife
             only
             Liferenter
             ,
             and
             found
             no
             necessity
             to
             Reduce
             the
             Defenders
             Infeftment
             ,
             as
             Heir
             to
             her
             Mother
             ,
             not
             proceeding
             upon
             a
             Retour
             ,
             but
             a
             Precept
             of
             Favour
             ,
             But
             they
             found
             that
             
             the
             dubiousness
             of
             the
             case
             was
             sufficient
             to
             free
             her
             from
             the
             passive
             Title
             of
             Behaviour
             ,
             but
             only
             for
             making
             forthcoming
             her
             intromission
             ,
             
               quoad
               valorem
            
             :
             But
             it
             was
             not
             Debated
             nor
             Considered
             ,
             whether
             as
             
               bonae
               fidei
            
             Possessor
             ,
             by
             a
             colourable
             Title
             ,
             being
             Infeft
             as
             Heir
             to
             her
             Mother
             ,
             she
             would
             be
             free
             of
             the
             bygones
             ,
             before
             this
             Pursuite
             .
          
        
         
           
             Marjory
             Murray
             contra
             Isobel
             Murray
             .
             Eodem
             die
             .
          
           
             UMquhil
             Murray
             having
             Infeft
             
               Isobel
               Murray
            
             his
             Wife
             in
             two
             Tenements
             ,
             did
             thereafter
             by
             his
             Testament
             ,
             leave
             a
             Legacy
             of
             a
             thousand
             pounds
             to
             their
             Daughter
             
               Marjory
               Murray
            
             ,
             and
             gave
             other
             Provisions
             to
             the
             said
             Isobel
             his
             Wife
             ,
             and
             provided
             his
             Daughter
             to
             the
             two
             Tenements
             :
             Which
             Testament
             his
             Wife
             Subscribes
             ,
             and
             after
             his
             Death
             Confirms
             the
             same
             ,
             but
             under
             Protestation
             ,
             that
             her
             Confirmation
             should
             not
             prejudge
             her
             own
             Right
             .
             The
             Daughter
             pursues
             for
             the
             Legacy
             of
             1000.
             pounds
             ,
             and
             for
             the
             Rents
             of
             the
             Tenements
             ,
             and
             alleadges
             that
             the
             1000.
             pounds
             must
             be
             free
             to
             her
             ,
             without
             being
             abated
             by
             Implement
             of
             the
             Mothers
             Contract
             ;
             And
             likewise
             the
             two
             Tenements
             by
             her
             Mothers
             consent
             and
             subscription
             .
             It
             was
             answered
             ,
             that
             the
             Mothers
             subscription
             was
             a
             Donation
             betwixt
             Man
             and
             Wife
             ,
             for
             being
             to
             the
             Mans
             Daughter
             ,
             whom
             by
             the
             Law
             of
             Nature
             he
             is
             obliged
             to
             provide
             ,
             it
             was
             all
             one
             as
             if
             it
             had
             been
             to
             himself
             .
             2dly
             ,
             her
             Subscription
             was
             obtained
             
               in
               luctu
            
             ,
             her
             Husband
             being
             near
             his
             Death
             ,
             and
             at
             his
             desire
             ,
             
               ex
               revèrentia
               maritali
            
             ,
             and
             the
             Confirmation
             can
             be
             no
             Homologation
             ,
             because
             of
             the
             Protestation
             foresaid
             .
             It
             was
             answered
             ,
             that
             it
             was
             
               protestatio
               contraria
               facto
            
             :
             and
             the
             Wife
             had
             no
             necessity
             to
             do
             it
             ,
             for
             she
             might
             have
             Confirmed
             her self
             Executrix
             Creditrix
             .
          
           
             The
             Lords
             found
             that
             there
             was
             here
             no
             Donation
             between
             Man
             and
             Wife
             ,
             but
             in
             respect
             the
             Parties
             had
             not
             Debated
             the
             effect
             of
             
               reverentia
               maritalis
            
             ,
             ordained
             them
             to
             be
             heard
             thereupon
             ,
             and
             found
             the
             Protestation
             sufficient
             to
             take
             off
             the
             Ratification
             ,
             or
             Homologation
             by
             the
             Confirmation
             ,
             and
             found
             the
             Legacy
             of
             1000.
             pounds
             to
             be
             left
             only
             according
             to
             the
             nature
             of
             a
             Legacy
             ,
             out
             of
             the
             Defuncts
             free
             Goods
             ,
             and
             would
             not
             exclude
             the
             Relict
             ,
             or
             any
             Creditor
             .
          
        
         
           
             Sir
             David
             Dumbar
             of
             Baldune
             contra
             Sir
             Robert
             Maxwel
             .
             Iuly
             14.
             1671.
             
          
           
             SIr
             
               David
               Dumbar
            
             of
             Baldune
             being
             Infeft
             upon
             several
             Appryzings
             in
             the
             Estate
             of
             Kirkcudbright
             ,
             pursues
             Reduction
             and
             Improbation
             against
             Sir
             
               Robert
               Maxwel
            
             of
             Orchartoun
             ,
             of
             all
             Rights
             of
             the
             said
             Estate
             ,
             granted
             by
             Baldune
             himself
             ,
             or
             by
             umquhil
             Iohn
             Lord
             Kirkcudbright
             ,
             or
             Thomas
             Lord
             Kirkcudbright
             ,
             or
             any
             of
             their
             Predecessours
             ,
             to
             whom
             they
             may
             Succeed
             
               jure
               sanguin●s
            
             ,
             to
             the
             Defender
             .
             It
             was
             alleadged
             no
             Certification
             of
             any
             Writs
             made
             by
             the
             Predecessours
             of
             Iohn
             or
             Thomas
             ,
             Lords
             Kirkcudbright
             ,
             to
             whom
             they
             might
             succeed
             ,
             
               jure
               sanguinis
            
             ,
             because
             that
             can
             be
             no
             active
             Title
             to
             the
             Pursuer
             ;
             for
             if
             Iohn
             Lord
             Kirkcudbright
             himself
             were
             pursuing
             a
             Reduction
             ,
             he
             would
             not
             have
             a
             sufficient
             active
             Title
             ,
             to
             Reduce
             the
             Writs
             made
             by
             any
             Person
             to
             whom
             he
             was
             appearand
             Heir
             ,
             unless
             he
             had
             been
             actually
             Heir
             :
             So
             neither
             can
             the
             Pursuer
             his
             Appryzer
             ,
             have
             further
             interest
             then
             Lord
             Iohn
             himself
             :
             for
             albeit
             the
             Clause
             is
             Relevant
             passive
             against
             the
             Defenders
             ,
             to
             produce
             all
             Writs
             made
             to
             them
             ,
             or
             to
             their
             Predecessours
             ,
             to
             whom
             they
             may
             succeed
             ,
             
             
               jure
               sanguinis
            
             ,
             because
             Reductions
             and
             Declarators
             are
             Competent
             against
             appearand
             Heirs
             ,
             without
             any
             Charge
             to
             Enter
             Heir
             :
             Yet
             they
             are
             not
             competent
             to
             appearand
             Heirs
             ,
             till
             they
             be
             actually
             Entered
             .
             It
             was
             answered
             ,
             that
             the
             Pursuer
             being
             publickly
             Infeft
             ,
             has
             good
             interest
             to
             call
             for
             all
             Writs
             that
             may
             burden
             the
             Land
             ,
             to
             the
             effect
             he
             may
             improve
             the
             same
             ,
             as
             an
             impediment
             hindering
             his
             Infeftment
             :
             But
             specially
             an
             Appryzer
             who
             has
             not
             his
             Authors
             Rights
             ,
             and
             that
             this
             has
             been
             always
             the
             stile
             of
             the
             general
             Clause
             in
             Improbations
             .
          
           
             The
             Lords
             found
             the
             Defense
             Relevant
             ,
             and
             would
             grant
             Certification
             against
             no
             Writs
             ,
             but
             such
             as
             were
             granted
             by
             person
             ,
             whose
             Infeftments
             and
             Retours
             should
             be
             produced
             before
             Extract
             .
          
           
             The
             Defender
             further
             alleadged
             ,
             no
             Certification
             against
             any
             Rights
             made
             by
             Thomas
             or
             Iohn
             Lords
             Kirkcudbright
             ,
             to
             the
             Defender
             ,
             because
             no
             person
             was
             called
             to
             Represent
             them
             :
             Whereas
             it
             is
             known
             that
             George
             ,
             Lord
             
             Iohn's
             Nevoy
             ,
             is
             both
             appearand
             Heir-male
             and
             of
             Line
             ,
             and
             that
             this
             has
             been
             the
             common
             Defense
             always
             Sustained
             .
             The
             Pursuer
             answered
             ,
             that
             the
             only
             ground
             of
             this
             Defense
             ,
             is
             when
             Defenders
             have
             Warrandice
             from
             their
             Authors
             ;
             and
             therefore
             the
             Pursuer
             ought
             to
             call
             their
             Authors
             ,
             that
             their
             Rights
             in●erring
             Warrandice
             upon
             them
             ,
             may
             not
             be
             Reduced
             ,
             they
             not
             being
             heard
             :
             But
             here
             the
             Defender
             produces
             no
             Right
             from
             Lord
             Iohn
             ,
             or
             Lord
             Thomas
             ,
             and
             so
             the
             alleadgeance
             is
             not
             Relevant
             against
             the
             Production
             ,
             but
             only
             in
             case
             such
             Rights
             be
             produced
             ,
             it
             will
             be
             Relevant
             ,
             when
             the
             Pursuer
             insists
             to
             Reduce
             the
             Writs
             produced
             .
          
           
             The
             Lords
             Repelled
             the
             Defense
             ,
             and
             reserved
             the
             same
             ,
             if
             any
             Right
             should
             be
             produced
             by
             the
             Defender
             ,
             bearing
             Warrandice
             .
          
        
         
           
             Laird
             of
             Milntoun
             contra
             Lady
             Milntoun
             .
             Eodem
             die
             .
          
           
             THe
             Laird
             of
             Milntoun
             having
             insisted
             in
             an
             Improbature
             against
             the
             Lady
             Milntoun
             ,
             for
             annulling
             a
             Decreet
             of
             Divorce
             ,
             obtained
             at
             her
             instance
             against
             
               Iohn
               Maxwel
            
             her
             Husband
             ,
             the
             Relevancy
             whereof
             was
             Discust
             upon
             the
             31.
             day
             of
             Ianuary
             1671.
             and
             only
             the
             manner
             of
             Probation
             of
             the
             Corruption
             of
             Witnesses
             ,
             by
             prompting
             them
             how
             to
             Depone
             ,
             or
             by
             promising
             ,
             or
             giving
             them
             Bribes
             ,
             or
             any
             good
             Deed
             to
             Depone
             ,
             more
             than
             their
             ordinar
             Charges
             ,
             remained
             undiscust
             .
             It
             was
             alleadged
             ,
             that
             such
             Reprobators
             were
             only
             probable
             by
             Writ
             ,
             or
             Oath
             of
             the
             Party
             adducer
             of
             the
             Witnesses
             ,
             
               post
               sententiam
               latam
            
             ,
             for
             Reprobators
             upon
             Corruption
             ,
             albeit
             they
             might
             be
             proven
             before
             Sentence
             ,
             by
             Witnesses
             above
             exception
             as
             to
             giving
             of
             Bribes
             ,
             which
             was
             a
             palpable
             Fact
             ,
             yet
             not
             then
             ,
             by
             prompting
             ,
             or
             promising
             ,
             or
             any
             words
             emitted
             ,
             which
             are
             only
             probable
             by
             the
             Witnesses
             adduced
             ,
             or
             by
             the
             Oath
             of
             the
             Adducer
             :
             Neither
             in
             that
             case
             ,
             if
             the
             Witnesses
             adduced
             be
             above
             all
             exception
             ,
             can
             Witnesses
             be
             adduced
             against
             them
             ,
             but
             only
             their
             own
             Oath
             ,
             or
             Oath
             of
             the
             Party
             :
             So
             that
             any
             Party
             that
             quarrels
             VVitnesses
             by
             Reprobators
             ,
             ought
             to
             do
             the
             same
             after
             they
             are
             adduced
             ▪
             and
             before
             Sentence
             ;
             but
             if
             Sentence
             be
             once
             pronunced
             ,
             and
             Extracted
             ,
             it
             is
             
               res
               judicata
               ,
               quaepro
               veritate
               habetur
               :
            
             And
             if
             Reprobators
             upon
             corruption
             ,
             be
             used
             after
             the
             Sentence
             ,
             upon
             Corruption
             ;
             the
             same
             can
             only
             be
             probable
             by
             the
             Oath
             of
             the
             Adducer
             :
             And
             neither
             by
             the
             Oath
             of
             the
             VVitnesses
             adduced
             ,
             who
             cannot
             annull
             their
             own
             Testimony
             ,
             
               post
               jus
               quaesitum
               parti
            
             ,
             nor
             by
             other
             VVitnesses
             :
             and
             if
             it
             were
             otherwise
             ,
             the
             greatest
             inconveniencies
             would
             follow
             :
             for
             then
             the
             Sentence
             
             and
             Securities
             of
             the
             people
             ,
             founded
             thereon
             ,
             might
             for
             fourty
             years
             space
             be
             quarrelled
             upon
             pretence
             of
             corruption
             ,
             and
             singular
             Successors
             acquiring
             
               bona
               fide
            
             ,
             might
             be
             outed
             of
             their
             Rights
             :
             As
             also
             ,
             there
             shall
             be
             no
             Termination
             of
             Process
             ;
             for
             as
             the
             first
             Sentence
             may
             be
             Canvelled
             by
             Reprobators
             against
             the
             Testimonies
             ,
             whereupon
             it
             proceeded
             :
             so
             may
             the
             second
             be
             Canvelled
             in
             the
             same
             manner
             by
             a
             second
             Reprobator
             ,
             and
             so
             without
             end
             .
             And
             seing
             the
             Law
             of
             this
             Kingdom
             hath
             been
             so
             jealous
             of
             Probation
             by
             Witnesses
             ,
             that
             it
             hath
             not
             allowed
             sums
             above
             100.
             pounds
             to
             be
             proven
             thereby
             :
             So
             Witnesses
             should
             not
             be
             admitted
             in
             Reprobators
             ,
             especially
             after
             Sentence
             .
             It
             was
             answered
             ,
             that
             Reprobators
             being
             a
             necessar
             remeed
             against
             the
             Partiality
             and
             Corruption
             of
             Witnesses
             :
             and
             the
             question
             being
             only
             ,
             the
             manner
             of
             Probation
             ,
             by
             the
             Law
             of
             God
             and
             all
             Nations
             ,
             Witnesses
             are
             the
             general
             mean
             of
             Probation
             ,
             and
             so
             ought
             to
             take
             place
             in
             all
             Cases
             ,
             where
             Law
             or
             Custom
             hath
             not
             restricted
             the
             same
             ,
             and
             it
             cannot
             be
             pretended
             ,
             that
             ever
             there
             was
             one
             Decision
             of
             the
             Lords
             finding
             Reprobators
             only
             probable
             
               scripto
               vel
               juramento
            
             :
             And
             it
             being
             acknowledged
             ,
             that
             Witnesses
             are
             competent
             ,
             
               ante
               sententiam
            
             ,
             there
             is
             neither
             Law
             nor
             Reason
             to
             refuse
             the
             same
             ,
             
               post
               sententiam
            
             ,
             especially
             with
             us
             ,
             where
             the
             Names
             of
             the
             Witnesses
             are
             never
             known
             till
             they
             be
             produced
             ,
             neither
             is
             their
             Testimonies
             published
             ,
             or
             ever
             known
             before
             Sentence
             :
             So
             that
             the
             other
             Party
             can
             have
             no
             interest
             to
             quarrel
             their
             Testimonies
             ,
             or
             know
             them
             before
             Sentence
             ,
             and
             so
             Reprobators
             shall
             never
             be
             effectual
             ,
             unless
             proven
             by
             the
             Oath
             of
             the
             Party
             ,
             that
             hath
             Corrupted
             them
             ,
             which
             is
             as
             good
             as
             absolutely
             to
             refuse
             Reprobators
             ;
             for
             it
             cannot
             be
             imagined
             that
             a
             Party
             will
             Corrupt
             Witnesses
             ,
             and
             not
             resolve
             to
             deny
             it
             upon
             Oath
             .
             And
             as
             ●o
             the
             inconvenience
             to
             singular
             Successors
             ,
             the
             Oath
             of
             the
             Author
             may
             be
             as
             hazardous
             to
             them
             as
             Witnesses
             :
             and
             if
             the
             acquirer
             of
             the
             Sentence
             be
             denuded
             ,
             if
             in
             that
             Case
             ,
             even
             their
             Oath
             be
             not
             receivable
             ,
             it
             is
             easie
             to
             Evacuat
             all
             Reprobators
             .
             And
             as
             for
             the
             inconvenience
             of
             perpetuating
             Processes
             ,
             that
             holds
             ,
             whether
             Witnesses
             be
             receivable
             in
             Reprobators
             before
             Sentence
             or
             after
             ,
             and
             if
             admitting
             of
             Witnesses
             be
             so
             qualified
             ,
             that
             it
             be
             only
             when
             the
             Witnesses
             in
             the
             first
             Sentence
             ,
             are
             not
             above
             Exception
             ,
             and
             the
             Witnesses
             in
             the
             Reprobators
             above
             all
             exception
             ,
             and
             that
             it
             be
             in
             a
             palpable
             Fact
             of
             receiving
             Bribes
             ,
             and
             recently
             only
             after
             Sentence
             ,
             and
             with
             a
             liberty
             to
             the
             Obtainer
             of
             the
             Sentence
             ,
             to
             astruct
             the
             same
             by
             other
             Witnesses
             ,
             or
             Evidences
             ,
             as
             in
             Improbations
             ;
             for
             Reprobator
             is
             a
             kind
             of
             Improbation
             ,
             there
             can
             be
             no
             hazard
             of
             multiplying
             Reprobators
             ,
             but
             this
             inconvenience
             ,
             if
             it
             were
             Relevant
             ,
             would
             not
             only
             take
             away
             all
             Reprobators
             ,
             but
             all
             Reductions
             ,
             for
             the
             Decreet
             Reductive
             may
             be
             quarrelled
             by
             a
             second
             Reduction
             ,
             and
             that
             by
             a
             third
             ,
             and
             so
             without
             end
             .
             But
             the
             inconvenience
             on
             the
             other
             hand
             is
             far
             greater
             ,
             that
             all
             Parties
             will
             be
             sure
             to
             Corrupt
             VVitnesses
             ,
             if
             they
             do
             but
             resolve
             not
             to
             confess
             it
             ,
             and
             VVitnesses
             will
             be
             easie
             to
             be
             Corrupted
             ,
             being
             secured
             against
             all
             Redargution
             :
             And
             whereas
             it
             is
             pretended
             ,
             that
             Witnesses
             with
             us
             prove
             not
             above
             100.
             pounds
             ,
             that
             is
             only
             where
             VVrit
             may
             ,
             and
             uses
             to
             be
             adhibite
             ,
             
               in
               paenam
               negligentium
            
             :
             But
             otherwayes
             VVitnesses
             are
             adhibite
             in
             the
             greatest
             matters
             ,
             as
             Improbation
             of
             VVrits
             ,
             Probation
             of
             Tenors
             ,
             Extortion
             ,
             Circumvention
             ,
             Spuilzies
             ,
             Ejections
             ,
             and
             Intromissions
             of
             whatsomever
             kind
             or
             quantity
             .
          
           
           
             The
             Lords
             found
             Reprobators
             upon
             Corruption
             ,
             and
             prompting
             of
             VVitnesses
             ,
             only
             probable
             
               scripto
               vel
               juramento
            
             ,
             after
             Sentence
             ,
             this
             was
             contrair
             the
             opinion
             of
             many
             of
             the
             Lords
             ,
             and
             was
             stoped
             till
             a
             further
             hearing
             at
             the
             Bar.
             
          
        
         
           
             Earl
             of
             Hume
             contra
             The
             Laird
             of
             Rislaw
             .
             Iuly
             18.
             1671.
             
          
           
             THe
             Kirk
             of
             Fogo
             having
             been
             a
             Kirk
             of
             the
             Abbacy
             of
             Kelso
             ,
             when
             the
             same
             was
             Erected
             ;
             this
             Kirk
             was
             reserved
             in
             favours
             of
             the
             Earl
             of
             Hume
             ,
             and
             Disponed
             to
             his
             Predecessors
             ,
             whereupon
             he
             pursues
             the
             Laird
             of
             Rislaw
             for
             the
             Teinds
             of
             his
             Lands
             ,
             as
             a
             part
             of
             the
             Teinds
             of
             Fogo
             ,
             who
             alleadged
             absolvitor
             ,
             because
             his
             Predecessors
             obtained
             Tack
             of
             their
             Teinds
             from
             the
             Minister
             of
             Fogo
             ,
             as
             Parson
             thereof
             ,
             which
             Tack
             ,
             though
             it
             be
             now
             expyred
             ,
             yet
             he
             bruiks
             ,
             
               per
               tacitam
               reloca●ionem
            
             .
             The
             Pursuer
             Replyed
             ,
             that
             his
             tacite
             Relocation
             was
             interrupted
             by
             Inhibitions
             produced
             .
             The
             Defender
             answered
             ,
             that
             the
             Inhibitions
             were
             only
             at
             the
             instance
             of
             the
             Earl
             of
             Hume
             ,
             who
             was
             never
             in
             Possession
             of
             his
             Teinds
             ,
             whose
             Right
             he
             neither
             knew
             ,
             nor
             was
             obliged
             to
             know
             ,
             and
             the
             Earl
             ought
             to
             have
             used
             Declarator
             against
             the
             Defender
             ,
             and
             the
             Parson
             of
             Fogo
             his
             Author
             ▪
             which
             was
             the
             only
             habile
             way
             ,
             and
             not
             the
             Inhition
             .
          
           
             The
             Lords
             Sustained
             the
             Processe
             upon
             the
             Inhibition
             ,
             and
             restricted
             the
             Spuilzie
             to
             wrongous
             Intromission
             ,
             unless
             the
             Defender
             could
             propone
             upon
             a
             Right
             in
             the
             Person
             of
             himself
             ,
             or
             his
             Author
             ,
             that
             could
             either
             simply
             exclude
             the
             Earls
             Right
             ,
             or
             at
             least
             give
             the
             Defender
             ▪
             or
             his
             Author
             the
             benefite
             of
             a
             possessory
             Judgement
             ,
             and
             put
             the
             Earl
             to
             Reduction
             or
             Declarator
             .
          
           
             VVhereupon
             the
             Defender
             alleadged
             ,
             that
             the
             Parson
             of
             Fogo
             was
             presented
             by
             the
             King
             ,
             as
             Parson
             of
             Fogo
             ,
             and
             did
             so
             bruik
             by
             the
             space
             of
             thirteen
             years
             ,
             which
             was
             sufficient
             to
             Defend
             him
             ,
             
               in
               judicio
               possessorio
            
             .
             It
             was
             Replyed
             ,
             First
             ,
             That
             the
             Minister
             cannot
             pretend
             the
             benefit
             of
             a
             possessory
             Judgement
             ,
             because
             his
             Possession
             was
             not
             peaceable
             ,
             in
             so
             far
             as
             it
             was
             within
             the
             thirteen
             years
             ,
             it
             was
             interrupted
             by
             the
             Pursuers
             Inhibitions
             .
             The
             Defender
             answered
             ,
             that
             he
             offered
             to
             prove
             thirteen
             years
             Possession
             ,
             at
             least
             seven
             years
             peaceable
             Possession
             ,
             before
             any
             Inhibition
             ,
             which
             is
             sufficient
             ;
             for
             as
             thirteen
             years
             Possession
             makes
             a
             presumptive
             Title
             ,
             
               decennalis
               &
               triennalis
               possessor
               non
               tenetur
               docere
               de
               titulo
               :
            
             yet
             where
             the
             Defender
             produces
             a
             Title
             ,
             viz.
             a
             Presentation
             as
             Parson
             ,
             he
             is
             in
             the
             common
             Case
             of
             a
             possessory
             Judgement
             upon
             seven
             years
             Possession
             .
             The
             Pursuer
             further
             Replyed
             ,
             that
             albeit
             the
             seven
             years
             were
             peaceable
             ,
             and
             sufficient
             for
             a
             possessory
             Judgement
             ;
             yet
             the
             Defender
             cannot
             maintain
             his
             Possession
             by
             tacite
             Relocation
             ,
             for
             he
             having
             no
             positive
             Right
             in
             his
             Person
             ,
             his
             Tack
             being
             Expired
             ,
             he
             can
             only
             maintain
             his
             Possession
             upon
             his
             Authors
             Right
             ,
             as
             Parson
             ,
             and
             so
             can
             be
             in
             no
             better
             Case
             than
             his
             Author
             ,
             who
             if
             he
             were
             compearing
             ,
             not
             pleading
             the
             benefite
             of
             a
             possessory
             Judgement
             ,
             he
             would
             be
             excluded
             by
             this
             Reply
             ,
             that
             he
             had
             acknowledged
             the
             Earls
             Right
             ,
             and
             taken
             Assignation
             from
             him
             to
             the
             Tack-duty
             ,
             due
             by
             the
             Defender
             ,
             which
             ,
             though
             it
             would
             not
             be
             sufficient
             after
             the
             Defenders
             Tack
             ,
             to
             exclude
             the
             same
             ,
             if
             it
             were
             not
             expired
             ,
             yet
             it
             is
             sufficient
             against
             his
             tacite
             Relocation
             ,
             which
             can
             only
             subsist
             ,
             while
             his
             Author
             hath
             Right
             and
             Possession
             ,
             and
             being
             but
             a
             presumptive
             continuation
             of
             the
             Right
             ,
             it
             is
             easily
             taken
             away
             by
             any
             Deed
             of
             the
             Author
             .
             It
             was
             answered
             ,
             that
             tacite
             Relocation
             being
             introduced
             
             by
             Law
             ,
             was
             as
             strong
             as
             a
             Prorogation
             ,
             and
             continuation
             of
             the
             Tack
             ,
             which
             could
             not
             be
             prejudged
             by
             any
             posterior
             Deed
             of
             the
             Parson
             .
          
           
             The
             Lords
             found
             the
             Defense
             upon
             the
             Parsons
             Right
             cled
             with
             seven
             years
             peaceable
             Possession
             Relevant
             
               in
               judicio
               possessorio
            
             ,
             to
             defend
             the
             Defenders
             tacite
             Relocation
             ,
             but
             found
             the
             Reply
             Relevant
             ,
             that
             the
             Parson
             had
             accepted
             Assignation
             from
             the
             Pursuer
             ,
             to
             make
             the
             Defender
             lyable
             for
             the
             ordinary
             profits
             ,
             after
             the
             Assignation
             ,
             and
             after
             the
             first
             Inhibition
             ,
             but
             only
             for
             the
             Tack-duty
             till
             the
             first
             Inhibition
             ,
             and
             found
             that
             the
             tacite
             Relocation
             was
             not
             in
             a
             like
             case
             ,
             as
             if
             the
             Defender
             had
             a
             Tack
             ,
             or
             Prorogation
             .
          
        
         
           
             Andrew
             Harlaw
             contra
             Agnes
             Hume
             .
             Iuly
             18.
             1671.
             
          
           
             
               ANdrew
               Harlaw
            
             having
             obtained
             Decreet
             against
             
               Agnes
               Hume
            
             ,
             as
             Executrix
             to
             her
             Husband
             :
             She
             Suspends
             and
             raises
             Reduction
             on
             this
             Reason
             ,
             that
             the
             inferiour
             Judge
             did
             wrong
             in
             Decerning
             her
             ,
             being
             only
             Executrix
             Creditrix
             ,
             as
             being
             lyable
             for
             the
             whole
             Inventar
             ,
             because
             by
             the
             Law
             and
             Custom
             of
             this
             Kingdom
             ,
             Executors
             Creditors
             ,
             who
             Confirm
             only
             for
             obtaining
             payment
             of
             their
             Debt
             ▪
             are
             lyable
             for
             no
             more
             but
             what
             they
             intromet
             with
             above
             the
             Debt
             due
             to
             them
             ,
             and
             are
             not
             lyable
             for
             further
             Diligence
             as
             other
             Executors
             :
             Yea
             it
             was
             found
             upon
             the
             11.
             of
             Iune
             1629.
             observed
             by
             Dury
             ,
             that
             an
             Executor
             having
             no
             interest
             ,
             was
             not
             lyable
             for
             Diligence
             ,
             but
             only
             to
             Assign
             in
             the
             Case
             betwixt
             Nivin
             and
             Hodge
             .
             It
             was
             answered
             ,
             that
             Executors
             Creditors
             are
             lyable
             for
             intromission
             and
             omission
             as
             other
             Executors
             ,
             because
             they
             accept
             an
             Office
             ,
             and
             exclude
             others
             who
             would
             be
             lyable
             for
             Diligence
             ,
             and
             they
             have
             no
             more
             advantage
             ,
             but
             that
             they
             are
             preferred
             to
             others
             as
             being
             Creditors
             ,
             and
             may
             pay
             themselves
             in
             the
             first
             place
             ,
             and
             it
             would
             be
             of
             pernicious
             consequence
             ,
             if
             their
             negligence
             should
             cause
             the
             interest
             of
             Children
             ,
             though
             Orphants
             ,
             as
             well
             as
             Creditors
             to
             perish
             ;
             and
             therefore
             the
             Lords
             did
             justly
             in
             Anno
             1667.
             in
             the
             Case
             betwixt
             Bisket
             and
             Greig
             ,
             find
             an
             Executor
             Creditor
             lyable
             for
             the
             whole
             Inventar
             ,
             both
             for
             Intromission
             and
             Omission
             .
             It
             was
             answered
             ,
             that
             it
             hath
             always
             been
             heretofore
             holden
             ,
             that
             Executors
             Creditors
             were
             not
             in
             the
             case
             of
             other
             Executors
             as
             to
             Diligence
             ,
             and
             that
             the
             ordinar
             Remeed
             was
             ,
             that
             Creditors
             might
             pursue
             the
             Executor
             Creditor
             ,
             and
             thereupon
             would
             obtain
             Assignations
             to
             any
             Debts
             in
             the
             Inventar
             they
             pleased
             ,
             except
             such
             as
             had
             been
             uplifted
             by
             the
             Executor
             ,
             for
             their
             own
             payment
             ;
             upon
             which
             Assignations
             they
             did
             always
             pursue
             for
             themselves
             ,
             so
             that
             there
             was
             neither
             Exclusion
             nor
             obstacle
             to
             the
             Creditors
             ,
             but
             on
             the
             contrair
             ,
             they
             got
             Assignations
             ,
             without
             being
             at
             the
             trouble
             to
             Confirm
             :
             So
             that
             this
             Confirmation
             being
             many
             years
             ago
             ,
             it
             were
             against
             all
             Reason
             to
             make
             the
             Executors
             Creditors
             further
             lyable
             than
             they
             were
             then
             esteemed
             to
             be
             ,
             which
             might
             also
             be
             drawn
             back
             against
             all
             Executors
             Creditors
             ,
             which
             are
             very
             many
             .
          
           
             The
             Lords
             having
             considered
             the
             Decision
             betwixt
             Bisket
             and
             Greig
             ,
             that
             it
             was
             upon
             a
             recent
             Confirmation
             ,
             and
             in
             favours
             of
             a
             Wife
             for
             her
             Provision
             ,
             out
             of
             whose
             hands
             the
             Executor
             had
             recovered
             the
             Goods
             ,
             though
             she
             was
             a
             priviledged
             Creditor
             :
             They
             found
             that
             this
             Executor
             Creditor
             being
             long
             before
             Confirmed
             ,
             was
             not
             lyable
             for
             Diligence
             ,
             but
             only
             for
             Intromission
             ,
             and
             resolved
             to
             take
             it
             into
             consideration
             ,
             whether
             Executors
             Confirming
             in
             time
             coming
             ,
             should
             be
             lyable
             for
             Diligence
             ,
             and
             to
             consider
             the
             inconvenience
             on
             both
             parts
             ,
             and
             to
             make
             an
             Act
             of
             Sederunt
             thereanent
             .
          
        
         
           
           
             Countess
             of
             Cassils
             contra
             Earl
             of
             Roxburgh
             .
             Eodem
             die
             .
          
           
             THe
             Countess
             of
             Cassils
             in
             her
             Contract
             of
             Marriage
             with
             the
             Lord
             Ker
             ,
             being
             provided
             to
             5000.
             pounds
             ,
             he
             did
             
               stante
               matrimonio
            
             ,
             provide
             her
             to
             an
             Annualrent
             of
             10000.
             merks
             further
             during
             her
             Lifetime
             ,
             and
             upon
             his
             Death-bed
             ,
             he
             made
             two
             Testaments
             of
             one
             date
             ,
             by
             the
             one
             he
             nominate
             his
             Father
             Tutor
             to
             his
             Children
             ,
             and
             left
             to
             him
             the
             Provisions
             of
             his
             Wife
             and
             Children
             ,
             by
             the
             other
             he
             provided
             his
             Lady
             to
             5000.
             pound
             more
             than
             her
             Contract
             ,
             and
             named
             Provisions
             for
             his
             Children
             ,
             but
             subjoyned
             a
             Clause
             ,
             that
             if
             his
             Father
             ,
             who
             was
             then
             in
             England
             ,
             returned
             and
             made
             use
             of
             the
             other
             Testament
             ,
             that
             this
             Testament
             should
             be
             null
             ▪
             The
             Earl
             of
             Rox●urgh
             his
             Father
             did
             return
             ,
             and
             was
             Infeft
             as
             Heir
             to
             his
             Son
             ,
             and
             did
             Ratifie
             his
             Sons
             Bond
             of
             Provision
             of
             10000.
             merks
             ,
             and
             by
             his
             Testament
             ,
             did
             expresly
             mention
             his
             Sons
             former
             Testament
             ,
             and
             by
             vertue
             thereof
             named
             Tutors
             to
             his
             Oyes
             ,
             and
             by
             a
             Bond
             a●part
             ,
             gave
             different
             Provisions
             to
             them
             ,
             from
             these
             appointed
             by
             their
             Fathers
             Testament
             ,
             and
             this
             Earl
             of
             Roxburgh
             being
             Heir
             of
             Tailzie
             to
             him
             ,
             did
             in
             his
             Contract
             of
             Marriage
             reserve
             the
             Pursuers
             Infeftment
             of
             this
             Annualrent
             ,
             and
             did
             many
             years
             satisfie
             and
             take
             Discharges
             of
             the
             same
             ;
             and
             now
             she
             pursues
             the
             Earl
             ,
             as
             contraverting
             the
             payment
             for
             some
             years
             bygone
             ,
             and
             in
             time
             coming
             during
             her
             Life
             .
             The
             Defender
             alleadged
             absolvitor
             ,
             because
             the
             Pursuer
             being
             competently
             provided
             by
             her
             Contract
             of
             Marriage
             ,
             this
             additional
             Provision
             was
             a
             Donation
             betwixt
             Man
             and
             Wife
             ,
             and
             so
             by
             the
             Law
             is
             Revockable
             at
             any
             time
             during
             the
             Husbands
             Life
             ,
             even
             upon
             Death-bed
             ,
             or
             by
             his
             Testament
             ,
             not
             only
             by
             a
             direct
             Revocation
             ,
             but
             by
             any
             thing
             that
             might
             import
             a
             change
             of
             his
             mind
             ,
             and
             accordingly
             he
             hath
             Revocked
             the
             same
             by
             his
             Testament
             produced
             ,
             adding
             only
             5000.
             pounds
             to
             his
             Ladies
             Provision
             by
             her
             Contract
             ,
             and
             albeit
             thereafter
             the
             late
             Earl
             did
             Ratifie
             and
             acknowledge
             this
             additional
             Provision
             ,
             yet
             therein
             they
             were
             
               errore
               lapsi
            
             ,
             not
             having
             known
             of
             this
             Testament
             of
             the
             Lord
             Ker
             ,
             at
             least
             not
             having
             understood
             that
             it
             imported
             a
             Revocation
             of
             this
             Provision
             ,
             and
             therefore
             may
             justly
             now
             Reclaim
             against
             it
             .
             The
             Pursuer
             answered
             ,
             that
             this
             Testament
             imported
             no
             Revocation
             ,
             which
             it
             did
             not
             mention
             ,
             neither
             is
             the
             addition
             of
             5000.
             pounds
             therein
             an
             indirect
             Revocation
             ,
             which
             must
             ever
             be
             by
             an
             inconsistent
             Deed
             ,
             but
             both
             these
             conditions
             are
             consistent
             ,
             albeit
             that
             by
             the
             Testament
             it
             be
             
               modo
               inhabili
            
             ,
             and
             it
             is
             very
             like
             that
             the
             Testator
             ,
             being
             taken
             with
             a
             great
             Fever
             ,
             did
             not
             remember
             of
             this
             Provision
             ,
             or
             added
             the
             other
             5000.
             pounds
             on
             this
             consideration
             ,
             that
             the
             former
             Provision
             was
             only
             to
             take
             effect
             ,
             after
             the
             Earl
             of
             Roxburghs
             Death
             ;
             so
             that
             the
             Lord
             Kers
             meaning
             might
             probably
             be
             to
             add
             5000.
             pounds
             during
             his
             Fathers
             Lifetime
             .
             2dly
             ,
             Though
             the
             Testament
             could
             import
             a
             Revocation
             ,
             yet
             the
             Testament
             it self
             being
             Conditional
             ,
             only
             to
             stand
             in
             case
             his
             Father
             returned
             not
             to
             Scotland
             ,
             and
             made
             use
             of
             the
             other
             Testament
             of
             the
             same
             date
             ,
             all
             the
             Tenor
             of
             it
             ,
             and
             this
             restricting
             Clause
             ,
             is
             affected
             with
             the
             same
             Condition
             ,
             so
             that
             if
             the
             Testator
             had
             said
             that
             he
             had
             restricted
             his
             Ladies
             additional
             Provision
             to
             5000.
             pounds
             in
             case
             his
             Father
             returned
             not
             ,
             but
             in
             that
             case
             left
             her
             to
             his
             Fathers
             provisions
             ,
             it
             would
             be
             truly
             a
             conditional
             Revocation
             ,
             which
             Condition
             is
             purified
             by
             the
             Fathers
             Return
             ,
             and
             providing
             the
             Lady
             by
             his
             Ratification
             of
             this
             Bond
             of
             Provision
             ,
             nor
             can
             it
             be
             justly
             alleadged
             ,
             that
             both
             this
             and
             that
             Earl
             were
             
               errore
               lapsi
            
             ,
             seing
             the
             Testament
             is
             produced
             by
             the
             Earl
             himself
             ,
             and
             was
             never
             in
             the
             Ladies
             hands
             ,
             and
             doubtless
             it
             hath
             been
             advised
             by
             the
             late
             Earl
             ere
             he
             Ratified
             ,
             who
             was
             a
             most
             provident
             man
             ,
             and
             his
             Ratification
             is
             dated
             at
             the
             
               Canongate
               ,
               
               ubi
               fuit
               copia
               peritorum
               ,
            
             and
             if
             Ratifications
             should
             become
             ineffectual
             ,
             or
             if
             
               errore
               lapsus
            
             ,
             should
             be
             Relevant
             upon
             the
             ignorance
             ,
             or
             mistake
             of
             the
             import
             of
             a
             Writ
             ;
             Ratifications
             should
             be
             of
             no
             effect
             ,
             but
             any
             ground
             that
             might
             defend
             the
             Ratifier
             before
             the
             Ratification
             ,
             might
             annul
             the
             same
             upon
             pretence
             that
             he
             knew
             it
             not
             :
             and
             therefore
             
               errore
               lapsus
            
             is
             only
             understood
             
               de
               invincibili
               errore
               facti
            
             ,
             but
             never
             
               de
               ignorantia
               juris
               quae
               neminem
               excusat
               .
            
          
           
             The
             Lords
             found
             that
             any
             Revocation
             by
             the
             Testament
             was
             only
             Conditional
             ,
             and
             became
             void
             by
             the
             Earls
             Returning
             ,
             and
             making
             use
             of
             the
             other
             Testament
             ;
             and
             therefore
             Repelled
             the
             Defense
             in
             respect
             of
             the
             Reply
             ,
             and
             had
             no
             necessity
             to
             determine
             anent
             the
             Confirmation
             ,
             and
             Error
             alleadged
             .
          
        
         
           
             Lindsay
             of
             Mount
             contra
             Maxwel
             of
             Kirkonnel
             .
             Iuly
             20.
             1671.
             
          
           
             LIndsay
             of
             Mount
             being
             Donator
             to
             the
             Waird
             of
             the
             Estate
             of
             Kirkonnel
             ,
             by
             the
             Death
             of
             the
             late
             Laird
             ,
             and
             Minority
             of
             this
             Laird
             ,
             pursues
             the
             Tennents
             for
             Mails
             and
             Duties
             .
             Compearance
             is
             made
             for
             the
             appearand
             Heir
             ,
             as
             having
             Right
             by
             Disposition
             from
             his
             Grand-mother
             to
             an
             Appryzing
             ,
             led
             at
             her
             Instance
             against
             her
             Son
             ,
             and
             alleadged
             that
             there
             could
             be
             no
             Waird
             ,
             because
             Kirkonnel
             the
             Kings
             Vassal
             was
             Denuded
             before
             his
             Death
             ,
             and
             his
             Mother
             as
             Appryzer
             was
             Infeft
             .
             It
             was
             answered
             first
             ,
             That
             this
             Apprizing
             was
             upon
             a
             Bond
             granted
             by
             the
             Defunct
             to
             his
             own
             Mother
             ,
             for
             the
             behove
             of
             his
             Son
             ,
             and
             appearand
             Heir
             ,
             without
             any
             onerous
             Cause
             ,
             and
             so
             was
             null
             and
             simulat
             ,
             and
             a
             fraudful
             Contrivance
             ,
             in
             prejudice
             of
             the
             King
             as
             Superiour
             ,
             of
             his
             Casuality
             of
             Waird
             ,
             and
             that
             it
             was
             found
             in
             the
             Case
             of
             the
             Lord
             Colvil
             ,
             that
             a
             Vassal
             having
             married
             his
             appearand
             Heir
             
               in
               lecto
            
             ,
             It
             was
             found
             a
             Fraudulent
             precipitation
             in
             defraud
             of
             the
             Waird
             .
             It
             was
             answered
             ,
             that
             the
             alleadgeance
             was
             not
             Relevant
             ,
             because
             there
             was
             nothing
             to
             hinder
             the
             Defunct
             to
             have
             Resigned
             in
             favours
             of
             his
             appearand
             Heir
             ,
             without
             any
             Cause
             onerous
             ,
             or
             to
             grant
             him
             a
             Bond
             that
             he
             might
             be
             Infeft
             upon
             Appryzing
             ,
             or
             to
             grant
             such
             a
             Bond
             to
             any
             Person
             to
             the
             Heirs
             behove
             ,
             he
             being
             in
             
               leige
               poustie
            
             ,
             and
             there
             can
             be
             no
             presumption
             of
             Fraud
             ,
             seing
             he
             might
             have
             obtained
             his
             Son
             Infeft
             directly
             ,
             which
             the
             King
             refuses
             in
             no
             case
             ,
             when
             the
             Granter
             is
             in
             
               leige
               poustie
            
             .
          
           
             The
             Lords
             Repelled
             the
             Alleadgeance
             for
             the
             Donator
             ,
             and
             Sustained
             the
             Appryzing
             .
          
           
             The
             Donator
             further
             alleadged
             ,
             that
             by
             the
             Act
             of
             Parliament
             1661.
             betwixt
             Debitor
             and
             Creditor
             ,
             It
             is
             provided
             ,
             that
             the
             Debitor
             may
             cause
             the
             Appryzer
             Restrict
             himself
             to
             as
             much
             as
             will
             pay
             his
             Annualrent
             ,
             and
             the
             Debitor
             may
             bruik
             the
             rest
             during
             the
             Legal
             ;
             and
             now
             the
             Donator
             is
             in
             place
             of
             the
             Debitor
             ,
             so
             that
             what
             superplus
             there
             is
             more
             than
             will
             pay
             the
             Appryzers
             Annualrent
             ▪
             must
             belong
             to
             the
             Donator
             .
             It
             was
             answered
             ,
             that
             this
             Clause
             is
             peculiar
             ,
             and
             personal
             to
             Debitors
             ,
             and
             cannot
             be
             extended
             to
             Donators
             ,
             who
             are
             not
             mentioned
             therein
             ;
             because
             Debitors
             when
             they
             crave
             Restriction
             ,
             they
             are
             presumed
             as
             provident
             men
             ,
             to
             uplift
             the
             rest
             for
             satisfying
             the
             Appryzing
             ,
             or
             their
             other
             Debts
             ,
             or
             for
             their
             Subsistence
             ,
             and
             so
             being
             introduced
             wholly
             in
             their
             favours
             ,
             it
             cannot
             be
             extended
             in
             favours
             of
             the
             Donator
             to
             their
             prejudice
             :
             For
             if
             the
             Appryzer
             Possess
             all
             ,
             the
             superplus
             will
             satisfie
             the
             Appryzing
             ;
             whereas
             ,
             if
             the
             Donator
             uplift
             the
             Superplus
             ,
             the
             Debitor
             will
             be
             hudgely
             prejudged
             ,
             neither
             the
             Appryzing
             ,
             nor
             any
             other
             Debt
             of
             his
             being
             satisfied
             thereby
             ,
             nor
             his
             Heir
             intertained
             therewith
             .
          
           
           
             The
             Lords
             found
             that
             this
             Clause
             could
             not
             be
             extended
             to
             a
             Donator
             ,
             and
             that
             there
             could
             not
             be
             a
             Waird
             ,
             both
             by
             the
             Decease
             of
             the
             Appryzer
             and
             Debitor
             .
          
           
             The
             Donator
             further
             alleadged
             ,
             that
             the
             Appryzing
             was
             satisfied
             by
             Intromission
             within
             the
             Legal
             ,
             which
             did
             extinguish
             the
             Appryzing
             ,
             as
             to
             all
             Effects
             and
             Purposes
             ,
             as
             if
             it
             had
             never
             been
             ,
             and
             all
             Parties
             return
             to
             their
             Rights
             ,
             as
             they
             were
             before
             the
             Appryzing
             ;
             and
             so
             consequently
             the
             Superiour
             ,
             and
             his
             Donator
             has
             the
             Ward
             Duties
             ,
             during
             the
             appearand
             Heirs
             minority
             ,
             after
             the
             Appryzing
             is
             extinct
             ;
             for
             the
             Appryzing
             being
             but
             a
             Collateral
             Security
             ,
             like
             an
             Infeftment
             for
             Relief
             ,
             it
             is
             
               jus
               resolubile
            
             ,
             and
             doth
             not
             fully
             Divest
             the
             Debitor
             ,
             who
             needs
             not
             be
             Re-seased
             ,
             as
             he
             would
             be
             in
             the
             case
             of
             a
             Wodset
             holden
             publick
             ,
             but
             the
             Debitors
             own
             Infeftment
             Revives
             and
             stands
             valide
             ,
             and
             the
             appearand
             Heir
             must
             be
             Infeft
             as
             Heir
             to
             the
             Defunct
             ,
             which
             cannot
             be
             till
             he
             be
             
               legitimae
               aetatis
            
             ,
             after
             the
             Ward
             .
             It
             was
             answered
             ,
             that
             the
             Alleadgeance
             is
             not
             Relevant
             ,
             unless
             the
             Appryzing
             had
             been
             satisfied
             in
             the
             Defuncts
             Life
             ,
             for
             then
             his
             Infeftment
             would
             have
             Revived
             :
             But
             if
             any
             thing
             remained
             due
             ,
             the
             appearand
             Heir
             hath
             the
             Right
             of
             Reversion
             as
             appearand
             Heir
             ,
             and
             Intromission
             thereafter
             cannot
             Revive
             the
             Defuncts
             Infeftment
             .
          
           
             The
             Lords
             found
             that
             so
             soon
             as
             the
             Appryzing
             was
             extinct
             ,
             whether
             before
             the
             Defuncts
             Death
             or
             after
             ,
             the
             Ward
             took
             effect
             ,
             and
             the
             Donator
             had
             Right
             .
          
        
         
           
             Laird
             of
             Birkinbog
             contra
             Iohn
             Grahame
             of
             Craigie
             .
             Eodem
             die
             .
          
           
             IN
             a
             Competition
             amongst
             the
             Creditors
             of
             umquhile
             Sir
             
               Robert
               Dowglass
            
             of
             Tilliquhilly
             ,
             a
             Disposition
             granted
             by
             Sir
             Robert
             to
             Grahame
             of
             Craigie
             ,
             was
             called
             for
             to
             be
             Reduced
             upon
             this
             Reason
             ,
             that
             it
             was
             granted
             by
             Sir
             Robert
             when
             he
             was
             a
             notorious
             and
             known
             Bankrupt
             ,
             and
             fled
             and
             was
             latent
             ,
             so
             that
             by
             the
             Act
             of
             Parliament
             1621.
             he
             could
             not
             prefer
             one
             Creditor
             to
             another
             ,
             being
             in
             that
             Condition
             ,
             for
             that
             Act
             annuls
             all
             Dispositions
             made
             by
             Bankrupts
             ,
             without
             a
             just
             and
             necessary
             cause
             ,
             and
             there
             was
             no
             nec●ssity
             nor
             Justice
             for
             the
             Bankrupt
             to
             prefer
             one
             Creditor
             to
             another
             .
             It
             was
             answered
             ,
             that
             unless
             there
             had
             been
             legal
             Diligence
             at
             the
             Pursuers
             instance
             ,
             or
             that
             the
             Defenders
             Disposition
             had
             been
             without
             a
             cause
             onerous
             ,
             there
             is
             no
             ground
             for
             that
             Act
             to
             hinder
             any
             Debitor
             ,
             though
             Bankrupt
             ,
             to
             prefer
             one
             Creditor
             to
             another
             ,
             for
             if
             he
             had
             had
             the
             Money
             ,
             he
             might
             have
             payed
             any
             he
             pleased
             ,
             and
             the
             Cause
             is
             both
             just
             and
             necessary
             ,
             because
             he
             might
             have
             been
             compelled
             by
             Law
             to
             have
             done
             the
             same
             ,
             and
             there
             was
             nothing
             to
             hinder
             the
             Creditor
             ,
             but
             that
             as
             he
             might
             have
             first
             Appryzed
             ,
             so
             he
             might
             have
             taken
             the
             first
             Disposition
             from
             his
             Debitor
             .
             2dly
             ,
             The
             Pursuers
             Debt
             was
             for
             a
             Bargain
             of
             Victual
             Sold
             and
             Delivered
             to
             the
             common
             Debitor
             ,
             but
             a
             Month
             before
             the
             Disposition
             in
             question
             ,
             when
             he
             was
             alleadged
             to
             be
             Bankrupt
             .
          
           
             The
             Lords
             found
             the
             last
             Alleadgeance
             Relevant
             ,
             and
             Assoilzied
             from
             the
             Reduction
             ,
             but
             did
             not
             decide
             upon
             the
             former
             alleadgeance
             .
          
        
         
           
             Guthrie
             contra
             Mackarstoun
             .
             Eodem
             die
             .
          
           
             IN
             a
             Competition
             betwixt
             an
             Heir
             and
             an
             Executor
             ,
             anent
             the
             Rent
             of
             a
             Miln
             ,
             where
             the
             Tacks-mans
             Entry
             was
             at
             Whitsunday
             ,
             where
             the
             first
             Terms
             of
             payment
             of
             the
             Rent
             was
             at
             Candlemas
             ,
             and
             the
             second
             at
             Whitesunday
             ,
             
             the
             Liferenter
             having
             survived
             Candlemas
             ,
             and
             died
             before
             Whitesunday
             :
             The
             question
             arose
             ,
             how
             far
             the
             Executor
             of
             the
             Liferenter
             had
             Right
             ,
             it
             being
             alleadged
             ,
             that
             the
             Executor
             of
             the
             Liferenter
             could
             only
             have
             Right
             to
             the
             one
             half
             ,
             the
             Liferenter
             having
             only
             survived
             the
             first
             Term
             as
             in
             House
             Mails
             .
          
           
             The
             Lords
             found
             that
             the
             legal
             Terms
             of
             a
             Miln
             Rent
             being
             Whitesunday
             and
             Mertinmas
             ,
             the
             Liferenter
             having
             survived
             both
             the
             legal
             Terms
             ,
             had
             Right
             to
             the
             whole
             years
             Rent
             in
             the
             same
             way
             as
             in
             Land
             Rents
             ,
             and
             not
             to
             the
             one
             Term
             as
             in
             House
             Mails
             .
          
        
         
           
             Sir
             George
             Maxwel
             of
             Nether
             Pollock
             contra
             Maxwel
             of
             Kirkonnel
             .
             Iuly
             21.
             1671.
             
          
           
             IN
             this
             pursuit
             related
             the
             11th
             ,
             of
             Iuly
             instant
             :
             It
             was
             further
             alleadged
             for
             the
             Defender
             ,
             that
             the
             Pursuer
             cannot
             purge
             his
             Appryzing
             ,
             as
             now
             being
             in
             the
             Person
             of
             the
             appearand
             Heir
             ,
             by
             the
             Act
             of
             Parliament
             1661
             betwixt
             Debitor
             and
             Creditor
             ,
             by
             payment
             of
             what
             truely
             the
             appearand
             Heir
             payed
             ,
             because
             the
             express
             Provision
             in
             that
             Act
             is
             ,
             that
             where
             ever
             the
             appearand
             Heir
             of
             the
             Debitor
             shall
             acquire
             Right
             to
             expired
             Apprizings
             hereafter
             ,
             which
             cannot
             extend
             to
             this
             case
             ,
             because
             the
             Right
             to
             this
             Apprizing
             was
             acquired
             before
             that
             Act
             ,
             and
             because
             it
             was
             not
             an
             expired
             Appryzing
             ,
             but
             the
             Legal
             then
             running
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Disposition
             of
             the
             Appryzing
             granted
             to
             the
             appearand
             Heir
             ,
             was
             prior
             to
             the
             Act
             ,
             yet
             the
             Right
             was
             purchased
             posterior
             to
             the
             Act
             ,
             for
             the
             Disposition
             could
             not
             give
             Right
             ,
             but
             only
             the
             Infeftment
             following
             thereupon
             ;
             for
             if
             after
             that
             Disposition
             ,
             any
             other
             had
             been
             Infeft
             upon
             Appryzing
             or
             Disposition
             by
             the
             Defenders
             Author
             ,
             that
             posterior
             Infeftment
             would
             carry
             the
             Right
             ,
             so
             that
             the
             Author
             cannot
             be
             said
             to
             be
             divested
             ,
             or
             the
             appearand
             Heir
             invested
             ,
             or
             stated
             in
             the
             Right
             ,
             till
             his
             Infeftment
             ,
             which
             is
             after
             the
             Act
             of
             Parliament
             .
             To
             the
             second
             ,
             The
             Pursuer
             answered
             ,
             that
             the
             Defenders
             Appryzing
             ,
             albeit
             it
             was
             Redeemable
             ,
             when
             he
             acquired
             Right
             thereto
             ;
             yet
             it
             becoming
             now
             irredeemable
             in
             his
             Person
             ;
             it
             cannot
             be
             denyed
             but
             he
             has
             acquired
             Right
             to
             an
             irredeemable
             Appryzing
             ,
             albeit
             it
             was
             not
             irredeemable
             when
             he
             acquired
             the
             Right
             ,
             yet
             he
             hath
             acquired
             Right
             to
             that
             Appryzing
             ,
             that
             now
             is
             irredeemable
             ;
             for
             the
             Extinction
             of
             the
             legal
             Reversion
             ,
             
               cursu
               temporis
            
             ,
             is
             a
             Right
             accrescing
             to
             him
             ,
             and
             acquired
             by
             him
             ,
             and
             no
             Heretage
             to
             him
             :
             and
             seing
             the
             Words
             of
             the
             Act
             are
             capable
             of
             this
             interpretation
             ,
             there
             can
             be
             no
             doubt
             of
             the
             Legislators
             mind
             ,
             or
             that
             it
             should
             be
             thus
             interpret
             ;
             because
             otherwayes
             that
             excellent
             Provision
             would
             be
             evacuate
             ,
             for
             the
             appearand
             Heir
             would
             alwayes
             acquire
             Right
             to
             an
             Appryzing
             before
             the
             Legal
             were
             expyred
             ,
             though
             he
             should
             pay
             the
             Appryzer
             the
             full
             sum
             ,
             and
             would
             make
             no
             use
             of
             it
             till
             the
             Legal
             were
             Expyred
             ,
             and
             thereby
             carry
             the
             Right
             of
             the
             whole
             Estate
             ,
             though
             it
             were
             of
             twenty
             times
             more
             value
             :
             But
             the
             only
             Motive
             of
             that
             Act
             of
             Parliament
             being
             ,
             that
             albeit
             the
             Law
             gives
             Appryzers
             the
             Right
             of
             all
             that
             they
             Appryze
             at
             random
             ,
             if
             they
             be
             not
             Redeemed
             within
             the
             Legal
             ▪
             yet
             the
             Appryzer
             is
             ashamed
             to
             take
             so
             great
             Legal
             advantage
             ;
             and
             therefore
             ordinarly
             compones
             with
             the
             appearand
             Heir
             ,
             who
             being
             favourable
             ,
             makes
             no
             Bonds
             to
             bruik
             the
             whole
             Estate
             of
             his
             Predecessor
             ,
             excluding
             all
             his
             other
             Creditors
             :
             and
             therefore
             this
             Remeed
             is
             introduced
             ,
             which
             will
             be
             evacuate
             ,
             if
             the
             Act
             of
             Parliament
             be
             not
             
             thus
             interpret
             ,
             and
             that
             interpretation
             should
             be
             ever
             followed
             ,
             which
             is
             according
             to
             Equity
             ,
             and
             whereby
             the
             Statute
             may
             stand
             ,
             and
             not
             be
             eluded
             .
             The
             Defender
             answered
             ,
             that
             this
             Statute
             being
             Correctory
             of
             the
             Common
             Law
             ,
             is
             strictly
             to
             be
             interpret
             ,
             and
             not
             to
             be
             extended
             :
             and
             the
             Acquisition
             of
             Rights
             being
             ever
             interpret
             from
             the
             Disposition
             ,
             and
             not
             from
             the
             Infeftment
             thereon
             ,
             
               multo
               magis
            
             ,
             should
             it
             be
             so
             interpret
             in
             this
             case
             ,
             And
             as
             to
             that
             part
             thereof
             anent
             the
             Expyring
             of
             the
             Appryzing
             ,
             the
             Pursuers
             Interpretation
             is
             not
             only
             constrained
             ,
             but
             inconsistent
             with
             Justice
             ,
             for
             
               ubi
               subest
               Remedium
               ordinarium
               non
               est
               recurrendum
               ad
               medium
               extraordinarium
               ,
            
             for
             if
             the
             appearand
             Heir
             acquire
             Right
             to
             an
             Appryzing
             unexpyred
             ,
             the
             Reason
             and
             Motive
             of
             the
             Statute
             ceases
             ,
             for
             both
             the
             Debitor
             and
             Con-creditors
             may
             Redeem
             from
             the
             appearand
             Heir
             ,
             and
             can
             pretend
             no
             necessity
             of
             extraordinary
             Remeed
             ,
             especially
             if
             the
             appearand
             Heirs
             Right
             be
             not
             latent
             ,
             but
             publick
             by
             Infeftment
             .
          
           
             The
             Lords
             found
             that
             the
             appearand
             Heirs
             Right
             being
             only
             become
             Real
             by
             Infeftment
             after
             the
             Act
             of
             Parliament
             ,
             that
             it
             was
             then
             to
             be
             understood
             to
             be
             acquired
             ,
             when
             the
             Author
             was
             Denuded
             and
             the
             appearand
             Heir
             Invested
             ,
             so
             that
             no
             posterior
             Right
             from
             his
             Author
             could
             Exclude
             him
             :
             And
             found
             also
             ,
             that
             albeit
             the
             appearand
             Heirs
             Right
             were
             during
             the
             Legal
             ,
             yet
             if
             it
             stood
             in
             his
             Person
             till
             the
             Legal
             were
             expyred
             ,
             that
             the
             same
             fell
             within
             the
             Act
             of
             Parliament
             ,
             and
             found
             it
             Redeemable
             by
             what
             the
             appearand
             Heir
             truly
             payed
             within
             ten
             years
             ,
             to
             be
             counted
             from
             the
             Date
             of
             the
             acquiring
             of
             the
             Right
             ,
             conform
             to
             the
             words
             of
             the
             Act
             ,
             and
             not
             from
             the
             time
             the
             Appryzing
             became
             expyred
             thereafter
             .
          
        
         
           
             Scot
             of
             Hassendene
             contra
             The
             Dutches
             of
             Buccleugh
             .
             Eodem
             die
             .
          
           
             UMquhil
             Scot
             of
             Hassendene
             having
             no
             Children
             ,
             Disponed
             his
             Estate
             to
             Buccleugh
             his
             Chief
             ,
             who
             granted
             a
             Back-bond
             of
             the
             same
             Date
             ,
             bearing
             the
             Disposition
             to
             have
             been
             granted
             upon
             the
             ground
             foresaid
             ,
             and
             obliges
             himself
             and
             his
             Heirs
             ,
             that
             in
             case
             Hassendene
             should
             have
             Heirs
             of
             his
             Body
             to
             succeed
             him
             ,
             that
             he
             should
             denude
             in
             favours
             of
             these
             Heirs
             :
             and
             now
             his
             Son
             and
             Heir
             born
             thereafter
             ,
             pursues
             the
             Dutches
             to
             Denude
             ,
             who
             alleadged
             Absolvitor
             ,
             because
             the
             Back-bond
             being
             now
             fourscore
             years
             since
             ,
             is
             long
             ago
             Expyred
             .
             It
             was
             answered
             ,
             that
             albeit
             the
             Date
             be
             so
             long
             since
             ,
             yet
             the
             Prescription
             runs
             not
             from
             the
             date
             ,
             but
             from
             the
             Death
             of
             the
             Pursuers
             Father
             ,
             which
             is
             within
             fourty
             years
             ,
             for
             the
             Pursuer
             could
             not
             be
             his
             Heir
             before
             he
             was
             Dead
             ;
             and
             the
             Back-bond
             bears
             ,
             if
             Hassendene
             had
             Heirs
             to
             succeed
             to
             him
             .
             It
             was
             answered
             ,
             that
             Heirs
             oftimes
             were
             interpret
             ,
             Bairns
             that
             might
             be
             Heirs
             ;
             and
             if
             this
             Pursuer
             had
             pursued
             in
             his
             Fathers
             Life
             ,
             he
             could
             not
             have
             been
             justly
             excluded
             ,
             because
             his
             Father
             was
             not
             Dead
             ,
             and
             he
             actually
             Heir
             ,
             and
             so
             
               valebat
               agere
            
             ,
             in
             his
             Fathers
             Life
             .
             It
             was
             answered
             ,
             that
             although
             in
             some
             favourable
             Cases
             ,
             Heirs
             be
             interpret
             to
             be
             Bairns
             that
             might
             be
             Heirs
             ;
             yet
             
               in
               odiosis
            
             ,
             it
             is
             never
             so
             to
             be
             interpret
             ,
             and
             there
             is
             nothing
             more
             odious
             ,
             than
             to
             take
             away
             the
             Pursuers
             Inheritance
             ,
             freely
             Disponed
             to
             Buccleugh
             by
             his
             Father
             ,
             in
             case
             he
             had
             no
             Children
             upon
             Prescription
             ,
             by
             such
             an
             extensive
             interpretation
             of
             the
             Clause
             .
             2dly
             ,
             If
             he
             had
             pursued
             in
             his
             Fathers
             Life
             ,
             he
             might
             have
             been
             justly
             Excluded
             ,
             because
             if
             he
             had
             happened
             
             to
             die
             without
             issue
             ,
             before
             his
             Father
             Buccleugh
             had
             unquestionable
             Right
             ,
             and
             so
             during
             his
             Fathers
             Life
             ,
             he
             could
             not
             be
             compelled
             to
             Denude
             .
          
           
             The
             Lords
             found
             that
             the
             Prescription
             did
             only
             run
             from
             the
             Death
             of
             the
             Father
             ,
             and
             that
             this
             Pursuer
             could
             not
             have
             effectually
             pursued
             in
             his
             Fathers
             Lifetime
             .
          
        
         
           
             Blair
             of
             Bethaick
             contra
             Blair
             of
             Denhead
             .
             Iuly
             22.
             1671.
             
          
           
             
               PAtrick
               Blair
            
             of
             Bethaick
             as
             principal
             ,
             and
             
               Patrick
               Blair
            
             of
             Ardblair
             as
             Cautioner
             ,
             granted
             Bond
             to
             
               Iean
               Blair
            
             ,
             and
             failing
             of
             her
             by
             Decease
             ,
             to
             her
             Children
             equally
             amongst
             them
             ,
             for
             the
             sum
             of
             2550.
             m●rks
             ,
             upon
             5th
             of
             May
             1624.
             there
             were
             five
             years
             Annualrent
             resting
             at
             the
             Death
             of
             the
             said
             
               Iean
               Blair
            
             ,
             and
             now
             Captain
             Guthry
             her
             Executor
             pursues
             the
             Representatives
             of
             the
             Cautioner
             for
             payment
             thereof
             ,
             who
             alleadge
             Absolvitor
             ,
             because
             the
             last
             of
             these
             Annualrents
             being
             due
             in
             Anno
             1630.
             
             There
             is
             fourty
             years
             run
             before
             this
             pursuit
             ,
             or
             any
             other
             Diligence
             ,
             and
             so
             the
             Bond
             it self
             is
             Prescribed
             ,
             and
             specially
             these
             years
             Annualrents
             .
             The
             Pursuer
             Rep●yed
             ,
             that
             the
             Prescription
             was
             interrupted
             ,
             in
             so
             far
             as
             a
             part
             of
             the
             Principal
             Sum
             was
             payed
             within
             the
             years
             of
             Prescription
             .
             It
             was
             answered
             for
             the
             Defender
             ,
             that
             the
             payment
             being
             mode
             to
             the
             Daughters
             of
             the
             principal
             Sum
             ,
             it
             could
             have
             no
             effect
             as
             to
             the
             Annualrents
             preceeding
             
               Iean
               Blairs
            
             Death
             ,
             which
             belonged
             not
             to
             her
             Daughters
             ,
             as
             persons
             Substitute
             in
             the
             Bond
             ,
             but
             to
             her
             Executors
             ,
             so
             that
             the
             Bond
             might
             well
             be
             preserved
             ,
             as
             to
             the
             principal
             Sum
             ,
             and
             yet
             prescribe
             as
             to
             the
             Annualrents
             ,
             these
             being
             two
             several
             Right
             ,
             and
             stated
             in
             several
             Persons
             .
             It
             was
             answered
             ,
             That
             the
             Interruption
             by
             payment
             was
             sufficient
             for
             preserving
             both
             Principal
             and
             Annual
             ,
             for
             Prescription
             being
             odious
             ,
             any
             Deed
             by
             which
             the
             Debitor
             and
             Creditor
             acknowledge
             the
             Right
             within
             the
             fourty
             years
             ,
             is
             sufficient
             ,
             not
             only
             as
             to
             the
             interest
             of
             the
             particular
             Actors
             ,
             but
             as
             to
             all
             others
             who
             have
             interest
             in
             the
             same
             Right
             ,
             as
             payment
             of
             any
             part
             of
             the
             Annualrent
             by
             one
             Person
             ,
             preserves
             the
             whole
             Right
             against
             all
             the
             Cautioners
             and
             Co-principals
             ,
             though
             they
             neither
             payed
             ,
             nor
             were
             pursued
             within
             fourty
             years
             ,
             so
             payment
             of
             any
             part
             of
             the
             Principal
             ,
             must
             in
             the
             same
             manner
             preserve
             the
             Right
             of
             the
             Bond
             ,
             as
             to
             all
             Annualrents
             ,
             to
             whomsoever
             they
             belong
             ,
             if
             they
             be
             not
             fourty
             years
             before
             that
             Interruption
             ,
             by
             payment
             of
             a
             part
             of
             the
             principal
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             .
             This
             was
             stopped
             on
             the
             Lords
             own
             consideration
             ,
             without
             a
             B●ll
             from
             the
             Parties
             ,
             because
             by
             common
             Custom
             ,
             though
             Annual
             had
             been
             constantly
             payed
             for
             fourty
             years
             ,
             yet
             all
             preceeding
             prescribed
             ,
             whereupon
             it
             was
             contrarily
             Decerned
             thereafter
             ,
             February
             7.
             1672.
             
          
        
         
           
             Alice
             Miller
             contra
             Bothwel
             of
             Glencorse
             .
             Eodem
             die
             .
          
           
             
               ALice
               Miller
            
             pursues
             Improbation
             of
             a
             Minute
             of
             a
             Tack
             betwixt
             her
             and
             Glencorse
             who
             compeared
             and
             abode
             by
             the
             verity
             of
             the
             Tack
             ,
             and
             the
             Writer
             and
             Witnesses
             of
             the
             Tack
             being
             Examined
             upon
             Oath
             ,
             did
             Depone
             that
             they
             did
             not
             see
             
               Alice
               Miller
            
             Subscribe
             ,
             and
             one
             of
             them
             Deponing
             that
             he
             had
             Subscribed
             at
             
             Glencorses
             instigation
             ,
             who
             told
             him
             that
             he
             had
             caused
             set
             to
             
               Alice
               Millers
            
             Name
             ,
             only
             one
             Witness
             who
             was
             Writer
             ,
             and
             was
             Glencorse
             his
             Brother
             Deponed
             that
             he
             saw
             the
             said
             
               Alice
               Miller
            
             Subscribe
             with
             her
             own
             hand
             .
          
           
             The
             Lords
             having
             this
             Day
             Advised
             the
             Cause
             ,
             found
             that
             the
             Witnesses
             did
             not
             abide
             by
             the
             verity
             of
             the
             Subscription
             of
             the
             said
             
               Alice
               Miller
            
             ,
             and
             did
             therefore
             improve
             the
             Minute
             ,
             but
             found
             it
             not
             proven
             who
             was
             the
             Forger
             of
             the
             said
             
               Alice
               Millers
            
             Subscription
             .
          
        
         
           
             Captain
             Guthrie
             contra
             The
             Laird
             of
             Mccairstoun
             .
             Iuly
             25.
             1671.
             
          
           
             CAptain
             Guthrie
             having
             Married
             Dame
             
               Margaret
               Scot
            
             ,
             and
             she
             dying
             in
             Possession
             of
             the
             Lands
             of
             Mannehill
             ,
             Laboured
             by
             her
             Husband
             and
             her
             in
             the
             Moneth
             of
             
               April
               ,
               Mccairstoun
            
             as
             Heretor
             of
             the
             Land
             ,
             craves
             the
             Rent
             of
             the
             Land
             for
             that
             year
             ,
             in
             respect
             the
             Liferenter
             neither
             lived
             till
             the
             first
             Legal
             Term
             ,
             which
             is
             Whitesunday
             ,
             nor
             till
             Martinmasse
             .
             It
             was
             answered
             ,
             that
             by
             immemorial
             Custom
             ,
             Liferenters
             have
             Right
             to
             the
             Cropt
             of
             Lands
             Sowed
             by
             themselves
             ,
             whether
             they
             attain
             to
             the
             Term
             of
             Whi●esunday
             or
             not
             ,
             neither
             were
             they
             ever
             found
             lyable
             for
             any
             Duty
             therefore
             .
          
           
             Which
             the
             Lords
             Sustained
             .
          
        
         
           
             Robert
             Baillie
             contra
             Mr.
             William
             Baillie
             .
             Iuly
             27.
             1671.
             
          
           
             THe
             Laird
             of
             Lamingtoun
             having
             made
             a
             Tailzie
             of
             his
             Estate
             wherein
             
               William
               Baillie
            
             eldest
             Son
             to
             his
             Deceased
             eldest
             Son
             ,
             is
             in
             the
             first
             place
             ,
             and
             to
             him
             is
             Substitute
             
               Robert
               Baillie
               ,
               Lamingtouns
            
             second
             Son
             ,
             and
             the
             Heirs
             of
             his
             Body
             ,
             reserving
             to
             the
             said
             Robert
             his
             Liferent
             ,
             from
             the
             Fee
             of
             his
             Heirs
             ,
             in
             case
             they
             succeed
             ,
             and
             failzying
             of
             Roberts
             Heirs
             ,
             to
             Master
             
               William
               Baillie
               ,
               Lamingtouns
            
             Brother
             Son
             ,
             after
             Lamingtouns
             Death
             there
             is
             a
             Contract
             betwixt
             this
             Lamingtoun
             and
             Mr.
             
               William
               Baillie
            
             on
             the
             one
             part
             ,
             and
             Robert
             on
             the
             other
             ,
             by
             which
             Lamingtoun
             obliges
             himself
             to
             pay
             to
             Robert
             ,
             the
             sum
             of
             six
             hundreth
             merks
             during
             his
             Life
             ,
             and
             Robert
             Renunces
             and
             Dispones
             to
             Lamingtoun
             his
             portion
             natural
             ,
             and
             Bairns
             part
             of
             Gear
             ,
             and
             all
             Bonds
             and
             Provisions
             made
             to
             him
             by
             his
             Father
             ,
             and
             all
             Right
             he
             has
             to
             the
             Estate
             of
             Lamingtoun
             ,
             or
             any
             part
             thereof
             ,
             and
             that
             in
             favours
             of
             this
             Lamingtoun
             ,
             and
             his
             Goodsires
             Heirs
             males
             ,
             contained
             in
             his
             Procutry
             of
             Resignation
             .
             
               Robert
               Baillie
            
             raises
             a
             Declarator
             against
             Lamingtoun
             and
             Mr.
             
               William
               Baillie
            
             ,
             for
             Declaring
             that
             this
             Contract
             could
             not
             be
             extended
             to
             exclude
             him
             or
             his
             Heirs
             from
             the
             Right
             of
             Tailzie
             in
             the
             Estate
             of
             Lamingtoun
             ,
             failzying
             of
             this
             Laird
             and
             his
             Heirs
             ,
             and
             that
             it
             could
             only
             be
             extended
             to
             any
             present
             Right
             Robert
             had
             to
             the
             Estate
             of
             Lamingtoun
             ,
             but
             to
             no
             future
             Right
             ,
             or
             hope
             of
             Succession
             ,
             seing
             there
             is
             no
             mention
             either
             of
             Tailzie
             or
             Succession
             in
             the
             Contract
             .
             It
             was
             alleadged
             Absolvitor
             ,
             because
             Robert
             getting
             600.
             
             Merks
             yearly
             ,
             he
             can
             instruct
             no
             Cause
             for
             it
             but
             this
             Renunciation
             ,
             which
             must
             necessarly
             be
             so
             interpret
             ,
             as
             to
             have
             effect
             ,
             and
             so
             if
             it
             extend
             not
             to
             exclude
             him
             from
             the
             Tailzie
             ,
             it
             had
             neither
             a
             Cause
             for
             granting
             the
             six
             hundreth
             merks
             ,
             nor
             any
             effect
             thereon
             .
             It
             was
             answered
             ,
             that
             Robert
             being
             a
             Son
             of
             the
             Family
             ,
             and
             Renuncing
             his
             Portion
             natural
             ,
             it
             was
             a
             sufficient
             Cause
             ,
             and
             though
             there
             were
             no
             Cause
             ,
             such
             
             general
             Renunciations
             could
             never
             be
             extended
             to
             future
             Rights
             ,
             or
             hopes
             of
             Succession
             ,
             unless
             the
             sum
             had
             been
             exprest
             .
          
           
             Which
             the
             Lords
             found
             Relevant
             ,
             and
             Declared
             accordingly
             .
          
        
         
           
             Sir
             Iohn
             Keith
             contra
             Sir
             George
             Iohnstoun
             .
             Iuly
             28.
             1671.
             
          
           
             THe
             Estate
             of
             Caskiben
             being
             Appryzed
             by
             Doctor
             Guil
             ,
             Sir
             
               George
               Iohnstoun
            
             the
             appearand
             Heir
             ,
             acquired
             Right
             to
             the
             Appryzing
             ,
             in
             the
             Person
             of
             Phillorth
             ,
             who
             by
             a
             Missive
             Letter
             ,
             acknowledged
             the
             Trust
             ,
             upon
             which
             Letter
             ,
             Sir
             George
             raised
             Action
             against
             Phillorth
             ,
             to
             compt
             for
             his
             intromission
             ,
             and
             Denude
             himself
             ,
             and
             upon
             the
             Dependence
             ,
             raised
             Inhibition
             ,
             yet
             Phillorth
             sold
             the
             Estate
             to
             Sir
             
               Iohn
               Keith
            
             ,
             who
             to
             clear
             himself
             of
             the
             Inhibition
             ,
             raised
             a
             Declarator
             that
             the
             Inhibition
             was
             null
             ,
             and
             that
             his
             Estate
             was
             free
             of
             any
             burden
             thereof
             ,
             because
             it
             wanted
             this
             essential
             Solemnity
             ,
             that
             the
             Execution
             against
             Phillorth
             did
             not
             bear
             a
             Copy
             to
             be
             delivered
             ,
             and
             that
             the
             Executions
             being
             so
             Registrat
             ,
             he
             being
             a
             Purchaser
             for
             a
             just
             price
             ;
             and
             seing
             no
             valid
             Inhibition
             upon
             Record
             ,
             he
             ought
             not
             to
             be
             Burdened
             therewith
             .
             The
             Defender
             alleadged
             Absolvitor
             :
             Because
             ,
             First
             ,
             The
             delivering
             of
             a
             Copy
             was
             no
             Essential
             Solemnitie
             ,
             neither
             does
             any
             Law
             or
             Statute
             ordain
             the
             same
             :
             much
             less
             any
             Law
             declaring
             Executions
             void
             for
             want
             thereof
             :
             and
             albeit
             it
             be
             the
             common
             Stile
             ,
             yet
             every
             thing
             in
             the
             Stile
             is
             not
             necessary
             ;
             for
             if
             the
             Messenger
             should
             have
             read
             the
             Letters
             ,
             and
             showen
             them
             to
             the
             Partie
             ,
             he
             could
             not
             say
             ,
             but
             that
             he
             was
             both
             Certiorat
             and
             Charged
             not
             to
             Dispone
             .
             2dly
             ,
             The
             Executions
             bear
             ,
             that
             Phillorth
             was
             Inhibit
             ,
             personally
             apprehended
             .
             3dly
             ,
             The
             Inhibition
             comprehends
             both
             a
             Prohibition
             to
             the
             Party
             Inhibit
             ,
             and
             to
             all
             the
             Leidges
             at
             the
             Mercat
             Cross
             ,
             at
             which
             ,
             the
             Execution
             bears
             a
             Copy
             was
             affixed
             ,
             so
             that
             whatever
             defect
             might
             be
             pretended
             as
             to
             Phillorth
             ,
             this
             Pursuer
             and
             all
             the
             Leidges
             were
             Inhibite
             to
             block
             or
             buy
             from
             him
             ,
             so
             that
             the
             Pursuer
             has
             acted
             against
             the
             Prohibition
             of
             the
             Letters
             ,
             and
             cannot
             pretend
             that
             he
             purchased
             
               bona
               fide
            
             ,
             being
             so
             publickly
             Inhibit
             ,
             and
             the
             Inhibition
             put
             in
             Record
             ,
             he
             neither
             should
             nor
             did
             adventure
             to
             purchase
             ,
             without
             special
             warrandice
             ,
             to
             which
             he
             may
             recur
             .
             4thly
             ,
             Such
             Solemnities
             when
             omitted
             may
             be
             supplied
             ;
             for
             there
             is
             nothing
             more
             ordinar
             than
             in
             Summons
             to
             add
             any
             thing
             defective
             in
             the
             Executions
             ,
             and
             abide
             by
             the
             truth
             thereof
             ,
             and
             many
             times
             these
             Solemnities
             are
             presumed
             done
             ,
             though
             not
             exprest
             ,
             as
             a
             Seasing
             of
             a
             Miln
             was
             Sustained
             ,
             though
             it
             bear
             not
             Delivery
             of
             Clap
             and
             Happer
             ;
             yet
             bearing
             a
             general
             with
             all
             Solemnities
             requisite
             ,
             it
             was
             Sustained
             :
             and
             a
             Seasine
             of
             Land
             ,
             though
             it
             bear
             not
             Delivery
             of
             Earth
             and
             Stone
             ,
             seing
             it
             bear
             Actual
             ,
             Real
             and
             Corporal
             Possession
             ,
             and
             the
             Clause
             
               ●acta
               erant
               hac
               super
               solo
            
             &c.
             
               ut
               moris
               est
            
             :
             Yea
             ,
             in
             other
             Solemnities
             which
             the
             Law
             expresly
             requires
             as
             three
             ●las●s
             in
             the
             Executions
             of
             Horning
             ,
             and
             six
             knocks
             ,
             and
             the
             affixing
             of
             a
             Stamp
             ,
             have
             all
             been
             admitted
             by
             the
             Lords
             to
             be
             supplied
             ,
             by
             proving
             that
             they
             were
             truely
             done
             ,
             though
             not
             exprest
             in
             the
             Execution
             :
             Though
             Horning
             be
             odious
             and
             penal
             ,
             inferring
             the
             loss
             of
             Moveables
             and
             Liferent
             ;
             therefore
             it
             ought
             much
             more
             to
             be
             supplied
             in
             the
             case
             of
             an
             Inhibition
             ,
             which
             is
             much
             more
             favourable
             to
             preserve
             the
             Croditors
             Debt
             ,
             and
             here
             the
             Messenger
             hath
             added
             to
             the
             Execution
             ,
             that
             a
             Copie
             was
             Delivered
             ,
             and
             Subscribed
             the
             same
             on
             the
             Margent
             ,
             and
             it
             is
             offered
             to
             be
             proven
             by
             the
             Witnesses
             in
             the
             Execution
             ,
             that
             it
             was
             truely
             so
             done
             .
             The
             Pursuer
             answered
             ,
             that
             there
             was
             nothing
             
             more
             essential
             in
             an
             Execution
             ,
             than
             delivering
             of
             a
             Copy
             ,
             for
             showing
             or
             Reading
             of
             Letters
             was
             no
             Charge
             ,
             but
             the
             delivering
             of
             the
             Copy
             was
             in
             effect
             the
             Charge
             ;
             and
             albeit
             Executions
             which
             require
             no
             Registration
             ,
             and
             may
             be
             perfited
             by
             the
             Executor
             ,
             at
             any
             time
             may
             be
             amended
             as
             to
             what
             was
             truly
             done
             ;
             Yet
             where
             Executions
             must
             necessarlie
             be
             Registrate
             within
             such
             a
             time
             ,
             else
             they
             are
             null
             ,
             after
             the
             Registration
             the
             Messenger
             is
             
               functus
               officio
            
             ,
             and
             his
             assertion
             has
             no
             Faith
             :
             and
             seing
             the
             giving
             of
             a
             Copie
             is
             essential
             ,
             and
             if
             it
             be
             omitted
             ,
             would
             annul
             the
             Execution
             ;
             so
             after
             Registration
             it
             can●ot
             be
             supplied
             ,
             because
             in
             so
             far
             the
             Execution
             is
             null
             ,
             not
             being
             Registrate
             ,
             
               debito
               tempore
            
             ,
             for
             as
             the
             whole
             Execution
             would
             be
             null
             for
             want
             of
             Registration
             ,
             so
             is
             any
             essential
             part
             :
             and
             whatever
             the
             Lords
             has
             supplied
             in
             Hornings
             ,
             yet
             they
             did
             alwayes
             bear
             ,
             that
             the
             same
             was
             lawfullie
             done
             according
             to
             the
             Custom
             in
             such
             cases
             ;
             and
             this
             Execution
             does
             not
             so
             much
             as
             bear
             that
             Phillorth
             was
             lawfullie
             Inhibite
             ,
             but
             only
             according
             to
             the
             Command
             of
             the
             Letters
             which
             do
             not
             express
             any
             Solemnitie
             :
             and
             it
             hath
             been
             found
             by
             the
             Lords
             ,
             that
             a
             Horning
             being
             Registrate
             ,
             and
             not
             bearing
             a
             Copy
             Delivered
             ,
             it
             was
             found
             null
             ;
             because
             that
             part
             was
             not
             in
             the
             Register
             ,
             nor
             was
             it
             admitted
             to
             be
             supplied
             any
             way
             ,
             but
             that
             it
             were
             proven
             by
             the
             Oath
             of
             the
             Keeper
             of
             the
             Register
             ,
             that
             that
             Clause
             was
             upon
             the
             Margent
             of
             the
             Execution
             ,
             when
             it
             was
             presented
             to
             the
             Registister
             ,
             and
             was
             only
             neglected
             to
             be
             insert
             by
             him
             ,
             which
             shows
             how
             necessar●
             a
             Solemnity
             the
             Lords
             have
             accompted
             the
             giving
             of
             a
             Copy
             ,
             and
             Registrating
             thereof
             :
             And
             if
             Solemnities
             of
             this
             kind
             ,
             be
             by
             Sentence
             passed
             over
             ,
             it
             will
             not
             only
             incourage
             Messengers
             to
             neglect
             all
             accustomed
             Solemnities
             ,
             but
             course
             of
             time
             may
             incroach
             on
             all
             other
             Solemnities
             ;
             whereas
             ,
             if
             this
             be
             found
             necessar
             ,
             none
             will
             ever
             hereafter
             omit
             it
             ,
             or
             any
             other
             necessar
             Solemnity
             .
          
           
             The
             Lords
             found
             the
             Inhibition
             null
             ,
             and
             that
             the
             Delivering
             of
             a
             Copy
             was
             a
             necessar
             Solemnity
             ,
             which
             not
             being
             contained
             in
             the
             Register
             ,
             they
             would
             not
             admit
             the
             same
             to
             be
             supplied
             by
             Probation
             ,
             in
             prejudice
             of
             a
             singular
             Successor
             ,
             Acquiring
             for
             a
             just
             price
             .
          
        
         
           
             Hadden
             contra
             The
             Laird
             of
             Glenegies
             .
             Eodem
             die
             .
          
           
             HAdden
             being
             Donator
             to
             the
             Marriage
             of
             the
             Laird
             of
             Glenegies
             ,
             pursues
             Declarator
             for
             the
             avail
             thereof
             .
             The
             Defender
             alleadged
             Absolvitor
             ,
             because
             by
             an
             Act
             of
             Parliament
             1640.
             
             It
             was
             Declared
             ,
             That
             whosoever
             was
             killed
             in
             the
             present
             Service
             ,
             their
             Waird
             and
             Marriage
             should
             not
             fall
             ,
             
               Ita
               est
               ,
               Glenegies
            
             was
             killed
             during
             the
             Troubles
             ,
             at
             the
             Battel
             of
             Dumbar
             .
             It
             was
             Replyed
             ,
             that
             the
             present
             Troubles
             could
             not
             extend
             further
             than
             to
             the
             Pacification
             ,
             Anno
             1641.
             
             After
             which
             there
             was
             peace
             till
             the
             end
             of
             the
             year
             ,
             1643.
             2dly
             ,
             The
             Parliament
             1640.
             and
             all
             the
             Acts
             thereof
             are
             Rescinded
             .
             It
             was
             Duplyed
             ,
             That
             the
             Troubles
             were
             the
             same
             ,
             being
             still
             for
             the
             same
             Cause
             ,
             and
             that
             the
             Rescissory
             Act
             contained
             a
             salvo
             of
             all
             private
             Rights
             Acquired
             by
             these
             Rescinded
             Acts.
             It
             was
             answered
             ,
             that
             this
             was
             a
             publick
             Law
             ,
             and
             the
             salvo
             was
             only
             of
             particular
             concessions
             by
             Parliament
             to
             privat
             Parties
             .
          
           
           
             The
             Lords
             found
             that
             the
             Act
             1640.
             reached
             no
             further
             than
             the
             Pacification
             ,
             by
             which
             the
             Troubles
             then
             present
             were
             Terminate
             .
             The
             Lords
             Demured
             in
             this
             case
             upon
             remembrance
             of
             a
             Process
             before
             them
             ,
             at
             the
             instance
             of
             the
             Heirs
             of
             Sir
             
               Thomas
               Nicolson
            
             ,
             against
             the
             Heirs
             of
             the
             Laird
             of
             Streichen
             ,
             upon
             the
             Gift
             of
             Streichens
             Waird
             ,
             to
             Sir
             Thomas
             ,
             who
             Died
             the
             time
             of
             the
             War
             ,
             being
             Prisoner
             by
             occasion
             of
             the
             War
             ,
             and
             after
             Pacification
             ,
             that
             they
             might
             have
             seen
             what
             they
             had
             done
             in
             that
             Case
             ,
             but
             did
             not
             get
             the
             Practicque
             ,
             and
             the
             Parties
             being
             agreed
             ,
             they
             Decided
             in
             manner
             foresaid
             ,
             wherein
             this
             was
             not
             proponed
             nor
             considered
             ,
             that
             the
             foresaid
             Act
             was
             always
             esteemed
             ,
             an
             Exemption
             after
             the
             Pacification
             ,
             during
             the
             whole
             Troubles
             ,
             and
             no
             Waird
             for
             Marriage
             was
             found
             due
             that
             time
             ,
             though
             many
             fell
             during
             the
             War
             ,
             and
             if
             it
             had
             not
             been
             so
             esteemed
             ,
             the
             same
             Motives
             that
             caused
             the
             first
             Act
             to
             be
             made
             in
             Anno
             1640.
             would
             have
             moved
             the
             renewing
             thereof
             after
             the
             Pacification
             :
             and
             no
             doubt
             the
             King
             and
             Parliament
             Anno
             1650.
             before
             Dumbar
             would
             have
             renewed
             the
             same
             for
             incouragement
             ,
             in
             so
             dangerous
             a
             War
             ,
             if
             it
             had
             not
             been
             commonly
             thought
             that
             the
             first
             Act
             stood
             unexpired
             .
          
        
         
           
             Murray
             contra
             The
             Earl
             of
             Southesk
             ,
             and
             other
             Appryzers
             of
             the
             Estate
             of
             Powburn
             .
             Eodem
             die
             .
          
           
             
               JAmes
               Murray
            
             having
             Right
             to
             an
             Appryzing
             of
             the
             Estate
             of
             Sir
             
               Iames
               Keith
            
             of
             Powburn
             ,
             led
             at
             the
             instance
             of
             Mr.
             
               Thomas
               Lundie
            
             ,
             pursues
             thereupon
             for
             Mails
             and
             Duties
             .
             Compearance
             was
             made
             for
             the
             Earl
             of
             Southesk
             ,
             and
             posterior
             Apprizers
             after
             Year
             and
             Day
             ,
             who
             alleadged
             that
             by
             the
             Act
             of
             Parliament
             1661.
             betwixt
             Debitor
             and
             Creditor
             .
             It
             is
             provided
             that
             the
             Lords
             of
             Session
             ,
             at
             the
             desire
             of
             the
             Debitors
             ,
             may
             ordain
             Appryzers
             to
             restrict
             their
             Possession
             to
             as
             much
             as
             will
             pay
             the
             Annualrent
             ,
             the
             Debitor
             Ratifying
             their
             Possession
             ,
             and
             now
             the
             Posterior
             Appryzers
             having
             Appryzed
             
               omne
               jus
            
             ,
             that
             was
             in
             the
             Debitor
             ,
             craved
             that
             the
             first
             Appryzer
             might
             Restrict
             himself
             to
             his
             Annualrent
             ,
             and
             they
             preferred
             to
             the
             rest
             of
             the
             Duties
             .
             It
             was
             answered
             that
             this
             was
             a
             personal
             and
             peculiar
             priviledge
             in
             favours
             of
             the
             Debitor
             ,
             that
             he
             might
             not
             unnecessarly
             be
             put
             from
             his
             Possession
             ,
             and
             which
             he
             might
             make
             use
             of
             against
             all
             the
             Appryzers
             ,
             if
             there
             were
             a
             superplus
             above
             the
             Annualrents
             ,
             and
             it
             is
             upon
             condition
             that
             the
             Debitor
             Ratifie
             the
             Appryzers
             Possession
             ,
             which
             is
             not
             competent
             to
             a
             posterior
             Appryzer
             ,
             in
             whose
             favour
             this
             Clause
             was
             never
             meaned
             :
             But
             there
             is
             a
             special
             Clause
             for
             posterior
             Appryzers
             ,
             being
             within
             year
             and
             day
             ,
             to
             come
             in
             
               pari
               passu
            
             :
             neither
             can
             the
             posterior
             Appryzers
             have
             any
             interest
             ,
             because
             the
             superplus
             will
             satisfie
             the
             first
             Appryzing
             
               pro
               tanto
            
             .
          
           
             The
             Lords
             found
             the
             foresaid
             priviledge
             peculiar
             to
             the
             Debitor
             ;
             but
             found
             that
             the
             first
             Appryzer
             ,
             seing
             he
             excluded
             the
             rest
             ,
             behoved
             to
             compt
             from
             this
             time
             as
             if
             he
             had
             Possessed
             the
             whole
             .
          
           
             The
             End
             of
             the
             first
             Part
             of
             the
             Decisions
             of
             the
             Lords
             of
             Session
             :
          
        
      
       
         
         
         
           AN
           INDEX
           Of
           the
           Pursuers
           and
           Defenders
           Names
           ,
           for
           the
           usual
           and
           easier
           Citing
           of
           the
           Lords
           Decisions
           .
        
         
           
             ABercrombie
             contra
             Andersons
             ,
             15
             Novemb.
             1666
          
           
             Lord
             Abercrombie
             
               con
               .
               Lord
            
             Newark
             ,
             17
             Decemb.
             1667
          
           
             Achinleck
             con
             .
             Mccleud
             ,
             7
             Feb.
             1662
          
           
             Achinleck
             
               con
               .
               L.
            
             Wedderburn
             ,
             16
             Ianuary
             ,
             1663
          
           
             Achinleck
             con
             .
             Williamson
             and
             Gillespie
             ,
             18
             Decemb.
             1667
          
           
             
               K.
               Advocat
               con
            
             .
             Craw
             ,
             19
             Feb.
             1669
          
           
             
               K.
               Advocat
               con
               .
               E.
               of
            
             Mortoun
             ,
             25
             Feb.
             1669
          
           
             Agnew
             
               con
               .
               Tennents
               of
            
             Dronlaw
             .
             30
             Iune
             ,
             1669
          
           
             Aikenhead
             con
             .
             Aikenhead
             ,
             25
             Feb.
             1663
          
           
             Aikman
             con
             .
             14
             Iune
             ,
             1665
          
           
             E.
             Airlie
             con
             .
             Mcintosh
             ,
             8
             Iuly
             ,
             1664
          
           
             Aitcheson
             
               con
               .
               La.
            
             Mccleud
             ,
             7
             Feb.
             1662
          
           
             Aitoun
             con
             .
             Watt
             ,
             26
             Iuly
             ,
             1662
          
           
             L.
             Aitoun
             con
             .
             Iames
             Fairie
             ,
             29
             Ianuary
             ,
             1668
          
           
             Allan
             con
             .
             Paterson
             ,
             17
             Iune
             ,
             1663
          
           
             Allan
             con
             .
             Colliar
             ,
             25
             Iune
             ,
             1664
          
           
             Allan
             con
             .
             Fairie
             ,
             2
             Iuly
             ,
             1667
          
           
             Capt.
             Allan
             con
             .
             Parkman
             ,
             9
             Iuly
             ,
             1668
          
           
             Alexander
             
               con
               .
               L.
            
             Clackmannan
             .
             9
             Iuly
             ,
             1668
          
           
             Alexander
             
               con
               .
               Lo.
            
             Saltoun
             ,
             20
             Iune
             ,
             1671
          
           
             Lo.
             Almond
             con
             .
             Dalmahoy
             ,
             25
             Feb.
             1668
          
           
             Anderson
             and
             Elphingstoun
             con
             .
             Wachop
             ,
             22
             Iuly
             ,
             1662
          
           
             Anderson
             and
             Provon
             
               con
               .
               the
               Town
               of
            
             Edinburgh
             ,
             31
             Ianuary
             ,
             1665
          
           
             Anderson
             con
             .
             Cunninghame
             ,
             7
             Decemb.
             1665
          
           
             Anderson
             con
             .
             Cunninghame
             ,
             9
             Iune
             ,
             1666
          
           
             Andrew
             con
             .
             Carss
             .
             25
             Novemb.
             1668
          
           
             E.
             Annandale
             con
             .
             Young
             
               and
               others
            
             ,
             24
             Feb.
             1669
          
           
             Antrobus
             con
             .
             Anderson
             ,
             13
             Iune
             ,
             1667
          
           
             L.
             Aplegirth
             con
             .
             Lockerby
             ,
             14
             Feb.
             1671
          
           
             Arbuthnet
             con
             .
             Fiddes
             ,
             25
             Feb.
             1662
          
           
             Arbuthnet
             con
             .
             Keith
             ,
             23
             Iune
             ,
             1666
          
           
             
               Archbishop
               and
               Presbytery
               of
            
             St.
             Andrews
             contra
             George
             Pittillo
             ,
             6
             Iuly
             ,
             1670
          
           
             E.
             Argile
             con
             .
             Mcdowgals
             ,
             14
             Iuly
             ,
             1665
          
           
             E.
             Argile
             con
             .
             Campbel
             ,
             24
             Ianuary
             ,
             1666
          
           
             E.
             Argile
             con
             .
             Campbels
             ,
             25
             Ianuary
             ,
             1666
          
           
             E.
             Argile
             con
             .
             Campbel
             ,
             15
             Ianuary
             ,
             1668
          
           
             E.
             Argile
             con
             .
             Stirling
             ,
             9
             Decemb.
             1668
          
           
             E.
             Argile
             con
             .
             Mcnaughtouns
             ▪
             15
             Feb.
             1671
          
           
             E.
             Argile
             
               con
               .
               Vassals
            
             ,
             30
             June
             ,
             1669
          
           
             Armour
             con
             .
             Lands
             ,
             21.
             
             Feb.
             1671
          
           
             Arnold
             of
             Barncaple
             ,
             con
             .
             Gordon
             of
             Holme
             ,
             23
             Feb.
             1671
          
           
             Arnot
             con
             .
             Arnot
             ,
             11
             Ianuary
             ,
             1665
          
           
             E.
             Athole
             con
             .
             Scot
             ▪
             20
             Decemb.
             1664
          
           
             E.
             Athole
             con
             .
             Robertson
             of
             Strowan
             ,
             19
             Ianuary
             ,
             1669
          
        
         
           
             BAilie
             
               con
               .
               Town
               of
            
             Inuerness
             ,
             11
             Decemb.
             1661
          
           
             B●ilie
             con
             .
             Henderson
             ,
             1
             Iuly
             ,
             1662
          
           
             
               Bailie
               of
               Regallty
               of
            
             Killimuir
             
               con
               .
               Burgh
               of
            
             Killimuir
             ,
             14
             Ianuary
             ,
             1668
          
           
             Bailie
             
               con
               .
               Mr.
            
             William
             Bailie
             .
             27
             Iuly
             ,
             1671
          
           
             Bain
             
               con
               .
               Bailies
               of
            
             Culross
             ,
             14
             Feb.
             1671
          
           
             Bain
             
               con
               .
               L.
            
             Striechen
             ,
             24
             Ianuary
             ,
             1663
          
           
             Baird
             
               con
               .
               Magistrats
               of
            
             Elgin
             ,
             25
             Ianuary
             ,
             1665
          
           
             Baird
             con
             .
             Baird
             ,
             9
             Ianuary
             .
             1662
          
           
             D.
             Balfour
             
               and
               his
               Spouse
               con
            
             .
             Wood
             ,
             8
             Ianuary
             ,
             1670
          
           
             L.
             Balfour
             
               con
               .
               Mr.
            
             William
             Douglas
             ,
             4
             Iuly
             ,
             1671
          
           
             Lady
             Ballagan
             
               con
               .
               Lo.
            
             Drumlanrig
             ,
             23
             Iune
             ,
             1671
          
           
             Balmano's
             
               Daughter
               con
               .
               〈…〉
               the
               Helr
               ,
            
             12
             November
             ,
             1664
          
           
             Lo.
             Balmerino
             
               con
               .
               the
               Town
               of
            
             Edinburgh
             ,
             25
             November
             ,
             1662
          
           
             Lo.
             Balmerino
             
               con
               .
               Creditors
               of
               Sir
            
             William
             Dick
             ,
             14
             Iuly
             ,
             1664
          
           
             Lo.
             Balmerino
             Supplicant
             ,
             7
             Ianuary
             ,
             1669
          
           
             
               Creditors
               of
            
             Balmerino
             ,
             and
             Cowper
             Supplicant
             ,
             16
             Feb.
             1669
          
           
             Lo.
             Balmerino
             con
             .
             Hamiltoun
             of
             Little-Prestoun
             ,
             22
             Iune
             ,
             1671
          
           
             
               Creditors
               of
            
             Balmerino
             
               con
               .
               Lady
            
             Cowper
             ,
             28
             Iune
             ,
             1671
          
           
             L.
             Balnagoun
             con
             .
             Dingwall
             ,
             30
             Iuly
             ,
             1662
          
           
             L.
             Balnagoun
             con
             .
             Mckenzie
             ,
             28
             Ianuary
             ,
             1663
          
           
             Lo.
             Balvaird
             
               con
               .
               the
               Creditors
               of
            
             Annandale
             ,
             21
             Ianuary
             ,
             1662
          
           
             Barclay
             
               con
               .
               L.
            
             Craigivar
             ,
             10
             Ianuary
             ,
             1662
          
           
             Barclay
             con
             .
             Barclay
             ,
             6
             Iuly
             ,
             1669
          
           
             Barclay
             con
             .
             Barclay
             ,
             20
             Iuly
             ,
             1669
          
           
             Barns
             
               con
               .
               L.
            
             Aplegirth
             ,
             1
             Ianuary
             ,
             1662
          
           
             Barns
             con
             .
             Young
             ,
             12
             Decemb.
             1665
          
           
             
               Baxters
               of
            
             Edinburgh
             
               con
               .
               the
               Heretors
               of
            
             East-Lothian
             ,
             20
             Feb.
             1663
          
           
             
               Baxters
               in
            
             Cannongate
             ,
             21
             Novemb.
             1665
          
           
             
               Bead-men
               of
               the
            
             Magdalen
             Chappel
             ,
             con
             .
             Drysdale
             ,
             30
             Iune
             ,
             1671
          
           
             Beatoun
             of
             Bandoch
             ,
             con
             .
             Ogilvie
             of
             Mantoun
             ,
             13
             Iuly
             .
             1670
          
           
             
             E.
             Bedford
             
               con
               .
               Lo.
            
             Balmerino
             ,
             18
             Feb.
             1662
          
           
             E.
             Bedford
             
               con
               .
               L.
            
             Balmerino
             ,
             29
             Novemb.
             1661
          
           
             Beg
             con
             .
             Nicolson
             ,
             14
             Ianuary
             ,
             1663
          
           
             Beg
             con
             .
             Beg
             ,
             4
             Feb.
             1665
          
           
             Beg
             con
             .
             Be●
             ,
             5
             Decemb.
             1665
          
           
             Beg
             con
             .
             Nicol
             ,
             22
             Iune
             ,
             1666
          
           
             Bells
             con
             .
             Wilkie
             ,
             12
             Feb
             ,
             1662
          
           
             Bell
             of
             Belford
             
               con
               .
               the
               Lady
            
             Rutherford
             ,
             27
             Ianuary
             ,
             1669
          
           
             
               Lairds
               of
            
             Beerfoord
             and
             Beanstoun
             ,
             
               con
               .
               Lo.
            
             Kingstou●
             ,
             27
             Ianuary
             ,
             1665
          
           
             
               Mayor
               of
            
             Berwick
             
               con
               .
               L.
               of
            
             Haining
             ,
             1
             Iuly
             ,
             1661
          
           
             Major
             Bigger
             con
             .
             Cunninghame
             of
             D●nkeith
             ,
             15
             Iuly
             ,
             1670
          
           
             Binning
             con
             .
             Binning
             ,
             28
             Ianuary
             ,
             1668
          
           
             Birkinbeg
             con
             .
             Iohn
             Graham
             of
             Craigit
             ,
             20
             Iuly
             ,
             1671
          
           
             Birnie
             con
             .
             Henderson
             ,
             18
             Ianuary
             ,
             1668
          
           
             Birsbane
             con
             .
             Monteith
             ,
             24
             Iuly
             ,
             1662
          
           
             Birsh
             con
             .
             Dowglas
             ,
             18
             Feb.
             1663
          
           
             
               B●shop
               of
            
             Isles
             con
             .
             Hamiltoun
             ,
             13
             Decemb.
             1664
          
           
             
               Bishop
               of
            
             Dumblaine
             
               con
               .
               E.
            
             Cassils
             ,
             15
             February
             ,
             1665
          
           
             
               B●shop
               of
            
             Isles
             
               con
               .
               the
               Fishers
               of
            
             Greenock
             ,
             24
             Novemb.
             1665
          
           
             
               Arch-Bishop
               of
            
             Glasgow
             
               con
               .
               Mr.
            
             Iames
             Logan
             ,
             6.
             
             Feb.
             1666
          
           
             
               Arch●-Bishop
               of
            
             Glasgow
             ,
             
               con
               .
               Commissar
               of
            
             Glasgow
             ,
             14
             Feb.
             1666
          
           
             
               Bishop
               of
            
             Glasgow
             
               con
               .
               Commissar
               of
            
             Glasgow
             ,
             22
             Feb.
             1666
          
           
             Black
             con
             .
             Scot
             ,
             25
             Iune
             ,
             1668
          
           
             Black
             con
             .
             French
             ,
             9
             Feb.
             1669
          
           
             Blaikwood
             con
             .
             Purves
             ,
             20
             Novemb.
             1666
          
           
             Blair
             con
             .
             Anderson
             ,
             18
             Feb.
             1663
          
           
             Blair
             of
             Balgillo
             con
             .
             Bl●ir
             of
             Denhead
             ,
             3
             February
             ,
             1671
          
           
             Blair
             of
             Balhead
             con
             .
             Blair
             of
             Denhead
             ,
             22
             Iuly
             ,
             1671
          
           
             Lo.
             Blan●yre
             con
             .
             Walkinsh●w
             ,
             2
             Iuly
             ,
             1667
          
           
             Blomart
             
               con
               .
               E.
            
             Roxburgh
             ,
             17
             Decemb.
             1664
          
           
             Bones
             con
             .
             Barclay
             of
             Iohnstoun
             ,
             9
             Iuly
             1662
          
           
             Bonnar
             con
             .
             Foulis
             ,
             7
             Feb.
             1662
          
           
             Capt.
             Bood
             con
             .
             Strachan
             ,
             28
             Novemb.
             1667
          
           
             Boog
             con
             .
             Davidson
             ,
             9
             Iuly
             ,
             1668
          
           
             Lo.
             Borthwick
             
               con
               .
               Mr.
            
             Mark
             Ker
             ,
             31
             Ianuary
             ,
             1665
          
           
             Borthwick
             con
             .
             Skeen
             ,
             14
             Iuly
             ,
             1665
          
           
             Borthwick
             con
             .
             Sk●en
             ,
             16
             Feb.
             1666
          
           
             
               Lo
               ▪
            
             Bor●hwick
             con
             .
             21
             Feb.
             1666
          
           
             Borthwick
             
               con
               .
               Lo.
            
             Borthwick
             ,
             14
             Feb.
             1668
          
           
             Boswel
             con
             .
             Boswel
             ,
             22
             Novemb.
             1661
          
           
             Boswel
             
               con
               .
               the
               Town
               of
            
             Kirkaldy
             ,
             22
             Iuly
             ,
             1668
          
           
             Boswel
             
               con
               .
               the
               Town
               of
            
             Kirkaldy
             ,
             1
             Feb.
             1669
          
           
             Boswel
             con
             .
             Lindsey
             ;
             3
             Feb.
             1669
          
           
             Bow
             con
             .
             Campbel
             ,
             2
             Iuly
             ,
             1669
          
           
             Bowers
             
               con
               .
               Lady
            
             Cowper
             ,
             16
             Iune
             ,
             1671
          
           
             Boyd
             
               con
               .
               L.
            
             Nithrie
             ,
             
               and
               L.
               of
            
             Edmondstoun
             .
             13
             Decemb
             .
             1661
          
           
             Boyd
             of
             Pinkill
             
               con
               :
               Tennents
               of
            
             Carsluth
             ,
             15
             Feb.
             1666
          
           
             Boyd
             con
             .
             Kintore
             ,
             4
             Iuly
             1665
          
           
             Boyd
             con
             .
             Lauder
             and
             Telziefer
             ,
             30
             Novem.
             1665
          
           
             Boyds
             con
             .
             Boyd
             of
             Temple
             ,
             6
             Ianuary
             ,
             1670
          
           
             Iohn
             Boyd
             con
             .
             He●gh
             Sinclar
             ,
             17
             Iune
             1671
          
           
             Boyl
             of
             Ke●h●rn
             con
             .
             Wilkie
             ,
             26
             January
             ,
             1669
          
           
             Lady
             Braid
             
               con
               .
               E.
            
             Kinghorn
             ,
             26
             Ianuary
             ,
             1669
          
           
             Bradie
             
               con
               .
               L.
               of
            
             Fairnie
             ,
             Iune
             21.
             1665
          
           
             Bradie
             
               con
               .
               L.
            
             Fairnie
             ,
             20
             Ianuary
             ,
             1666
          
           
             Bredy
             con
             .
             Bredy
             ,
             1
             Iuly
             ,
             1662
          
           
             Broady
             of
             Lethem
             ,
             
               and
               L.
               of
            
             Rickartoun
             
               con
               .
               Lo.
            
             Kenmure
             ,
             1.
             
             Iuly
             ,
             1671
          
           
             Brotherstons
             con
             .
             Ogil
             ●●d
             Orrocks
             ,
             26
             Iuly
             ,
             1665
          
           
             Broun
             
               con
               .
               L●ferenters
               of
            
             Rossie
             ,
             13
             Feb.
             1662
          
           
             Broun
             con
             .
             Iohnstoun
             ,
             26
             Feb.
             1662
          
           
             Broun
             con
             .
             La●sons
             ,
             25
             Iune
             ,
             1664
          
           
             Broun
             con
             .
             Scot
             ,
             9
             Ianuary
             ,
             1666
          
           
             Broun
             and
             D●ff
             con
             .
             ●issat
             ,
             18
             Iuly
             ,
             1666
          
           
             Broun
             con
             .
             Happiland
             ,
             29
             Ianuary
             ,
             1668
          
           
             Broun
             con
             .
             Iohnstoun
             ,
             1.
             
             Feb.
             1669
          
           
             Broun
             con
             .
             Sibbald
             ,
             12
             Feb.
             1669
          
           
             Bruces
             
               con
               .
               E.
            
             Morto●n
             ,
             16
             Iune
             ,
             1665
          
           
             Bruce
             
               con
               .
               E.
            
             Mortoun
             ,
             28
             N●vemb
             .
             1665
          
           
             Bruce
             
               con
               .
               L.
               and
               Lady
            
             Stenhops
             ▪
             20
             Feb.
             1669
          
           
             
               Countess
               of
            
             Buccleugh
             
               con
               .
               E.
            
             Ta●ras
             7.
             
             Fe●
             .
             16●2
          
           
             
               Duke
               of
            
             Duccleugh
             
               con
               .
               Parochiners
               of
            
             22
             Iune
             ,
             1671
          
           
             
               Children
               of
               the
               E.
               of
            
             Buchan
             
               con
               .
               the
               Lady
            
             B●●han
             ,
             23
             Feb.
             1666
          
           
             Buchan
             con
             .
             Taits
             .
             11
             Feb.
             1669
          
           
             Buchannan
             con
             .
             Osou●n
             ,
             24
             Iuly
             1661
          
           
             Lady
             Burgie
             
               con
               .
               Tennents
            
             18
             Iuly
             ,
             1667
          
           
             Lord
             Burly
             con
             .
             Sime
             30
             Ianuary
             ,
             1662
          
           
             Lord
             Burly
             con
             .
             Sime
             ,
             25.
             
             Novem.
             1662
          
           
             Dame
             Rachel
             Burnet
             con
             .
             Leapers
             ,
             23
             December
             1665
          
           
             Bu●net
             con
             .
             Iohnstoun
             17
             Iuly
             ,
             1666
          
           
             Burnet
             con
             .
             Nasmith
             ,
             19
             Iune
             ,
             1668
          
           
             Burnet
             con
             .
             Swain
             ,
             30
             June
             ,
             166●
          
           
             Ioachim
             Burn-master
             
               con
               .
               Captain
            
             Dishingto●n
             ,
             29
             Iune
             ,
             1671
          
           
             Lady
             Bute
             and
             her
             husband
             con
             .
             Sheriff
             of
             
               But●
               .
               5
               Ianuary
            
             ,
             16●●
          
           
             Butter
             con
             .
             Gray
             ,
             17
             Feb.
             16●5
          
           
             con
             .
             Brand
             ,
             3
             January
             ,
             1667
          
           
             con
             .
             Edmistoun
             6
             January
             ,
             1665
          
           
             con
             .
             Wilson
             ,
             2
             Ianuary
             ,
             16●●
          
           
             con
             .
             John
             and
             Hary
             Rollocks
             ,
             1
             Fe●
             .
             1666
          
           
             
               con
               .
               E.
            
             Kinghorn
             ,
             23
             Ianuary
             ,
             1666
          
           
             con
             .
             He●gh
             Mcculloch
             ,
             29
             Feb.
             1666
          
           
             
               con
               .
               the
               Sheriff
               of
            
             Inverness
             21
             Feb.
             1666
          
        
         
           
             CAlderwood
             con
             .
             Schaw
             ,
             14
             Novem.
             1668
          
           
             ●
             .
             Callender
             con
             .
             Monro
             ,
             20
             Feb.
             1662
          
           
             Campbel
             con
             .
             Bryson
             ,
             10
             Ianuary
             ,
             1664
          
           
             Campbel
             con
             .
             Campbel
             ,
             22
             Feb.
             1665
          
           
             Campbel
             
               con
               .
               Doctor
            
             Beatoun
             ,
             23
             Novem.
             1665
          
           
             Campbel
             con
             .
             Dowgal
             ,
             14
             Decem.
             1667
          
           
             Campbel
             
               con
               .
               L.
            
             Glenorchie
             ,
             25
             July
             ,
             1668
          
           
             Canham
             con
             .
             Adamsone
             ,
             25
             June
             ,
             1664
          
           
             Canham
             con
             .
             Adamsone
             ,
             7
             Novem.
             1666
          
           
             Canna
             con
             .
             10
             Iuly
             ,
             1666
          
           
             Mr.
             Walter
             Cant
             con
             .
             Loch
             ,
             27
             Iune
             ,
             1665
          
           
             L.
             Carberry
             
               con
               .
               Creditors
            
             ,
             30.
             
             Ianuary
             ,
             1663
          
           
             Lady
             Carnagy
             
               con
               .
               Lo.
            
             Cranburn
             ,
             11
             Ianuary
             ,
             1662
          
           
             La.
             Carnagy
             
               con
               .
               Lo.
            
             Cranburn
             ,
             19
             Feb.
             1662
          
           
             La.
             Carnagy
             
               con
               .
               Lo.
            
             Cranburn
             ,
             30
             January
             ,
             1663
          
           
             La.
             Carnagy
             
               con
               .
               Lo.
            
             Cranburn
             ,
             5
             Feb.
             1663
          
           
             
               Countess
               of
            
             Carnwath
             
               con
               .
               the
               Earl
            
             ,
             27
             Feb.
             1667
          
           
             Cass
             
               con
               .
               Mr.
            
             Iohn
             Wat.
             18
             Decem.
             1666
          
           
             Cass
             
               con
               .
               Sir
            
             Robert
             Cunninghame
             ,
             26
             Ianuary
             ,
             1671
          
           
             E.
             Cassils
             con
             .
             Agnew
             ,
             6
             January
             ,
             1666
          
           
             E.
             Cassils
             
               con
               .
               the
               Tennents
               of
            
             Dalmortoun
             ,
             11
             Decemb
             .
             1666
          
           
             E.
             Cassils
             
               con
               .
               the
               Sheriff
               of
            
             Galloway
             ,
             10
             Decemb.
             1669
          
           
             
               Countess
               of
            
             Cassils
             
               con
               .
               E.
            
             Cassils
             22
             Feb.
             1670
          
           
             
               Countess
               of
            
             Cassils
             
               con
               .
               the
               E.
            
             Roxburgh
             ,
             18
             July
             ,
             1671
          
           
             Cathcart
             con
             .
             Mccorquodel
             and
             Mirk
             ▪
             8
             Feb.
             1670
          
           
             L.
             Cesnock
             
               con
               .
               Lo.
            
             Bargainy
             ,
             23
             Decem.
             1665
          
           
             Chalmer
             con
             .
             Dalgarno
             ,
             27
             Feb.
             1662
          
           
             Chalmer
             
               con
               .
               Lady
            
             Tinnel
             ,
             24
             Novem.
             1665
          
           
             Chalmer
             con
             .
             Bassillie
             ,
             30
             Iune
             ,
             1666
          
           
             Chalmer
             and
             Gairns
             con
             .
             Colvils
             ,
             16
             Novem.
             1667
          
           
             Chalmer
             con
             .
             Wood
             ,
             27
             Feb.
             1668
          
           
             Chapman
             con
             .
             White
             ,
             18
             Ianuary
             ,
             1667
          
           
             Charters
             
               con
               .
               a
               Skipper
            
             ,
             13
             Ianuary
             1665
          
           
             
             Char●rs
             
               con
               .
               Parochiners
               of
            
             Currie
             ,
             8
             Ian.
             1670
          
           
             Charters
             con
             .
             Neilson
             ,
             29
             Iuly
             ,
             1670
          
           
             Cheap
             .
             con
             .
             Philip.
             19
             Decem.
             1666
          
           
             Cheap
             con
             .
             Philip
             ,
             5
             Ianuary
             ,
             1667
          
           
             Cheap
             
               con
               .
               the
               Magistrats
               of
            
             Falkland
             ,
             18
             Iune
             ,
             1670
          
           
             Chein
             con
             .
             Chri●●●
             4
             Iuly
             ,
             1667
          
           
             Chei●
             ●on
             .
             Christy
             30
             Iune
             1668
          
           
             Chei●
             con
             .
             〈◊〉
             5
             Decem.
             16●5
          
           
             
               Children
               of
            
             Mo●swal
             con
             .
             Laurie
             of
             Maxwel●●●n
             ,
             14
             Feb.
             1662
          
           
             
               Children
               of
            
             VVolmet
             
               con
               .
               Mr.
            
             Mark●●●
             ▪
             19
             Feb.
             1662
          
           
             Children
             of
             ●olmet
             con
             .
             Dowg●●s
             and
             Danke●●●
             ,
             20
             Nevem
             .
             1662
          
           
             Chi●●●me
             con
             .
             Rennies
             ,
             6
             Feb.
             16●8
          
           
             Chisolme
             
               con
               .
               Lady
            
             Brae
             ,
             26
             January
             ,
             1669
          
           
             Clappertoun
             
               con
               .
               L.
               of
            
             Ednem
             ,
             11
             Decem.
             1662
          
           
             Clappertoun
             
               con
               .
               L.
            
             Torsonce
             ,
             20
             January
             1666
          
           
             Cleland
             con
             .
             Stevinson
             ,
             5
             Feb.
             1669
          
           
             Clerk
             con
             .
             Clerk
             2
             Decem.
             1662
          
           
             
               Lo.
               Justice
               Clerk
               ,
               con
            
             .
             Rentoun
             of
             Lambertoun
             ,
             13
             Feb.
             16●7
          
           
             
               Lo.
               Ju●●●ce
               Clerk
               con
               .
               the
               L.
               of
            
             Lambertoun
             ,
             23
             November
             ,
             1667
          
           
             
               L.
               Justice
               Clerk
               con
            
             .
             Home
             of
             Linthil
             ,
             28
             Feb.
             1668
          
           
             L.
             Clarkintoun
             
               con
               .
               L.
            
             Corsbie
             .
             3
             Decemb.
             1664
          
           
             L.
             Clerkingtoun
             con
             .
             Stewart
             ,
             20.
             
             Iuly
             ,
             1664
          
           
             La.
             Clerkingtoun
             con
             .
             the
             L.
             and
             the
             young
             Lady
             ,
             9
             Ianuary
             ,
             1668
          
           
             Cochran
             con
             .
             22
             Feb.
             1668
          
           
             Cockburn
             and
             Gilles●ie
             con
             .
             Stewart
             18
             Feb.
             1669
          
           
             
               M●n●ster
               of
            
             Cockburns-path
             
               con
               .
               Parochiners
            
             ,
             7
             Feb.
             1668
          
           
             Colledge
             of
             St.
             Andrews
             Supplicant
             ,
             16
             July
             ,
             1661
          
           
             Old
             Colledge
             of
             Aberdeen
             con
             .
             the
             Town
             ,
             13
             July
             ,
             1669
          
           
             Colquhoun
             
               con
               .
               Creditors
            
             ,
             18
             Ianuary
             ,
             1662
          
           
             Colquhoun
             con
             .
             Watson
             ,
             15
             Feb.
             1668
          
           
             Colquhoun
             and
             Mcnaire
             con
             .
             Stewart
             of
             Ba●scob
             ,
             1
             Iuly
             ,
             1668
          
           
             Colvil
             
               con
               .
               Executors
               of
            
             Colvil
             ,
             15
             Iuly
             ,
             1664
          
           
             Lady
             Colvil
             
               con
               .
               Lo.
            
             Colvil
             ,
             14
             Decem
             ,
             1664
          
           
             Colvil
             
               con
               .
               Lo.
            
             Balmerino
             ,
             6
             Iuly
             ,
             1665
          
           
             Lo.
             Colvil
             
               con
               .
               Town
               of
            
             Culross
             27
             Feb.
             1666
          
           
             Lo.
             Colvil
             
               con
               .
               the
               Feuars
               of
            
             Culross
             ,
             15
             Decem
             ,
             1666
          
           
             
               Commissars
               of
               St.
            
             Andrews
             
               con
               .
               the
               L.
               of
            
             Bussie
             ,
             4
             Iuly
             ,
             1665
          
           
             Captain
             Conningsbi●
             
               con
               .
               Captain
            
             Mastertoun
             ,
             7
             Feb.
             1668
          
           
             Corstorphine
             con
             .
             Martines
             ,
             21
             Decem.
             1666
          
           
             Couan
             con
             .
             Young
             and
             Reid
             ,
             9
             Feb.
             1669
          
           
             Lo.
             Couper
             
               con
               .
               L.
            
             Pitsligo
             ,
             3
             Iuly
             ,
             1662
          
           
             
               Town
               of
            
             Couper
             con
             .
             Kinocher
             ,
             24
             Iune
             ,
             1664
          
           
             Lady
             Craig
             
               con
               .
               L.
            
             Lour
             ,
             7
             Decem.
             1664
          
           
             La.
             Craigcasse
             con
             .
             Neilson
             ,
             12
             Novem.
             1664
          
           
             Cranstoun
             con
             .
             Pringle
             ,
             13.
             
             Decem.
             1665
          
           
             Cranstoun
             con
             .
             Wilkieson
             ,
             10
             Iuly
             ,
             1666
          
           
             Cranstoun
             con
             .
             Wilkieson
             ,
             20
             Feb.
             1667
          
           
             Crawfoord
             
               con
               .
               E.
            
             Murray
             ,
             8
             Feb.
             1662
          
           
             Crawfoord
             con
             .
             Prestoun
             Grange
             ,
             15
             Iuly
             ,
             1664
          
           
             Crawfoord
             con
             .
             Auchinleck
             ,
             17
             Ianuary
             1666
          
           
             Crawfoord
             con
             .
             Duncan
             ,
             7
             Iune
             ,
             1666
          
           
             Crawfoord
             
               con
               .
               the
               Town
               of
            
             Edinburgh
             ,
             31
             Iuly
             ,
             1666
          
           
             E.
             Crawfoord
             con
             .
             Rigg
             ,
             21
             July
             ,
             1669
          
           
             Crawfoord
             con
             .
             Anderson
             ,
             24
             Iuly
             ,
             1669
          
           
             Crawfoord
             con
             .
             Halliburton
             20
             Iune
             ,
             1671
          
           
             
               Cred●tors
               of
            
             Kinglassi●
             ,
             26
             and
             27
             Feb.
             1662
          
           
             
               Creditors
               of
            
             Iames
             Masson
             ,
             30
             Novem.
             1665
          
           
             
               Creditors
               of
            
             Andrew
             Bryson
             ,
             14
             Novem.
             1662
          
           
             
               Creditors
               of
               the
               Lady
            
             Couper
             and
             Balme●ino
             
               con
               .
               Lady
            
             Couper
             ,
             25
             Novem.
             1669
          
           
             Crichton
             
               and
               her
               spouse
               con
            
             .
             Maxwel
             of
             Kirk-house
             ,
             27
             Ianuary
             1666
          
           
             
               Daughters
               of
            
             Crichton
             of
             Crawfoordstoun
             con
             .
             Broun
             of
             Eglistoun
             ,
             22
             Ianuary
             1669
          
           
             Cruckshank
             con
             .
             Cruckshank
             ,
             16
             Iune
             ,
             1665
          
           
             L.
             Culteraus
             con
             :
             Chanman
             ,
             16
             Novem.
             1667
          
           
             Cumming
             con
             :
             Lumsden
             ,
             4
             Iuly
             ,
             1667
          
           
             Cunninghame
             con
             :
             Dalmahoy
             ,
             1
             Feb
             ▪
             1662
          
           
             Cunninghame
             
               con
               .
               the
               Duke
               of
            
             Hamiltoun
             ,
             5
             Decem.
             1665
          
           
             Cunninghame
             con
             :
             Lyel
             ,
             1
             Feb
             ,
             166●
          
           
             Cunninghame
             
               con
               :
               L.
            
             Robertland
             ,
             4
             Iuly
             ,
             166●
          
        
         
           
             DAes
             con
             .
             K●le
             19
             Iuly
             ,
             1667
          
           
             Dallas
             con
             .
             Frazer
             
             of
             ●nnerallochie
             ,
             31
             Ianuary
             ,
             1665
          
           
             Dalmahoy
             con
             :
             Hamiltoun
             ,
             6
             Decem.
             16●●
          
           
             
               Min●ster
               of
            
             Dal●ymple
             
               con
               .
               E.
            
             Cassills
             ,
             27
             June
             ,
             166●
          
           
             Deanes
             con
             .
             Bothwel
             ,
             5
             Feb.
             16●●
          
           
             Dennistoun
             con
             :
             S●mple
             of
             Falwood
             ,
             16
             Iuly
             .
             1669
          
           
             Mr.
             David
             Dewer
             con
             :
             Paterson
             ,
             26
             〈◊〉
             .
             1667
          
           
             Dick
             
               con
               :
               Sir
            
             Andr●w
             Dick
             ,
             13
             Ianuary
             16●●
          
           
             Dick
             con
             .
             Ker
             ,
             26
             ●une
             1668
          
           
             Dukie
             con
             :
             Mon●gamery
             ,
             14
             Ianuary
             ,
             1662
          
           
             Mr.
             Robert
             Dick●on
             
               con
               :
               Mr.
            
             Ma●k
             K●r
             ,
             21
             Iuly
             ,
             1665
          
           
             Dickson
             con
             :
             ●●me
             ,
             16
             Novem
             :
             1665
          
           
             Mr.
             Robert
             Dickson
             con
             .
             James
             Graham
             ,
             19
             Ianuary
             ,
             1671
          
           
             Executors
             of
             the
             E.
             of
             Di●ltoun
             con
             :
             the
             Duke
             of
             Hamiltoun
             and
             others
             ,
             18
             Iuly
             1667
          
           
             Dobie
             
               con
               :
               Lady
            
             Stoniehill
             ,
             18
             Decem.
             1667
          
           
             Dobie
             
               con
               :
               Lady
            
             Stoniehill
             ,
             28
             January
             ,
             1668
          
           
             Dodds
             con
             :
             Scot
             16
             Feb.
             1671
          
           
             Donaldson
             con
             :
             Harower
             ,
             3
             Iuly
             1668
          
           
             Dove
             con
             .
             Campbel
             ,
             4
             Ianuary
             ,
             1668
          
           
             Do●glas
             con
             :
             22
             Novem.
             166●
          
           
             Dowglas
             con
             :
             Lindsey
             ,
             2
             Decem.
             1662
          
           
             Dowglas
             
               con
               :
               L.
            
             Wadderburn
             .
             19
             July
             ,
             16●4
          
           
             Dame
             Elizabeth
             Dowgla●
             and
             Lockermacus
             ,
             
               her
               ●u●band
               con
               :
               L.
            
             Wedderburn
             ,
             24
             Feb.
             166●
          
           
             Dowglas
             con
             :
             Cowan
             ,
             29
             July
             ,
             1665
          
           
             Mr.
             James
             Dowglas
             con
             :
             〈◊〉
             28
             Jun●
             ,
             166●
          
           
             Dowglas
             Lady
             Wam●rey
             
               con
               .
               the
               L.
            
             Wam●●●y
             22
             J●●●ary
             ,
             1668
          
           
             Dowglas
             of
             Lumsden
             con
             :
             Dowglas
             .
             22
             June
             ,
             1670
          
           
             Dowglas
             of
             K●●head
             con
             :
             his
             Vessals
             and
             others
             ,
             30
             January
             ,
             1671
          
           
             Do●ni●
             con
             :
             Young
             ,
             17
             Novem
             :
             1666
          
           
             Lo.
             Drums●ies
             con
             :
             Smart
             ,
             18
             July
             ,
             1668
          
           
             L●dy
             Drum
             
               con
               .
               L
               ▪
            
             Drum.
             13
             Feb
             :
             1666
          
           
             Drummond
             con
             .
             Skeen
             ,
             19
             June
             ,
             1662
          
           
             D●ummo●d
             con
             .
             Campbel
             ,
             5
             July
             ,
             1662
          
           
             Drummond
             con
             .
             Starling
             of
             Airdoch
             ,
             23
             Ian
             ,
             1669
          
           
             D●ummond
             of
             Rickartoun
             
               con
               .
               Feuars
               of
            
             Botkennel
             ,
             17
             Ianuary
             ,
             1671
          
           
             Dun
             con
             .
             Duns
             ,
             25
             Feb.
             1666
          
           
             Dumbar
             of
             Hemprig
             
               con
               .
               Lo.
            
             Frazer
             ,
             18
             Feb
             ,
             1663
          
           
             Dumb●r
             of
             Hemprig
             
               con
               .
               Lo
            
             :
             Frazer
             ,
             11
             Iuly
             ,
             1664
          
           
             Dumbar
             
               con
               .
               E
            
             :
             Dundee
             ,
             5
             Iuly
             ,
             1665
          
           
             Dumbar
             
               con
               .
               Lo
            
             :
             Dussus
             ,
             14
             Iune
             ,
             1666
          
           
             Sir
             David
             Dumbar
             o●
             Baldoon
             con
             .
             Dick
             
               and
               others
            
             ,
             22
             Feb.
             1671
          
           
             Sir
             David
             Dumbar
             of
             Baldoon
             
               con
               .
               Sir
            
             Robert
             Maxwel
             ,
             14
             Iuly
             ,
             1671
          
           
             Duncan
             
               con
               .
               Town
               of
            
             Arbroth
             ,
             17
             Novemb
             ,
             1668
          
           
             Dundas
             
               con
               .
               the
               Lairds
               of
            
             Ardrosse
             and
             Touch
             ,
             18
             Feb.
             1671
          
           
             
               Merchants
               in
            
             Dundee
             con
             .
             Sp●uce
             an
             Englishman
             ,
             3
             Novemb.
             1666
          
           
             
               Countess
               of
            
             Dundee
             con
             .
             Straitoun
             ,
             24
             Feb.
             1669
          
           
             L.
             of
             Durit
             con
             .
             R●lict
             and
             Daughters
             of
             umquhil
             D●rie
             his
             Brother
             ,
             6
             Feb.
             1666
          
           
             Durie
             con
             .
             Gibson
             ,
             28
             Feb
             :
             1667
          
        
         
           
             ECcles
             con
             .
             Eccles
             ,
             7
             Decemb.
             1664
          
           
             Edgar
             con
             .
             Edgar
             ,
             17
             Ianuary
             ,
             1665
          
           
             Edgar
             con
             .
             Colvils
             2
             Decemb.
             1665
          
           
             
               Town
               of
            
             Edinburgh
             
               con
               .
               L.
            
             Le●s
             and
             Veitch
             ,
             8
             July
             ,
             1664
          
           
             
               Town
               of
            
             Edinburgh
             
               con
               .
               Sir
            
             William
             Thomson
             ,
             6
             June
             ,
             1665
          
           
             Edmistoun
             con
             .
             Edmistoun
             ,
             4
             Iune
             ,
             1662
          
           
             E.
             Eglintoun
             
               con
               .
               L.
            
             Cunningham-head
             ,
             27
             Ianuary
             ,
             1676
          
           
             E.
             Eglintoun
             
               con
               .
               L
            
             :
             Cunningham-head
             ,
             23
             June
             ,
             1666
          
           
             Elies
             con
             .
             Ke●th
             ,
             15
             Decemb.
             1665
          
           
             Eleis
             con
             .
             Cass●e
             ,
             24
             Ianuary
             1666
          
           
             
             Eleis
             con
             .
             Wishart
             and
             Keith
             ,
             27
             Feb.
             1667
          
           
             Eleis
             con
             .
             Keith
             ,
             16
             Iuly
             ,
             1667
          
           
             Mr.
             Iohn
             Eleis
             con
             .
             Inglistoun
             ,
             23
             Iuly
             ,
             1669
          
           
             Eleis
             of
             South-side
             con
             .
             Carss
             ,
             28
             Iune
             1670
          
           
             
               M●nister
               of
            
             Elgin
             
               con
               .
               Parochiners
            
             .
             30
             Iune
             ,
             1670
          
           
             Elphingstoun
             con
             .
             Murray
             ,
             4
             Feb.
             1662
          
           
             Elphingstoun
             of
             Selmes
             
               con
               .
               Lo.
            
             Rollo
             and
             Niddrie
             ,
             1
             Feb.
             1665
          
           
             Lo.
             Elphingstoun
             
               con
               .
               L.
               of
            
             Quarrel
             ,
             19
             Feb.
             1669
          
           
             E.
             Errol
             
               con
               .
               the
               Parochiners
               of
            
             Urie
             ,
             16
             Ianuary
             ,
             1663
          
           
             E.
             Errol
             con
             .
             Hay
             of
             Crimonmagat
             ,
             23
             Feb.
             1667
          
           
             
               Executors
               of
            
             Fairlie
             
               con
               .
               Parochiners
               of
            
             Leswaid
             ,
             5.
             
             Iuly
             ,
             1662
          
        
         
           
             FAirfowls
             con
             .
             Binning
             ,
             4
             Ianuary
             ,
             1666
          
           
             Fairholme
             con
             .
             Bisset
             ,
             18
             Ianuary
             ,
             1662
          
           
             Fai●ie
             con
             .
             Inglis
             ,
             Iune
             23
             ,
             and
             24
             ▪
             1669
          
           
             Executor
             of
             Fairlie
             con
             .
             Parochiners
             of
             1662
          
           
             Fairl●e
             con
             .
             Creditors
             of
             Sir
             
               William
               Dick
               ,
               14
               December
            
             ,
             1666
          
           
             Falconer
             con
             .
             Dowgall
             ,
             24
             Iune
             ,
             1664
          
           
             Falconer
             
               con
               .
               E.
            
             Kinghorn
             ,
             3
             Feb.
             1665
          
           
             Mr.
             David
             Falconer
             
               con
               .
               Sir
            
             Iames
             Keith
             ,
             14
             Iuly
             ,
             1668
          
           
             Farquhar
             con
             .
             Lyon
             ,
             3
             Decemb.
             1661
          
           
             Farquhar
             
               con
               .
               Magistrats
            
             of
             Elgin
             ,
             2
             Iuly
             ,
             1669
          
           
             Ferguson
             con
             .
             Ferguson
             ,
             23
             Iune
             ,
             1663
          
           
             Ferguson
             con
             .
             Gairdner
             ,
             25
             Iune
             ,
             1664
          
           
             Ferguson
             con
             .
             Stewart
             of
             Ashcock
             ,
             1665
          
           
             Ferguson
             
               con
               .
               Parochiners
               of
            
             Kingarth
             ,
             1
             Feb.
             1671
          
           
             Fiddes
             con
             .
             Iack
             ▪
             19
             Iuly
             ,
             1662
          
           
             Findlason
             
               con
               .
               Lo.
            
             Cowper
             ,
             22
             Ianuary
             ,
             1666
          
           
             Findlay
             
               con
               .
               E.
            
             Northesk
             ,
             25
             Iune
             ,
             1670
          
           
             Procurator-Fiscal
             of
             the
             Commissariot
             of
             Edinburgh
             con
             .
             
               Thomas
               Fairholme
               ,
               23
               June
            
             ,
             1665
          
           
             Fleming
             con
             .
             Forrester
             ,
             17
             Iuly
             ,
             1661
          
           
             Fleming
             
               con
               .
               her
               Children
            
             ,
             26
             Iuly
             ,
             
               and
               19
               ,
               20.
               of
            
             November
             ,
             1661
          
           
             Fleming
             con
             .
             Fleming
             ,
             13
             Feb.
             1663
          
           
             Fleming
             con
             .
             Gilles
             ,
             18
             Iune
             ,
             1663
          
           
             Fleming
             con
             .
             Fleming
             ,
             16
             Novemb.
             1664
          
           
             Fleming
             con
             .
             Fleming
             ▪
             3
             Iuly
             ,
             1666
          
           
             Sir
             Iohn
             Fletcher
             Suppl●cant
             ,
             3
             Feb.
             1665
          
           
             Forbes
             con
             .
             Innes
             ,
             8
             Ianuary
             ,
             1668
          
           
             Forbes
             con
             .
             Innes
             20
             Feb.
             1668
          
           
             Forbes
             of
             Watertoun
             con
             .
             Ch●in
             ,
             28
             Iune
             ,
             1671
          
           
             Forsyth
             con
             .
             Patoun
             ,
             17
             Feb.
             1663
          
           
             Mr.
             Alexander
             Foulis
             
               and
               the
               Lo.
               of
            
             Collingtoun
             ,
             
               con
               .
               Tennents
               and
               the
               Lady
            
             Collingtoun
             ,
             9
             Feb.
             1667
          
           
             Fountain
             and
             Brown
             con
             .
             Maxwell
             ,
             14
             Iuly
             ,
             1666
          
           
             Lo.
             Frazer
             
               con
               .
               the
               La●rd
               of
            
             Philorth
             ,
             18
             and
             23
             Iuly
             ,
             1662
          
           
             Frazer
             con
             .
             Frazer
             ,
             11
             Feb.
             1663
          
           
             Frazer
             con
             .
             Frazer
             ,
             3
             Iuly
             ,
             1668
          
           
             Sir
             Alexander
             Frazer
             con
             .
             Keith
             ,
             16
             Decemb.
             1668
          
           
             Fullertoun
             
               con
               .
               Viscount
               of
            
             Kingstoun
             ,
             8
             Ianuary
             ,
             1663
          
        
         
           
             GAirdner
             con
             .
             Colvill
             ,
             10
             Iuly
             ,
             1669
          
           
             Gairns
             con
             .
             Arthur
             ,
             19
             Decemb.
             1667
          
           
             Gairns
             con
             .
             Sandilands
             ,
             12
             Iuly
             ,
             1671
          
           
             Galbraith
             con
             .
             Colq●houn
             ,
             12
             Novemb.
             1664
          
           
             
               R●●●ct
               of
            
             Galriggs
             con
             .
             Wallac●
             of
             Galriggs
             ,
             19
             Iune
             ,
             1668
          
           
             Sir
             Iohn
             Gibson
             con
             .
             Oswald
             ,
             13
             Iune
             ,
             1668
          
           
             L.
             Gight
             con
             .
             Birkinbeg
             ,
             12
             Decemb.
             1661
          
           
             
               Town
               of
            
             Glasgow
             
               con
               .
               Town
               of
            
             Dambarton
             ,
             6
             Feb.
             1666
          
           
             Glass
             con
             .
             Hadden
             ,
             10
             Iuly
             ,
             1669
          
           
             Glen
             con
             .
             Home
             ,
             19
             Feb.
             1667
          
           
             L.
             Glencorss
             younger
             con
             .
             his
             Brother
             and
             Sisters
             ,
             10
             Ian●●ry
             ,
             1668
          
           
             Glendinning
             
               con
               .
               E.
            
             Nithsdale
             ,
             22
             January
             ,
             1662
          
           
             Goldsmiths
             of
             Edinburgh
             ,
             con
             .
             
               Haliburtoun
               ,
               10
               December
            
             ,
             1664
          
           
             Goodla●
             con
             .
             Nairn
             ,
             8
             Decemb.
             1668
          
           
             Gordon
             of
             Lesmore
             con
             .
             Leith
             ,
             10
             June
             ,
             1663
          
           
             Gordon
             con
             .
             Frazer
             ,
             3
             July
             ,
             1663
          
           
             Sir
             Lodovick
             Gordon
             
               con
               .
               Sir
            
             John
             Keith
             ,
             31
             July
             ,
             1666
          
           
             Gordon
             
               con
               .
               Sir
            
             Alexander
             Mc●●lloch
             ,
             17
             Feb.
             1671
          
           
             Gordon
             
               con
               .
               Sir
            
             Alexander
             Mc●ulloch
             ,
             22
             Feb.
             1671
          
           
             Gordon
             
               con
               .
               L.
               of
            
             Drumm
             ,
             22
             June
             ,
             1671
          
           
             Grahame
             con
             .
             Ross
             ,
             24
             January
             ,
             1663
          
           
             Grahame
             con
             .
             Ross
             ,
             5
             Feb.
             1663
          
           
             Grahame
             of
             Hiltoun
             
               con
               .
               the
               Heretors
               of
            
             Clackmannan
             ,
             13
             July
             ,
             1664
          
           
             Grahame
             con
             .
             Browns
             ,
             7
             January
             ,
             1665
          
           
             Grahame
             con
             .
             Bruce
             and
             Martine
             ,
             7
             Feb.
             1665
          
           
             Grahame
             and
             Jack
             con
             .
             Brian
             ,
             3
             January
             ,
             1666
          
           
             Grahame
             con
             .
             Towris
             ,
             26
             Feb.
             1668
          
           
             Grahame
             
               con
               .
               L.
            
             Stainbyres
             ,
             26
             Feb.
             1670
          
           
             Grant
             con
             .
             Grant
             ,
             15
             January
             ,
             1662
          
           
             Grant
             con
             .
             Grant
             ,
             24
             Feb.
             1666
          
           
             Grant
             con
             .
             Grant
             ,
             11
             January
             ,
             1668
          
           
             Gray
             con
             .
             Dalgarno
             ,
             7
             Feb.
             1662
          
           
             Gray
             con
             .
             Oswald
             ,
             28
             June
             ,
             1662
          
           
             Creditors
             of
             the
             Lo.
             Gray
             con
             .
             the
             Lo.
             
               Gray
               ,
               27
               Feb.
            
             1666
          
           
             Gray
             con
             .
             Forbes
             ,
             15
             June
             ,
             1667
          
           
             Gray
             con
             .
             Howison
             and
             Gray
             ,
             24
             June
             ,
             1668
          
           
             Gray
             con
             .
             Ke●
             ,
             23
             July
             ,
             1669
          
           
             La.
             Greenhead
             
               con
               .
               Lo.
            
             Lour
             ,
             10
             Feb.
             1665
          
           
             Greenlaw
             con
             .
             ●5
             Ianuary
             ,
             1663
          
           
             Greggs
             con
             .
             Weems
             ,
             30
             Iune
             ,
             1670
          
           
             Greirson
             con
             .
             Mcilroy
             ,
             13
             Feb.
             1668
          
           
             L.
             Grubbet
             con
             .
             More
             ,
             2
             Iuly
             ,
             1669
          
           
             Guin
             con
             .
             Mcke●●
             ,
             19
             Iuly
             ,
             1665
          
           
             Guthrie
             
               con
               .
               L.
            
             Sornbeg
             ,
             18
             Novemb.
             1664
          
           
             Guthrie
             
               con
               .
               L.
            
             Mckers●oun
             ,
             25
             July
             ,
             1671
          
        
         
           
             HAdden
             and
             Lawder
             con
             .
             Sherswood
             ,
             13
             June
             ,
             1668
          
           
             Hadden
             con
             .
             Campbel
             ,
             25
             January
             ,
             1670
          
           
             Hadden
             
               con
               .
               L.
            
             Glenegies
             ,
             28
             July
             ,
             1671
          
           
             Halliburton
             
               con
               .
               E.
            
             Roxburgh
             ,
             25
             June
             ,
             1663
          
           
             Halliburton
             con
             .
             Porteous
             ,
             23
             Novemb.
             1664
          
           
             Lady
             Halliburton
             
               con
               .
               Creditors
               of
            
             Halliburton
             ,
             27
             July
             ,
             1670
          
           
             
               Merchants
               of
            
             Hamburgh
             
               con
               .
               Capt.
            
             Dishingtoun
             ,
             24
             Feb.
             1668
          
           
             Duke
             Hamilton
             con
             .
             Scots
             ,
             24
             Iune
             ,
             1664
          
           
             Duke
             Hamilton
             
               con
               .
               L.
            
             Clackmannan
             ,
             14
             Decemb.
             1665
          
           
             Duke
             Hamilton
             
               con
               .
               Duke
            
             Bucleugh
             ,
             24
             June
             ,
             1666
          
           
             Duke
             Hamilton
             
               con
               .
               L.
               of
            
             Allardyce
             ,
             6
             Decemb.
             166●
          
           
             Duke
             Hamilton
             con
             .
             Maxwel
             of
             Mureith
             ,
             29
             Feb.
             1668
          
           
             Duke
             Hamilton
             con
             .
             Fewars
             of
             the
             Kings
             Property
             ,
             14
             Iuly
             ,
             1669
          
           
             Duke
             Hamilton
             con
             .
             Blackwood
             ,
             14
             and
             28
             Iuly
             ,
             1669
          
           
             Hamilton
             con
             .
             Rowan
             ,
             13
             Decemb.
             1661
          
           
             Hamilton
             con
             .
             Mcferling
             ,
             28
             Feb.
             1662
          
           
             Hamilton
             con
             .
             Hamilton
             ,
             21
             Feb.
             1663
          
           
             Hamilton
             con
             .
             Mitchel
             and
             Keith
             ,
             18
             Iune
             ,
             1663
          
           
             Hamilton
             con
             .
             Esdale
             ,
             9
             Iuly
             ,
             1663
          
           
             Hamilton
             
               con
               .
               Tennents
            
             ,
             27
             July
             ,
             1665
          
           
             Hamilton
             
               con
               .
               Duke
            
             Hamilton
             
               and
               Bishop
               of
            
             Edinburgh
             ,
             21
             Iuly
             ,
             1666
          
           
             Hamilton
             con
             .
             2
             Ianuary
             ,
             1667
          
           
             Hamilton
             con
             .
             Symontoun
             ,
             16
             July
             ,
             1667
          
           
             Hamilton
             
               con
               .
               Lo.
            
             Belhaven
             ,
             14
             Decemb.
             1667
          
           
             Hamilton
             con
             .
             Hamilton
             ,
             7
             Iuly
             ,
             1668
          
           
             Hamilton
             con
             .
             Bain
             ,
             15
             Ianuary
             ,
             1669
          
           
             Hamilton
             con
             .
             Harper
             ,
             16
             Feb.
             1669
          
           
             Hamilton
             con
             .
             Hamilton
             
               a●d
               the
               Viscount
               of
            
             Frendraught
             ,
             22
             Iune
             ,
             1669
          
           
             Lady
             Lucia
             Hamilton
             
               con
               .
               Lairds
               of
            
             Dunlop
             ,
             Pitcon
             ,
             
               and
               Creditors
               of
            
             Hay
             of
             Mountcastle
             ,
             15
             Jan.
             1670
          
           
             Lady
             Lucia
             Hamilton
             
               con
               .
               L.
               of
            
             Pitcon
             
               and
               others
            
             ,
             8
             Iuly
             ,
             1670
          
           
             Lady
             Lucia
             Hamilton
             con
             .
             Boyd
             of
             Pitcon
             ,
             15
             Iuly
             ;
             1670
          
           
             
               Executors
               of
            
             Walter
             Hamilton
             
               con
               .
               Executors
               of
            
             Andrew
             Reid
             ,
             20
             July
             ,
             1670
          
           
             
             L.
             Haining
             
               con
               .
               the
               Town
               of
            
             Selkirk
             .
             ●
             15
             Feb.
             1668
          
           
             Harlay
             con
             .
             Hume
             ,
             18
             Iuly
             ,
             1671
          
           
             Harper
             con
             .
             Hume
             ,
             14
             Ianuary
             ,
             1662
          
           
             Harper
             con
             .
             Hamilton
             ,
             29
             Iuly
             ,
             1662
          
           
             Harper
             
               con
               .
               Vassals
            
             ,
             25
             Iuly
             1666
          
           
             Harrowar
             con
             .
             Haitly
             ,
             13
             Iune
             ,
             1667
          
           
             Hay
             con
             .
             Hume
             24
             Iune
             ,
             1662
          
           
             Hay
             con
             .
             Seaton
             ,
             28
             Iune
             ,
             1662
          
           
             Hay
             con
             .
             M●rison
             ,
             17
             Feb.
             1663
          
           
             Hay
             con
             .
             Corstorphin
             ,
             19
             Iune
             ,
             1663
          
           
             Hay
             con
             .
             Nicolson
             ,
             16
             Iuly
             ,
             1663
          
           
             Hay
             con
             .
             Collector
             of
             the
             vacand
             Stipends
             ,
             17
             Iune
             ,
             1664
          
           
             Hay
             
               con
               .
               Mag●strats
               of
            
             Elgin
             ,
             23
             Novemb.
             1664
          
           
             Hay
             con
             Little●
             Iohn
             ,
             16
             Feb.
             1666
          
           
             Hay
             
               con
               .
               Mag●strats
               of
            
             Elgin
             ,
             12
             Iune
             ,
             1666
          
           
             Hay
             
               con
               .
               Magistrats
               of
            
             Elgin
             ,
             5
             Iuly
             ,
             1666
          
           
             Hay
             con
             .
             Dowglas
             ,
             10
             Iuly
             ,
             1666
          
           
             Hay
             con
             .
             Little-Iohn
             ,
             14
             Decemb.
             1666
          
           
             Hay
             of
             Strouie
             
               con
               .
               Fe●ars
            
             ,
             22
             Iune
             ,
             1667
          
           
             Hay
             con
             .
             Drummond
             and
             Hepburn
             ,
             26
             Novemb.
             1667
          
           
             Hay
             
               con
               .
               Town
               of
            
             Peebles
             ,
             20
             Ianuary
             ,
             1669
          
           
             Hay
             
               con
               .
               Town
               of
            
             Peebles
             ,
             19
             Feb.
             1669
          
           
             Doctor
             Hay
             con
             .
             Iameson
             ,
             8
             Iune
             ,
             1670
          
           
             Hay
             
               con
               .
               Magistrats
               of
            
             Elgin
             ,
             18
             Iune
             ,
             1670
          
           
             Henrison
             
               con
               .
               L.
            
             Ludwharne
             ,
             22
             Decemb.
             1666
          
           
             Henryson
             
               con
               .
               L.
            
             Ludwharne
             ,
             4
             Ianuary
             ,
             1667
          
           
             Henryson
             con
             .
             Henryson
             ,
             31
             Ianuary
             ,
             1667
          
           
             Henryson
             con
             .
             Henryson
             ,
             14
             Novemb.
             1667
          
           
             Henryson
             con
             .
             Birn●e
             ,
             27
             Feb.
             1663
          
           
             Henryson
             con
             .
             Anderson
             ,
             18
             Novemb.
             1669
          
           
             Hepburn
             con
             .
             Hamiltoun
             12
             Decemb.
             1661
          
           
             Hepburn
             con
             .
             Hepburn
             ,
             22
             Ianuary
             ,
             1662
          
           
             Hepburn
             con
             .
             Hepburn
             ,
             25
             Feb.
             1663
          
           
             Hepburn
             con
             .
             Nisoet
             ,
             16
             Feb.
             1665
          
           
             Heretors
             of
             Don
             con
             .
             Town
             of
             
               Aberdeen
               ,
               26
               Ianuary
            
             1665
          
           
             Heretors
             of
             the
             Milne
             of
             Keithick
             con
             .
             Fewars
             ,
             29
             June
             ,
             1665
          
           
             Heretors
             of
             Don
             con
             .
             Town
             of
             
               Aberdeen
               ,
               29
               Iuly
            
             ,
             1665
          
           
             Heretors
             of
             Johns-milne
             con
             .
             Fewars
             ,
             9
             Feb.
             1666
          
           
             Heriots
             con
             .
             Fleming
             Messenger
             ,
             and
             his
             Cautioners
             ,
             19
             Ianuary
             ,
             1666
          
           
             Heriot
             
               con
               .
               ●
               Town
               of
            
             Edinburgh
             ,
             25
             June
             ,
             1668
          
           
             Hill
             con
             .
             Maxwel
             ,
             5
             Feb.
             1663
          
           
             Hill
             con
             .
             Maxwells
             ,
             5
             Decemb.
             1665
          
           
             Hogg
             con
             .
             Hogg
             ,
             2
             Ianuary
             ,
             1667
          
           
             Hogg
             and
             others
             con
             .
             Countess
             of
             
               Hume
               ,
               3
               July
            
             ,
             1667
          
           
             Hogg
             con
             .
             Countess
             of
             
               Hume
               ,
               10
               Decemb.
            
             1667
          
           
             Hogg
             con
             .
             Countess
             of
             
               Hume
               ,
               10
               Decemb.
            
             1667
          
           
             Humes
             con
             .
             Bonnar
             ,
             14
             Decemb.
             1661
          
           
             Hume
             con
             .
             Pringle
             ,
             3
             January
             ,
             1662
          
           
             Hume
             con
             .
             10
             June
             ,
             1665
          
           
             Hume
             
               con
               .
               the
               Tennents
               of
            
             Kello
             and
             Home
             ,
             13
             June
             ,
             1666
             1666
          
           
             E.
             of
             Hume
             con
             .
             Wodsetters
             5
             Iuly
             ,
             1666
          
           
             Dame
             Margaret
             Hume
             con
             .
             Crawsoord
             of
             Kerse
             ,
             10
             July
             ,
             1666
          
           
             Hume
             
               con
               .
               Creditors
               of
            
             K●llo
             ,
             and
             Hume
             ,
             12
             Decemb.
             1666
          
           
             Hume
             
               con
               .
               Tennents
               of
            
             Kello
             and
             Hume
             ,
             24
             Ianuary
             .
             1667
          
           
             Countess
             of
             Hume
             con
             .
             Tennents
             of
             Alcambus
             and
             
               Hogg
               ,
               5
               Feb.
            
             1667
          
           
             Hume
             
               con
               .
               Creditors
               of
            
             Kello
             ,
             28
             Iune
             ,
             1667
          
           
             Hume
             
               and
               others
               con
            
             .
             Hume
             ,
             6
             July
             ,
             1667
          
           
             Hume
             
               con
               .
               Tennents
               of
            
             Kello
             ,
             23
             July
             ,
             1667
          
           
             Hume
             con
             .
             Seaton
             of
             Meinzles
             ,
             13
             Ianuary
             ,
             1669
          
           
             Hume
             
               con
               .
               E.
            
             Hume
             ,
             14
             Iuly
             ,
             1670
          
           
             Hume
             con
             .
             Sco●
             ,
             7
             Feb.
             1671
          
           
             Hume
             con
             .
             Lo.
             Just●ce
             Clerk
             ,
             28
             June
             ,
             1671
          
           
             Hume
             con
             .
             Lo.
             Justice
             Clerk
             ,
             4
             July
             ,
             1671
          
           
             ●
             Hume
             
               con
               .
               L.
            
             Ryslaw
             ,
             18
             Iuly
             ,
             1671
          
           
             
               Hospital
               of
            
             Glasgow
             con
             .
             Campbel
             ,
             19
             July
             ,
             1664
          
           
             Howison
             con
             .
             Cockburn
             ,
             17
             Novemb.
             166●
          
           
             H●nter
             con
             .
             Wilsons
             ,
             13
             Decemb.
             1667
          
           
             H●nter
             
               con
               .
               Creditors
               of
            
             Iohn
             Peter
             ,
             11
             June
             ,
             1670
          
           
             Marquess
             of
             Hun●ly
             con
             .
             Gordon
             of
             
               Lesmore
               ,
               22
               〈◊〉
            
             1665
          
           
             Hutcheson
             
               con
               .
               E.
            
             Cassals
             ,
             3
             Decemb.
             1664
          
           
             Hutcheson
             con
             .
             Dickson
             ,
             6
             Ianuary
             ,
             1665
          
        
         
           
             JAck
             con
             .
             Fiddes
             ,
             24
             Iuly
             ,
             1661
          
           
             Iack
             con
             .
             Pollock
             and
             Rutherfoord
             ,
             23
             Feb.
             1665
          
           
             Jack
             con
             .
             Movat
             ,
             13
             Iune
             ,
             1666
          
           
             Iack
             con
             .
             Iack
             ,
             15
             Iuly
             ,
             1669
          
           
             Jack
             con
             .
             Borthwick
             ,
             2
             Feb.
             1670
          
           
             Jaffray
             con
             .
             Iaffray
             ,
             4
             Decemb.
             1669
          
           
             Jameson
             con
             .
             Mcclied
             ,
             3
             Decemb.
             1661
          
           
             Ierdin
             of
             Applegirth
             ,
             con
             .
             Iohnstoun
             of
             Lokerbie
             ,
             24
             Feb.
             1670
          
           
             Inglis
             con
             .
             Hogg
             ,
             22
             Decemb.
             1664
          
           
             Inglis
             
               con
               .
               L.
            
             Bal●our
             ,
             25
             Iune
             1668
          
           
             Innes
             con
             .
             Wilson
             ,
             4
             July
             ,
             1665
          
           
             Innes
             con
             .
             Innes
             ,
             5
             January
             ,
             16●0
          
           
             Johnstoun
             con
             .
             Applegirth
             ,
             7
             Feb.
             1662
          
           
             Johnstoun
             of
             Sheenes
             ,
             con
             .
             Broun
             ,
             14
             Iuly
             ,
             1665
          
           
             Iohnstoun
             con
             .
             Mcgreegers
             ,
             19
             Iuly
             ,
             1665
          
           
             Iohnstoun
             
               con
               .
               Tennents
               of
            
             Achincorse
             ,
             22
             Iuly
             ,
             1665
          
           
             Iohnstoun
             con
             .
             Iohnstoun
             21
             Feb.
             1667
          
           
             Johnstoun
             con
             .
             Cunningham
             ,
             19
             June
             ,
             1667
          
           
             Johnstoun
             
               con
               .
               Sir
            
             Charles
             Erskine
             ,
             6
             Feb.
             1668
          
           
             Johnstoun
             
               con
               .
               Paro●hioners
               of
            
             Hodonie
             ,
             18
             Iuly
             ,
             1668
          
           
             Iohnstoun
             of
             Sheenes
             con
             .
             Ar●old
             ,
             22
             Iuly
             ,
             1668
          
           
             Johnstoun
             
               con
               .
               Sir
            
             Charles
             Erskine
             
               Lord
               Lyon
            
             ,
             19
             January
             ,
             1669
          
           
             Irwing
             con
             .
             Mccartney
             ,
             30
             January
             ,
             1662
          
           
             Irwing
             con
             .
             Strachan
             ,
             24
             Iune
             ,
             1665
          
           
             Iurgan
             
               con
               .
               Capt.
            
             Logan
             ,
             23
             Iuly
             ,
             1667
          
           
             Iustice
             con
             .
             Stirling
             ,
             23
             Ianuary
             ,
             1668
          
           
             Lo.
             Justice
             Clerk
             ,
             
               and
               Sir
            
             Alexander
             
               his
               Son
               con
               .
               E.
            
             Hume
             ,
             15
             Iune
             ,
             1670
          
           
             Lo.
             Iustice
             Clerk
             con
             .
             Fairholme
             ,
             23
             Feb.
             1671
          
        
         
           
             
               K
               Sir
            
             Iohn
             K●●th
             
               con
               .
               Sir
            
             George
             Johnstoun
             ,
             28
             July
             ,
             1671
          
           
             Kello
             con
             .
             P●xtoun
             ,
             3
             July
             ,
             1662
          
           
             Kello
             con
             .
             Pringle
             ,
             31
             January
             ,
             1665
          
           
             Kello
             con
             .
             Kennier
             ,
             5
             January
             ,
             1671
          
           
             Kennedy
             con
             .
             Hutcheson
             ,
             8
             July
             ,
             1664
          
           
             Kennedy
             con
             .
             Weir
             ,
             23
             Feb.
             166●
          
           
             Kennedy
             con
             .
             Agnew
             of
             Lochnaw
             ,
             27
             Iuly
             166●
          
           
             Kennedy
             and
             Mu●e
             con
             .
             Jaffray
             ,
             24
             June
             ,
             1669
          
           
             Kennedy
             con
             .
             Kennedy
             ,
             of
             Cullen
             ,
             8
             Iuly
             ,
             1670
          
           
             Kennedy
             con
             .
             Cunninghame
             and
             Wallace
             ,
             12
             July
             ,
             1670
          
           
             Ker
             
               con
               .
               Paroch●oners
               of
            
             Carriden
             ,
             26
             July
             ,
             1661
          
           
             Ker
             con
             .
             Ker
             of
             Fairni●lie
             ,
             
               and
               others
            
             ,
             9
             July
             ,
             1662
          
           
             Ker
             con
             .
             Hunter
             
               and
               Tennents
               of
            
             Cambo
             ,
             8
             F●b
             .
             1666
          
           
             Ker
             
               con
               .
               Children
               of
            
             Wolmet
             ,
             25
             Feb.
             1667
          
           
             Ker
             con
             .
             Ker
             ,
             18
             July
             ,
             1667
          
           
             Ker
             con
             .
             Ker
             ,
             5
             Feb.
             1668
          
           
             Ker
             of
             Cavers
             and
             Scot
             of
             Golden-berrit
             Supplicants
             6
             January
             ,
             1670
          
           
             Ker
             con
             .
             Downie
             ,
             7
             January
             ,
             1670
          
           
             Ker
             con
             .
             Nicolson
             ,
             28
             January
             ,
             1671
          
           
             Kidd
             con
             .
             Dickson
             ,
             29
             June
             ,
             1666
          
           
             L.
             Kilbirnie
             
               con
               .
               Hei●s
               of
               Tailzle
               of
            
             Kilbirnie
             ,
             and
             Schaw
             of
             Greenock
             ,
             20
             January
             ,
             1669
          
           
             Lady
             Kilbocho
             
               con
               .
               the
               L.
               of
            
             Kilbocho
             20
             Decemb.
             166●
          
           
             Kilchattans
             Cred●tors
             con
             .
             Lady
             16
             January
             ,
             1663
          
           
             Kincaid
             
               con
               .
               L.
            
             Fenzies
             ,
             26
             Feb.
             1662
          
           
             E.
             Kincairn
             
               con
               .
               L
            
             Rossyth
             ,
             24
             Feb.
             1669
          
           
             E.
             Kincairn
             
               con
               .
               L.
            
             Pittar●
             ,
             3
             Feb.
             1670
          
           
             King's
             
               Advocat
               con
               .
               E
            
             Mortoun
             ,
             25
             Feb.
             1669
          
           
             E.
             Kinghorn
             
               con
               .
               L.
            
             Udney
             ,
             3
             Iuly
             ,
             1666
          
           
             E.
             Kinghorn
             
               con
               .
               L.
            
             Udney
             ,
             15
             January
             ,
             1668
          
           
             Viscount
             of
             Kingstoun
             con
             .
             Collonel
             
               Fullertoun
               ,
               22
               Feb.
            
             166●
          
           
             Kinross
             
               con
               .
               L.
            
             Hunthil
             ,
             10
             Decemb.
             1661
          
           
             Kinross
             
               con
               .
               L.
            
             Hunthil
             ,
             25
             July
             ,
             1662
          
           
             Kintore
             con
             .
             Boyd
             ,
             27
             Ianuary
             ,
             1665
          
           
             Kintore
             
               con
               .
               the
               Heir
               of
            
             Logan
             of
             Coa●field
             9
             July
             ,
             1669
          
           
             
             Kirkaldy
             con
             .
             Balkanquell
             9
             July
             ,
             1663
          
           
             Kirktouns
             
               con
               .
               L.
            
             Hunthill
             ,
             12
             Feb.
             1662
          
           
             Kirktouns
             
               con
               .
               L.
            
             Hunthill
             ,
             31
             January
             ,
             1665
          
           
             L.
             Knaperin
             
               con
               .
               Sir
            
             Robert
             Farquhar
             ,
             9
             Novemb.
             1665
          
           
             Kyle
             con
             .
             Seaton
             ,
             28
             Iune
             ,
             1665
          
        
         
           
             L.
             Lambertoun
             
               con
               .
               E.
            
             Levin
             ,
             24
             Iuly
             ,
             1661
          
           
             L.
             Lambertoun
             
               con
               .
               E.
            
             Levin
             ,
             3
             
               and
               11
               dayes
               of
            
             Iuly
             ,
             1662
          
           
             L.
             Lambertoun
             con
             .
             Hume
             of
             Kaimes
             ,
             9
             Iuly
             ,
             1662
          
           
             L.
             Lamingtoun
             con
             .
             Chie●ly
             ,
             29
             January
             ,
             1662
          
           
             L●nglands
             con
             .
             Spence
             of
             Blair
             ,
             17
             Iune
             ,
             1670
          
           
             Langtoun
             con
             .
             Scot
             ,
             17
             Decemb.
             1670
          
           
             E.
             Lauderda●e
             con
             .
             the
             Tennents
             of
             
               Swintoun
               ,
               7
               January
            
             ,
             1662
          
           
             E.
             Lauderdale
             con
             .
             Wolmet
             ,
             13
             Iuly
             ,
             1664
          
           
             E.
             Lauderdale
             con
             .
             the
             Viscount
             of
             
               Oxenfoord
               ,
               11
               ▪
               Feb.
            
             1665
          
           
             E
             :
             Lauderdale
             
               con
               .
               Viscount
               of
            
             Oxenfoord
             ,
             last
             Feb.
             1666
          
           
             E.
             Lauderdale
             and
             Wachop
             ,
             
               con
               .
               Major
            
             Biggar
             ,
             7
             Decemb.
             1667
          
           
             Laurie
             
               con
               .
               Sir
            
             Iohn
             Drummond
             ,
             18
             Feb.
             1670
          
           
             Laurie
             con
             .
             Gibson
             ,
             4
             Feb.
             1671
          
           
             Laurie
             
               con
               .
               Sir
            
             Iohn
             Drummond
             ,
             7
             Feb
             ,
             1671
          
           
             Leckie
             con
             .
             20
             Feb.
             1663
          
           
             L●ith
             
               con
               .
               L.
            
             Lismore
             ,
             
               and
               others
            
             ,
             14
             Iuly
             ,
             1666
          
           
             Lennox
             of
             Wood●head
             con
             .
             Nairn
             ,
             24
             Iune
             ,
             1662
          
           
             Lennox
             con
             .
             Linton
             ,
             5
             Feb.
             1663
          
           
             Lermont
             con
             .
             Russel
             ,
             9
             ▪
             Decemb.
             1664
          
           
             Lermont
             
               con
               .
               E.
               of
            
             Lauderdale
             ,
             12
             Iuly
             ,
             1671
          
           
             Leslie
             con
             .
             Gray
             ,
             10
             Ianuary
             ,
             1665
          
           
             Sir.
             Iohn
             Leslie
             con
             .
             Sinclar
             of
             Dun
             ,
             22
             Decemb.
             1665
          
           
             Leslie
             con
             .
             Cuningname
             ,
             28
             Iuly
             ,
             1669
          
           
             Leslie
             con
             .
             Guthri●
             ,
             19
             Feb.
             1670
          
           
             Leslies
             con
             .
             Iaffray
             ,
             22
             Iune
             ,
             1671
          
           
             Letter
             from
             the
             K●ng
             ,
             14
             Iune
             ,
             1665
          
           
             Lo.
             Leye
             con
             .
             Porteous
             ,
             15
             Feb.
             1666
          
           
             Lindsey
             and
             Swinton
             con
             .
             Ingles
             ,
             5
             July
             ,
             1670
          
           
             Lindsey
             of
             Mount
             con
             .
             Maxwel
             of
             Kirkonnel
             ,
             20
             Iuly
             ,
             1671
          
           
             Town
             of
             Linlithgow
             con
             .
             Town
             of
             
               Borrowsto●nness
               ,
               30
               Ianuary
            
             ,
             1663
          
           
             Town
             of
             Linlithgow
             con
             .
             Town
             of
             
               Borrowstounness
               ,
               13
               Feb.
            
             1663
          
           
             Litle
             
               con
               .
               E.
               of
            
             Neidsdaile
             ,
             20
             Ianuary
             ,
             1665
          
           
             Litle-Iohn
             
               con
               .
               Dutchess
               of
            
             Monmouth
             ,
             20
             Feb.
             1667
          
           
             Litster
             con
             .
             Aitoun
             ,
             2
             Iuly
             ,
             1667
          
           
             Livingstoun
             
               con
               .
               the
               Heir
               of
            
             Forrester
             ,
             22
             Iuly
             ,
             1664
          
           
             Livingstoun
             con
             .
             Sornbeg
             ,
             23
             Novemb.
             1664
          
           
             Livingstoun
             con
             .
             Beg
             ,
             6
             Feb.
             1666
          
           
             Livingstoun
             
               con
               .
               Lady
            
             Glenegies
             ,
             13
             Iuly
             ,
             1666
          
           
             Livingstoun
             con
             .
             Burns
             ,
             15
             Iune
             ,
             1670
          
           
             Lochs
             con
             .
             Hamiltoun
             ,
             18
             Novemb.
             1664
          
           
             Lockhart
             con
             .
             Kennedie
             ,
             13
             Feb.
             1662
          
           
             Lockhart
             
               con
               .
               Lo
            
             :
             Bargenie
             ,
             22
             Feb.
             1666
          
           
             Logans
             con
             .
             Galbreath
             ,
             26
             Ianuary
             ,
             1665
          
           
             Logi●
             con
             .
             Logie
             11
             Decemb.
             1662
          
           
             Lo
             :
             Lour
             
               con
               .
               E.
            
             Dundee
             ,
             6
             Feb.
             1663
          
           
             Lo
             :
             Lour
             
               con
               .
               La.
            
             Craig
             ,
             22
             Iuly
             ,
             1664
          
           
             Lo.
             Lour
             con
             .
             20
             Ianuary
             ,
             1665
          
           
             Lo.
             Lovat
             
               con
               .
               Lo.
            
             Mcdonald
             ,
             16
             Iune
             ,
             1671
          
           
             Loyson
             
               con
               .
               the
               L.
            
             Ludwharn
             ,
             15
             June
             ,
             1669
          
           
             L.
             Ludwharn
             
               con
               .
               L.
            
             Gight
             ,
             21
             July
             ,
             1665
          
           
             Heirs
             of
             Lundie
             con
             .
             E.
             
               Southesk
               ,
               12
               July
            
             ,
             1671
          
           
             Lyon
             of
             Murresk
             
               con
               .
               L.
               of
            
             Ersk
             ,
             17
             June
             ,
             1664
          
           
             Lyon
             of
             Murresk
             con
             .
             Farquhar
             ,
             10
             Decemb.
             1664
          
           
             Lyon
             of
             Murresk
             con
             .
             Heretors
             of
             the
             Shire
             ,
             7
             Feb.
             1665
          
           
             Lyon
             of
             Murresk
             con
             .
             Gordons
             ,
             
               and
               others
            
             ,
             15
             Feb.
             1666
          
        
         
           
             MAgistrats
             of
             con
             .
             the
             E.
             
               Finlatour
               ,
               24
               Ianuary
            
             ,
             1666
          
           
             Mair
             con
             .
             Stewart
             ,
             22
             January
             ,
             1667
          
           
             Maitland
             con
             .
             Leslie
             ,
             27
             Feb.
             1668
          
           
             Maitland
             of
             Pitrichie
             
               con
               .
               L.
               of
               Gight
            
             ,
             15
             Decemb.
             1669
          
           
             E.
             Marischal
             con
             .
             Bra●
             ,
             18
             June
             ,
             1662
          
           
             E.
             Marischal
             con
             .
             Leith
             
             of
             ●hit●haugh
             ,
             14
             Iuly
             ,
             1669
          
           
             Masson
             con
             .
             27
             Iune
             ,
             1666
          
           
             Creditors
             of
             Masson
             con
             .
             Lo.
             
               Torphichan
               ,
               19
               Ianuary
            
             ,
             1669
          
           
             Mastertoun
             
               con
               .
               strangers
               of
            
             Ostend
             ,
             24
             Feb.
             1668
          
           
             Mathieson
             con
             .
             Gib
             ,
             14
             Iuly
             ,
             1665
          
           
             Maxwel
             con
             .
             Maxwel
             ,
             13
             Feb.
             1662
          
           
             Lady
             
               Diana
               Maxvel
            
             con
             .
             Lo.
             Burlie
             and
             others
             ,
             15
             Feb.
             1667
          
           
             Maxvel
             con
             .
             Maxvel
             ,
             15
             Novemb.
             166●
          
           
             Maxvel
             con
             .
             Maxvel
             ,
             11
             Iuly
             ,
             167●
          
           
             Maxvel
             con
             .
             Maxvel
             21
             Iuly
             ,
             1671
          
           
             L.
             May
             con
             .
             Ross
             ,
             23
             Feb.
             1667
          
           
             M●alexander
             con
             .
             Dalrymple
             ,
             9
             June
             ,
             1668
          
           
             Mcbrair
             
               con
               .
               Sir
            
             Robert
             Crei●hton
             20
             Feb.
             1666
          
           
             Mcclaud
             con
             .
             Young
             and
             Girvan
             ,
             20
             Decemb.
             1665
          
           
             Mcclellan
             
               con
               .
               the
               Lady
            
             Kircudburgh
             ,
             13
             Feb.
             1669
          
           
             Mccrae
             
               con
               .
               Lo.
            
             Mcdonald
             ,
             6
             July
             ,
             1671
          
           
             M
             c
             ulloch
             con
             .
             Craig
             ,
             2
             Dec●mb
             .
             1665
          
           
             Mcdougal
             
               con
               .
               L
            
             :
             Glenorchie
             ,
             24
             Iune
             ,
             1663
          
           
             Mcgill
             con
             :
             Ruthven
             ,
             22
             Novemb.
             1664
          
           
             Mcgill
             
               con
               :
               V●scount
               of
            
             Oxenfoord
             ,
             17
             Feb
             :
             1671
          
           
             Mcgreeger
             con
             :
             Menzies
             ,
             24
             Feb
             :
             1665
          
           
             Mcintosh
             con
             :
             Robertson
             ,
             26
             Iuly
             ,
             1662
          
           
             Mckenzie
             con
             :
             Ross
             ,
             18
             Feb
             :
             1663
          
           
             S●r
             George
             Mckenzie
             con
             :
             Fairholme
             ,
             7
             Decemb
             :
             1666
          
           
             Sir
             George
             Mckenzie
             
               con
               :
               Mr
            
             ,
             Iohn
             Fairholme
             ,
             25
             July
             ,
             1667
          
           
             S●r
             George
             Mckenzie
             
               con
               :
               L.
               of
            
             Newhal
             ,
             30
             July
             ,
             1668
          
           
             Sir
             George
             Mck●nzie
             
               con
               .
               Mr
            
             :
             Iohn
             Fairho●me
             ,
             14
             Feb.
             1668
          
           
             Mackenzie
             con
             .
             Rober●son
             ,
             23
             Decemb
             ,
             1668
          
           
             Mckenzie
             con
             .
             Ross
             ,
             14
             Ianuary
             ,
             1669
          
           
             Mckie
             con
             .
             Stewart
             ,
             5
             July
             ,
             1665
          
           
             Mcmorland
             con
             .
             Melvil
             ,
             28
             Iune
             ,
             1666
          
           
             Mcpherson
             con
             .
             M●cleud
             ,
             29
             Iune
             ,
             1666
          
           
             Mcpherson
             con
             :
             Wedderburn
             ,
             14
             Ianuary
             ,
             1668
          
           
             Mcqueen
             con
             :
             Marquess
             of
             Dowglas
             ,
             and
             
               Peirson
               ,
               26
               Ianuary
            
             ,
             1670
          
           
             Lo
             :
             Melvil
             con
             .
             the
             Laird
             of
             
               Fairnie
               ,
               4
               Feb
            
             ,
             1662
          
           
             Menzies
             
               con
               .
               L.
            
             Drum
             ,
             25
             January
             ,
             1665
          
           
             Menzies
             
               con
               :
               L.
            
             Glenorchie
             ,
             24
             June
             ,
             1663
          
           
             Mercer
             of
             Aldie
             
               con
               ▪
            
             Rouan
             ,
             24
             Feb
             :
             1665
          
           
             Merstoun
             con
             .
             Hunter
             ,
             9
             Ianuary
             ,
             1663
          
           
             Mille●
             con
             .
             Howison
             ,
             5
             June
             ,
             1666
          
           
             Mille●
             con
             .
             Watson
             ,
             21
             Iuly
             ,
             1666
          
           
             Miller
             con
             .
             Bothwel
             ,
             22
             Iuly
             ,
             1671
          
           
             Milne
             con
             :
             Hume
             ,
             7
             Iuly
             ,
             1664
          
           
             Milne
             con
             .
             Clerkson
             ,
             21
             Feb
             :
             1667
          
           
             Lady
             Mil●toun
             
               con
               .
               L.
            
             Milntoun
             ,
             26
             Iuly
             ,
             1662
          
           
             L.
             Milntoun
             
               con
               :
               Lady
            
             Milntoun
             ,
             4
             Ianuary
             ,
             1666
          
           
             L.
             Milntoun
             
               con
               .
               Lady
            
             Milntoun
             ,
             27
             Feb.
             1663
          
           
             L.
             Milnto●n
             
               con
               .
               Lady
            
             Milntoun
             ,
             25
             Feb.
             1667
          
           
             L.
             Milntoun
             
               co●
               .
               Lady
            
             Milntoun
             ,
             26
             Feb
             :
             1668
          
           
             L.
             Milntoun
             
               con
               .
               Lady
            
             Milntoun
             ,
             30
             July
             ,
             1668
          
           
             L.
             Milntoun
             
               con
               .
               Lady
            
             Milntoun
             ,
             31
             Ianuary
             ,
             1671
          
           
             L.
             Milntoun
             
               con
               .
               Lady
            
             Milntoun
             ,
             14
             Iuly
             ,
             1671
          
           
             Minister
             of
             north
             Leith
             con
             .
             Merchants
             of
             
               Edinburgh
               10
               Feb
            
             :
             1666
          
           
             M●nister
             of
             con
             .
             the
             L.
             
               Elphinstoun
               16
               Iune
            
             ,
             1666
          
           
             Mitchel
             con
             .
             Hutcheson
             ,
             24
             Iuly
             ,
             1661
          
           
             Dame
             
               G●ils
               Moncrief
            
             con
             .
             Tennents
             of
             Newtoun
             and
             
               Yeoman
               ,
               9
               Feb
            
             :
             1667
          
           
             Moncrief
             of
             Tippermalloch
             
               con
               .
               Magistrats
               of
            
             Pearth
             ,
             26
             Iuly
             ,
             1670
          
           
             Children
             of
             Mouswal
             con
             .
             Laurie
             of
             
               Maxwaltoun
               ,
               14
               Feb.
            
             1662
          
           
             Lady
             Mo●swal
             con
             .
             15
             Feb.
             1662
          
           
             Montei●h
             con
             .
             Anderson
             ,
             28
             Iune
             ,
             1665
          
           
             Monteith
             con
             .
             Anderson
             ,
             15
             Decemb.
             1665
          
           
             Monteith
             
               con
               .
               L.
            
             Glorat
             ,
             7
             Dec●mb
             .
             1666
          
           
             Monteith
             of
             Carrubber
             con
             :
             Boyd
             ,
             2
             Decemb.
             1669
          
           
             Montgomerie
             
               con
               .
               Lo.
            
             Kirkudbright
             ,
             20
             Decemb
             ,
             1661
          
           
             Montgomerie
             con
             .
             Peter
             ,
             19
             July
             ,
             1662
          
           
             Montgomerie
             con
             .
             Montgomerie
             ,
             22
             Iuly
             ,
             1662
          
           
             Montgomerie
             con
             .
             Brown
             ,
             28
             January
             ,
             1663
          
           
             Montgomerie
             con
             .
             Hume
             ,
             22
             Iuly
             ,
             1664
          
           
             
             Collonel
             Montgomerie
             con
             :
             Wallace
             and
             Bowie
             ,
             ●4
             I●ne
             ,
             1665
          
           
             Collonel
             Montgomerie
             and
             his
             Spouse
             ,
             con
             .
             
               Stewart
               ▪
            
             24
             and
             27
             Ianuary
             ,
             1666
          
           
             Coll.
             Montgomerie
             con
             :
             the
             Heirs
             of
             
               H●lliburton
               ,
               17
               Feb.
            
             1663
          
           
             Montgomerie
             con
             .
             Rankine
             ,
             23
             Novemb.
             1667
          
           
             Moffat
             con
             .
             Bl●●k
             ,
             24
             Iune
             ,
             1664
          
           
             Morison's
             Rel●ct
             con
             .
             the
             Heir
             ,
             12
             Feb.
             1663
          
           
             Daugh●ers
             of
             Mr.
             
               Iames
               Mortoun
            
             Supplic●nt
             ,
             26
             Novemb
             .
             1668
          
           
             Parson
             of
             Morum
             con
             .
             the
             L●s
             .
             of
             Be●rfoord
             and
             
               Beinstoun
               ,
               6
               July
            
             ,
             1666
          
           
             Sir
             George
             Mouat
             con
             .
             D●mbar
             of
             Hemprig
             ,
             22
             Feb.
             1665
          
           
             Mow
             
               con
               .
               Dutche●s
               o●
            
             Buccleugh
             ,
             7
             July
             ,
             1663
          
           
             L.
             Muchrum
             
               con
               .
               L.
            
             Mercoun
             ,
             
               and
               others
            
             20
             Decemb.
             1662
          
           
             Muir
             con
             .
             Frazer
             ,
             27
             July
             ,
             1665
          
           
             Muir
             con
             .
             Sterling
             ,
             19
             Feb.
             1663
          
           
             Muirhead
             con
             .
             27
             July
             ,
             1664
          
           
             E.
             Murray
             
               con
               .
               L.
            
             G●ant
             ,
             9
             January
             ,
             1662
          
           
             Sir
             Robert
             Murray
             ,
             con
             .
             8
             Feb.
             1662
          
           
             Murray
             con
             .
             17
             June
             ,
             1665
          
           
             Murray
             
               con
               .
               Executors
               of
               Doctor
            
             Guild
             ,
             16
             Iune
             ,
             166●
          
           
             E.
             Murray
             con
             .
             Hume
             ,
             2
             Ianuary
             ,
             1667
          
           
             
               Creditors
               of
               Sir
            
             Iames
             Murray
             con
             .
             Murray
             ,
             1
             Feb.
             1667
          
           
             Murray
             of
             O●htertyre
             
               con
               .
               Sir
            
             Iohn
             Drummond
             ▪
             22
             Feb
             ,
             1670
          
           
             Murray
             of
             Ochtertyre
             con
             .
             Gray
             ,
             16
             Decemb
             ,
             1670
          
           
             Murray
             con
             .
             Murray
             ,
             12
             Iuly
             ,
             1671
          
           
             Murray
             
               con
               .
               E.
            
             Southesk
             
               and
               others
            
             ,
             28
             July
             ,
             1671
          
           
             Mushet
             con
             .
             Duke
             and
             Dutchess
             of
             
               Buccleugh
               ,
               28
               Ianuary
            
             ,
             1668
          
        
         
           
             NAper
             con
             .
             Gordon
             of
             Grainge
             ,
             12
             Feb
             ▪
             1670
          
           
             Naper
             
               con
               .
               E.
            
             Eglintoun
             ,
             14
             Feb.
             1671
          
           
             Nasmyth
             con
             .
             Iaffray
             ,
             con
             :
             25
             Iuly
             ,
             1662
          
           
             Nasmyth
             con
             .
             Bowar
             ,
             1
             Iuly
             ,
             1665
          
           
             Neilson
             con
             .
             Meinzies
             of
             Enoch
             ,
             21
             Iune
             ,
             1671
          
           
             Lo.
             Newbyth
             con
             .
             Magist●ats
             of
             
               Elgin
               ▪
               17
               Feb
            
             :
             1665
          
           
             Lo.
             Newbyth
             con
             .
             Dumbar
             of
             Burgie
             ,
             18
             Decem
             ,
             1666
          
           
             Newman
             con
             .
             Tennents
             of
             Hill
             and
             Mr.
             
               Iohn
               Preston
               ,
               8
               Ianuary
            
             ,
             1669
          
           
             Nicol
             con
             .
             Hope
             ,
             8
             Ianuary
             ,
             1663
          
           
             Nicolson
             
               con
               .
               rewar●
               of
            
             Tillicutrie
             ,
             14
             Ianuary
             ,
             1662
          
           
             Nicolson
             
               con
               .
               L.
            
             Bughtie
             and
             Babirnie
             14
             Novemb.
             1662
          
           
             Sir
             Thomas
             Nic●lson
             
               con
               .
               L
            
             :
             Philorth
             ,
             18
             Decemb
             ,
             1667
          
           
             Nisbet
             con
             .
             Lest●
             ▪
             8
             Iuly
             ,
             1664
          
           
             Nisbet
             con
             .
             Murray
             ,
             23
             Novemb.
             1664
          
           
             Nisbet
             con
             .
             5
             June
             1666
          
           
             E.
             N●rthesk
             con
             .
             Viscount
             of
             
               Stormond
               ,
               28
               Feb.
            
             1671
          
           
             Norvel
             con
             .
             Sunter
             ,
             20
             Decemb.
             1664
          
           
             Norvel
             con
             .
             Sunter
             ,
             29
             Iune
             ,
             1665
          
        
         
           
             OGilvie
             con
             .
             Stewart
             ,
             11
             Decemb
             ▪
             1662
          
           
             Ogilvie
             con
             .
             Grant
             ,
             7
             Iuly
             ,
             1664
          
           
             Ogilvi●
             con
             .
             21
             Feb.
             1666
          
           
             Ogilvie
             
               con
               .
               Lo.
            
             Gray
             ,
             17
             Iuly
             ,
             1666
          
           
             Oliphant
             con
             .
             Dowglas
             ;
             3
             Feb
             :
             1663
          
           
             Sir
             Lauerance
             Oliphant
             
               con
               .
               Sir
            
             Iohn
             Drummond
             .
             6
             and
             9
             Ianuary
             ,
             1666
          
           
             Oliphant
             con
             .
             Hamilton
             ,
             2
             Ianuary
             ,
             1667
          
           
             Lady
             Otter
             
               con
               .
               L.
            
             Otter
             ,
             8
             Ianuary
             ,
             1663
          
           
             Lady
             Otter
             con
             .
             the
             Laird
             ,
             16
             
               Feb
               ▪
            
             1666
          
        
         
           
             PAllat
             con
             .
             Fairholme
             ,
             7
             F●b
             .
             1665
          
           
             E.
             Panmuire
             con
             .
             Parochioners
             ,
             7
             Feb.
             1666
          
           
             Papla
             
               con
               .
               Magistrats
               of
            
             Edinburgh
             ,
             31
             Ianuary
             ,
             1668
          
           
             Pargillies
             con
             .
             Pargillies
             ,
             26
             Feb.
             1669
          
           
             Park
             con
             .
             Somervail
             ,
             12
             Novemb.
             1668
          
           
             Parkman
             con
             .
             Allan
             ,
             14
             Feb.
             1668
          
           
             Parkman
             con
             .
             Allan
             ,
             21
             Feb
             ,
             1668
          
           
             Parochioners
             of
             Port
             Supplicants
             ,
             4
             Decemb.
             1665
          
           
             Paterson
             con
             .
             Watson
             ,
             17
             Decemb.
             1664
          
           
             Paterson
             con
             .
             Pringle
             ,
             4
             Feb
             :
             1665
          
           
             Paterson
             con
             .
             Humes
             ,
             17
             Decemb.
             1667
          
           
             Patoun
             ●nd
             Mercers
             con
             Patoun
             ,
             23
             June
             ,
             1666
          
           
             Relict
             of
             Patoun
             con
             .
             the
             Relict
             of
             
               Archbald
               Patou●
               7
               Iuly
            
             ,
             1668
          
           
             Patoun
             con
             .
             Patoun
             ,
             21
             Iuly
             ,
             1668
          
           
             ●e●cock
             con
             .
             Baillie
             ,
             3
             Iuly
             ,
             1662
          
           
             Peirson
             con
             .
             Martine
             ,
             12
             Decemb.
             1665
          
           
             Peirson
             of
             Balmadies
             
               con
               .
               the
               Town
               of
            
             Montross
             ,
             29
             Iune
             ,
             1669
          
           
             Town
             of
             Peart●
             con
             .
             Weavers
             at
             the
             B●idg-end
             of
             
               Pearth
               ,
               21
               July
            
             ,
             1669
          
           
             The
             Weavers
             of
             Pearth
             ,
             con
             .
             the
             Weavers
             at
             the
             B●idge-end
             of
             
               Pearth
               ,
               4
               Decemb.
            
             1669
          
           
             Paterson
             con
             .
             Anderson
             ,
             30
             Iune
             ,
             1668
          
           
             Petrie
             con
             .
             Paul
             ,
             20
             July
             ,
             1664
          
           
             Petrie
             con
             .
             Mi●chelson
             ,
             25
             Novemb
             ,
             1665
          
           
             Philip
             con
             :
             Cheap
             ,
             26
             July
             ,
             1667
          
           
             L.
             Philor●h
             
               con
               .
               Lo.
            
             Frazer
             ,
             4
             Feb.
             1663
          
           
             L.
             Philor●h
             con
             .
             Fo●bes
             
               and
               Lo.
            
             Frazer
             ,
             16
             Decemb.
             1664
          
           
             L.
             Philorth
             
               con
               .
               Lo.
            
             Frazer
             ,
             28
             Iune
             ,
             1666
          
           
             Ex●cutors
             of
             the
             Lady
             P●●toun
             con
             .
             Hay
             of
             
               Bal●ousie
               ,
               2
               Feb.
            
             1667
          
           
             Pitcairn
             con
             .
             Edgar
             ,
             28
             Iune
             ,
             1665
          
           
             Pitcairn
             
               con
               .
               Tennen●s
            
             ,
             22
             Feb.
             1671
          
           
             L.
             Pitfoddel
             
               con
               :
               L.
            
             Glenkindie
             ,
             ●5
             Feb
             ,
             1662
          
           
             Creditors
             of
             Pollock
             con
             :
             
               Pollock
               ,
               21
               ●anuary
            
             ,
             1669
          
           
             L.
             Pol●●aes
             con
             .
             Tradesmen
             of
             
               Sti●ling
               ,
               7
               July
            
             ,
             1671
          
           
             L.
             Polwart
             con
             :
             Humes
             ,
             21
             Ianuary
             ,
             1662
          
           
             L.
             Palma●s
             
               con
               .
               L
            
             :
             Halliburton
             ,
             16
             January
             ,
             1667
          
           
             Pot
             con
             .
             Pollock
             ,
             12
             Feb.
             1669
          
           
             Po●tie
             con
             .
             Dycks
             ,
             2
             Feb
             :
             1667
          
           
             L.
             Prestoun
             con
             .
             Allurid
             ,
             24
             Iune
             ,
             1664
          
           
             Sir
             George
             Prestoun
             con
             .
             Scot
             27
             July
             ,
             1667
          
           
             Primross
             con
             .
             Din
             ▪
             22
             Novemb.
             1662
          
           
             Pringle
             con
             .
             Ker
             ▪
             17
             Feb.
             1665
          
           
             Pringle
             and
             her
             Spou●e
             con
             .
             
               Pringle
               ,
               29
               Novemb.
            
             1667
          
           
             Pringle
             con
             .
             Pringle
             ,
             1
             Feb
             ▪
             1671
          
        
         
           
             RA●
             
               con
               .
               Tennents
               of
            
             Clackmannan
             .
             27
             Iuly
             ,
             1665
          
           
             Ra●
             
               con
               .
               Tennents
               of
            
             Clackmannan
             ,
             28
             July
             1665
             ▪
          
           
             Raith
             of
             Edmonstoun
             
               con
               ▪
               L.
            
             Niddrie
             ,
             4
             Iuly
             ,
             1661
          
           
             Raith
             and
             Wachop
             con
             .
             L
             :
             Wolme●
             and
             Major
             
               Biggar
               ,
               13
               Iuly
            
             ,
             1670
          
           
             Ramsey
             
               con
               .
               E
            
             :
             Wintoun
             ,
             24
             January
             ,
             1662
          
           
             Ramsey
             con
             .
             M●clelland
             ,
             24
             Ianuary
             ,
             1662
          
           
             Ramsey
             con
             .
             M●clelland
             ,
             11
             Feb
             :
             1662
          
           
             Ramsey
             con
             .
             Hogg
             and
             Seaton
             ,
             22
             Decemb.
             1664
          
           
             Ramsey
             con
             .
             Wilson
             
               and
               others
            
             ,
             12
             Decemb.
             1665
          
           
             Ramsey
             con
             :
             Ker
             ,
             9
             Feb.
             1667
          
           
             Ramsey
             con
             .
             Henderson
             ,
             20
             Iannuary
             ,
             1671
          
           
             Rei●
             con
             .
             Harper
             ,
             19
             June
             ,
             1663
          
           
             Reid
             con
             .
             Melvil
             ,
             20
             Decemb.
             1664
          
           
             Reid
             con
             .
             Reid
             .
             10
             January
             ,
             1665
          
           
             Reid
             
               con
               ▪
            
             So●mond
             ,
             16
             Ianuary
             ,
             1667
          
           
             Reid
             con
             .
             19
             Jan●ary
             ,
             1667
          
           
             Renton
             
               con
               .
               Mr.
            
             Mark
             Ker
             ,
             10
             and
             24
             Ianuary
             ▪
             1662
          
           
             Lo.
             Renton
             
               con
               .
               Fewars
               of
            
             Coldinghame
             ,
             20
             Ianuary
             ▪
             1666
          
           
             L●
             .
             Renton
             
               con
               .
               L
            
             :
             Lambertoun
             ,
             23
             Feb
             ,
             1667
          
           
             Lo.
             Renton
             
               con
               .
               L.
            
             Lambertoun
             ,
             21
             July
             ,
             1668
          
           
             Reoch
             con
             :
             Cowan
             ,
             26
             Feb.
             1668
          
           
             Ri●kart
             con
             .
             30
             January
             ,
             1663
          
           
             Riddel
             con
             .
             13
             F●b
             .
             1663
          
           
             
               Ex●cu●ors
               of
            
             Ridpath
             con
             .
             Hu●●
             ,
             27
             J●ly
             ,
             1669
          
           
             Owners
             of
             the
             Sh●p
             call●d
             the
             Castle
             of
             Riga
             ,
             con
             .
             Cap●ain
             
               Seaton
               ,
               27
               July
            
             ,
             1667
          
           
             Owner●
             of
             the
             Ship
             c●lled
             the
             Castle
             of
             Riga
             ,
             con
             .
             Capta●n
             
               Seaton
               .
               25
               Feb.
            
             1668
          
           
             Robertson
             con
             .
             Buchannan
             ,
             1
             Feb.
             1663
          
           
             Lo.
             Rollo
             con
             .
             his
             Chamberlain
             .
             13
             Dec●mb
             :
             1664
          
           
             Ross
             con
             .
             Campbel
             of
             Calder
             ,
             3
             Ianua●y
             ,
             1662
          
           
             E
             :
             Rothes
             
               con
               :
               the
               Tutors
               of
            
             Buccleugh
             ,
             20
             Decemb.
             1661
          
        
         
           
           
             SLo.
             Saltoun
             
               con
               .
               Lairds
               of
            
             Park
             and
             Rothomay
             ,
             20
             Feb.
             1666
          
           
             Sandilands
             con
             .
             Sandilands
             ,
             25
             January
             ,
             1671
          
           
             Sauer
             con
             .
             Ruther●oord
             ,
             25
             Novemb.
             1662
          
           
             Schaw
             con
             .
             Lewis
             ,
             19
             January
             ,
             1665
          
           
             Schaw
             
               con
               .
               Tennents
            
             ,
             4
             July
             ▪
             1667
          
           
             Schaw
             con
             .
             Calderwood
             ▪
             21
             January
             ,
             1668
          
           
             Scot
             con
             .
             Montgomery
             ,
             14
             January
             ,
             1663
          
           
             Scot
             
               con
               .
               E.
            
             Home
             ,
             19
             Feb.
             1663
          
           
             Scot
             
               con
               .
               Lady
            
             Fewaltoun
             ,
             19
             Iuly
             ▪
             1664
          
           
             Scot
             of
             Bread-Meadows
             con
             .
             Sco●
             of
             T●irlston
             ,
             20
             Iuly
             ,
             1664
          
           
             Scot
             ▪
             
               con
               .
               L.
            
             Beerfoord
             ,
             23
             Novemb.
             1664
          
           
             Scot
             con
             .
             Henderson
             and
             Wilson
             ,
             8
             Decemb.
             1664
          
           
             Scot
             con
             .
             ●letcher
             ,
             27
             Ianuary
             ,
             1665
          
           
             Scot
             of
             Thirlstone
             con
             .
             Scot
             of
             Broad-meadows
             ,
             11
             Feb.
             1665
          
           
             Scot
             con
             .
             Silvertoun-hill
             ,
             14
             Iuly
             ,
             1665
          
           
             Scot
             con
             .
             Somervail
             ,
             28
             Iuly
             ,
             1665
          
           
             Scot
             con
             .
             Boswel
             of
             Achinleck
             ,
             22
             Novemb
             ,
             1665
          
           
             Scot
             
               con
               .
               Heirs
               of
               Lyne
               of
            
             Achinleck
             ,
             5
             Iuly
             ,
             1666
          
           
             Scot
             
               con
               .
               Sir
            
             Robert
             Montgomerie
             ,
             12
             Iuly
             ,
             1666
          
           
             Scot
             con
             .
             Gib
             .
             29
             Ianuary
             ,
             1667
          
           
             Scot
             con
             .
             Scot
             ,
             14
             Iuly
             ,
             1667
          
           
             Scot
             of
             Clerkingtoun
             
               con
               .
               the
               Lady
            
             ,
             21
             Feb.
             1668
          
           
             Scot
             con
             .
             A●ton
             ,
             11
             Decemb.
             1668
          
           
             Scot
             con
             .
             L●ngtoun
             ,
             19
             Iune
             ,
             1669
          
           
             Scot
             of
             Hartwoodmyres
             con
             .
             6
             Novemb.
             1669
          
           
             Scot
             con
             .
             Murray
             ,
             8
             Ianuary
             ,
             1670
          
           
             Scot
             con
             .
             Chei●ly
             and
             Thomson
             ,
             9
             Feb.
             1670
          
           
             Scot
             of
             Thirlston
             
               con
               .
               Lo.
            
             Drumlen●ig
             ,
             15
             Iune
             1670
          
           
             Scot
             
               con
               .
               L.
            
             Drumlen●ig
             ,
             10
             Iune
             ,
             1671
          
           
             Scot
             of
             Hassenden
             ,
             con
             .
             Dutchess
             of
             Buccleugh
             ,
             21
             Iuly
             ,
             1671
          
           
             Scrimz●our
             con
             .
             Murrays
             ,
             24
             ▪
             Iune
             ,
             1663
          
           
             Scrymzeour
             con
             .
             Murrays
             ,
             19
             Iuly
             ,
             1664
          
           
             Scrymzeour
             con
             .
             Wedderburn
             ,
             of
             Kingenie
             ,
             19
             Iuly
             ,
             1671
          
           
             Seaton
             con
             .
             Roswel
             ,
             4
             Ianuary
             ,
             1662
          
           
             Seaton
             
               and
               L.
            
             Touch
             con
             .
             Dundas
             ,
             11
             Ianuary
             ,
             1666
          
           
             Seaton
             
               con
               .
               L.
            
             Bawhillie
             ,
             22
             Novemb.
             1667
          
           
             Seaton
             con
             .
             Seaton
             19
             ,
             Decemb.
             1668
          
           
             Seaton
             con
             .
             Seaton
             ,
             22
             Decemb.
             1668
          
           
             Sharp
             of
             Houstoun
             con
             .
             Glen
             ,
             16
             Feb.
             1666
          
           
             Sharp
             con
             .
             Gl●n
             ,
             14
             Iuly
             ,
             1666
          
           
             Shed
             con
             .
             G●rdon
             and
             Kyle
             ,
             24
             Iuly
             ,
             1662
          
           
             Shed
             con
             .
             Chartres
             ,
             13
             Ianuary
             ,
             1665
          
           
             
               Relict
               of
               Mr.
            
             Pat.
             Shiel
             
               con
               .
               Paroch●oners
               of
            
             West-Calder
             ,
             26
             Ianuary
             ,
             1670
          
           
             Shein
             con
             .
             Chrystie
             ,
             15
             Novemb.
             1666
          
           
             Simes
             con
             :
             Brown
             ,
             5
             Ianuary
             ,
             166●
          
           
             Sir
             Robert
             Sinclar
             
               con
               .
               the
               La●rd
               of
            
             Wedderburn
             ,
             21
             Feb
             ,
             1666
          
           
             Sinclar
             of
             Brym
             Supp●lcant
             ,
             12
             Iune
             1666
          
           
             Sir
             Robert
             Sin●lar
             
               con
               .
               the
               L
               ,
               of
            
             Houstoun
             ,
             15
             Iune
             ,
             1666
          
           
             Sir
             Robert
             Sinclar
             con
             .
             Couper
             ,
             2
             Iuly
             ,
             1667
          
           
             Skene
             con
             .
             Lumsden
             ,
             4
             Feb.
             1662
          
           
             Skene
             con
             .
             Lumsden
             ,
             19
             Iuly
             ,
             1662
          
           
             Skene
             con
             .
             Lumsden
             ,
             9
             Ianuary
             ,
             1663
          
           
             Skene
             and
             Thoires
             
               con
               .
               Sir
            
             Andrew
             Ramsey
             ,
             14
             Novemb
             .
             1665
          
           
             Relict
             of
             Skin●
             
               con
               .
               the
               E.
            
             Roxburgh
             ,
             19
             Feb.
             1669
          
           
             Slivanan
             con
             .
             Wood
             of
             Grange
             ,
             13
             Feb.
             1662
          
           
             Smeton
             con
             .
             Crawfoord
             3
             Ianuary
             ,
             1667
          
           
             Smeton
             con
             .
             Talbert
             ,
             7
             Feb.
             1667
          
           
             Smith
             and
             Duncan
             con
             .
             Robertson
             ,
             7
             Decemb.
             1665
          
           
             Smith
             con
             .
             Muire
             ,
             23
             Decemb.
             1668
          
           
             E.
             Southesk
             con
             .
             Broomhal
             ,
             12
             Feb.
             1663
          
           
             E.
             Southesk
             
               con
               .
               Marquess
               of
            
             Huntly
             ,
             23
             Iuly
             ,
             1666
          
           
             E.
             Southesk
             
               con
               .
               Marquess
               of
            
             Huntly
             ,
             31
             July
             ,
             1666
          
           
             E
             ,
             Suthesk
             
               con
               .
               L.
               of
            
             Earles●al
             ,
             27
             Feb.
             1667
          
           
             D●ughters
             of
             Sautray
             con
             .
             the
             eldest
             Daughter
             ,
             13
             July
             ,
             1670
          
           
             Spruel
             con
             .
             Miller
             ,
             21
             July
             ,
             1665
          
           
             Steel
             con
             .
             Hay
             of
             R●tra
             ,
             6
             June
             ,
             1671
          
           
             Stewart
             
               con
               .
               Fewars
               of
            
             Aberl●dnoch
             ,
             8
             January
             ,
             1662
          
           
             Stewart
             con
             .
             Nasm●th
             ,
             6
             Decemb.
             1662
          
           
             Stewart
             con
             .
             Spruel
             21
             January
             ,
             1663
          
           
             Stewart
             con
             .
             Bogle
             ,
             30
             January
             ,
             1663
          
           
             Stewart
             con
             .
             Stewart
             ,
             25
             June
             ,
             1663
          
           
             St●wart
             con
             .
             Stewarts
             ,
             18
             January
             ,
             1665
          
           
             Stewart
             con
             .
             Aitcheson
             ,
             17
             January
             ,
             1668
          
           
             Stewart
             
               con
               .
               L.
            
             Rossyth
             ,
             21
             January
             ,
             1668
          
           
             Stewart
             
               con
               .
               Fewars
               of
            
             E●nock
             ,
             24
             June
             ,
             1668
          
           
             Sir
             William
             Stewart
             con
             .
             Murrayes
             ,
             17
             July
             ,
             1668
          
           
             Stewart
             of
             Gairntillie
             con
             .
             Stewart
             ,
             24
             June
             ,
             1669
          
           
             Sir
             William
             Stewart
             
               con
               .
               Sir
            
             George
             M●ckenzie
             ,
             and
             Kettlestoun
             ,
             8
             July
             ,
             1671
          
           
             St●vin
             con
             .
             Boyd
             ,
             30
             June
             ,
             1666
          
           
             Stevin
             con
             .
             Boyd
             ,
             9
             July
             ,
             1667
          
           
             Stevins
             con
             .
             Neilson
             ,
             11
             July
             ,
             1671
          
           
             Stevinson
             con
             .
             Ker
             ,
             28
             January
             ,
             1663
          
           
             Stevinson
             con
             .
             Crawfoord
             ,
             30
             June
             ,
             1665
          
           
             
               Executors
               of
            
             Stevinson
             con
             .
             Crawfoord
             ,
             12
             J●●uary
             ,
             1666
          
           
             Stevinson
             
               con
               .
               the
               L.
               of
            
             Hermiesheels
             ,
             15
             June
             ,
             1666
          
           
             Stevinson
             con
             .
             Dobbie
             ,
             30
             June
             ,
             1666
          
           
             Sterling
             con
             .
             Campbel
             ,
             21
             Feb.
             1663
          
           
             Sterling
             con
             .
             Hariot
             ,
             27
             January
             ,
             1669
          
           
             
               Vi●count
               of
            
             Stormount
             
               con
               .
               the
               Cred●tors
               of
            
             Annandale
             ,
             26
             Feb.
             1662
          
           
             Strachan
             con
             .
             Morison
             ,
             17
             January
             ,
             1668
          
           
             Strachan
             con
             .
             Morison
             ,
             22
             Feb.
             1668
          
           
             Strachan
             con
             .
             Gordons
             ,
             7
             July
             ,
             1671
          
           
             Straitoun
             
               con
               .
               the
               Countess
               of
            
             Hume
             10
             Decemb.
             1667
          
           
             Street
             con
             .
             Home
             and
             Bruntsfield
             ,
             9
             June
             ,
             1669
          
           
             Street
             con
             .
             Masson
             ,
             27
             July
             ,
             1669
          
           
             Swintoun
             con
             .
             18
             July
             ,
             1662
          
           
             L●dy
             Swintoun
             
               con
               .
               the
               Town
               of
            
             Edinburgh
             ,
             19
             Feb
             1663
          
           
             Swintoun
             con
             :
             Notman
             ,
             10
             June
             ,
             1665
          
           
             Swintoun
             con
             .
             Brown
             ,
             18
             Decemb.
             1668
          
           
             Sword
             con
             .
             Sword
             ,
             16
             January
             ,
             1663
          
           
             E.
             Sutherland
             con
             .
             M●intosh
             ,
             22
             July
             ▪
             1664
          
           
             E.
             Sutherland
             con
             .
             Gordon
             ,
             1
             Decemb.
             1664
          
           
             E.
             Sutherland
             
               con
               .
               the
               Earls
               of
            
             Er●ol
             and
             Marischal
             3.
             
             January
             ,
             1667
          
        
         
           
             TLa.
             Tarsapie
             
               con
               .
               L
            
             ,
             Tarsapi●
             ,
             20
             Decemb.
             1662
          
           
             Collector
             General
             of
             the
             Taxation
             con
             .
             D●rector
             of
             the
             Chancellarle
             ,
             
               &c.
               
               22
               January
            
             ,
             1669
          
           
             Collector
             General
             of
             the
             Taxa●ion
             con
             .
             Mr.
             and
             Servants
             of
             the
             Mint●house
             ,
             22
             January
             ,
             1669
          
           
             Taylor
             con
             .
             Kintie
             ,
             15
             June
             ,
             1666
          
           
             Telzi●fer
             con
             .
             Maxtoun
             and
             Cunninghame
             ,
             29
             June
             ,
             1661
          
           
             Telziefer
             con
             .
             Maxtoun
             and
             Cunningham
             ,
             4
             Iuly
             ,
             1661
          
           
             Tailziefer
             
               con
               .
               L.
            
             So●nbeg
             ,
             6
             Decemb.
             1661
          
           
             Tailziefer
             con
             .
             Geddes
             ,
             11
             Novemb.
             1665
          
           
             Lo.
             Thesaurer
             and
             Advocat
             ,
             
               con
               .
               Lo.
            
             Colvil
             ,
             20
             ●●b
             .
             1667
          
           
             Thomson
             con
             .
             Mckittrick
             ,
             3
             July
             ,
             1662
          
           
             Thomson
             con
             .
             Reid
             ,
             15
             June
             ▪
             1664
          
           
             Thomson
             
               con
               .
               Town
               of
            
             Edinburgh
             ,
             14
             Feb.
             1665
          
           
             Thomson
             con
             .
             Henderson
             ,
             4
             Decemb
             :
             1665
          
           
             Thomson
             con
             .
             Binning
             ,
             10
             July
             ,
             1666
          
           
             Thomson
             con
             .
             Mckittrick
             ,
             21
             Iuly
             ,
             1666
          
           
             Thomson
             con
             .
             Stevenson
             ,
             19
             and
             13
             Decemb.
             1666
          
           
             Thomson
             
               con
               .
               E.
            
             Glencairn
             ,
             21
             July
             ,
             1668
          
           
             T●orntoun
             con
             .
             Milne
             ,
             29
             June
             ▪
             1665
          
           
             Tipertie
             
               con
               .
               his
               Cred●tors
            
             ,
             3
             January
             ,
             1662
          
           
             Lo.
             Torphichan
             con
             8
             Feb
             ,
             1662
          
           
             Tosh
             con
             .
             Cruckshank
             ,
             16
             July
             ,
             1666
          
           
             La.
             Towi●
             con
             .
             Barclay
             ,
             9
             Novemb.
             1669
          
           
             La.
             Towie
             con
             .
             Barclay
             ,
             26
             January
             ,
             1670
          
           
             Trench
             con
             .
             Watson
             ,
             18
             Feb.
             1669
          
           
             
               Exe●utors
               of
            
             Trott●r
             con
             .
             Trotter
             ,
             20
             Novemb.
             1667
          
           
             
               Lairds
               of
            
             Tullialland
             and
             Condie
             ,
             con
             .
             Crawfoord
             ,
             16
             and
             17
             June
             ,
             1664
          
           
             E.
             Tullibardin
             con
             .
             Murray
             of
             Ochtertyre
             ,
             12
             Feb.
             1667
          
           
             Tweedies
             con
             .
             Tweedies
             ,
             22
             Dec●mb
             .
             1666
          
        
         
           
             URqu●art
             con
             .
             Blair
             ,
             14
             July
             ,
             1665
          
           
             Urquhart
             con
             .
             〈◊〉
             4
             Decemb.
             1666
          
           
             
             Sir.
             John
             urquhart
             Supplicant
             7
             Decemb.
             1669
          
        
         
           
             V
             Collector
             of
             the
             Vacand
             Stipends
             con
             .
             Parochi●ners
             of
             
               Maybol
               ,
               10
               Feb.
            
             1666
          
           
             Veitch
             con
             .
             Lyell
             ,
             18
             Ianuary
             ,
             1662
          
           
             Veitch
             con
             :
             Paterson
             ,
             2
             Decemb.
             1664
          
           
             Veitch
             of
             Daick
             con
             .
             Williamson
             ,
             9
             Decemb.
             1664
          
           
             Veitch
             con
             .
             D●ncan
             ,
             7
             Decemb.
             1665
          
           
             Vernor
             con
             :
             Allan
             .
             24
             June
             ,
             1662
          
        
         
           
             WAchop
             
               con
               .
               L.
            
             Niddrie
             ,
             15
             Iuly
             ,
             1662
          
           
             Wallace
             con
             .
             Fork
             ,
             19
             June
             ,
             1662
          
           
             Wall●●e
             con
             .
             Edgar
             ,
             22
             Ianuary
             ,
             1663
          
           
             Wallace
             con
             .
             Mckerrel
             ,
             9
             Ianuary
             ,
             1669
          
           
             Wardlaw
             con
             .
             Gray
             ,
             20
             Novemb.
             1662
          
           
             Wardlaw
             con
             .
             Frazer
             ,
             21
             Feb.
             1663
          
           
             Wat
             con
             .
             Russel
             ,
             16
             Novemb.
             1665
          
           
             Wat
             con
             .
             Halliburton
             ,
             14
             Iune
             ,
             1667
          
           
             Wat
             con
             .
             Campbel
             ,
             8
             Feb.
             1671
          
           
             VVatson
             con
             .
             Elies
             ,
             27
             June
             1662
          
           
             Watson
             con
             .
             Fleiming
             ,
             6
             Feb.
             1666
          
           
             Watson
             
               con
               .
               Fewres
               of
            
             Duckennan
             ,
             21
             Iune
             ,
             1667
          
           
             Watson
             con
             .
             Law
             ,
             12
             Iuly
             ,
             1667
          
           
             Watson
             con
             .
             Sympson
             ,
             1
             Feb.
             1670
          
           
             L.
             Wedderburn
             con
             .
             VVardlaw
             ,
             13
             Feb.
             1666
          
           
             Wedderlies
             Children
             ,
             24
             January
             ,
             1663
          
           
             Weems
             con
             .
             Cunninghame
             ,
             24
             Iuly
             ,
             1662
          
           
             Weems
             
               con
               .
               Lo.
            
             Torphichan
             ,
             25
             Iuly
             ,
             1661
          
           
             Sir
             Iohn
             Weems
             
               con
               .
               the
               Laird
               of
            
             Tolquhon
             ,
             8
             Feb.
             1668
          
           
             Sir
             Iohn
             Weems
             con
             .
             Wil.
             Campbel
             of
             Ednample
             ,
             21
             Iuly
             ▪
             1668
          
           
             Sir
             Iohn
             Weems
             con
             .
             Forbes
             ,
             of
             Tolquhon
             ,
             2
             Ianuary
             1669
          
           
             Sir
             Iohn
             Weems
             con
             .
             Farquhar
             of
             Tauley
             ,
             23
             January
             ,
             1669
          
           
             Whyte
             con
             .
             Crocket
             ,
             4
             Decemb.
             1661
          
           
             Whyte
             con
             .
             Hume
             ,
             25
             Novemb.
             1665
          
           
             Whyte
             con
             .
             Brown
             ,
             30
             Novemb.
             16●5
          
           
             Whytehead
             con
             .
             Straitoun
             ,
             16
             Novemb.
             1667
          
           
             Wilkit
             con
             .
             Ker
             ,
             24
             Iune
             ,
             1662
          
           
             Will
             
               con
               .
               Town
               of
            
             Kirkaldie
             ,
             11
             Feb.
             1671
          
           
             Wilson
             con
             .
             Thomson
             ,
             26
             June
             ,
             1662
          
           
             Wilson
             con
             .
             Murray
             ,
             27
             Iune
             ,
             1662
          
           
             Wilson
             con
             .
             Hume
             of
             Linthil
             ,
             2
             Decemb.
             1664
          
           
             Wilson
             and
             Callender
             ,
             con
             .
             12
             January
             ,
             1665
          
           
             Wilson
             
               con
               .
               Magistrats
               of
            
             Queens●errie
             ,
             2
             Ianua●y
             1668
          
           
             Winraham
             
               con
               .
               La.
            
             Idingtoun
             ,
             19
             Iuly
             ,
             1665
          
           
             Winrham
             con
             .
             Elies
             ,
             15
             Decemb.
             1668
          
           
             
               E
               ▪
            
             Wintoun
             
               con
               .
               the
               Countess
               of
            
             Wintoun
             ,
             16
             Feb.
             1666
          
           
             E.
             Wintoun
             con
             .
             Gordon
             of
             Letter-●errie
             ,
             15
             July
             ,
             1668
          
           
             Wishart
             con
             .
             Arthur
             ,
             4
             Feb.
             1671
          
           
             La.
             Wolmet
             and
             Dankeith
             ,
             
               con
               .
               Major
            
             Bigg●r
             ,
             24
             January
             ,
             1668
          
           
             La.
             Wolmet
             and
             Dankeith
             
               con
               .
               Major
            
             Bigga●
             ,
             14
             Iune
             ,
             1671
          
           
             Wood
             con
             .
             Neilson
             ,
             13
             Iuly
             ,
             1669
          
           
             Wright
             con
             .
             Sheil
             ,
             16
             Iune
             ,
             1665
          
        
         
           
             YEoma●
             con
             .
             Oliphant
             ,
             29
             Iuly
             ,
             1662
          
           
             Yeoman
             con
             .
             Oliphant
             ,
             22
             Ianuary
             ,
             1663
          
           
             Yeoman
             con
             .
             Oliphant
             ,
             21
             Decemb.
             166●
          
           
             Yeoman
             con
             .
             Oliphant
             ,
             5
             Ianuary
             ,
             166●
          
           
             Young●r
             con
             .
             Johnstoun
             ,
             30
             Iune
             ,
             1665
          
           
             Younger
             con
             .
             Iohnstoun
             ,
             28
             Novemb.
             1665
          
        
         
           FINIS
           .
        
      
       
         
         
           ERRATA
           .
        
         
           SEveral
           Errors
           has
           escaped
           the
           Press
           in
           the
           Authors
           absence
           ,
           and
           the
           rest
           being
           but
           Literal
           Faults
           ,
           the
           Judicious
           and
           Candid
           Reader
           ▪
           will
           easily
           correct
           them
           .
        
         
           PAge
           53.
           
             l.
             9.
             
             Osburn
             r.
             Osburns
          
           nam
           .
           p.
           57.
           
             l.
             12.
             acratus
          
           r.
           lucratus
           .
           p.
           43.
           earister
           r.
           thereafter
           ,
           p.
           64.
           l.
           20.
           on
           by
           ,
           there
           r.
           Town
           ,
           p.
           71.
           l.
           21.
           instructions
           of
           offence
           ,
           r.
           instrument
           of
           offer
           ,
           p.
           72.
           l.
           31.
           
           Defender
           ,
           r.
           Pursuer
           ,
           l.
           34
           ,
           grant
           .
           r.
           granter
           ,
           p.
           81.
           l.
           6.
           if
           ▪
           r.
           yet
           ,
           p.
           91.
           l.
           ult
           ,
           Suspender
           r.
           Charger
           ,
           p.
           92.
           or
           .
           by
           .
           r.
           to
           p.
           98
           l.
           23.
           to
           r.
           by
           ,
           p.
           100.
           l.
           14.
           and
           r.
           he
           .
           p.
           101.
           l.
           15.
           the
           second
           Annualrent
           dele
           ,
           p.
           105.
           l.
           11.
           initiable
           r.
           ●mitable
           ,
           p.
           107.
           l.
           21.
           defender
           r.
           pursuer
           ,
           p.
           108.
           l.
           21.
           
           Laws
           r.
           Lands
           ,
           p.
           110.
           l.
           36.
           pursuer
           r.
           suspender
           ,
           p.
           112.
           l.
           ●
           .
           in
           r.
           no
           ,
           p.
           114.
           l.
           23.
           actorialis
           ,
           r.
           
             actio
             r●alis
          
           ,
           l.
           24
           .
           ●
           valued
           r.
           val●d
           ,
           p.
           116.
           l.
           18.
           differred
           r.
           decerned
           ,
           p.
           118.
           l.
           27.
           and
           28.
           
           And
           dispone
           the
           Tenement
           ,
           de●e
           ,
           l.
           40.
           debitor
           .
           r.
           debate
           ,
           p.
           120.
           l.
           41.
           lands
           r.
           bonds
           ,
           p.
           122.
           l.
           4.
           deposition
           r.
           depositation
           ,
           p.
           152.
           being
           r.
           and
           therefore
           writs
           being
           ,
           p.
           126.
           l.
           33.
           ●nstruct
           ,
           r.
           in●ert
           ,
           p.
           128.
           l.
           11.
           therefore
           ,
           r.
           the
           pursuer
           p.
           140
           ▪
           l.
           1.
           though
           r.
           the
           ,
           p.
           141.
           l.
           20.
           would
           r.
           could
           no●
           ,
           l.
           ult
           .
           was
           r.
           was
           not
           ,
           p.
           142.
           l.
           19.
           have
           been
           vincus
           ,
           r.
           not
           have
           been
           unicus
           ,
           l.
           20.
           b●
           r.
           exchanging
           ,
           p.
           146.
           l.
           20.
           observed
           ,
           r.
           reserved
           ,
           p.
           150.
           l.
           23.
           first
           ,
           r.
           fifth
           ,
           p.
           160.
           l.
           16.
           the
           r.
           by
           ▪
           l.
           pen
           i●
           he
           ,
           r.
           who
           ,
           p.
           162.
           l.
           17.
           needful
           r.
           wilful
           ,
           p.
           166.
           l
           ▪
           2.
           bl
           r.
           ●ight
           searz
           ,
           p.
           180.
           l.
           22.
           
             defuncti
             maritis
          
           ,
           r.
           
             defunctae
             matris
          
           ,
           p.
           181.
           l.
           31.
           no
           dele
           ,
           p.
           188.
           l.
           40.
           inmoveable
           dele
           ,
           191.
           l.
           25.
           a
           sufficient
           ,
           r.
           this
           ,
           p.
           194.
           l.
           19.
           bl
           .
           r.
           incumbent
           ,
           l.
           28.
           heretor
           r.
           heretable
           ,
           p.
           195.
           l.
           19.
           transaction
           ,
           r.
           translation
           ,
           l.
           21.
           heir
           r.
           her
           son
           ,
           l.
           36.
           confi●mation
           ,
           r.
           confinio
           ,
           p.
           196.
           l.
           37.
           their
           r.
           her
           ,
           p.
           200.
           l.
           ●4
           ▪
           bl
           :
           r.
           knew
           ,
           p.
           202.
           l.
           25.
           past
           ,
           r.
           past
           f●ra
           ,
           was
           ,
           l.
           42.
           which
           r.
           4th
           ▪
           p.
           219.
           l.
           17.
           could
           ,
           r.
           would
           not
           ▪
           220.
           l.
           15.
           
           He●r
           r.
           He●r
           of
           line
           ,
           p.
           231.
           l.
           9.
           power
           r.
           so
           near
           ,
           p.
           236.
           l.
           18.
           answered
           dele
           ,
           p.
           251.
           l.
           42.
           
           Pursuer
           r.
           Children
           ,
           p.
           252.
           l.
           7.
           
           Children
           r.
           Pursuer
           ,
           l.
           42.
           to
           dele
           ,
           p.
           253.
           l.
           39.
           were
           r.
           neither
           ,
           l.
           40.
           seem
           r.
           some
           ,
           p.
           269.
           l.
           35.
           likeas
           in
           his
           office
           ,
           r.
           in
           his
           office
           likeas
           ,
           p.
           281.
           l.
           14.
           minister
           r.
           master
           ,
           p.
           292.
           l.
           42.
           reduced
           r.
           deduced
           ,
           l.
           43.
           others
           r.
           and
           ,
           p.
           309.
           l.
           3.
           with
           r.
           which
           .
           480.
           l.
           10.
           emmitted
           r.
           ommitted
           ,
           p.
           483.
           l.
           29.
           without
           consent
           r.
           with
           consent
           ,
           p.
           490.
           l.
           10.
           he
           did
           not
           sell
           r.
           he
           did
           sell
           ,
           p.
           493.
           l
           ▪
           8.
           peculium
           r.
           periculum
           ,
           p.
           497.
           l.
           47
           ▪
           yet
           whether
           .
           r.
           yet
           where
           the
           ▪
           p.
           498.
           l.
           30.
           29.
           ad
           r.
           30.
           act
           ,
           p.
           518.
           l.
           42●
           so
           Richard
           r.
           to
           Richard
           ,
           p.
           533.
           l.
           28.
           loadned
           r.
           abandoned
           ,
           p.
           546
           ▪
           uses
           to
           be
           preferred
           ,
           Adde
           the
           Strangers
           Infeftment
           .
           p
           ,
           567.
           l
           ▪
           30.
           and
           jus
           ,
           r.
           as
           jus
           ,
           p.
           569.
           l.
           22.
           
           Heretable
           r.
           Moveable
           :
           p.
           570.
           l.
           4.
           the
           Husband
           therein
           ,
           r.
           the
           Husbands
           interest
           therein
           ,
           p.
           590.
           l.
           32.
           
           Ardoch
           ,
           r.
           him
           ,
           p.
           593.
           l.
           38.
           granted
           to
           r.
           granted
           by
           ,
           p.
           610.
           l
           ,
           7.
           no
           Testament
           ,
           r.
           a
           Testament
           ,
           ibid.
           did
           exhau●t
           ,
           r.
           did
           not
           exhaust
           ,
           p.
           627.
           l.
           26
           :
           nothing
           r.
           any
           thing
           .
           p.
           659.
           l.
           30.
           by
           invalidat
           ,
           r.
           to
           invalidate
           ,
           p.
           657.
           l.
           36.
           are
           not
           comprehended
           r
           ▪
           are
           comprehended
           ,
           p.
           665.
           l.
           27.
           exclude
           r.
           excluded
           ,
           p.
           666.
           l.
           41.
           and
           in
           r.
           and
           not
           ,
           p.
           679.
           l.
           21
           ,
           they
           could
           be
           ,
           r.
           they
           could
           not
           be
           ,
           p.
           725.
           l.
           2.
           another
           r.
           a
           Mother
           ▪
           last
           Index
           ,
           p.
           2.
           l.
           49.
           fragrant
           r.
           fragrant
           ▪
        
      
       
         
         
           A
           LIST
           Of
           the
           Heads
           of
           the
           following
           Index
           ,
           or
           Alphabetical
           Compend
           .
        
         
           
             ACT
             of
             Indemn●ty
             .
          
           
             Act
             of
             Parliament
             ,
          
           
             Act
             Salvo
             Jure
             ,
          
           
             Adjudger
             ,
          
           
             Adjudication
             ,
          
           
             Adm●ral
             ,
          
           
             Advocat
             ,
          
           
             Adulter●e
             ,
          
           
             Alibi
             ,
          
           
             Aliment
             ,
          
           
             Ann
             ,
          
           
             Annexation
             ,
          
           
             Annuiti●
             ,
          
           
             Annus
             deliberandi
             ,
          
           
             Annuelrent
             ,
          
           
             Appryzing
             ,
          
           
             Arb●ter
             ,
          
           
             Arrestment
             ,
          
           
             Assignat●o●
             ,
          
           
             Attester
             .
          
        
         
           
             BAillie
             ,
          
           
             Ba●rn
             ,
          
           
             Band
             ,
          
           
             Barron
             ,
          
           
             Base
             Infeftment
             ,
          
           
             Bastardie
             ,
          
           
             Behaving
             as
             Heir
             ,
          
           
             Bills
             of
             Exchange
             ,
          
           
             Blank
             ,
          
           
             Bloodwi●e
             ,
          
           
             Bona
             fides
             ,
          
           
             Burgh
             ,
          
           
             Burgh
             Royal.
             
          
        
         
           
             CApt●on
             ,
          
           
             Casus
             ●ortuitus
             ,
          
           
             Cause
             onerous
             ,
          
           
             Cau●●oner
             ,
          
           
             Cedent
             ,
          
           
             Certification
             ,
          
           
             Charge
             ,
          
           
             Chyrog●aphum
             ,
             &c.
             
          
           
             Circumvention
             ,
          
           
             Citation
             ,
          
           
             Clause
             ,
          
           
             Clause
             of
             Conquest
             ,
          
           
             Clause
             Irritant
             ,
          
           
             Cl●●se
             of
             Substitution
             ,
          
           
             Clause
             
               de
               non
               alienando
            
             ,
          
           
             Coal
             ,
          
           
             Cogn●tion
             ,
          
           
             Colledge
             ,
          
           
             Command
             ,
          
           
             Commissar
             ,
          
           
             Commssion
             ,
          
           
             Commodatum
             ,
          
           
             Common
             Pasturage
             ,
          
           
             Comm●nt●e
             ,
          
           
             Compensation
             ,
          
           
             Competent
             and
             ommitted
             ,
          
           
             Compt
             ,
          
           
             Compt
             Book
             ,
          
           
             Conclusion
             of
             the
             Cause
             ,
          
           
             Confession
             ,
          
           
             Confirmation
             ,
          
           
             Con●usion
             ,
          
           
             Conjunct●ee
             ,
          
           
             Conque●●
             ,
          
           
             Con●ent
             ,
          
           
             Consignat●o●
             ,
          
           
             Continuation
             ,
          
           
             Contract
             ,
          
           
             Con●rary
             Alleadgances
             ,
          
           
             Contravention
             ,
          
           
             Creditor
             ,
          
           
             Cropt
             ,
          
           
             Cruves
             ,
          
           
             Curators
             ,
          
           
             Custodie
             .
          
        
         
           
             DAmnage
             ,
          
           
             Date
             ,
          
           
             Death
             ,
          
           
             Deathbed
             ,
          
           
             Debitor
             no●
             presumitur
             donar●
             ,
          
           
             Debitum
             fundi
             ,
          
           
             Declarator
             ,
          
           
             Declarator
             of
             Esc●ea●
             ,
          
           
             Declarator
             of
             Non-entr●e
             ,
          
           
             Declarator
             of
             Nullity
             ,
          
           
             Declarator
             of
             Property
             ,
          
           
             De●reet
             ,
          
           
             Decreet
             Arbitral
             ,
          
           
             Decreets
             of
             ●nferior
             Courts
             ,
          
           
             De●reets
             of
             Session
             ,
          
           
             Decreets
             of
             Parl●ament
             ,
          
           
             Delivery
             ,
          
           
             Depositation
             ,
          
           
             Designa●ion
             ,
          
           
             Devastation
             ,
          
           
             Dil●gence
             ,
          
           
             Discharge
             ,
          
           
             Disposition
             ,
          
           
             Division
             ,
          
           
             Donat●on
             ,
          
           
             Donat●on
             betwixt
             Man
             and
             Wife
             ,
          
           
             Donator
             ,
          
           
             Double
             poynding
             ,
          
           
             In
             Dubiis
             ,
             
               &c
               ▪
            
          
        
         
           
             EJection
             ,
          
           
             Erection
             ,
          
           
             Escheat
             ,
          
           
             Ex●cutors
             ,
          
           
             Executor
             Creditor
             ,
          
           
             Execution
             ,
          
           
             Exception
             ,
          
           
             Exhibition
             ,
          
           
             Exhibition
             
               ad
               deliberandu●
            
             ,
          
           
             Extract
             .
          
        
         
           
             FAther
             ,
          
           
             Feu
             ,
          
           
             Feu-dut●e
             ,
          
           
             Forfaulture
             ,
          
           
             Fraud
             ,
          
           
             Fraught
             ,
          
           
             Fru●ts
             .
          
        
         
           
             G●neral
             Let●e●●
             ,
          
           
             G●ft
             ,
          
        
         
           
             HEirs
             ,
          
           
             Heir
             Male
             ,
          
           
             Heir
             subst●tute
             ,
          
           
             He●r
             apparent
             ,
          
           
             He●rs
             ●n
             Tacks
             ,
          
           
             Heirship
             moveable
             ,
          
           
             Her●table
             ,
          
           
             Holden
             as
             confest
             ,
          
           
             Holograph
             ,
          
           
             Homologation
             ,
          
           
             Horning
             ,
          
           
             Husband
             ,
          
           
             Hypotheca●ion
             ▪
          
        
         
           
           
             IGnorantia
             ju●is
             ,
             &c.
             
          
           
             Improbation
             ,
          
           
             Incident
             ,
          
           
             Pro
             ●ndiviso
             ,
          
           
             Infeftment
             ,
          
           
             Inhibition
             ,
          
           
             Interdiction
             ,
          
           
             Interruption
             ,
          
           
             Intimation
             ,
          
           
             Introm●ssion
             ,
          
        
         
           
             Jus
             Mariti
             ,
          
           
             Jus
             superveniens
             ,
             &c.
             
          
           
             Jus
             tertii
             .
          
        
         
           
             K
             The
             K●ngs
             Palace
             ,
          
           
             Knowledge
             .
          
        
         
           
             LAw
             ,
          
           
             Legacy
             ,
          
           
             Licence
             to
             pursue
             ,
          
           
             Litiscontestation
             ,
          
           
             Locus
             penitentiae
             ,
          
           
             Lords
             ,
          
           
             Lucrative
             Successor
             ,
          
           
             Life
             ,
          
           
             Lyferenter
             ,
          
           
             Lyferent
             E●chea●
             ,
          
           
             Lyon
             Herauld
             .
          
        
         
           
             MAgistrats
             ,
          
           
             Manda●
             ,
          
           
             Mails
             and
             Duties
             ,
          
           
             Maintinance
             ,
          
           
             Marriage
             ,
          
           
             Mel●oration
             ,
          
           
             Merchant
             ,
          
           
             Metus
             Causa
             ,
          
           
             Miln
             ,
          
           
             Minister
             ,
          
           
             Minor
             non
             tenetur
             placitare
             ,
             &c.
             
          
           
             M●nor
             ,
          
           
             Minor●tie
             and
             Le●●on
             ,
          
           
             Minute
             ,
          
           
             Missive
             Letter
             ,
          
           
             Mother
             ,
          
           
             Moveable
             ▪
          
        
         
           
             NEarest
             of
             Kin
             ,
          
           
             Non-entrie
             ,
          
           
             Noviter
             veniens
             ad
             notitiam
             .
          
        
         
           
             OAth
             ,
          
           
             Oath
             of
             Calumn●e
             ,
          
           
             Oath
             
               ●x
               officio
            
             ,
          
           
             Oath
             
               in
               〈◊〉
            
             ,
          
           
             Oath
             qualified
             ,
          
           
             Obligation
             ,
          
           
             Offer
             ,
          
           
             Office
             ,
          
           
             Overseer
             .
          
        
         
           
             PArt
             and
             pertinent
             ,
          
           
             Parties
             having
             Interest
             ,
          
           
             Paricide
             ,
          
           
             Passing
             from
             ,
             &c.
             
          
           
             Payment
             ,
          
           
             Pension
             ,
          
           
             Perr●l
             ,
          
           
             Personal
             ,
          
           
             Possession
             ,
          
           
             Possessor
             
               bonae
               fid●●
            
             ,
          
           
             Possessorie
             Judgement
             ,
          
           
             Poynding
             ,
          
           
             Precept
             ,
          
           
             Premunition
             ,
          
           
             Prescription
             ,
          
           
             Presumption
             ,
          
           
             Priviledge
             ,
          
           
             Probation
             ,
          
           
             Process
             ,
          
           
             Promise
             ,
          
           
             Protutor
             ,
          
           
             Prize
             Ships
             ,
          
           
             Pupil
             .
          
        
         
           
             RAt●habition
             ,
          
           
             Recogn●tion
             ,
          
           
             Redempt●on
             ,
          
           
             Reduction
             ,
          
           
             Regal●t●e
             ,
          
           
             Relief
             ,
          
           
             Rel●ct
             ,
          
           
             Remov●ng
             ,
          
           
             Renunciation
             ,
          
           
             Reparation
             ,
          
           
             Rep●obat●re
             ,
          
           
             Requ●sition
             ,
          
           
             Retour
             ,
          
           
             Reversion
             ,
          
           
             Right
             Real
             .
          
        
         
           
             SAlmond-fishing
             ,
          
           
             Sat●s●action
             ,
          
           
             Seasine
             ,
          
           
             Service
             ,
          
           
             Servitude
             ,
          
           
             Simulation
             ,
          
           
             Singular
             Successor
             ,
          
           
             Slander
             ,
          
           
             Special
             Declarator
             ,
          
           
             Spui●zie
             ,
          
           
             Stipend
             ,
          
           
             Stollen
             goods
             ,
          
           
             Submission
             ,
          
           
             Substitution
             ,
          
           
             Successor
             Lucrative
             ▪
          
           
             Summonds
             ,
          
           
             Superior
             ,
          
           
             Superiority
             ,
          
           
             Suspensions
             .
          
        
         
           
             TAcit
             Relocat●on
             ,
          
           
             Tack
             ,
          
           
             Taxation
             ,
          
           
             Teinds
             ,
          
           
             Tenor
             ,
          
           
             Terce
             ,
          
           
             Term
             of
             payment
             ,
          
           
             Testament
             ,
          
           
             Thir●age
             ,
          
           
             Tocher
             ,
          
           
             Trads-men
             ,
          
           
             Tran●action
             ,
          
           
             Transferrence
             ,
          
           
             Trust
             ,
          
           
             Tutor
             ,
          
           
             Tutor
             nominat
             ,
          
           
             Tutor
             dative
             .
          
        
         
           
             ULtimus
             Haeres
             .
          
           
             Use
             of
             Payment
             ,
          
           
             Userie
             .
          
        
         
           
             VIcarage
             ,
          
           
             Violent
             profites
             ,
          
           
             V●t●ation
             ,
          
           
             V●tious
             Introm●ssion
             .
          
        
         
           
             WArd
             ,
          
           
             Wak●●ng
             ,
          
           
             Warn●ng
             ,
          
           
             Warrand●ce
             ,
          
           
             Wi●e
             ,
          
           
             W●tnesses
             ,
          
           
             W●tnes
             
               ex
               officio
            
             ,
          
           
             W●tnesses
             insert
             ,
          
           
             Wodsetter
             ,
          
           
             Wodset
             ,
          
           
             Writ
             .
          
        
      
       
         
         
           INDEX
           :
           OR
           ,
           An
           Alphabetical
           Compend
           of
           the
           first
           Part
           of
           the
           Decisions
           of
           the
           Lords
           of
           Session
           ,
           beginning
           in
           June
           1661.
           and
           ending
           in
           July
           1671.
           
        
         
           
             ACT
             OF
             INDEMNITY
             ,
             found
             to
             liberate
             a
             Souldier
             ,
             ●cting
             with
             a
             party
             of
             Souldiers
             in
             Arms
             ,
             under
             any
             Authority
             ,
             lawful
             or
             pretended
             ,
             and
             that
             his
             Warrand
             or
             Command
             was
             thence
             presumed
             ,
             unless
             it
             were
             proven
             by
             his
             Oath
             that
             he
             had
             no
             Warrand
             ,
             and
             converted
             the
             Goods
             to
             his
             own
             private
             use
             ,
             
               Iune
               25.
               1664.
               
               Ferquharson
            
             contra
             Gardner
             .
             The
             same
             found
             ,
             
               February
               15.
               1666.
               
               Lyon
            
             of
             Mur●ask
             contra
             Gordouns
             and
             others
             :
             But
             here
             the
             application
             was
             ●ound
             probable
             by
             Witnesses
             .
          
           
             Act
             of
             Indemnity
             ●ound
             to
             secure
             a
             Person
             intrometting
             by
             order
             of
             the
             Comittee
             of
             Estates
             for
             the
             time
             ,
             in
             so
             far
             as
             he
             compted
             to
             them
             ,
             without
             necessity
             to
             show
             his
             Commission
             ,
             or
             the
             Warrand
             of
             the
             Auditors
             that
             compted
             with
             him
             ,
             but
             not
             found
             sufficient
             to
             free
             him
             from
             what
             he
             had
             omitted
             ,
             though
             the
             said
             Accompt
             bear
             ,
             That
             he
             had
             made
             Faith
             ,
             that
             he
             had
             omitted
             nothing
             ,
             Which
             was
             only
             accounted
             an
             Oath
             of
             Credulity
             ,
             like
             that
             of
             Executors
             ,
             February
             13.
             1667.
             
             Lord
             Iustice
             Clerk
             contra
             Laird
             of
             Lambertoun
             .
          
           
             Act
             of
             Indemnity
             ,
             ●ound
             to
             make
             Intromettors
             with
             publick
             Money
             ,
             lyable
             only
             for
             their
             Intromissions
             ,
             and
             not
             for
             omission
             ,
             though
             by
             their
             Commission
             they
             were
             bound
             to
             do
             Diligence
             ,
             
               February
               23.
               1667.
               inter
               ●osdem
            
             .
          
           
             Act
             of
             Indemnity
             ,
             found
             not
             to
             make
             Collectors
             lyable
             for
             what
             they
             intrometted
             with
             ,
             and
             compted
             not
             for
             ,
             not
             being
             applyed
             to
             their
             own
             use
             ,
             but
             carried
             away
             by
             Souldiers
             ,
             for
             the
             use
             of
             the
             Army
             ,
             without
             necessity
             to
             instruct
             the
             Souldiers
             or
             Collectors
             Warrand
             ,
             which
             was
             presumed
             ,
             
               I●ly
               28.
               1668.
               inter
               ●osdem
            
             .
          
           
             ACT
             OF
             PARLIAMENT
             ,
             Relating
             a
             former
             Act
             ,
             and
             not
             conform
             thereto
             ,
             ●ound
             not
             thereby
             to
             alter
             the
             former
             Act
             ,
             but
             to
             be
             Regulat
             thereby
             ,
             Ianuary
             20.
             1665.
             
             The
             Heretors
             upon
             Don
             Water
             contra
             the
             Town
             of
             Ab●rdene
             .
          
           
             An
             Act
             of
             Parliament
             anent
             leaving
             the
             mid-stream
             free
             in
             Cr●ives
             ,
             found
             to
             be
             taken
             away
             by
             De●uetude
             past
             memory
             ,
             
               Iuly
               29
               ▪
               1665.
               
               Inter
               eosdem
               .
            
             The
             like
             of
             the
             
               Act
               1555.
               cap.
               29.
               
               Iuly
            
             5.
             1666.
             
             The
             Earl
             of
             
               Hume
               contra
            
             his
             Creditors
             .
          
           
             Act
             of
             Parliament
             in
             favours
             of
             private
             parties
             ,
             not
             Printed
             ,
             assigning
             them
             to
             some
             bygone
             Maintainance
             ,
             found
             not
             effectual
             against
             singular
             Successors
             ,
             though
             not
             excepted
             in
             the
             Act
             ,
             they
             not
             being
             called
             thereto
             ,
             Iune
             25.
             1668.
             
             
               Inglis
               contra
            
             Laird
             of
             ●alfour
             .
          
           
             Act
             of
             Parliament
             betwixt
             Debitor
             and
             Creditor
             ,
             found
             not
             to
             extend
             to
             Bonds
             for
             Rents
             of
             Lands
             ,
             though
             exceeding
             1000.
             pounds
             ,
             but
             that
             personal
             Execution
             might
             be
             thereon
             ,
             
               December
               6.
               1661.
               
               Dalmahoy
            
             contra
             Ham●●toun
             of
             ●innie
             .
          
           
             The
             said
             Act
             found
             to
             Restrict
             a
             Wodset
             ,
             though
             the
             Usurpers
             Act
             ,
             and
             all
             such
             Acts
             made
             ,
             or
             to
             be
             made
             ,
             were
             Res●inded
             ,
             Ianuary
             29.
             1661.
             
             Laird
             of
             
               Lamingtoun
               contra
            
             Sir
             
               Iohn
               Ch●isty
            
             .
          
           
             The
             Security
             required
             by
             the
             said
             Act
             for
             Principal
             and
             Annualrent
             accumulat
             ,
             found
             either
             to
             be
             by
             Cautioners
             ,
             or
             Infe●tment
             of
             Land
             ,
             
               Iuly
               7.
               1664.
               
               Miln
               contra
               Hume
            
             of
             Eccles.
             
          
           
             THE
             ACT
             
               SALVO
               IVRE
            
             being
             excluded
             in
             a
             Ratification
             to
             a
             particular
             Party
             ,
             and
             that
             Exclusion
             not
             being
             repeated
             in
             the
             Act
             Salvo
             ,
             The
             Lords
             were
             unwilling
             to
             decide
             ,
             whether
             such
             Exclusion
             should
             be
             sufficient
             ,
             but
             ordained
             the
             Parties
             in
             the
             first
             place
             ,
             to
             Dispute
             their
             Rights
             ,
             without
             consideration
             of
             that
             Clause
             ,
             Feb●uary
             11.
             1665.
             
             Earl
             of
             
               Lauderda●l
               contra
            
             Viscount
             of
             Oxenfoord
             .
          
        
         
           
             AN
             ADJUDGER
             ordained
             to
             be
             Received
             ,
             without
             instructing
             his
             Debitors
             Right
             ,
             who
             Renunced
             to
             be
             Heir
             ,
             
               Salvo
               jure
               superioris
               &
               cujus●bet
               ,
               February
               9.
               1667.
               
               Ramsay
            
             contra
             K●r
             .
          
           
             AD●UDICATION
             being
             on
             a
             Disposition
             ,
             and
             obligement
             to
             Infe●t
             ,
             and
             not
             upon
             a
             liquid
             sum
             ,
             the
             Superiour
             was
             not
             found
             obliged
             to
             receive
             the
             Adjudger
             ,
             unless
             he
             instructed
             the
             Disponers
             Right
             ,
             
               Iune
               24.
               1663.
               
               Medowgal
            
             contra
             Laird
             of
             〈◊〉
             .
          
           
             Adjudication
             being
             pursued
             by
             a
             Creditor
             on
             a
             personal
             Debt
             ,
             was
             not
             excluded
             by
             a
             Back-bond
             of
             the
             Defuncts
             Debitors
             ,
             bearing
             his
             Infeftment
             to
             be
             on
             Trust
             ,
             to
             the
             behove
             of
             a
             third
             Party
             ,
             whose
             Creditors
             compeared
             against
             the
             Adjudger
             ,
             yet
             was
             not
             put
             to
             Dispute
             his
             Debitors
             Right
             till
             a●ter
             the
             Adjudication
             ,
             he
             might
             use
             Exhibition
             of
             his
             Evidents
             :
             but
             the
             Adjudication
             was
             granted
             with
             the
             burden
             of
             the
             Back-bond
             .
             
               November
               23.
               1663.
               
               Livingstoun
            
             and
             
               Sornbeg
               contra
            
             Lord
             Forrester
             and
             Creditors
             of
             Grange
             .
          
           
             Adjudication
             was
             Excluded
             as
             to
             the
             Property
             ,
             in
             favours
             of
             a
             Party
             ,
             shewing
             the
             De●unct
             to
             be
             Denuded
             ,
             and
             himself
             Infeft
             ,
             but
             was
             Sustained
             to
             Adjudge
             any
             Right
             of
             Reversion
             ,
             Clause
             irritant
             ,
             or
             Provision
             in
             favours
             of
             the
             Defunct
             Debitor
             ,
             
               Iu●y
               22.
               1664.
               
               Inter
               ●osdem
               .
            
          
           
             Adjudication
             was
             Sustained
             against
             a
             second
             appearand
             Heir
             upon
             a
             Decreet
             
               cognitionis
               causa
            
             ,
             upon
             the
             Renunciation
             of
             a
             former
             Heir
             ,
             without
             a
             new
             Charge
             against
             the
             Heir
             ,
             or
             his
             Renunciation
             :
             The
             Defender
             declaring
             that
             the
             Lands
             should
             be
             Redeemable
             within
             ten
             years
             ,
             if
             the
             Pursuer
             Entered
             within
             these
             years
             ,
             
               Ianuary
               17.
               1666.
               
               Crawford
            
             contra
             Auchinleck
             .
          
           
             Adjudication
             was
             found
             not
             to
             be
             stopped
             upon
             a
             better
             Right
             than
             the
             De●uncts
             ,
             alleadged
             upon
             by
             a
             Party
             compearing
             ,
             but
             the
             Pursuer
             was
             suffered
             to
             Adjudge
             upon
             his
             peri●
             ,
             
               November
               15.
               1666.
               
               Chein
            
             contra
             Christie
             .
          
           
             ADMIRAL
             ,
             or
             the
             Iudge
             of
             the
             high
             Court
             of
             Admirality
             ,
             does
             Reduce
             the
             Decreets
             of
             inferiour
             Admirals
             .
             or
             their
             Deputs
             ,
             February
             24.
             1668.
             
             Captain
             
               Mastertoun
               contra
            
             Strangers
             of
             Ostend
             .
          
           
             The
             Lord
             Admiral
             being
             out
             of
             the
             Countrey
             ,
             found
             not
             necessary
             to
             be
             called
             in
             the
             Reduction
             of
             a
             Decreet
             of
             Admirality
             ,
             where
             the
             Iudge
             pronuncer
             of
             the
             Decreet
             was
             Called
             ,
             
               Inter
               ●osdem
            
             .
          
           
             ADVOCAT
             was
             found
             obliged
             to
             Depone
             concerning
             the
             having
             of
             his
             Clients
             Writs
             ,
             February
             1.
             1666.
             contra
             Rallo
             .
          
           
             An
             Advocat
             being
             in
             his
             Duty
             ,
             hindering
             a
             Suspension
             to
             pass
             ,
             being
             threatned
             by
             a
             Party
             ,
             who
             said
             he
             would
             make
             him
             repent
             what
             he
             had
             said
             if
             he
             were
             in
             another
             place
             ,
             and
             calling
             him
             Liar
             and
             Knave
             ,
             the
             Lords
             imprisoned
             the
             Party
             ,
             and
             Fined
             him
             in
             500.
             merks
             ,
             Iuly
             14.
             1668.
             
             Mr.
             
               David
               F●lco●er
            
             contra
             Sir
             
               Iames
               Keith
            
             .
          
           
             ADVLTERY
             was
             found
             not
             to
             infer
             Escheat
             ,
             unless
             the
             Adulterer
             were
             Convict
             Criminally
             ,
             or
             Denunced
             as
             Fugitive
             ,
             though
             he
             had
             confessed
             ,
             and
             stood
             in
             Sackcloath
             a
             year
             ,
             
               Ian●ary
               9.
               1662.
               
               Baird
            
             contra
             Baird
             .
          
           
             ALIBI
             was
             found
             not
             receivable
             for
             proving
             a
             false
             dat●
             to
             annul
             the
             whole
             Write
             ,
             where
             the
             Witnesses
             insert
             proved
             the
             〈◊〉
             of
             the
             Subscription
             ,
             though
             of
             a●
             Erroneous
             date
             ,
             February
             23.
             1667.
             
             Laird
             of
             May
             contra
             Ross.
             
          
           
             ALIMENT
             was
             found
             due
             by
             the
             Heir
             to
             his
             Brothers
             and
             Sisters
             ,
             their
             Mother
             being
             dead
             ,
             and
             they
             left
             without
             any
             Provision
             ,
             Ianuary
             24.
             1663.
             
             Children
             of
             
               Wedderly
               contra
            
             Laird
             of
             
               Wedderly
               ,
               R●o
               absente
            
             .
          
           
             Aliment
             was
             found
             due
             by
             an
             Heir-male
             ,
             to
             Heirs
             of
             Line
             ,
             to
             whom
             he
             was
             obliged
             to
             pay
             such
             a
             sum
             when
             they
             were
             
             M●rriageable
             without
             mention
             of
             Annualrent
             or
             Aliment
             ,
             here
             the
             Heir-male
             s●cceeded
             to
             a
             considerable
             Estate
             ,
             November
             8.
             1663.
             
             Lady
             Otter
             contra
             Laird
             of
             Otter
             .
          
           
             Aliment
             was
             found
             due
             by
             an
             Heir-male
             to
             an
             Heir-●emale
             of
             a
             second
             Marriage
             ,
             till
             her
             age
             of
             fourteen
             ,
             from
             which
             time
             ,
             her
             Portion
             bear
             Annualrent
             ,
             and
             bea●
             no
             mention
             of
             Aliment
             till
             then
             ,
             her
             Mother
             being
             dead
             ,
             and
             having
             no
             way
             to
             subsist
             ,
             without
             consuming
             the
             Stock
             of
             her
             Portion
             ,
             
               February
               11.
               1663.
               
               Frazer
            
             contra
             Frazer
             .
          
           
             Aliment
             was
             found
             due
             by
             an
             Heir-male
             ,
             to
             Heirs
             of
             Line
             ,
             till
             their
             Marriage
             ,
             and
             not
             till
             the
             Term
             of
             payment
             of
             their
             Portions
             only
             ,
             seing
             the
             same
             bear
             no
             Annualrent
             ,
             
               r●o
               abs●●te
               ,
               November
            
             12.
             1664.
             
             Daughters
             of
             Balmerino
             contra
             Lord
             Balmerino
             .
          
           
             Aliment
             of
             a
             Child
             was
             found
             not
             due
             where
             the
             Child
             was
             freely
             intertained
             by
             the
             Mothers
             Father
             ,
             who
             demanded
             nothing
             during
             the
             time
             of
             the
             Intertainment
             ,
             and
             was
             holden
             as
             freely
             g●f●ed
             for
             all
             years
             before
             the
             pursuit
             ,
             Iuly
             21.
             1665.
             
             Laird
             of
             
               Ludquhairn
               contra
            
             Laird
             of
             
               Geight
               ▪
               Vide
            
             Mother
             .
          
           
             Aliment
             was
             found
             due
             upon
             a
             Bond
             of
             Provision
             ,
             granted
             by
             a
             Father
             to
             his
             Daughter
             ,
             obliging
             him
             to
             Intertain
             her
             till
             the
             Term
             of
             payment
             of
             her
             Portion
             ,
             which
             bear
             no
             Annualrent
             ,
             and
             that
             not
             only
             till
             the
             Term
             of
             payment
             ,
             but
             thereafter
             till
             her
             Marriage
             ,
             and
             even
             for
             years
             in
             which
             her
             Mothers
             Brother
             Alimented
             her
             Gratis
             ,
             after
             her
             Fathers
             Death
             ,
             but
             for
             no
             time
             of
             his
             Life
             ,
             seing
             she
             le●t
             her
             Fathers
             House
             ,
             upon
             pretence
             of
             her
             Step-mothers
             severity
             ,
             Ianuary
             21.
             
             16●8
             .
             Steuart
             contra
             Laird
             of
             Rossesyth
             .
          
           
             Al●ment
             of
             a
             Daughter
             by
             her
             Mother
             ,
             Married
             ,
             was
             ●ound
             due
             ,
             the
             Daughter
             being
             appearand
             Heir
             to
             her
             Father
             ,
             whose
             whole
             Lands
             the
             Mother
             Liferented
             ,
             though
             the
             Daughter
             Renunced
             to
             be
             Heir
             ,
             
               Iuly
               16.
               1667.
               
               Ha●iltoun
            
             contra
             Symontoun
             .
          
           
             Aliment
             was
             not
             found
             due
             to
             an
             appearand
             Heir
             ,
             who
             was
             Major
             ,
             and
             keeped
             a
             Brewary
             ,
             by
             a
             Liferenter
             ,
             whose
             Liferent
             was
             very
             mean
             ,
             and
             intertained
             one
             of
             his
             Children
             ,
             
               Ianuary
               27.
               1669.
               
               Stirling
            
             contra
             Heriot
             .
          
           
             ANN
             was
             found
             to
             be
             the
             whole
             year
             wherein
             the
             Defunct
             dyed
             ,
             if
             he
             dyed
             before
             Michalmas
             ,
             and
             if
             he
             dyed
             after
             Michalmas
             ,
             and
             before
             Ianuary
             ,
             to
             be
             the
             whole
             year
             in
             which
             he
             dyed
             ,
             and
             the
             half
             of
             the
             next
             year
             ;
             but
             if
             he
             reached
             Ianuary
             ,
             dying
             in
             February
             ,
             he
             hath
             that
             whole
             year
             ,
             Iuly
             5.
             1662.
             
             Executors
             of
             Fairly
             contra
             his
             Parochioners
             .
          
           
             An●
             of
             a
             Minister
             having
             a
             Wife
             and
             no
             Bairns
             ,
             was
             found
             to
             divide
             equally
             betwixt
             his
             Wife
             and
             nearest
             of
             Kin
             ,
             Iune
             24.
             1663.
             and
             
               Iuly
               19.
               1664.
               
               Scrymzour
            
             contra●
             Executors
             of
             Murray
             .
          
           
             Ann
             of
             a
             Minister
             dying
             after
             Michalmas
             ,
             and
             before
             Mar●●nmas
             ,
             was
             ●ound
             to
             extend
             to
             that
             years
             Stipend
             ,
             and
             the
             hal●
             of
             the
             next
             ,
             
               Iuly
               19.
               1664.
               
               Inter
               ●osdem
               .
            
          
           
             ANNEXED
             PROPERTY
             of
             the
             Crown
             was
             found
             not
             validly
             dissolved
             ,
             unless
             the
             dissolution
             had
             preceeded
             the
             Gift
             and
             Infeftment
             ,
             and
             had
             proceeded
             upon
             weighty
             Reasons
             ,
             by
             a
             special
             Act
             ,
             and
             not
             by
             a
             Clause
             i●
             a
             Ratification
             of
             the
             Gift
             ,
             February
             25.
             1669.
             
             Kings
             Advocat
             contra
             Earl
             of
             Mortoun
             and
             Viscount
             Grandi●ound
             absent
             .
          
           
             ANNVITY
             of
             Teinds
             included
             being
             in
             question
             ,
             it
             was
             recommended
             to
             the
             Parties
             to
             settle
             ,
             but
             the
             Lords
             inclined
             to
             Liberat
             the
             Teinds
             ,
             Ianuary
             10.
             1662.
             
             Laird
             of
             Rentoun
             contra
             Ker.
             
          
           
             
               ANNVS
               DELIBERAND
               I
            
             ,
             was
             found
             to
             exclude
             Reductions
             and
             Declarators
             against
             appearand
             Heirs
             ,
             not
             requiring
             a
             Charge
             to
             Enter
             Heir
             ,
             in
             respect
             the
             appearand
             Heir
             must
             therein
             except
             upon
             the
             Defuncts
             Rights
             ,
             and
             so
             behave
             as
             Heir
             ,
             Iune
             27
             ▪
             1667.
             
             Dewar
             contra
             
               Paterson
               ▪
            
          
           
             
               Annus
               deliberandi
            
             ,
             Excludeth
             Citations
             ,
             given
             within
             that
             year
             ,
             here
             the
             day
             of
             compearance
             was
             within
             the
             year
             ▪
             Ibidem
             .
          
           
             ANNVALRENT
             was
             not
             found
             due
             for
             sums
             of
             Money
             without
             paction
             ,
             albeit
             the
             Money
             was
             lent
             with
             this
             provision
             ,
             that
             failing
             Heirs
             of
             the
             Creditors
             body
             ,
             who
             was
             very
             old
             ,
             the
             Debitor
             should
             succeed
             ,
             December
             11.
             1662.
             
             Logi●
             contra
             Logi●
             .
          
           
             Annualrent
             was
             found
             due
             after
             Horning
             ,
             albeit
             the
             Decreet
             being
             Sus●ended
             ,
             a
             part
             of
             it
             was
             taken
             away
             ,
             yet
             Annual
             was
             found
             due
             for
             the
             rest
             ,
             
               Ianuary
               30.
               1663.
               
               Rigg
            
             of
             Carberry
             contra
             his
             Creditors
             .
          
           
             Annualrent
             was
             allowed
             without
             paction
             for
             a
             Port●on
             ,
             left
             by
             Legacy
             to
             the
             Defuncts
             natural
             Daughter
             ,
             the
             time
             of
             payment
             of
             which
             Legacy
             was
             her
             Marriage
             ,
             which
             being
             in
             her
             power
             ,
             The
             Lords
             would
             give
             no
             occasion
             to
             hasten
             the
             same
             ,
             but
             allowed
             Annualrent
             in
             the
             mean
             time
             ,
             Iune
             25.
             1664.
             
             Inglis
             contra
             Inglis
             .
          
           
             Annualrent
             was
             not
             found
             due
             by
             a
             Father
             to
             his
             Son
             for
             a
             Legacy
             left
             to
             his
             Son
             by
             his
             Mothers
             Father
             ,
             and
             uplifted
             by
             the
             Father
             ,
             during
             the
             time
             he
             alimented
             his
             Son
             in
             his
             Family
             ,
             
               December
               15.
               1668.
               
               Windrham
            
             contra
             Eleis
             .
          
           
             Annualrent
             promised
             for
             a
             time
             by
             a
             Letter
             ▪
             was
             found
             due
             in
             all
             time
             thereafter
             ,
             
               Ianuary
               13.
               1669.
               
               Hume
            
             contra
             Seaton
             of
             Menzies
             .
          
           
             Annual
             of
             Annual
             was
             not
             found
             due
             ,
             though
             expresly
             obliged
             to
             be
             payed
             by
             a
             Bond
             ,
             bea●ing
             ,
             That
             after
             each
             Term
             the
             Annualrent
             ,
             if
             it
             were
             not
             payed
             ,
             should
             bear
             Annualrent
             with
             the
             principal
             ,
             which
             clause
             was
             found
             null
             ,
             and
             not
             in
             the
             same
             case
             with
             a
             Bond
             of
             Corroboration
             ▪
             granted
             after
             Annualrents
             were
             due
             ,
             accumulating
             the
             same
             ,
             Ianuary
             26.
             1669.
             
             Lady
             Braid
             contra
             E●rl
             of
             King●orn
             .
          
           
             APPRYZINGS
             were
             found
             not
             to
             be
             affected
             by
             a
             Bond
             or
             a
             Contract
             amongst
             the
             Appyzers
             ,
             to
             concur
             and
             communicat
             their
             Rights
             ,
             as
             to
             singular
             Successors
             ,
             seing
             the
             Contracters
             were
             then
             Infeft
             ,
             
               Iuly
               1661.
               
               Ta●lzi●er
            
             contra
             Maxtoun
             .
          
           
             An
             Apprizing
             led
             before
             the
             year
             165●
             .
             but
             no
             Infeftment
             thereon
             till
             after
             that
             year
             ,
             was
             found
             not
             to
             come
             in
             
               pari
               passu
            
             with
             posterior
             Apprizings
             Infeft
             ,
             or
             Charging
             after
             the
             Charge
             or
             Infeftment
             on
             the
             Appryzing
             before
             1652.
             but
             it
             did
             exclude
             them
             wholly
             ,
             December
             12.
             1666.
             
             Sir
             
               Henry
               Hume
            
             contra
             Creditors
             of
             Kello
             .
          
           
             An
             Apprizer
             was
             found
             Comptable
             ●or
             his
             Intromission
             with
             such
             as
             he
             Entered
             in
             Possession
             of
             ,
             according
             to
             the
             Rental
             the
             Lands
             gave
             at
             his
             Entry
             ,
             with
             power
             to
             him
             to
             give
             up
             all
             defalcations
             in
             his
             Discharge
             ,
             and
             instruct
             the
             same
             ,
             
               Ianuary
               4.
               1662.
               
               Seaton
            
             contra
             Rosewall
             .
          
           
             An
             Apprizer
             was
             excluded
             by
             a
             prior
             Infeftment
             ,
             though
             granted
             to
             the
             Creditors
             appearand
             Heir
             ,
             whereby
             he
             became
             Lucrative
             Successor
             ,
             after
             this
             Debt
             contracted
             ,
             but
             prejudice
             to
             pur●ue
             him
             personally
             ,
             or
             to
             Reduce
             on
             that
             Title
             ,
             
               Ianuary
               6.
               1662.
               
               Mansoun
            
             contra
             Bannerman
             of
             Elsick
             .
          
           
             An
             Apprizer
             pursuing
             for
             Removing
             ,
             and
             Mails
             and
             Duties
             ,
             his
             pursuit
             was
             Sustained
             only
             as
             ●o
             so
             much
             of
             the
             Apprized
             Lands
             ,
             as
             he
             should
             choose
             ,
             worth
             8.
             
               per
               cent
            
             ,
             and
             to
             compt
             for
             the
             superplus
             more
             than
             his
             Annualrent
             and
             publict
             burdens
             excepting
             the
             Defenders
             House
             and
             Mains
             ,
             by
             the
             late
             Act
             of
             Parliament
             ,
             betwixt
             Debitor
             and
             Creditor
             ,
             Iune
             27.
             1662.
             
             Wilson
             contra
             Murray
             .
          
           
             Apprizers
             Competing
             upon
             the
             late
             Act
             of
             Parliament
             ,
             bringing
             in
             Apprizings
             since
             1652.
             
               pari
               passu
            
             ,
             was
             found
             not
             to
             exclude
             Apprizings
             before
             ,
             having
             obtained
             Infeftment
             since
             ;
             but
             that
             none
             could
             come
             in
             with
             him
             ,
             who
             was
             first
             Infeft
             ,
             and
             payed
             the
             Composition
             till
             they
             refounded
             their
             shares
             thereof
             ,
             
               Ianuary
               24.
               1663.
               
               Graham
            
             contra
             Ross.
             But
             also
             by
             the
             Tenor
             of
             the
             late
             Act
             ,
             the
             first
             Apprizers
             being
             Infeft
             in
             an
             Annualrent
             ,
             were
             found
             to
             have
             access
             to
             his
             Annualrent
             ,
             thogh
             there
             was
             no
             poinding
             of
             the
             ground
             
               February
               5.
               1663.
               
               Inter
               ●osdem
               .
            
          
           
             An
             Apprizer
             was
             found
             comptable
             for
             the
             Rents
             of
             the
             apprized
             Lands
             ,
             during
             the
             Debi●ors
             Minority
             ,
             contrary
             the
             Act
             of
             Parliament
             1621.
             
             Which
             was
             ●mended
             in
             the
             late
             Act
             ,
             1641.
             
             But
             in
             the
             late
             Act
             Resc●ssory
             ,
             that
             was
             not
             Revived
             ,
             seing
             all
             private
             Rights
             by
             these
             Rescinded
             Acts.
             
               m●dio
               tempore
            
             ,
             were
             Reserved
             ,
             and
             this
             had
             been
             the
             Custom
             for
             twenty
             years
             ,
             
               February
               18.
               1663.
               
               Rosse
            
             contra
             Mckenzie
             .
          
           
             Apprizers
             Competing
             ,
             the
             first
             Apprizer
             having
             given
             the
             first
             Charge
             on
             the
             Letters
             of
             ●our
             Forms
             ,
             and
             before
             the
             dayes
             thereof
             were
             expired
             ,
             the
             Superiour
             Infefting
             a
             second
             Apprizer
             ,
             the
             Infeftment
             was
             found
             Collusive
             ,
             and
             the
             first
             Apprizer
             ,
             giving
             the
             ●irst
             Charge
             ,
             and
             Infeft
             within
             a
             litle
             time
             after
             the
             second
             ,
             was
             preferred
             ,
             and
             the
             first
             Infeftment
             Reduced
             ,
             was
             still
             in
             Possession
             till
             now
             ,
             that
             the
             Legal
             was
             expired
             ,
             not
             only
             the
             bygone
             Fruits
             were
             his
             own
             ,
             but
             that
             he
             might
             Redeem
             within
             a
             year
             after
             this
             Sentence
             ,
             seing
             by
             the
             Taci●urnity
             of
             the
             Pursuer
             ,
             he
             was
             in
             
               bona
               fide
            
             to
             continue
             his
             Possession
             ,
             and
             not
             to
             doubt
             his
             own
             Right
             ,
             or
             Redeem
             a
             second
             Apprizer
             ,
             December
             3.
             1664.
             
             Laird
             of
             Cl●rkingtoun
             contra
             Laird
             of
             Corsbie
             .
          
           
             An
             Apprizing
             within
             a
             year
             was
             excluded
             from
             coming
             in
             
               pari
               passu
            
             ,
             with
             a
             prior
             Apprizing
             ,
             in
             respect
             the
             prior
             Apprizer
             ,
             had
             before
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             taken
             Right
             to
             a
             prior
             Apprizing
             ,
             without
             necessity
             to
             alleadge
             ,
             that
             he
             took
             the
             Right
             to
             shun
             the
             expiring
             of
             the
             Legal
             of
             that
             prior
             Apprizing
             ,
             or
             any
             other
             necessary
             Caus●
             ,
             
               December
               9.
               1664.
               
               Iohn
               Veatch
            
             younger
             of
             Dawick
             contra
             
               Alexander
               Williamson
            
             .
          
           
             Apprizers
             Competing
             ,
             where
             the
             first
             Apprizer
             being
             Infeft
             would
             possess
             but
             a
             part
             ,
             the
             Debate
             being
             as
             to
             the
             rest
             ,
             betwixt
             the
             second
             Apprizer
             ,
             not
             Infe●t
             ,
             and
             the
             third
             Infeft
             ;
             the
             Lords
             preferred
             the
             second
             as
             needing
             no
             Infeftment
             ,
             December
             22.
             1664.
             
             Doctor
             Ramsay
             and
             Hay
             contra
             Seatoun
             .
          
           
             Apprizers
             come
             in
             
               pari
               passu
            
             ,
             not
             before
             the
             date
             of
             the
             late
             Act
             ,
             but
             from
             that
             time
             both
             Parties
             Sums
             should
             be
             accumulate
             ,
             and
             the
             Mails
             li●ted
             proport●onally
             ,
             but
             pr●ceeding
             Mails
             should
             be
             imputed
             in
             payment
             of
             the
             Expence
             of
             the
             Apprizing
             ,
             Composition
             to
             the
             Superiour
             ,
             and
             then
             in
             payment
             of
             the
             principal
             Sums
             ,
             
               Ianuary
               7.
               1665.
               
               Grahame
            
             of
             Blackwood
             contra
             Brow●s
             .
          
           
             An
             Appri●ing
             being
             to
             be
             led
             ,
             the
             present
             H●ritor
             and
             Possessors
             
             obtained
             assessors
             to
             be
             joyned
             to
             the
             Messenger
             ,
             that
             he
             might
             stop
             the
             Apprizing
             by
             production
             of
             his
             In●e●tment
             ,
             ●ebruary
             3.
             1665.
             
             Sir
             
               Iohn
               Fletcher
            
             Supplicant
             .
          
           
             An
             Apprizing
             ordained
             to
             be
             allowed
             ,
             and
             Registrat
             after
             the
             Debitors
             death
             ,
             and
             long
             after
             the
             sixty
             dayes
             were
             past
             from
             the
             Date
             of
             the
             Apprizing
             ,
             and
             that
             upon
             Supplication
             ,
             without
             Citation
             ▪
             in
             respect
             it
             was
             found
             ▪
             that
             the
             Apprizing
             Registrate
             Quandocu●que
             ,
             would
             be
             preferred
             to
             others
             ,
             not
             sooner
             ,
             or
             more
             orderly
             Registrate
             ,
             
             Iune
             ●
             .
             1665.
             
          
           
             An
             Apprizer
             pursuing
             for
             Mails
             and
             Duties
             ,
             was
             excluded
             till
             he
             ●atisfied
             the
             Superiour
             for
             a
             years
             Rent
             ,
             he
             being
             now
             ready
             to
             Rec●ive
             him
             ,
             albeit
             he
             ●as
             Charged
             before
             ,
             and
             did
             not
             obey
             ,
             
               Iuly
               22.
               1665.
               
               Iohnstoun
            
             contra
             Tennents
             of
             Auchincorse
             .
          
           
             An
             Apprizing
             being
             lost
             ,
             and
             a
             new
             Extract
             thereof
             being
             Sub●cribed
             by
             the
             Clerk
             of
             the
             Apprizing
             ,
             but
             not
             by
             the
             Messenger
             ,
             being
             produced
             as
             a
             Title
             in
             a
             Process
             ,
             the
             same
             was
             not
             Sustained
             without
             the
             Messengers
             Subscription
             ,
             or
             his
             Executions
             ;
             but
             the
             Party
             was
             remitted
             to
             prove
             the
             Tenor
             thereof
             ,
             
               December
               1665.
               
               M●culloch
            
             contra
             Craig
             .
          
           
             An
             Apprizing
             was
             found
             to
             be
             satisfied
             by
             Introm●ssion
             ,
             not
             only
             within
             the
             years
             ,
             but
             also
             within
             the
             three
             years
             added
             by
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             though
             the
             Apprizing
             was
             led
             long
             before
             that
             Act
             Ianuary
             20.
             
             16●6
             .
             Clappertoun
             contra
             Laird
             of
             Torsonce
             .
             Here
             it
             was
             also
             found
             that
             a
             part
             of
             the
             Lands
             Apprized
             being
             sold
             irrede●mably
             by
             the
             Apprizer
             ,
             were
             Redeemable
             within
             thr●e
             years
             ;
             and
             that
             the
             singular
             Successor
             was
             only
             comptable
             for
             the
             Rents
             thereof
             ,
             and
             not
             the
             Apprizer
             who
             had
             sold
             the
             same
             before
             the
             Act.
             
          
           
             An
             Apprizing
             led
             upon
             several
             Sums
             ,
             of
             one
             whereof
             the
             Term
             of
             payment
             was
             not
             come
             ,
             the
             Apprizing
             was
             ●ound
             null
             ,
             as
             to
             that
             Sum
             ;
             but
             whether
             it
             would
             be
             null
             
               in
               totum
            
             ,
             or
             whether
             it
             would
             be
             valide
             to
             carry
             the
             whole
             Right
             of
             the
             Lands
             ,
             as
             that
             Sum
             had
             never
             been
             in
             :
             or
             if
             a
             proportional
             part
             of
             the
             Land
             ,
             effeiring
             to
             that
             Sum
             ,
             would
             be
             free
             of
             the
             Appr●izing
             ,
             the
             Lords
             decided
             not
             ,
             but
             were
             of
             different
             Iudgements
             ,
             
               February
               16.
               1666.
               
               Sharp
            
             of
             Houstoun
             contra
             Glen
             .
          
           
             An
             Apprizing
             was
             found
             extinct
             ,
             as
             being
             satisfied
             by
             the
             Debitor
             ,
             and
             retired
             by
             him
             with
             a
             blank
             Assignation
             thereto
             ,
             lying
             by
             him
             at
             his
             death
             ,
             though
             his
             Son
             thereafter
             filled
             up
             his
             Name
             therein
             ,
             which
             was
             instructed
             ,
             partly
             by
             the
             Sons
             Oath
             ,
             which
             was
             found
             not
             sufficient
             to
             prove
             alone
             ,
             and
             partly
             by
             Witnesses
             ,
             
               ex
               officio
            
             ,
             one
             of
             which
             ,
             who
             proved
             most
             clearly
             ,
             was
             his
             Brother
             ,
             February
             27.
             1666.
             
             Creditors
             of
             the
             Lord
             Gr●y
             contra
             the
             Lord
             Gray
             .
          
           
             An
             Apprizing
             on
             a
             Bond
             bearing
             a
             Sum
             to
             be
             payable
             without
             Requisition
             ,
             was
             found
             valide
             without
             either
             Requisition
             ,
             or
             Charge
             of
             Horning
             ,
             
               Iuly
               21.
               1666.
               
               Thomson
            
             contra
             M●kitrick
             .
          
           
             An
             Apprizing
             was
             found
             extinct
             ,
             as
             to
             a
             Party
             in
             whose
             favours
             the
             Apprizer
             granted
             a
             Back-bond
             ,
             bearing
             (
             that
             the
             Apprizing
             should
             not
             be
             prejudicial
             to
             that
             Parties
             Right
             )
             which
             was
             found
             Relevant
             against
             a
             singular
             Successor
             ,
             viz.
             The
             Kings
             Donator
             having
             right
             to
             the
             Apprizing
             by
             Fore●aulture
             ,
             Iuly
             31.
             1666.
             
             Earl
             of
             Southesk
             contra
             Marquess
             of
             Huntly
             .
          
           
             An
             Apprizing
             was
             found
             satisfied
             within
             the
             Legal
             by
             Intromission
             ,
             and
             no
             part
             of
             the
             Martinmas
             Rent
             was
             ascribed
             to
             a
             Tercers
             Right
             ,
             not
             being
             served
             ,
             though
             she
             gave
             Tack
             to
             the
             Apprizer
             ,
             he
             having
             Entered
             on
             the
             Debitors
             Possession
             ,
             
               December
               21.
               1666.
               
               Zeaman
            
             contra
             O●●phant
             .
          
           
             An
             Apprizing
             led
             against
             an
             appearand
             Heir
             ,
             as
             specially
             Charged
             to
             Enter
             Heir
             ,
             was
             preferred
             to
             the
             Infeftment
             ●f
             the
             next
             apparent
             Heir
             ,
             after
             the
             Heir
             Charged
             his
             death
             ,
             or
             the
             Infe●tment
             of
             their
             singular
             Successor
             granted
             after
             the
             matter
             became
             Litigious
             ,
             albeit
             the
             Apprizer
             from
             the
             apparent
             Heir
             Charged
             ,
             was
             never
             Infeft
             ,
             nor
             Charged
             the
             Superiour
             upon
             the
             App●izing
             ,
             neither
             was
             the
             apparent
             Heir
             himself
             Infeft
             ,
             but
             that
             the
             Superiour
             might
             be
             Cha●ged
             at
             any
             time
             after
             the
             apparent
             Heirs
             death
             ;
             and
             albeit
             the
             next
             apparent
             Heirs
             ▪
             could
             not
             Enter
             Heirs
             to
             the
             former
             apparent
             Heir
             Charged
             ,
             but
             to
             his
             Predecessor
             ,
             to
             the
             effect
             they
             might
             Reduce
             or
             Redeem
             the
             Apprizing
             ,
             led
             against
             the
             former
             apparent
             Heir
             ,
             
               February
               6.
               1668.
               
               Iohnstoun
            
             contra
             Erskin
             .
          
           
             An
             Apprizing
             was
             found
             Redeemable
             from
             the
             eldest
             Son
             ,
             and
             apparent
             Heir
             of
             the
             Debitor
             ,
             within
             ten
             years
             ,
             for
             the
             sums
             he
             truly
             payed
             out
             ,
             by
             the
             Act
             of
             Parliament
             1661.
             albeit
             his
             Father
             was
             living
             the
             time
             of
             this
             Process
             ,
             Iune
             19.
             1668.
             
             ●urnet
             contra
             N●smith
             .
          
           
             An
             Apprizer
             since
             1652.
             pursuing
             the
             rest
             for
             his
             part
             of
             the
             Duties
             ,
             as
             coming
             in
             with
             them
             
               pari
               passu
            
             ,
             by
             the
             Act
             1661.
             betwixt
             Debitor
             and
             Creditor
             ,
             his
             Apprizing
             was
             ●ound
             not
             to
             be
             effectual
             ,
             till
             the
             allowance
             thereof
             were
             Registrate
             ,
             conform
             to
             the
             late
             Act
             of
             the
             same
             Parliament
             ,
             anent
             Registration
             of
             allowances
             ,
             but
             that
             it
             required
             no
             determinate
             time
             to
             Registrate
             ,
             but
             whensoever
             Registrate
             it
             would
             be
             effectual
             as
             to
             all
             Rights
             ,
             not
             compleated
             before
             Registration
             ,
             
               Iuly
               17.
               1668.
               
               Steuart
            
             contra
             Murra●●
             .
          
           
             An
             Apprizing
             on
             an
             Assignation
             to
             a
             Cautioner
             ,
             or
             for
             his
             behove
             ,
             Apprizing
             for
             the
             whole
             sum
             ,
             without
             deduction
             of
             that
             Cautioners
             part
             ,
             was
             not
             found
             null
             ,
             
               in
               totum
            
             ,
             but
             Restricted
             to
             the
             Sum
             truly
             due
             ,
             being
             within
             the
             Legal
             ,
             
               Iuly
               22.
               1668.
               
               Iohnstoun
            
             of
             Sheins
             contra
             Arnold
             .
          
           
             An
             Apprizing
             and
             Infeftment
             thereon
             ,
             granted
             by
             the
             Excheque●
             of
             course
             without
             notice
             ,
             when
             the
             King
             by
             Forefaulture
             ,
             was
             im●ediate
             Superiour
             ,
             was
             found
             not
             to
             supplie
             a
             Confirmation
             ,
             or
             to
             exclude
             the
             Donator
             of
             the
             Forefaulture
             ,
             pursuing
             a
             Removing
             on
             a
             posterior
             Gift
             ,
             December
             9.
             1668.
             
             Earl
             of
             Argile
             contra
             Stirling
             .
          
           
             Apprizing
             with
             a
             Charge
             against
             the
             Superiour
             ,
             does
             not
             exclude
             the
             Liferent
             Escheat
             of
             the
             Vassal
             ,
             against
             whom
             the
             Apprizing
             was
             led
             ,
             without
             consideration
             whether
             the
             Superiour
             was
             
               in
               culpa
            
             ,
             by
             not
             obeying
             the
             Charge
             ,
             Iune
             28.
             1667.
             
             Dowglat
             contra
             Lisk
             .
          
           
             An
             Apprizer
             having
             at
             several
             times
             Apprized
             on
             several
             Sums
             ,
             and
             Entered
             in
             possession
             by
             the
             first
             Apprizing
             ,
             before
             the
             seco●d
             was
             led
             ,
             was
             found
             to
             impute
             his
             whole
             Intromission
             to
             the
             first
             Apprizing
             ,
             that
             thereby
             it
             might
             be
             satisfied
             within
             the
             Legal
             :
             The
             Apprizer
             was
             also
             found
             comptable
             for
             what
             sums
             he
             received
             ,
             for
             a
             part
             of
             the
             Lands
             sold
             by
             him
             within
             the
             Legal
             ,
             but
             for
             no
             greater
             price
             :
             and
             a
             joynt
             probation
             was
             refused
             ,
             though
             it
             was
             in
             the
             Highlands
             ,
             the
             Apprizer
             offering
             to
             prove
             by
             Witnesses
             above
             exception
             ,
             and
             the
             Lords
             ordained
             both
             the
             Feears
             to
             be
             produced
             ,
             and
             the
             greatest
             prices
             to
             be
             proven
             ,
             that
             they
             might
             choose
             what
             Rate
             to
             ●ollow
             ,
             
               Ianuary
               14.
               1669.
               
               Mckenzie
            
             of
             Puglas●
             contra
             Ross
             of
             Auchnacloich
             .
          
           
             An
             Apprizing
             led
             against
             one
             Charged
             to
             Enter
             Heir
             ,
             who
             dying
             un-infeft
             ,
             his
             Sisters
             as
             Heirs
             to
             his
             Grand-Father
             ,
             to
             whom
             he
             was
             Charged
             to
             Enter
             Heir
             ,
             were
             ●ound
             to
             have
             the
             Right
             of
             Reversion
             of
             the
             Appri●ing
             ,
             albeit
             they
             were
             not
             Heirs
             to
             their
             Brother
             ,
             who
             was
             Charged
             to
             Enter
             Heir
             ,
             but
             dyed
             un-infeft
             ,
             
               Ianuary
               1●
               .
               1669.
               
               Iohnstoun
            
             contra
             Erskin
             Lord
             Lyon.
             
          
           
             An
             Apprizer
             having
             Charged
             the
             Superior
             ,
             was
             found
             not
             thereby
             to
             become
             Vassal
             ,
             so
             as
             by
             his
             death
             the
             Lands
             would
             ●all
             Waird
             ,
             but
             by
             the
             Death
             of
             the
             Party
             ,
             against
             whom
             the
             Apprizing
             was
             led
             ,
             unless
             the
             Apprizer
             when
             he
             Charged
             the
             Superior
             ,
             had
             presented
             a
             Chatter
             ,
             with
             an
             offer
             of
             Money
             ,
             and
             a
             Bond
             for
             what
             ●urther
             the
             Lords
             should
             modifie
             for
             the
             years
             Rent
             ,
             and
             had
             put
             the
             Superior
             
               in
               culpa
               aut
               mora
            
             ,
             in
             not
             Infefting
             the
             Apprizer
             ,
             and
             that
             whether
             the
             Superior
             required
             the
             same
             or
             not
             ,
             
               February
               9.
               1669.
               
               Black
            
             Donator
             by
             the
             Duke
             of
             Hamil●oun
             contra
             
               French.
               Vide
            
             Liferent
             ,
             Dowglas
             contra
             L●●k
             .
          
           
             An
             Apprizing
             was
             found
             extinct
             ,
             by
             the
             Intromission
             of
             him
             to
             whom
             the
             Apprizer
             granted
             Back-bond
             ,
             declaring
             the
             Apprizing
             to
             be
             to
             his
             behove
             ,
             and
             that
             against
             a
             singular
             Successor
             ,
             who
             thereafter
             obtained
             Disposition
             and
             In●e●tment
             upon
             the
             Apprizers
             Resignation
             ,
             Iu●y
             12.
             1670.
             
             Kennedy
             contra
             Cuninghame
             and
             Wallace
             .
          
           
             An
             Apprizing
             posterior
             was
             preferred
             to
             a
             prior
             Appri●ing
             ,
             being
             less
             formal
             and
             solemn
             ,
             according
             to
             the
             custom
             then
             in
             u●e
             ,
             the
             posterior
             being
             upon
             Denunciation
             at
             the
             Mercat
             Cro●s
             of
             the
             Sheriffdom
             ,
             and
             the
             other
             at
             the
             Mercat
             Cross
             of
             the
             Regality
             ,
             when
             Regalities
             were
             supprest
             by
             the
             Vsurpers
             ,
             and
             was
             led
             at
             
               Glasgow
               ,
               Iuly
            
             15.
             1670.
             
             Lady
             
               Lucia
               Hamiltoun
            
             contra
             Boy●
             of
             Pitcon
             .
          
           
             An
             Apprizer
             was
             ●ound
             comptable
             for
             the
             whole
             Rents
             of
             the
             Lands
             he
             possest
             by
             his
             Apprizing
             ,
             both
             for
             his
             Ommission
             and
             Intromission
             ,
             and
             that
             not
             only
             till
             his
             Apprizing
             was
             satisfied
             ,
             but
             for
             all
             years
             subsequent
             ,
             that
             he
             continued
             to
             intromet
             with
             any
             part
             ,
             
               Ianuary
               26.
               1671.
               
               Cass
            
             contra
             Cunninghame
             .
          
           
             An
             Apprizing
             coming
             in
             the
             person
             of
             the
             apparent
             Heir
             of
             the
             principal
             Debitor
             ,
             was
             ●ound
             extinct
             by
             satisfaction
             of
             the
             ●ums
             payed
             by
             the
             apparent
             Heir
             therefore
             ,
             summarly
             without
             Reduction
             ,
             not
             only
             as
             to
             the
             Estate
             of
             the
             apparent
             Heir
             ,
             but
             as
             to
             the
             Estate
             of
             a
             Cautioner
             ●or
             that
             Debt
             ,
             which
             was
             also
             Apprized
             ,
             
               February
               22.
               1671.
               
               Dumbar
            
             of
             Baldoon
             contra
             Dick.
             
          
           
             An
             Apprizer
             of
             an
             Annualrent
             was
             preferred
             to
             an
             Arrester
             ,
             although
             there
             was
             no
             Diligence
             upon
             the
             Apprizing
             ,
             for
             nine
             years
             before
             the
             Arrestment
             ,
             and
             that
             there
             was
             no
             Infeftment
             ,
             or
             lawful
             Charge
             on
             the
             Appr●zing
             ,
             in
             respect
             it
             was
             a
             prior
             judicial
             Assignation
             ,
             requiring
             no
             Intimation
             ,
             February
             23.
             1671.
             
             Lord
             Iustice
             Clerk
             
               contra
               Fairholme
            
             .
          
           
             Apprizings
             deduced
             since
             Ianuary
             1652.
             within
             year
             and
             day
             of
             the
             first
             effectual
             Apprizing
             ,
             were
             found
             not
             to
             be
             compted
             by
             a
             year
             from
             the
             Infeftment
             or
             Charge
             ,
             by
             which
             the
             Apprizing
             becomes
             effectual
             ,
             but
             from
             the
             date
             of
             the
             first
             effectual
             Decreet
             of
             Apprizing
             ,
             by
             the
             Act
             1661.
             betwixt
             Debitor
             and
             Creditor
             ,
             Which
             bears
             ,
             That
             all
             such
             Apprizings
             shall
             be
             ,
             as
             if
             one
             Apprizing
             had
             been
             led
             for
             the
             whole
             ,
             Iuly
             4.
             1671.
             
             Laird
             of
             Balfoure
             contra
             Dowglas
             .
          
           
             An
             Apprizing
             was
             found
             satisfiable
             by
             Exception
             or
             Reply
             ,
             
             as
             being
             to
             the
             behove
             of
             the
             Debitor
             ,
             or
             his
             eldest
             Son
             ,
             for
             the
             sums
             that
             were
             truly
             payed
             out
             by
             the
             Act
             of
             Parliament
             1671.
             
             Albeit
             the
             Apprizing
             was
             Expy●ed
             ,
             Ibidem
             .
          
           
             An
             Apprizing
             was
             Sustained
             ,
             though
             it
             proceeded
             on
             a
             Bond
             ,
             payable
             upon
             Requ●sition
             ,
             and
             that
             the
             Claim
             of
             the
             Apprizing
             did
             make
             mention
             of
             the
             Requ●sition
             ,
             seing
             the
             Requisition
             was
             done
             ,
             and
             is
             now
             produced
             ▪
             and
             though
             the
             Messenger
             having
             met
             at
             the
             dyet
             appointed
             for
             the
             Apprizing
             ,
             did
             adjourn
             the
             Court
             of
             Apprizing
             till
             the
             next
             day
             ,
             in
             respect
             of
             a
             great
             Rain
             ,
             and
             that
             the
             place
             designed
             for
             the
             Apprizing
             was
             upon
             the
             open
             Field
             :
             and
             though
             the
             place
             of
             the
             Apprizing
             was
             by
             di●pensation
             ,
             neither
             at
             Edinburgh
             ,
             nor
             at
             the
             Head
             Burgh
             of
             the
             Shire
             ,
             and
             past
             as
             a
             common
             Bill
             of
             course
             ,
             Iuly
             12.
             1671.
             
             Heirs
             of
             
               Lundy
               contra
            
             the
             Earl
             of
             Southesk
             and
             others
             .
          
           
             In
             Apprizings
             Messengers
             are
             prohibite
             by
             Act
             of
             Sederunt
             ,
             to
             continue
             the
             dyer
             of
             Apprizings
             ,
             except
             upon
             absolute
             necessity
             ,
             that
             Parties
             interressed
             be
             not
             put
             to
             uncertain
             attendance
             :
             and
             likewise
             ,
             di●pen●ations
             for
             the
             place
             of
             Apprizings
             is
             prohibite
             to
             be
             past
             of
             course
             amongst
             other
             common
             Bills
             ,
             without
             being
             Read
             ,
             Ibidem
             .
          
           
             An
             Apprizing
             acquired
             by
             the
             appearand
             Heir
             of
             the
             Debitor
             ,
             was
             found
             satisfiable
             by
             any
             other
             of
             the
             Defuncts
             Creditors
             ,
             by
             paying
             what
             the
             appearand
             Heir
             truly
             payed
             therefore
             ,
             albeit
             the
             appearand
             Heirs
             Disposition
             was
             before
             the
             Act
             of
             Parliament
             1661.
             seing
             his
             Infeftment
             ,
             by
             which
             the
             Right
             real
             is
             Established
             in
             his
             Person
             ,
             and
             his
             Author
             was
             Denuded
             ,
             was
             after
             the
             said
             Act
             ;
             and
             albeit
             the
             Apprizing
             was
             not
             expired
             ,
             when
             the
             appearand
             Heir
             acquired
             Right
             ,
             but
             that
             it
             became
             to
             expire
             ,
             continuing
             in
             his
             Person
             ,
             and
             that
             it
             was
             Redeemable
             within
             ten
             years
             from
             the
             date
             of
             the
             acquiring
             ,
             but
             not
             from
             the
             expiring
             of
             the
             Legal
             ,
             
               I●ne
               21.
               1671.
               
               Maxwel
            
             of
             Nether-pollock
             contra
             Maxwel
             of
             Kirkconnel
             ,
          
           
             An
             Apprizer
             was
             found
             not
             obliged
             to
             restrict
             his
             Possession
             to
             his
             Annualrent
             ,
             in
             favours
             of
             posterior
             Apprizers
             ,
             by
             the
             Clause
             for
             Restriction
             in
             the
             Act
             of
             Parliament
             1661.
             which
             is
             personal
             and
             peculiar
             to
             the
             Debitor
             ;
             but
             seing
             the
             first
             Apprizer
             would
             not
             admit
             the
             posterior
             Apprizers
             to
             possess
             ,
             he
             should
             be
             comptable
             for
             the
             whole
             Rental
             ,
             from
             the
             time
             of
             the
             Exclusion
             ,
             
               Iuly
               28.
               1671.
               
               Murray
               contra
            
             Earl
             of
             Southesk
             and
             others
             .
          
           
             ARBITERS
             got
             Warrand
             on
             a
             Supplication
             to
             Cite
             Witnesses
             before
             them
             ,
             
               Ianuary
               6.
               1670.
               
               Ker
            
             of
             Cavers
             and
             Scot
             of
             Goldenberry
             Supplicants
             .
          
           
             ARRESTMENT
             was
             not
             elided
             ,
             because
             the
             sum
             arrested
             was
             discharged
             before
             the
             arrestment
             ,
             seing
             it
             appears
             the
             Discharge
             was
             not
             delivered
             to
             the
             Party
             .
             in
             whose
             hands
             the
             arrestment
             was
             made
             ,
             nor
             none
             to
             his
             use
             ,
             before
             the
             arrestment
             ,
             
               December
               13.
               1661.
               
               Boyd
               contra
            
             Lairds
             of
             Niddrie
             and
             Edmonstoun
             .
          
           
             An
             Arrester
             and
             an
             Assigney
             competing
             ,
             the
             Assigney
             was
             preferred
             ,
             because
             the
             Arrestment
             was
             loosed
             ,
             albeit
             the
             sum
             Arrested
             remained
             still
             in
             the
             same
             hands
             ,
             because
             the
             Arrestment
             was
             on
             a
             dependence
             ,
             and
             no
             Decreet
             thereupon
             ,
             against
             the
             principal
             Debitor
             ,
             
               Iuly
               4.
               1661.
               
               Raith
            
             of
             
               Edmonstoun
               contra
            
             Laird
             of
             Niddrie
             and
             Lady
             VVolmet
             .
          
           
             Arrestment
             cannot
             be
             loosed
             without
             Caution
             ,
             
               super
               cautione
               juratoria
               ,
               Iuly
            
             16.
             1661.
             
             Colledge
             of
             
               St
               ▪
               Andrews
            
             Supplicant
             .
          
           
             Arrestment
             was
             found
             not
             to
             affect
             the
             Sallaries
             of
             the
             Lords
             ,
             and
             the
             Kings
             Pensions
             ,
             conform
             to
             a
             Letter
             and
             Act
             of
             Sederunt
             ,
             February
             18.
             1662.
             
             Sir
             
               Robert
               Murray
            
             contra
          
           
             Arrestment
             Execute
             on
             the
             Sabbath
             Day
             ,
             was
             found
             null
             by
             Exception
             ,
             
               February
               3.
               1663.
               
               Oliphant
            
             contra
             Dowglas
             of
             Dor●och
             .
          
           
             Arresters
             Competing
             ,
             the
             second
             being
             on
             Letters
             of
             Supplement
             ,
             against
             a
             Party
             ou●
             of
             the
             Countrey
             ,
             was
             preferred
             to
             the
             first
             ,
             being
             at
             his
             Dwelling
             Place
             ,
             without
             Supplement
             ,
             Ianuary
             20.
             1665.
             
             Lord
             Lowre
             contra
             Givon
             .
          
           
             Arrestment
             on
             a
             Bond
             not
             Registrate
             ,
             was
             found
             looseable
             ,
             as
             not
             being
             on
             a
             D●●reet
             of
             Registration
             ,
             or
             any
             other
             ,
             and
             after
             the
             loosing
             ,
             the
             Arrester
             was
             found
             preferable
             to
             a
             posterior
             Assigney
             ,
             seing
             the
             Money
             was
             yet
             in
             his
             Hand
             ,
             in
             whose
             it
             was
             Arrested
             ,
             February
             7.
             1665.
             
             Grahame
             contra
             Brown
             and
             Doctor
             Martine
             .
          
           
             Arrestment
             being
             laid
             on
             in
             the
             hands
             of
             a
             Party
             who
             Entred
             in
             a
             Minute
             ,
             or
             Bargain
             of
             Land
             ,
             though
             he
             passed
             therefrom
             ▪
             yet
             the
             price
             was
             ordained
             to
             be
             made
             forth-coming
             ,
             
               November
               23.
               1665.
               
               Campbel
               contra
            
             Doctor
             Beatoun
             .
          
           
             Arresters
             having
             both
             obtained
             Decreet
             in
             one
             day
             ,
             were
             found
             not
             to
             come
             in
             equally
             ,
             but
             the
             first
             Arrester
             was
             preferred
             ,
             have
             done
             equal
             diligence
             ,
             February
             1.
             1666.
             
             Collonel
             Cunninghame
             contra
             Lyel
             .
          
           
             An
             Arrester
             and
             Comprizer
             Competing
             for
             a
             S●m
             ,
             whereupon
             Apprizing
             was
             led
             at
             the
             Instance
             of
             the
             common
             debitor
             ,
             whereupon
             no
             Infeftment
             followed
             ,
             yet
             the
             Arrestment
             upon
             the
             said
             first
             Apprizers
             debt
             ,
             was
             not
             ●ound
             
               habilis
               modus
            
             ,
             to
             make
             forthcoming
             the
             Sum
             Appryzed
             for
             ,
             but
             the
             second
             Appryzer
             was
             preferred
             to
             the
             Arrester
             ,
             
               February
               22.
               1666.
               
               Lockhart
               contra
            
             Lord
             Bargenzie
             .
          
           
             An
             Arrestment
             was
             found
             to
             give
             Action
             after
             the
             death
             of
             the
             debitor
             ,
             whose
             Goods
             were
             Arrested
             ,
             without
             a
             new
             Decreet
             against
             any
             Repre●enting
             him
             ,
             seing
             he
             died
             at
             the
             Horn
             ,
             and
             so
             could
             have
             none
             to
             Represent
             him
             
               in
               mobilibus
               ,
               February
               19.
               1667.
               
               Givon
            
             contra
             Hume
             :
             here
             the
             Defuncts
             Donator
             to
             his
             Escheat
             concurred
             ,
          
           
             An
             Arrestment
             of
             Annualrents
             laid
             on
             
               curr●nte
               termi●●
            
             ,
             was
             preferred
             to
             an
             Appryzing
             of
             the
             Lands
             ,
             led
             before
             that
             Term
             ,
             seing
             Infeftment
             followed
             not
             thereon
             ,
             before
             the
             Term
             ,
             
               Iuly
               2.
               1667.
               
               Luster
            
             contra
             Aitone
             and
             Sleigh
             .
          
           
             Arresters
             Competing
             ,
             the
             ●irst
             Arrestment
             ,
             and
             first
             Citation
             before
             the
             Lords
             and
             compearance
             
               sine
               mora
            
             ,
             was
             preferred
             to
             a
             posterior
             Arrestment
             ,
             and
             Citation
             before
             the
             Sheriff
             ,
             though
             obtaining
             the
             first
             Decreet
             in
             absence
             ,
             the
             Arrester
             not
             being
             in
             that
             Shire
             ,
             
               November
               23.
               1667.
               
               Montgomery
            
             contra
             Rankine
             .
          
           
             Arrestments
             were
             found
             not
             to
             reach
             the
             Fie
             of
             a
             Servant
             ,
             in
             so
             far
             as
             was
             necessary
             for
             the
             Servants
             Aliment
             ,
             conform
             to
             the
             condition
             of
             his
             Service
             ,
             but
             only
             as
             to
             the
             Superplus
             ,
             
               Iuly
               9.
               1668.
               
               ●oog
            
             contra
             Davidson
             .
          
           
             Arrestment
             was
             found
             to
             Reach
             the
             next
             Terms
             Rent
             after
             it
             was
             laid
             on
             ▪
             though
             it
             was
             not
             due
             when
             it
             was
             laid
             on
             ,
             
               Iuly
               20.
               1669.
               
               L●ssy
            
             contra
             Cunninghame
             .
          
           
             Arresters
             Compe●ing
             ,
             the
             posterior
             Arrestment
             by
             four
             dayes
             ,
             was
             preferred
             to
             the
             prior
             ,
             in
             respect
             the
             Term
             of
             the
             Sum
             ,
             for
             satisfying
             of
             which
             ,
             the
             Arrestment
             was
             laid
             on
             ,
             was
             not
             come
             the
             time
             of
             the
             Citation
             ,
             or
             Competition
             before
             the
             Baillies
             ,
             though
             by
             an
             Advocation
             ,
             raised
             by
             the
             prior
             Arrester
             ,
             without
             a
             just
             Reason
             of
             Advocation
             ,
             the
             Term
             was
             past
             before
             the
             Competition
             before
             the
             Lords
             ,
             
               Iuly
               29.
               1670.
               
               Charters
            
             contra
             Neilson
             .
          
           
             AN
             ASSIGNEY
             was
             not
             excluded
             by
             payment
             made
             to
             the
             Cedent
             after
             Intimation
             ,
             albeit
             the
             Assignation
             was
             to
             the
             behove
             of
             the
             Cedents
             Son
             ,
             without
             a
             Cause
             onerous
             ,
             
               Ianuary
               3.
               1662.
               
               Ross
            
             of
             Earles-milns
             contra
             Campbel
             of
             Caddel
             .
          
           
             An
             Assigney
             constitute
             by
             a
             Tutor
             ,
             who
             took
             Assignation
             to
             his
             Pupils
             Bond
             ,
             was
             found
             to
             have
             no
             Process
             against
             the
             Pupil
             ,
             till
             the
             T●tor
             Compts
             were
             made
             ,
             unlesse
             the
             Assigney
             fo●nd
             Caution
             for
             the
             Tutor
             ,
             Ianuary
             24.
             1662.
             
             
               Ramsay
               contra
            
             Earl
             of
             Wintoun
             .
          
           
             An
             Assignation
             
               omnium
               bonorum
            
             ,
             by
             a
             Father
             to
             his
             Son
             ,
             was
             Sustained
             to
             give
             Processe
             against
             the
             Debitors
             ,
             albeit
             not
             Intimate
             in
             the
             Fathers
             Life
             ,
             and
             so
             in
             
               bonis
               defuncti
               ,
               Iune
               25.
               1663.
               
               Hallyburtoun
               contra
            
             Earl
             of
             Raxburgh
             .
          
           
             An
             Assigney
             may
             be
             prejudged
             by
             the
             Cedents
             Oath
             ,
             before
             Intimation
             ;
             or
             if
             the
             Debitor
             pursue
             the
             Assigney
             ,
             
               ad
               hunc
               e●●ectum
            
             ,
             to
             take
             away
             the
             Bond
             before
             Intimation
             by
             the
             Cedents
             Oath
             ,
             and
             his
             being
             so
             called
             ,
             and
             producing
             the
             Assignation
             ,
             will
             not
             exclude
             the
             Cedents
             Oath
             ,
             February
             15.
             1662.
             
             Laird
             of
             
               Pitfoddels
               contra
            
             Laird
             of
             Glenkindy
             .
          
           
             An
             Assigney
             was
             found
             to
             have
             interest
             to
             pursue
             ,
             albeit
             his
             Assignation
             was
             not
             Intimate
             before
             the
             Cedents
             death
             ,
             without
             necessity
             of
             Confirmation
             ,
             
               Iuly
               27.
               1664.
               
               Muirhead
            
             contra
             〈◊〉
             Intimation
             ,
             
               November
               18.
               1664.
               
               Guthrie
            
             contra
             Sornbeg
             .
          
           
             An
             Assignation
             being
             gratuito●s
             ,
             the
             Cedents
             Oath
             was
             found
             sufficient
             against
             the
             Assigney
             ,
             Iune
             16.
             1665.
             
             Wright
             contra
             Sheils
             .
             The
             like
             ,
             
               Iune
               13.
               1666.
               
               Iack
            
             contra
             Mowat
             .
          
           
             An
             Assignation
             to
             a
             Reversion
             ,
             being
             Registrate
             in
             the
             Register
             of
             Reversions
             ,
             and
             a
             Liferent
             Infeftme●●
             of
             the
             Wodset
             Land
             ,
             Registrate
             in
             the
             Register
             of
             Seasines
             ,
             was
             found
             sufficient
             to
             give
             the
             Wife
             interest
             ,
             even
             in
             her
             Husbands
             time
             to
             Redeem
             ,
             that
             she
             might
             Redeem
             the
             Wodset
             Land
             ,
             for
             her
             Liferent
             use
             ,
             and
             to
             be
             preferred
             to
             an
             Appryzer
             of
             the
             Reversion
             ,
             after
             the
             Wifes
             Right
             ,
             Registrate
             as
             said
             is
             ,
             without
             necessity
             of
             any
             other
             Intimation
             ,
             
               December
               5.
               1665.
               
               Beg
            
             contra
             Beg.
             
          
           
             An
             Assignation
             to
             a
             Gift
             ,
             when
             it
             is
             incompleat
             ,
             and
             before
             it
             passe
             the
             Exchequer
             ,
             doth
             not
             exclude
             the
             Donators
             Back-bond
             ,
             at
             passing
             thereof
             ,
             even
             as
             to
             the
             Assigney
             ,
             
               Ianuary
               13.
               1666.
               
               Dollace
            
             contra
             Frazer
             of
             Streichen
             .
          
           
             An
             Assignation
             to
             such
             a
             sum
             yearly
             ,
             out
             of
             the
             first
             and
             readiest
             of
             the
             Teinds
             of
             such
             Lands
             ,
             found
             not
             preferable
             to
             a
             posterior
             Appryzing
             of
             these
             Lands
             and
             Teinds
             ,
             as
             an
             Assig●ation
             to
             the
             Tack
             ,
             or
             whole
             Tack-duty
             of
             the
             Teinds
             ,
             would
             have
             been
             preferred
             as
             
               habilis
               modus
               ,
               February
            
             6.
             1666.
             
             Watson
             contra
             Fleming
             .
          
           
             Assignation
             
               Vide
               Compensatione
               ,
               Cockburn
            
             contra
             Laird
             of
             Craigivar
             .
          
           
             An
             Assigney
             to
             a
             Tack
             ,
             which
             is
             Transmitted
             by
             Assignation
             ,
             was
             not
             found
             as
             a
             singular
             Successor
             to
             Lands
             ,
             passing
             by
             Infe●tment
             ,
             so
             that
             what
             is
             competent
             against
             
             the
             Cedent
             in
             Tacks
             ,
             is
             competent
             against
             the
             Assigney
             ,
             except
             as
             to
             the
             manner
             of
             Probation
             by
             the
             Cedents
             Oath
             ,
             
               December
               18.
               1668.
               
               Swintoun
            
             contra
             Brown.
             
          
           
             Assigneys
             were
             found
             to
             have
             Right
             to
             an
             Annualrent
             ,
             granted
             by
             a
             Father
             to
             his
             Daughter
             and
             her
             Heirs
             ,
             without
             mention
             of
             Assigneys
             ,
             though
             her
             Brothers
             and
             Sisters
             were
             substitute
             ,
             failing
             the
             Heirs
             of
             her
             Body
             ;
             and
             though
             the
             Assignation
             was
             granted
             without
             a
             cause
             onerous
             to
             another
             Brother
             ,
             
               I●●e
               24.
               1669.
               
               Steuart
            
             contra
             St●uart
             .
          
           
             An
             Assignation
             without
             Intimation
             ,
             was
             preferred
             to
             an
             Executor
             Creditor
             of
             the
             Cedent
             ,
             even
             as
             to
             the
             Executors
             own
             debt
             ,
             Iuly
             27.
             1669.
             
             Executors
             of
             Redpeth
             contra
             Iohnstoun
             .
          
           
             AN
             ATTESTER
             of
             a
             Cautioner
             in
             a
             Suspension
             ,
             declaring
             that
             the
             Cautioner
             was
             sufficient
             ,
             being
             conveened
             Subsidiarie
             ,
             was
             found
             to
             be
             no
             further
             lyable
             ,
             than
             that
             the
             Cautioner
             then
             was
             holden
             as
             sufficient
             for
             the
             Sum
             Charged
             for
             ▪
             
               December
               17.
               1667.
               
               Paterson
            
             contra
             Hume
             .
          
           
             A
             BAILLIE
             of
             Regality
             amerciating
             Parties
             for
             a
             wrong
             committed
             ,
             in
             the
             thrusting
             out
             of
             others
             out
             of
             a
             Seat
             in
             the
             Church
             ,
             in
             time
             of
             Divine
             Service
             ,
             and
             beating
             of
             them
             ,
             his
             Decreet
             was
             Sustained
             :
             though
             it
             extended
             to
             two
             hundred
             pounds
             ,
             half
             to
             the
             Party
             ,
             and
             half
             to
             the
             Fiscal
             ,
             
               Ianuary
               30.
               1663.
               
               Steuart
            
             contra
             Boggl●
             and
             Matthie
             .
          
           
             A
             Baillie
             of
             a
             Barony
             of
             Kirkland
             ,
             being
             Infeft
             by
             the
             Abbots
             ,
             with
             full
             Iurisdiction
             ,
             Civil
             and
             Criminal
             ,
             with
             power
             to
             Repledge
             ,
             and
             with
             power
             to
             apply
             the
             whole
             amerciaments
             and
             Casualities
             to
             his
             own
             behove
             ,
             his
             Right
             was
             found
             not
             to
             be
             derogate
             from
             ,
             or
             prejudged
             by
             the
             Kings
             Erecting
             a
             part
             of
             that
             Barony
             in
             a
             Burgh
             Royal
             ,
             and
             giving
             them
             power
             of
             Heading
             and
             Hanging
             ,
             and
             all
             Iurisdiction
             ,
             unless
             they
             extinguished
             the
             Baillies
             Right
             by
             Prescription
             ;
             albeit
             it
             did
             not
             appear
             ,
             that
             these
             Kirklands
             were
             Erected
             in
             a
             Regality
             ,
             no
             mention
             being
             made
             thereof
             in
             the
             Infeftment
             of
             Bailliarie
             ,
             nor
             was
             it
             commonly
             known
             under
             that
             Title
             ,
             February
             27.
             1667.
             
             Lord
             
               Colvil
               contra
            
             Town
             of
             Culross
             .
          
           
             A
             Baillie
             of
             Regality
             was
             found
             to
             have
             power
             to
             amerciat
             the
             Inhabitants
             of
             a
             Burgh
             of
             Regality
             ,
             though
             having
             Baillies
             of
             their
             own
             in
             the
             Burgh
             ,
             in
             respect
             the
             Burgh
             being
             Vassals
             to
             the
             Baron
             ,
             their
             power
             is
             cumulative
             ,
             and
             not
             exclusive
             of
             his
             Iurisdiction
             ;
             but
             there
             is
             place
             for
             prevention
             ,
             to
             the
             first
             Attatcher
             doing
             diligence
             ,
             Ianuary
             14.
             1668.
             
             The
             Baillie
             of
             Regality
             of
             
               Killimuire
               contra
            
             Burgh
             of
             Killimuire
             .
          
           
             BAIRNS
             Provisions
             being
             upon
             Bond
             subscribed
             by
             their
             Father
             ,
             but
             not
             delivered
             till
             he
             had
             disponed
             his
             whole
             Estate
             to
             his
             eldest
             Son
             ,
             with
             Warrandice
             from
             his
             own
             deeds
             done
             ,
             or
             to
             be
             done
             ,
             and
             reserving
             his
             Liferent
             of
             a
             part
             ,
             which
             was
             found
             sufficient
             to
             Reduce
             the
             Bonds
             of
             Provision
             ,
             and
             Appryzing
             thereupon
             ,
             as
             not
             obligator
             till
             delivery
             ,
             or
             the
             death
             of
             the
             Father
             ,
             and
             Revocked
             indirectly
             by
             the
             Sons
             Disposition
             ,
             Ianuary
             10.
             1668.
             
             Laird
             of
             Glencorse
             contra
             his
             Brothers
             and
             Sisters
             .
          
           
             A
             Bairns
             provision
             posterior
             in
             date
             and
             delivery
             to
             a
             Creditors
             debt
             ,
             the
             Creditors
             Appryzing
             ,
             though
             posterior
             ,
             was
             preferred
             in
             a
             Reduction
             to
             the
             Appryzing
             on
             the
             Bairns
             Portion
             though
             prior
             ,
             
               Iuly
               22.
               1668.
               
               Iohnstoun
            
             of
             Shems
             contra
             
               Arnot
               ,
               Vide
            
             Children
             ,
             
               Ianuary
               16.
               1676.
               
               Erskines
            
             contra
             R●ynolds
             .
          
           
             A
             BOND
             bearing
             borrowed
             Money
             ,
             was
             found
             not
             Reduceable
             upon
             the
             Act
             against
             Bankrupts
             ,
             but
             that
             the
             Bond
             it self
             did
             sufficiently
             instruct
             the
             borrowing
             of
             the
             Money
             ,
             as
             the
             cause
             onerous
             ,
             
               Iune
               28.
               1665.
               
               Mo●teith
            
             contra
             A●derson
             .
          
           
             A
             Bond
             was
             found
             Heretable
             as
             bearing
             annualrent
             ,
             though
             it
             was
             but
             5.
             
               per
               cent
            
             ,
             in
             a
             Bairns
             Portion
             ,
             
               Iune
               28.
               1665.
               
               P●tcairn
            
             contra
             Edgar
             .
          
           
             Bonds
             bearing
             Annualrent
             are
             moveable
             till
             the
             first
             Term
             of
             payment
             of
             Annualrent
             ,
             and
             fall
             within
             single
             Escheat
             ,
             
               Iune
               26.
               1668.
               
               Dick
            
             contra
             Keir
             .
          
           
             A
             Bond
             by
             a
             Father
             to
             a
             Son
             ,
             though
             bearing
             borrowed
             Money
             ,
             yet
             was
             presumed
             to
             be
             for
             love
             and
             favour
             ,
             and
             the
             same
             with
             an
             Appryzing
             thereupon
             ,
             was
             Reduced
             at
             the
             instance
             of
             anterior
             Creditors
             ,
             who
             obtained
             Decreets
             after
             the
             Bond
             for
             Bargains
             ,
             which
             were
             proven
             by
             Witnesses
             to
             have
             been
             contracted
             before
             the
             Bond
             ,
             Ianuary
             21.
             1669.
             
             Creditors
             of
             Pollock
             contra
             Pollock
             his
             Son.
             
          
           
             A
             Bond
             by
             a
             Father
             to
             his
             Son
             ,
             after
             he
             was
             Married
             and
             out
             of
             his
             Family
             ,
             payable
             after
             the
             Fathers
             death
             ,
             was
             found
             not
             Reduceable
             at
             the
             instance
             of
             posterior
             Creditors
             of
             the
             Father
             ,
             by
             the
             Act
             of
             Parliament
             1621.
             against
             fraudful
             Alienations
             ,
             though
             it
             were
             Reduceable
             upon
             evidence
             of
             Fraud
             ,
             
               ex
               jure
               communi
            
             ,
             which
             were
             appointed
             to
             be
             condescended
             upon
             :
             Ibidem
             .
          
           
             A
             Bond
             taken
             by
             a
             Father
             from
             a
             Son
             ,
             after
             Contract
             of
             Marriage
             ▪
             Vide
             Contract
             .
          
           
             BARONS
             Decreets
             are
             valide
             in
             Vaccance
             time
             by
             their
             priviledge
             ,
             without
             dispensation
             ,
             and
             they
             are
             competent
             to
             Iudge
             the
             Multures
             due
             by
             their
             Vassals
             ,
             
               February
               14.
               1662.
               
               Nicolson
            
             contra
             Forbes
             of
             Tillicutri●
             .
          
           
             A
             BARONY
             was
             found
             to
             include
             a
             Burgh
             of
             Barony
             as
             P●rt
             and
             Pertinent
             ,
             though
             not
             exprest
             in
             a
             donators
             Infef●ment
             ,
             albeit
             it
             was
             exprest
             in
             former
             Infeftments
             ,
             and
             particulars
             of
             less
             moment
             were
             exprest
             in
             this
             Infeftment
             ,
             as
             comprehended
             in
             the
             Barony
             ,
             Ianuary
             15.
             1668.
             
             Earl
             of
             Argile
             contra
             Campbel
             .
          
           
             A
             BASE
             INFEFTMENT
             of
             Annualrent
             was
             sound
             valide
             against
             a
             posterior
             publick
             Infeftment
             ,
             because
             thereupon
             there
             was
             a
             Decreet
             of
             poinding
             the
             Ground
             ,
             though
             it
             could
             take
             no
             effect
             for
             a
             long
             time
             ,
             till
             the
             entry
             to
             the
             Annualrent
             ,
             which
             was
             not
             ,
             till
             after
             the
             Constituents
             death
             ,
             26
             ,
             and
             27.
             of
             February
             ,
             1662.
             
             Creditors
             of
             Kinglass
             competing
             .
          
           
             A
             base
             Infeftment
             by
             a
             Husband
             to
             his
             Wife
             on
             her
             Contract
             ,
             was
             validate
             by
             ,
             and
             preferred
             upon
             the
             Husbands
             Possession
             ,
             though
             the
             Wi●es
             Infeftment
             was
             of
             annualrent
             ,
             and
             the
             Husbands
             of
             property
             ,
             November
             23.
             1664.
             
             Lady
             Grang●
             contra
             Murray
             ,
             where
             it
             was
             found
             ,
             that
             from
             the
             very
             date
             it
             was
             validate
             and
             preferred
             to
             any
             other
             ,
             though
             prior
             and
             base
             ,
             but
             apprehending
             Possession
             upon
             a
             Citation
             before
             Candlemas
             ,
             it
             being
             Ferm
             Land
             ,
             and
             a
             Decreet
             thereon
             in
             March
             thereafter
             .
          
           
             Two
             base
             Infestments
             of
             annualrent
             competing
             ,
             one
             to
             a
             Wi●e
             ,
             the
             other
             to
             a
             Creditor
             ,
             the
             Wife
             was
             preferred
             ,
             being
             cled
             with
             Possession
             by
             the
             Husbands
             possession
             ,
             which
             was
             not
             found
             competent
             to
             the
             Creditor
             ,
             though
             his
             Infeftment
             was
             prior
             ,
             and
             though
             he
             used
             Inhibition
             before
             the
             next
             Term
             ,
             after
             the
             Wifes
             Infeftment
             ,
             and
             alleadged
             the
             Husband
             could
             have
             no
             Possession
             after
             the
             Wifes
             Infeftment
             ,
             before
             his
             diligence
             ,
             which
             the
             Lords
             Repelled
             ,
             because
             the
             Husband
             was
             in
             a
             present
             current
             Possession
             ,
             and
             nor
             
               in
               acquirenda
               possessione
            
             ,
             but
             the
             Wifes
             Infeftment
             was
             only
             sustained
             in
             prejudice
             of
             this
             Creditor
             ,
             in
             so
             far
             as
             it
             had
             an
             anterior
             Cause
             to
             his
             debt
             :
             The
             Husbands
             Possession
             was
             also
             found
             sufficient
             to
             validate
             the
             Wifes
             Infeftment
             of
             annualrent
             ,
             though
             he
             possessed
             the
             property
             which
             includes
             eminenter
             ,
             all
             other
             Rights
             ,
             
               November
               23.
               1664.
               inter
               cosdem
            
             .
          
           
             An
             Infeftment
             of
             Warrandice
             Lands
             being
             in
             the
             same
             Infeftment
             with
             the
             principal
             Lands
             ,
             and
             both
             holden
             base
             ,
             was
             preferred
             to
             a
             posterior
             publick
             Infeftment
             of
             the
             same
             warrandice
             Lands
             ,
             though
             cled
             with
             long
             Possession
             ,
             and
             that
             upon
             an
             action
             of
             Mails
             and
             Duties
             upon
             the
             Distresse
             ,
             without
             Reduction
             ,
             
               Ianuary
               9.
               1666.
               
               Brown
            
             contra
             Scot.
             
          
           
             A
             base
             Infeftment
             by
             a
             Father
             to
             a
             Son
             ,
             reserving
             the
             Fathers
             Liferent
             ,
             was
             found
             not
             validate
             by
             the
             Fathers
             continuing
             his
             Possession
             ,
             but
             the
             Fathers
             Creditors
             appryzing
             were
             preferred
             to
             the
             Donator
             of
             the
             Sons
             Forefaulture
             ,
             founding
             upon
             the
             Sons
             Infeftment
             ,
             
               Iune
               14.
               1666.
               
               Hume
            
             contra
             Hume
             .
          
           
             A
             base
             Infeftment
             of
             annualrent
             was
             preferred
             to
             a
             posterior
             appryzing
             and
             charge
             before
             the
             Term
             ,
             at
             which
             the
             annualrent
             begane
             to
             be
             payable
             ,
             in
             respect
             the
             annualrenter
             was
             in
             Possession
             of
             the
             Land
             ,
             out
             of
             which
             the
             annualrent
             was
             payable
             
               &
               intus
               habuit
               ,
               viz.
            
             his
             annualrent
             proportionally
             from
             the
             date
             of
             his
             Right
             ,
             
               Iune
               30.
               1666.
               
               Stevinson
            
             contra
             Dobbie
             .
          
           
             A
             base
             Infeftment
             by
             a
             Father
             to
             a
             Son
             ,
             Reserving
             the
             Fathers
             Liferent
             ,
             was
             found
             not
             validate
             by
             the
             Fathers
             possession
             ,
             albeit
             the
             Father
             disponed
             the
             Lands
             reserved
             to
             a
             third
             Party
             ,
             who
             did
             possess
             ;
             but
             the
             Disposition
             was
             of
             the
             Fee
             ,
             and
             no
             mention
             of
             the
             Liferent
             reserved
             ,
             December
             18.
             1666.
             
             Lord
             Newbeath
             contra
             Dumbar
             of
             Burgy
             .
          
           
             A
             base
             Infeftment
             was
             excluded
             by
             the
             Liferent
             Escheat
             of
             the
             granter
             ,
             albeit
             the
             base
             Infeftment
             was
             before
             the
             Rebellion
             ,
             seing
             it
             was
             not
             cled
             with
             Possession
             
               in
               cursu
               rebellionis
            
             ,
             within
             year
             and
             day
             .
             
               February
               21.
               1667.
               
               Miln
            
             contra
             Clerkinson
             .
          
           
             A
             base
             Infeftment
             by
             a
             man
             to
             his
             Wife
             ,
             was
             preferred
             to
             a
             posterior
             publick
             Infeftment
             ,
             albeit
             the
             base
             Infeftment
             was
             not
             cled
             with
             Possession
             of
             the
             Husband
             himself
             ,
             but
             by
             others
             deriving
             Right
             of
             Wodset
             ,
             or
             other
             Temporary
             Right
             from
             the
             Husband
             ,
             or
             his
             authors
             ,
             which
             was
             compted
             as
             the
             Husbands
             Possession
             ,
             to
             validate
             the
             Wifes
             base
             Infeftment
             ,
             Iuly
             18.
             1667.
             
             Lady
             Burgy
             contra
             Strachen
             .
          
           
             A
             base
             Infeftment
             of
             annualrent
             was
             found
             to
             be
             validate
             by
             receipt
             of
             a
             part
             ,
             though
             far
             within
             a
             Terms
             annualrent
             ,
             and
             not
             relative
             to
             the
             Infeftment
             ,
             but
             to
             the
             Bond
             whereupon
             it
             followed
             ,
             and
             though
             there
             was
             no
             ann●alrent
             due
             before
             the
             Infeftment
             ,
             yet
             seing
             the
             Receipt
             bear
             in
             part
             of
             payment
             of
             bygone
             annualrents
             ,
             the
             Annualrenter
             was
             allowed
             to
             ascribe
             it
             to
             the
             annualrents
             due
             after
             the
             Infeftment
             ,
             to
             exclude
             an
             Infeftment
             on
             an
             Appryzing
             ,
             which
             appryzing
             was
             led
             before
             the
             Receipt
             ,
             but
             the
             Infeftment
             thereupon
             was
             after
             ▪
             and
             the
             Receipt
             was
             proven
             by
             an
             Apocha
             under
             the
             Debitors
             hand
             ,
             
               Iuly
               23.
               1667.
               
               Hume
            
             contra
             Hume
             and
             the
             Tennents
             of
             Kello
             .
          
           
             A
             base
             Infeftment
             of
             annualrent
             on
             a
             Bond
             bearing
             3000.
             merks
             of
             borrowed
             Money
             ;
             and
             3000.
             merks
             of
             Portion
             ,
             the
             one
             half
             of
             the
             whole
             Sum
             and
             annual●ents
             thereof
             ,
             was
             Suspended
             till
             the
             Fathers
             death
             ,
             Yet
             payment
             of
             the
             annualrent
             of
             the
             other
             half
             not
             suspended
             ,
             was
             found
             sufficient
             to
             validate
             the
             whole
             Infeftment
             ,
             and
             to
             prefer
             it
             to
             a
             posterior
             publick
             Infeftment
             ,
             
               February
               5.
               1668.
               
               Keir
            
             contra
             Keir
             .
          
           
             
             A
             base
             Infeftment
             in
             warrandice
             granted
             by
             a
             Husband
             to
             his
             Wife
             ,
             holden
             of
             himself
             
               &
               ex
               intervallo
            
             ,
             after
             the
             principal
             Infeftment
             ,
             was
             found
             valide
             against
             a
             posterior
             publick
             Infe●tment
             of
             the
             ●ame
             warrandice
             Lands
             ,
             as
             being
             cled
             with
             the
             Husbands
             Possession
             in
             the
             principal
             Lands
             ,
             and
             that
             these
             needed
             no
             declarator
             of
             Distress
             ,
             or
             Eviction
             ,
             but
             a
             pursuit
             of
             Removing
             ,
             or
             Mails
             and
             Duties
             upon
             Eviction
             is
             sufficient
             ,
             which
             cannot
             be
             excluded
             by
             a
             possessory
             judgement
             upon
             7.
             years
             Possession
             ,
             by
             the
             publick
             Infeftment
             ,
             unless
             it
             were
             7.
             years
             after
             the
             Eviction
             ,
             
               February
               20.
               1668.
               
               Forbes
            
             contra
             Innes
             .
          
           
             Base
             Infeftments
             granted
             by
             a
             Father
             to
             his
             two
             Sons
             of
             the
             same
             date
             ,
             one
             of
             Property
             of
             Lands
             ,
             and
             another
             of
             annualrent
             forth
             thereof
             ,
             was
             found
             both
             valide
             ,
             as
             being
             cled
             with
             the
             Fathers
             possession
             ,
             reserved
             in
             both
             ,
             there
             being
             no
             suspition
             of
             defraud
             of
             Creditors
             ,
             or
             competition
             with
             them
             ,
             and
             that
             a
             singular
             Successor
             appryzing
             and
             Infeft
             from
             the
             one
             ,
             was
             not
             preferable
             to
             a
             posterior
             Adjudger
             from
             the
             other
             ,
             
               Iune
               30.
               1668.
               
               Chem
            
             contra
             Chrisly
             .
          
           
             A
             base
             Infeftment
             of
             annualrent
             was
             found
             validate
             by
             Possession
             ,
             upon
             another
             Infeftment
             of
             annualrent
             ,
             in
             corroboration
             of
             the
             former
             ,
             out
             of
             distinct
             Lands
             ,
             whereby
             both
             Infeftments
             as
             to
             both
             Lands
             ,
             were
             found
             valide
             ,
             though
             no
             payment
             was
             made
             by
             the
             Debitor
             ,
             or
             by
             the
             Tennents
             in
             the
             first
             Infeftment
             ,
             
               Iuly
               9.
               1668.
               
               Alexander
            
             contra
             the
             Laird
             of
             Clackmannan
             .
          
           
             A
             base
             Infeftment
             to
             a
             Creditor
             ,
             was
             preferred
             to
             a
             posterior
             publick
             Infeftment
             ,
             granted
             to
             a
             Wife
             by
             an
             additional
             Ioynture
             ,
             in
             respect
             there
             was
             a
             Citation
             on
             the
             base
             Infeftment
             ,
             anterior
             to
             the
             Wifes
             publick
             Infeftment
             ,
             which
             was
             found
             to
             validate
             the
             same
             ,
             and
             sentence
             of
             preference
             of
             poynding
             of
             the
             Ground
             ,
             was
             now
             granted
             therein
             ,
             
               Ianuary
               27.
               1669.
               
               Bell
            
             of
             
               Belfoord
               contra
            
             Lady
             Ruther●oord
             ,
          
           
             A
             base
             Infeftment
             never
             cled
             with
             Possession
             ,
             was
             found
             valide
             to
             exclude
             the
             Terce
             of
             the
             granters
             Relict
             .
             Ib●dem
          
           
             A
             base
             Infeftment
             by
             a
             Father
             to
             his
             Children
             ,
             was
             found
             not
             validate
             by
             the
             Fathers
             Possession
             ,
             wherein
             he
             continued
             ,
             albeit
             he
             had
             a
             Factory
             from
             the
             Children
             :
             here
             it
             was
             not
             alleadged
             that
             the
             Father
             had
             granted
             Discharges
             ,
             or
             used
             Citation
             expresly
             ,
             relative
             to
             the
             Factory
             ,
             
               Iuly
               10.
               1669.
               
               Gairdiner
            
             contra
             Colvil
             .
          
           
             BASTARDY
             being
             gifted
             by
             the
             Vsurpers
             ,
             defends
             the
             Bastards
             Debitors
             no
             further
             than
             what
             they
             
               bona
               fide
            
             payed
             to
             the
             Donator
             ,
             but
             not
             for
             what
             was
             yet
             in
             their
             hands
             ,
             which
             belongs
             to
             the
             Kings
             Donator
             .
             Iuly
             19.
             
             166●
             .
             Windrham
             contra
             Megregors
             .
          
           
             Bastardy
             was
             found
             not
             to
             be
             relevantly
             Libelled
             ,
             that
             the
             Defuncts
             Father
             and
             Mother
             were
             not
             Married
             ,
             but
             that
             it
             behoved
             to
             be
             alleadged
             ,
             that
             the
             Defunct
             was
             commonly
             holden
             and
             repute
             Bastard
             :
             But
             that
             it
             was
             also
             sufficient
             ,
             that
             the
             Defuncts
             taking
             a
             Legitimation
             ,
             had
             acknowledged
             his
             Bastardy
             ,
             February
             19.
             1669.
             
             Kings
             Advocate
             
               contra
               Craw.
            
             
          
           
             Bastardy
             was
             found
             not
             to
             be
             inferred
             by
             the
             negative
             presumption
             ,
             that
             the
             Father
             and
             the
             Mother
             were
             not
             Married
             ,
             but
             that
             it
             behoved
             to
             be
             proven
             positive
             ,
             that
             the
             Defunct
             was
             holden
             and
             repute
             Bastard
             ,
             
               Iune
               15.
               1670.
               
               Livingstoun
            
             contra
             Burn.
             
          
           
             Bastardy
             puts
             the
             Donator
             to
             no
             better
             case
             ,
             as
             to
             Back-bonds
             ,
             or
             mutual
             Obligements
             ,
             than
             the
             Bastard
             his
             Heir
             would
             have
             been
             in
             ,
             
               Iune
               20.
               1671.
               
               Alexander
            
             contra
             Lord
             Sa●toun
             .
          
           
             BEHAVING
             AS
             HEIR
             by
             intrometting
             with
             the
             Mails
             and
             Duties
             of
             the
             Defuncts
             Lands
             ,
             was
             elided
             ,
             because
             the
             Defender
             intrometted
             
               singulari
               titulo
            
             ,
             by
             an
             Appryzing
             ,
             though
             the
             Legal
             was
             not
             expired
             ,
             unless
             it
             had
             been
             clearly
             satisfied
             by
             intromission
             ,
             or
             otherwise
             ,
             
               Ianuary
               10.
               1662.
               
               Barclay
            
             contra
             Laird
             of
             Craigivar
             .
          
           
             Behaving
             as
             Heir
             was
             found
             in
             no
             time
             coming
             to
             be
             ●lided
             by
             taking
             Right
             to
             any
             Appryzing
             or
             Adjudication
             ,
             led
             against
             the
             Intrometters
             for
             their
             own
             Debt
             ,
             real
             or
             simulate
             ,
             though
             such
             Rights
             were
             expired
             ,
             February
             28.
             1662.
             
             Act
             of
             Sederunt
             
               Vide
               ,
               Ianuary
               22.
               1662.
               
               Glendoning
            
             contra
             Earl
             of
             Nithisdail
             .
          
           
             Behaving
             as
             Heir
             was
             not
             inferred
             by
             In●romission
             with
             the
             Rents
             of
             the
             Lands
             ,
             which
             were
             disponed
             by
             the
             Defunct
             ,
             and
             Infeftment
             thereon
             ;
             but
             to
             the
             behove
             of
             the
             Defender
             the
             appearand
             Heir
             ,
             
               Ianuary
               14.
               1662.
               
               Harper
            
             contra
             Hume
             of
             Plandergaist
             .
          
           
             Behaving
             as
             Heir
             was
             inferred
             by
             the
             appearand
             Heir
             ,
             his
             in●rometting
             with
             the
             Rents
             of
             Lands
             belonging
             to
             his
             Father
             the
             Debitor
             ,
             in
             so
             far
             as
             being
             disponed
             to
             the
             Defender
             ,
             they
             were
             Redeemed
             by
             him
             ,
             though
             no
             Declarator
             or
             new
             Infeftment
             followed
             ;
             and
             also
             found
             by
             intrometting
             with
             the
             Fathers
             whole
             Silver-work
             ,
             without
             alleadging
             a
             formal
             drawing
             of
             the
             Heirship
             ,
             or
             taking
             any
             of
             them
             as
             such
             ;
             and
             though
             the
             Lands
             were
             Appryzed
             from
             the
             Defunct
             ,
             seing
             the
             Legal
             was
             un-expired
             ,
             and
             the
             Defender
             had
             no
             Right
             from
             the
             Appryzer
             ,
             
               February
               21.
               1663.
               
               Hamiltoun
            
             contra
             Hamiltoun
             .
          
           
             Behaving
             as
             Heir
             ,
             by
             intrometting
             with
             Heirship
             was
             not
             ●lided
             ,
             because
             the
             Defuncts
             Lands
             were
             apprized
             ,
             seing
             the
             Legal
             was
             not
             expired
             before
             his
             death
             ,
             February
             26.
             1663.
             
             Cuthbert
             of
             Drakies
             contra
             M●nro
             of
             Foulis
             .
          
        
         
           
             Behaving
             as
             Heir
             was
             not
             ●nferred
             by
             intromission
             with
             the
             Rents
             of
             the
             Defuncts
             Lands
             ,
             which
             were
             appryzed
             ,
             and
             whereunto
             the
             appearand
             Heir
             acquired
             Right
             ,
             before
             he
             fell
             to
             be
             apparent
             Heir
             ,
             though
             he
             continued
             to
             possess
             after
             the
             appryzing
             was
             satisfied
             by
             intromission
             ,
             February
             26.
             1663.
             
             
               Inter
               cosdem
            
             .
          
           
             Behaving
             as
             Heir
             was
             elided
             as
             to
             Heirship
             ,
             because
             the
             Defunct
             dyed
             Rebel
             ,
             and
             his
             Escheat
             was
             gifted
             and
             declared
             Ibidem
             .
          
           
             Behaving
             as
             Heir
             ,
             by
             medling
             with
             heirship
             ,
             was
             not
             elided
             ,
             because
             the
             Defunct
             dyed
             at
             the
             Horn
             ,
             and
             thereby
             
               nihil
               habuit
               in
               bonis
            
             ;
             nor
             yet
             that
             the
             Escheat
             was
             gifted
             before
             intenting
             of
             this
             cause
             ;
             but
             that
             it
             was
             gifted
             and
             declared
             before
             ,
             
               Iune
               10.
               1663.
               
               Gordoun
            
             of
             L●smore
             contra
             Keith
             .
          
           
             Behaving
             as
             Heir
             was
             elided
             ,
             because
             the
             Defunct
             was
             Rebel
             ,
             his
             Escheat
             gifted
             and
             the
             appearand
             Heir
             intrometted
             by
             the
             Donators
             Rights
             or
             Tollerance
             ,
             and
             that
             before
             intenting
             of
             the
             Cause
             ,
             albeit
             no
             declarator
             thereon
             ,
             Iuly
             4.
             1665.
             
             Innes
             contra
             Wilson
             .
          
           
             Behaving
             as
             Heir
             was
             not
             Sustained
             upon
             Intromission
             ,
             had
             by
             a
             Tutor
             ,
             
               November
               30.
               1665.
               
               Boyd
            
             contra
             T●lzi●er
             .
          
           
             Behaving
             as
             Heir
             was
             not
             Sustained
             by
             Heirs
             of
             Line
             ,
             their
             Renuncing
             to
             be
             Heirs
             ;
             in
             favours
             of
             the
             Heir-male
             ,
             to
             whom
             the
             Father
             had
             disponed
             ,
             seing
             they
             gave
             no
             Right
             thereby
             ,
             hurtful
             to
             Creditors
             ,
             but
             gave
             a
             Renunciation
             voluntarly
             ,
             which
             Law
             would
             have
             compelled
             them
             to
             give
             ,
             though
             for
             their
             kindness
             they
             got
             a
             sum
             of
             Money
             ,
             Iuly
             5.
             1666.
             
             
               Scot
               contra
            
             Heirs
             of
             Auchinleck
             .
          
           
             Behaving
             as
             Heir
             by
             Intromission
             with
             the
             Rents
             of
             the
             Defuncts
             Lands
             ,
             was
             elided
             by
             Tollerance
             from
             a
             Donator
             of
             Recognition
             ,
             albeit
             not
             declared
             till
             after
             the
             Intromission
             ,
             the
             Defender
             paying
             the
             single
             value
             ,
             
               Iuly
               17.
               1666.
               
               Ogilby
               contra
            
             Lord
             Gray
             .
          
           
             Behaving
             as
             Heir
             by
             intromission
             with
             the
             Duties
             of
             the
             Defuncts
             Lands
             ,
             was
             elided
             by
             a
             Disposition
             from
             the
             Defunct
             to
             the
             Intrometters
             Son
             ,
             the
             Defuncts
             oye
             ,
             though
             without
             Infeftment
             ,
             or
             by
             a
             Tack
             by
             the
             apparent
             Heirs
             Husband
             ,
             though
             expired
             before
             the
             Defuncts
             death
             ,
             as
             continuing
             
               per
               tacitam
               relocationem
               ,
               Ianuary
               16.
               1667.
               
               Re●d
            
             contra
             Salmond
             .
          
           
             Behaving
             as
             Heir
             was
             Sustained
             by
             Exception
             ,
             Ianuary
             8.
             1668.
             
             Forbes
             contra
             Innes
             .
          
           
             Behaving
             as
             Heir
             was
             found
             to
             be
             instructed
             by
             a
             Discharge
             granted
             by
             the
             Party
             as
             appearand
             Heir
             ,
             bearing
             receipt
             of
             the
             Defuncts
             Charter
             Chist
             ,
             without
             any
             Inventary
             or
             Protestation
             ,
             and
             keeping
             of
             it
             two
             years
             ,
             without
             necessity
             to
             alleadge
             that
             any
             use
             was
             made
             of
             the
             Writs
             ,
             but
             was
             not
             inferred
             by
             raising
             of
             Breives
             to
             serve
             Heir
             ,
             wherein
             no
             Service
             followed
             ;
             or
             by
             Revocking
             deeds
             done
             by
             the
             Defunct
             in
             his
             Minority
             ,
             
               Iune
               28.
               1670.
               
               Eleis
            
             of
             Southside
             contra
             Casse
             .
          
           
             Behaving
             as
             Heir
             was
             not
             inferred
             by
             the
             appearand
             Heirs
             having
             right
             or
             tollerance
             from
             App●yzers
             ,
             and
             intrometting
             thereby
             ,
             even
             within
             the
             Legal
             ;
             but
             was
             inferred
             by
             continuing
             the
             Defuncts
             Possession
             ,
             before
             obtaining
             such
             Warrand
             ,
             and
             that
             any
             Creditor
             ,
             though
             not
             Appryzer
             ,
             pursuing
             the
             appearand
             Heir
             ,
             behaving
             as
             Heir
             ,
             and
             he
             Defending
             upon
             the
             Right
             of
             an
             Appryzing
             ,
             that
             the
             Creditor
             might
             Summarly
             by
             Reply
             ,
             prove
             satisfaction
             of
             what
             he
             truly
             payed
             out
             ,
             by
             intromission
             or
             present
             payment
             ,
             and
             thereupon
             he
             was
             obliged
             to
             Assign
             ,
             or
             Dispone
             to
             the
             Creditor
             ,
             
               Iuly
               11.
               1671.
               
               Maxwel
            
             contra
             Maxwel
             .
          
           
             Behaving
             as
             Heir
             was
             not
             inferred
             simply
             where
             the
             Defender
             was
             Infeft
             ,
             as
             Heir
             to
             her
             Mother
             ,
             her
             Father
             and
             Mother
             being
             Infeft
             in
             Conjunct
             see
             upon
             their
             Contract
             of
             Marriage
             ,
             by
             which
             there
             was
             probable
             ground
             to
             think
             that
             her
             Mother
             was
             Feear
             and
             not
             her
             Father
             ,
             
               Iuly
               12.
               1671.
               
               Gairns
            
             contra
             Sandilands
             .
          
           
             BILLS
             OF
             EXCHANGE
             being
             accepted
             ,
             and
             before
             the
             Term
             of
             payment
             the
             Accepter
             dying
             ,
             no
             Exchange
             or
             Re-exchange
             was
             found
             due
             ,
             but
             the
             obtainer
             of
             the
             Bill
             might
             either
             return
             upon
             the
             drawer
             ,
             for
             single
             value
             ,
             or
             proceed
             against
             the
             Successors
             of
             the
             Accepter
             ;
             This
             Bill
             was
             protested
             for
             not
             payment
             ,
             at
             the
             dwelling
             House
             of
             the
             Defunct
             ,
             
               Iuly
               3.
               1664.
               
               Kennedy
            
             contra
             Hutcheson
             .
          
           
             A
             BLANK
             Bond
             ,
             as
             to
             the
             Creditors
             Name
             ,
             was
             found
             to
             constitute
             the
             Receiver
             thereof
             to
             his
             own
             behove
             Creditor
             ,
             and
             that
             it
             would
             be
             affected
             with
             his
             Deb●s
             and
             Deeds
             ,
             and
             fall
             under
             his
             E●cheat
             ,
             as
             if
             his
             Name
             had
             been
             filled
             up
             before
             ,
             and
             before
             any
             other
             Name
             was
             filled
             up
             ,
             shown
             or
             intimat
             ,
             an
             Arrester
             being
             Creditor
             to
             the
             person
             who
             got
             the
             Bond
             ,
             is
             preferable
             to
             him
             whose
             Name
             is
             filled
             up
             therein
             ,
             
               November
               11.
               1665.
               
               Telzifer
            
             contra
             Geddies
             ,
             debated
             again
             ,
             and
             so
             decided
             ,
             December
             1.
             1665.
             
          
           
             A
             blank
             Bond
             being
             filled
             up
             by
             him
             who
             r●●eived
             it
             in
             Name
             of
             another
             ,
             and
             delivered
             to
             that
             other
             ,
             and
             by
             him
             shown
             to
             the
             Debitor
             ,
             these
             particulars
             being
             proven
             by
             Witnesses
             
               ex
               officio
            
             ,
             the
             ●●●ty
             whose
             Name
             was
             filled
             up
             ,
             was
             preferred
             to
             a
             Creditor
             of
             him
             to
             whom
             the
             Bond
             was
             first
             delivered
             
             blank
             ,
             arresting
             all
             Sums
             due
             to
             him
             in
             the
             Debitors
             hands
             ,
             but
             after
             filling
             up
             ,
             and
             shewing
             of
             the
             Bond
             to
             the
             Debitor
             ,
             without
             necessity
             of
             an
             intimation
             by
             Instrument
             ,
             Ianuary
             18.
             
             166●
             .
             Birnie
             contra
             He●drieson
             and
             
               George
               Vide
            
             Compensation
             
               inter
               ●osdem
            
             .
          
           
             A
             blank
             in
             a
             Disposition
             ,
             whereby
             Lands
             are
             Disponed
             to
             two
             for
             themselves
             ,
             and
             the
             Creditors
             of
             the
             Disponer
             afterspecified
             ;
             after
             which
             several
             ●ines
             were
             written
             with
             another
             hand
             ,
             inserting
             the
             particular
             Creditors
             and
             Sums
             ,
             without
             mention
             of
             the
             Writer
             of
             that
             part
             of
             the
             Writ
             ,
             whereupon
             it
             was
             presumed
             ,
             that
             that
             blank
             was
             filled
             up
             after
             the
             date
             of
             the
             Writ
             ,
             and
             after
             another
             Creditors
             Inhibition
             ,
             unless
             the
             contrary
             were
             proven
             ,
             not
             by
             the
             Trusties
             oath
             ,
             but
             by
             the
             Witnesses
             insert
             ,
             or
             other
             Witnesses
             above
             Exception
             ,
             Ianuary
             16.
             1670.
             
             Lady
             
               Lucia
               Hamiltoun
               contra
            
             the
             Creditors
             of
             Monkcastle
             .
          
           
             BLOODWITS
             were
             found
             due
             to
             a
             Superior
             Infeft
             
               cum
               Bloodwitis
            
             ,
             albeit
             not
             a
             Baron
             holding
             immediatly
             of
             the
             King
             ,
             
               December
               12.
               1665.
               
               Cranstoun
            
             contra
             Pringle
             .
          
           
             
               BONAE
               FIDEI
               POSSESOR
               ●acit
               fructus
               consumptos
               suos
               ,
            
             though
             he
             have
             not
             possessed
             so
             long
             as
             to
             obtain
             a
             possessory
             ●udgement
             ,
             
               November
               18.
               1664.
               
               Guthrie
               contra
            
             Laird
             of
             Sornbeg
             ,
             and
             though
             the
             other
             Parties
             Infeftment
             was
             Registrate
             .
          
           
             
               Bonae
               ●idei
               possesior
               ,
               &c.
            
             was
             found
             Relevant
             to
             defend
             a
             Party
             possessing
             by
             a
             Contract
             with
             a
             minor
             ,
             though
             Reduced
             upon
             minority
             ,
             as
             to
             the
             years
             uplifted
             before
             the
             Reduction
             ,
             February
             16.
             1666.
             
             Earl
             of
             
               Wintoun
               contra
            
             the
             Countes
             of
             Wintoun
             .
          
           
             
               Bonae
               ●idei
               possessor
            
             ,
             was
             found
             Liberat
             from
             the
             Mails
             of
             a
             Booth
             ,
             whereof
             he
             had
             Tack
             till
             a
             Sum
             were
             payed
             ,
             albeit
             the
             Setter
             was
             but
             Li●erenter
             ,
             and
             had
             purchased
             the
             Tenement
             to
             himself
             in
             Liferent
             and
             to
             his
             Son
             in
             Fee
             ,
             but
             the
             Father
             was
             commonly
             repute
             Feear
             ,
             and
             did
             not
             set
             the
             Tack
             as
             Liferenter
             ,
             yet
             the
             same
             was
             excluded
             from
             the
             duties
             before
             Citation
             ,
             and
             was
             not
             found
             to
             have
             Right
             from
             a
             Warning
             he
             had
             made
             after
             his
             Fathers
             death
             ,
             by
             chalking
             of
             the
             door
             ,
             without
             any
             other
             intimation
             ,
             February
             16.
             1669.
             
             Hamiltoun
             contra
             Harper
             .
          
           
             
               Bona●
               fides
            
             of
             Creditors
             lending
             their
             Money
             ,
             and
             seing
             a
             Wifes
             Contract
             Registrate
             ,
             bearing
             such
             a
             sum
             to
             be
             imployed
             ,
             was
             found
             not
             to
             defend
             them
             against
             the
             Wife
             ,
             who
             obtained
             a
             Declarator
             of
             Vitiation
             of
             the
             principal
             Contract
             by
             her
             Husband
             and
             Fathers
             diminishing
             the
             ●ocher
             and
             Ioynture
             ,
             to
             be
             extended
             and
             amended
             as
             it
             was
             at
             first
             ,
             
               Iune
               11.
               1670.
               
               Hunter
               contra
            
             the
             Creditors
             of
             Peter
             .
          
           
             
               Bona●
               fidei
               possessor
               ,
               &c.
            
             was
             found
             of
             no
             effect
             to
             one
             who
             obtained
             Decreet
             of
             Removing
             ,
             for
             not
             payment
             of
             the
             Duties
             in
             absence
             ,
             and
             produced
             not
             his
             Infeftment
             ,
             but
             an
             Infeftment
             of
             another
             person
             of
             the
             same
             Name
             ,
             which
             being
             a
             ●raudulent
             deed
             ,
             he
             could
             not
             thereby
             have
             a
             
               Title
               bonae
               fidei
               ,
               Iuly
               21.
               1671.
               
               Neilson
            
             contra
             M●nzies
             of
             Enoch
             .
          
           
             BVRGHS
             were
             found
             to
             have
             no
             power
             to
             stent
             any
             part
             of
             the
             Charges
             of
             their
             Commissioners
             ,
             sent
             to
             the
             Convention
             of
             Burrows
             ,
             upon
             these
             who
             had
             no
             Trade
             in
             their
             Town
             ,
             but
             only
             Tenements
             ,
             or
             for
             any
             part
             of
             a
             second
             Ministers
             Stipend
             ,
             unless
             it
             had
             been
             due
             by
             Law
             ,
             Sentence
             ,
             consent
             of
             party
             ,
             or
             prescription
             ,
             February
             1.
             1669.
             
             
               Boswel
               contra
            
             the
             Town
             of
             Kirkaldie
             .
          
           
             The
             priviledge
             of
             Burghs
             by
             the
             Act
             of
             Parliament
             ,
             that
             no
             Trads-men
             should
             exercise
             their
             Trade
             in
             Suburbs
             ,
             was
             found
             only
             to
             extend
             to
             such
             Suburbs
             as
             had
             no
             priviledge
             ,
             but
             if
             the
             Suburbs
             were
             erected
             in
             a
             Burgh
             of
             Regality
             ,
             or
             Barony
             ,
             or
             were
             within
             a
             Barony
             ,
             the
             Inhabitants
             might
             freely
             use
             these
             Trades
             albeit
             some
             of
             them
             had
             given
             Bond
             to
             pay
             such
             a
             Duty
             for
             the
             Liberty
             thereof
             ;
             The
             same
             could
             only
             bind
             themselves
             and
             not
             their
             neighbours
             ,
             or
             the
             Heritors
             Ground
             with
             a
             Servitude
             ,
             without
             his
             consent
             ,
             Iuly
             21.
             1669.
             
             Town
             of
             
               Pearth
               contra
            
             the
             Weave●s
             in
             the
             Bridge●
             end
             of
             Pearth
             .
          
           
             A
             BVRGH
             ROYAL
             having
             obtained
             Decreet
             against
             certain
             persons
             in
             a
             Burgh
             of
             Borony
             ,
             to
             desist
             from
             Merchant
             Trade
             ,
             and
             impowering
             the
             Burgh
             to
             sease
             on
             the
             Merchandise
             ▪
             and
             the
             persons
             of
             the
             contraveeners
             ,
             was
             found
             not
             to
             militate
             against
             others
             than
             those
             individual
             persons
             ,
             and
             not
             against
             the
             Lord
             or
             Baillies
             of
             the
             Barony
             ,
             and
             that
             there
             was
             no
             wa●rand
             in
             Law
             to
             in●arcerate
             persons
             
               hoc
               ordine
               ,
               February
            
             13.
             1663.
             
             Town
             of
             
               Linlithgow
               contra
            
             unfree-men
             of
             Borrowstounn●s●
             .
          
           
             A
             Burgh
             Royal
             pursuing
             a
             Burgh
             of
             Barony
             for
             desisting
             from
             Merchant
             Trade
             ;
             The
             Lords
             ●ound
             the
             Letters
             orderly
             proceeded
             ,
             till
             the
             Burgh
             of
             B●rony
             should
             find
             Caution
             to
             desist
             from
             Merchant
             Trade
             in
             general
             ,
             but
             would
             not
             suffer
             to
             condescend
             upon
             particulars
             ,
             as
             to
             the
             retailing
             of
             Wine
             ,
             &c.
             which
             had
             been
             forborn
             by
             the
             Lords
             these
             30
             ,
             or
             40.
             years
             ,
             Iune
             24.
             1664.
             
             Town
             of
             
               Cowper
               contra
            
             Town
             of
             K●oucher
             .
          
           
             A
             Burgh-Royal
             having
             immemor●al
             possession
             ,
             and
             free
             Trading
             on
             the
             River
             on
             which
             it
             stood
             ,
             was
             found
             not
             to
             be
             burdened
             with
             Anchorage
             ,
             Measurage
             ,
             Tunnage
             and
             Weyage
             ,
             granted
             by
             the
             King
             thereafter
             to
             another
             Burgh
             ,
             in
             Stations
             on
             that
             same
             River
             ,
             though
             cled
             with
             40.
             years
             possession
             ,
             but
             neither
             universal
             nor
             peaceable
             ,
             but
             interrupted
             ,
             February
             6.
             1666.
             
             Town
             of
             
               Glasgow
               contra
            
             Town
             of
             Dumbartoun
             .
          
        
         
           
             A
             Burgh
             Royal
             being
             pursued
             by
             one
             who
             had
             Lands
             within
             their
             Burrow-Lands
             ,
             and
             Houses
             within
             their
             Town
             ,
             were
             found
             not
             lyable
             for
             any
             Stent
             out
             of
             his
             personal
             Estate
             ,
             or
             Trading
             ,
             or
             for
             the
             Towns
             debts
             ,
             or
             second
             Ministers
             Stipend
             ,
             unless
             he
             had
             consented
             ,
             or
             had
             been
             in
             immemorial
             custom
             of
             payment
             ,
             
               Iuly
               22.
               1668.
               
               Bosewel
               contra
            
             the
             Town
             of
             Kirkaldy
             .
          
           
             A
             Burgh
             Royal
             and
             their
             Trads-men
             ,
             were
             found
             not
             to
             have
             Right
             to
             hinder
             the
             exercise
             of
             Trads-men
             ,
             no
             ways
             adjacent
             to
             the
             Town
             to
             exercise
             their
             Trade
             ,
             upon
             pretence
             of
             the
             Act
             of
             Parliament
             ,
             Prohibiting
             Work-men
             to
             exercise
             their
             Trades
             in
             the
             Suburbs
             of
             Royal
             Burrows
             ,
             Ia●uary
             7.
             1671.
             
             Laird
             of
             
               Polmais
               contra
            
             Trads-men
             of
             Stirling
             .
          
           
             CAPTION
             was
             granted
             summarly
             upon
             supplication
             against
             a
             Bankrupt
             ,
             who
             had
             unexpectedly
             and
             fraudulently
             broken
             ,
             and
             fled
             ,
             though
             he
             was
             not
             Rebel
             ,
             but
             the
             Kings
             free
             Leidge
             ,
             November
             30.
             1665.
             
             Creditors
             of
             Mason
             Supplicants
             .
          
           
             
               CASVS
               FORTVITVS
            
             ,
             was
             found
             not
             to
             Liberate
             the
             Grasser
             of
             a
             Horse
             that
             broke
             his
             Neck
             ,
             where
             the
             Owner
             of
             the
             Horse
             appointed
             him
             to
             be
             keeped
             in
             at
             hard
             meat
             ,
             
               Ianuary
               29.
               1666.
               
               Scot
            
             contra
             Gib
             .
          
           
             A
             CAVSE
             ONEROVS
             of
             a
             Disposition
             ,
             by
             one
             Brother
             to
             another
             ,
             was
             found
             not
             to
             be
             instructed
             by
             the
             Narrative
             thereof
             ,
             but
             behoved
             to
             be
             instructed
             
               aliunde
               ,
               November
               19.
               1669.
               
               Whitehead
            
             contra
             Lidderdail
             .
          
           
             A
             cause
             onerous
             of
             a
             Disposition
             ,
             was
             found
             not
             instructed
             by
             its
             own
             Narrative
             ,
             or
             the
             Acquirers
             Oath
             ,
             though
             he
             was
             not
             a
             conjunct
             person
             with
             the
             Disponer
             ,
             seing
             the
             Disposition
             bear
             to
             be
             to
             two
             persons
             for
             themselves
             ,
             and
             to
             the
             behove
             of
             others
             ,
             whose
             interest
             was
             evacuate
             ,
             as
             being
             filled
             up
             after
             an
             Inhibition
             ,
             and
             the
             Disposition
             did
             not
             express
             what
             the
             Acquirers
             own
             Interest
             was
             ,
             Iuly
             15.
             1670.
             
             Lady
             
               Lucia
               Hamiltoun
            
             contra
             Boyd
             of
             Pi●con
             .
          
           
             A
             CAVTIONER
             for
             Executors
             was
             found
             not
             conveenable
             till
             the
             Executor
             be
             discust
             ,
             and
             that
             Decreet
             is
             not
             a
             sufficient
             discussing
             ,
             without
             Registrate
             Horning
             ,
             though
             the
             Executor
             have
             no
             Lands
             ,
             and
             though
             it
             was
             alleadged
             he
             was
             Bankrupt
             ,
             
               Iuly
               24.
               1664.
               
               Brisb●●e
            
             contra
             Monteith
             .
          
           
             A
             Cautioner
             in
             a
             Testament
             was
             found
             conveenable
             and
             comptable
             with
             the
             Executor
             ,
             before
             they
             were
             discust
             ,
             but
             superceeded
             all
             Execution
             against
             the
             Cautioner
             ,
             till
             the
             Executor
             be
             first
             Discust
             ,
             
               December
               2.
               1662.
               
               Dowglas
               contra
            
             the
             Lady
             Edmonstoun
             .
          
           
             A
             Cautioner
             for
             an
             Apprentice
             was
             not
             liberate
             from
             causing
             the
             Apprentice
             serve
             his
             time
             ,
             and
             pay
             damnage
             for
             his
             absence
             ,
             because
             the
             Merchand
             suffered
             him
             to
             go
             over
             Sea
             ,
             and
             intimate
             not
             to
             the
             Cautioner
             to
             restrain
             him
             ,
             yet
             the
             penalty
             was
             modified
             to
             50.
             pounds
             ,
             
               Iune
               17.
               1663.
               
               Allan
            
             contra
             Paterson
             .
          
           
             Cautioners
             conjunct
             ,
             getting
             Assignation
             from
             the
             Debitor
             ,
             were
             found
             to
             have
             access
             to
             the
             rest
             ,
             allowing
             their
             own
             part
             ,
             but
             are
             not
             obliged
             to
             accept
             their
             part
             of
             what
             they
             truely
             payed
             by
             Composition
             ,
             
               Iuly
               18.
               1664.
               
               Ni●bit
            
             contra
             Lesly
             .
          
           
             A
             Cautioner
             was
             not
             found
             lyable
             to
             pay
             ,
             unless
             the
             Debitor
             Assign
             him
             to
             the
             debt
             ,
             and
             all
             security
             he
             had
             from
             the
             principal
             thereof
             ,
             
               Ianuary
               10.
               1665.
               
               Lesly
            
             contra
             Gray
             :
             The
             contrary
             was
             found
             ,
             
               Iuly
               10.
               1665.
               
               Hume
            
             contra
             Crawford
             of
             Kerse
             .
             So
             this
             is
             arbitrary
             ,
             and
             according
             to
             the
             favour
             of
             the
             case
             .
          
           
             A
             Cautioner
             as
             Law
             will
             ,
             being
             obliged
             to
             present
             a
             party
             at
             all
             the
             dyets
             of
             Process
             ,
             and
             pay
             what
             should
             be
             decerned
             against
             him
             ,
             if
             he
             did
             not
             produce
             him
             within
             Term
             of
             Law
             ;
             having
             produced
             the
             Party
             ,
             and
             taken
             Instruments
             protesting
             to
             be
             free
             ,
             he
             was
             found
             liberate
             ,
             albeit
             at
             that
             same
             time
             the
             party
             produced
             an
             Advocation
             ,
             and
             was
             not
             Incarcerate
             ,
             seing
             the
             Baillies
             might
             have
             Incarcerate
             him
             ,
             notwithstanding
             of
             the
             Advocation
             ,
             February
             20.
             1666.
             contra
             Mcculloch
             .
          
           
             A
             Cautioner
             as
             Law
             will
             ,
             not
             being
             both
             
               judicio
               si●ti
               &
               judicatum
               solvi
            
             ,
             was
             liberate
             by
             puting
             the
             party
             in
             prison
             ,
             though
             not
             judicially
             ,
             when
             the
             cause
             was
             called
             ,
             Iuly
             10.
             1666.
             
             Thomson
             contra
             Binnie
             .
          
           
             A
             Cautioner
             in
             a
             Suspension
             of
             a
             Bond
             ,
             wherein
             there
             were
             five
             Cautioners
             ,
             being
             distressed
             ,
             having
             payed
             and
             obtained
             Assignation
             from
             the
             Creditor
             ,
             was
             found
             to
             have
             accesse
             against
             the
             first
             four
             Cautioners
             ,
             as
             if
             he
             had
             been
             Cautioner
             with
             them
             ,
             allowing
             his
             own
             fifth
             part
             ,
             
               February
               3.
               1671.
               
               Arnold
            
             of
             Barnkaple
             contra
             Gordoun
             of
             Cholme
             .
          
           
             A
             CEDENTS
             Oath
             was
             found
             to
             prove
             against
             an
             Assigney
             ,
             being
             the
             Cedents
             Son
             in
             the
             same
             Family
             ,
             having
             no
             ●eans
             of
             his
             own
             to
             acquire
             ,
             and
             the
             Assignation
             being
             gratuitous
             ,
             
               November
               30.
               1665.
               
               White
            
             contra
             Brown.
             
          
           
             CERTIFICATION
             was
             not
             sustained
             against
             the
             Writs
             granted
             to
             the
             Defenders
             Authours
             ,
             but
             such
             as
             were
             called
             for
             ,
             though
             the
             Writ
             were
             alleadged
             to
             be
             in
             his
             own
             hand
             ,
             and
             these
             Authours
             fully
             Denuded
             ,
             Ianuary
             
             3.
             1662.
             
             Hume
             of
             St.
             Bathin●
             contra
             Orre
             and
             Pringle
             .
          
           
             Certification
             was
             not
             admitted
             against
             the
             Letters
             and
             Executions
             of
             an
             Appryzing
             ,
             there
             being
             no
             Reduction
             intented
             till
             30.
             years
             thereafter
             ,
             
               November
               20.
               1666.
               
               Blackwood
            
             contra
             Purves
             .
          
           
             Certification
             was
             not
             admitted
             against
             a
             Writ
             Registrate
             in
             the
             Register
             of
             Session
             ,
             where
             the
             Extract
             was
             produced
             ,
             albeit
             the
             principal
             was
             not
             produced
             ,
             and
             there
             were
             pregnant
             evidences
             of
             Falshood
             ibidem
             .
          
           
             Certification
             
               contra
               non
               producta
            
             ,
             was
             stopped
             upon
             producing
             ,
             and
             offering
             to
             dispute
             that
             the
             Writs
             produced
             ,
             excluded
             the
             Reducer
             ,
             without
             necessity
             to
             the
             Defender
             to
             declare
             that
             he
             would
             make
             use
             of
             no
             more
             ,
             and
             the
             Ordinary
             appointed
             to
             hear
             him
             thereupon
             ,
             but
             if
             they
             sufficed
             not
             ,
             he
             behoved
             with
             the
             next
             to
             produce
             all
             ,
             or
             declare
             he
             would
             make
             use
             of
             no
             further
             ,
             else
             Certification
             to
             be
             granted
             .
             December
             7.
             1667.
             
             Earl
             of
             Lauderdale
             and
             Wachop
             contra
             Major
             Bigger
             .
          
           
             Certification
             was
             refused
             against
             a
             Defender
             ,
             producing
             an
             express
             Infeftment
             of
             the
             Lands
             in
             question
             ,
             and
             the
             pursuer
             alleadging
             that
             they
             were
             part
             and
             pertinent
             of
             the
             Lands
             exprest
             in
             his
             Title
             ,
             he
             was
             ordained
             first
             to
             instruct
             them
             part
             and
             pertinent
             ,
             before
             the
             Defender
             was
             obliged
             to
             take
             a
             Term
             to
             produce
             ,
             
               Ianuary
               20.
               1669.
               
               Hay
            
             Clerk
             contra
             Town
             of
             Peebles
             .
          
           
             Certification
             extracted
             was
             found
             not
             to
             terminate
             the
             Process
             of
             Improbation
             ,
             but
             that
             in
             the
             same
             Process
             ,
             the
             Pursuer
             obtained
             Witnesses
             examined
             as
             to
             the
             Forgery
             ,
             in
             so
             far
             as
             it
             depended
             not
             on
             the
             inspection
             of
             the
             Subscriptions
             ,
             and
             that
             upon
             production
             of
             Copies
             ,
             the
             Principals
             having
             once
             been
             judicially
             produced
             before
             ,
             by
             the
             Defender
             compearing
             ,
             who
             now
             wilfully
             keepeth
             them
             up
             .
             November
             9.
             1669.
             
             Lady
             
               Towie
               contra
            
             Captain
             Barclay
             .
          
           
             Certification
             against
             a
             Decreet
             of
             Valuation
             ,
             was
             found
             to
             have
             no
             effect
             against
             a
             Liferenter
             ,
             publickly
             Infeft
             ,
             not
             called
             ,
             though
             she
             had
             no
             right
             to
             the
             T●ind
             ,
             but
             only
             to
             the
             Benefite
             of
             the
             Valuation
             ,
             to
             liberate
             the
             Stock
             of
             any
             further
             burden
             ,
             Iuly
             15.
             1670.
             
             Major
             Bigger
             contra
             Cunninghame
             of
             Dankeith
             .
          
           
             Certification
             was
             found
             null
             by
             Reply
             ,
             being
             in
             absence
             ,
             and
             where
             the
             conclusion
             of
             the
             Summons
             ,
             as
             it
             is
             related
             in
             the
             certification
             ,
             was
             not
             in
             the
             Terms
             of
             an
             Improbation
             ,
             and
             at
             the
             Kings
             Advocats
             Instance
             ,
             there
             being
             likewise
             a
             Discharge
             of
             a
             Terms
             Feu-duty
             granted
             by
             the
             party
             having
             Right
             to
             the
             certification
             ,
             which
             Term
             and
             Discharge
             were
             posterior
             to
             the
             certification
             ,
             and
             did
             import
             a
             passing
             from
             it
             ,
             and
             did
             Homologai●
             the
             Vassals
             Right
             ,
             
               Iune
               6.
               1671.
               
               Steil
            
             contra
             Hay
             of
             Ra●ray
             .
          
           
             Certification
             
               contra
               non
               producta
            
             ,
             was
             not
             Sustained
             at
             the
             instance
             of
             an
             Appryzer
             ,
             against
             all
             Writs
             granted
             by
             him
             and
             his
             Authors
             Named
             ,
             and
             their
             Predecessors
             ,
             to
             whom
             they
             may
             succeed
             
               ●ure
               sanguinis
            
             ,
             as
             to
             the
             Rights
             granted
             by
             these
             Predecessors
             ,
             unless
             it
             be
             instructed
             that
             the
             said
             Authors
             were
             Infeft
             as
             Heirs
             to
             their
             saids
             Predecessors
             ;
             and
             that
             though
             Defenders
             be
             obliged
             passive
             ,
             to
             produce
             all
             Rights
             made
             to
             them
             and
             their
             Predecessors
             ,
             to
             whom
             they
             may
             succeed
             
               jure
               sanguinis
            
             ,
             and
             so
             to
             produce
             before
             they
             be
             entered
             ;
             yet
             active
             they
             cannot
             insist
             for
             certification
             of
             Rights
             made
             by
             their
             Predecessors
             ,
             as
             appearand
             Heirs
             to
             them
             ,
             but
             as
             being
             actually
             Heirs
             and
             Infeft
             ,
             and
             that
             an
             Appryzer
             was
             in
             no
             better
             case
             as
             to
             this
             ,
             than
             if
             his
             Authors
             had
             been
             pursuing
             ,
             and
             so
             he
             behoved
             to
             instruct
             that
             they
             were
             Infeft
             as
             Heirs
             to
             their
             Predecessors
             ,
             
               Iuly
               14.
               1671.
               
               Dumbar
            
             of
             Baldoon
             contra
             Maxwel
             .
          
           
             Certification
             was
             not
             stopped
             ,
             because
             there
             was
             none
             called
             to
             represent
             the
             Defenders
             Authors
             ,
             upon
             whom
             they
             did
             condescend
             ,
             unless
             they
             first
             produce
             their
             Rights
             from
             these
             Authors
             ,
             thereby
             to
             instruct
             that
             they
             are
             Authors
             ,
             and
             unless
             that
             these
             Authors
             be
             obliged
             to
             them
             in
             warrandice
             ,
             the
             warrandice
             being
             the
             only
             ground
             of
             calling
             the
             Authors
             ,
             that
             they
             might
             defend
             their
             Rights
             to
             shun
             the
             warrandice
             Ibidem
             .
          
           
             A
             CHARGE
             to
             enter
             Heir
             was
             not
             found
             necessary
             to
             a
             poynding
             of
             the
             Ground
             against
             the
             appearand
             Heir
             of
             the
             granter
             of
             the
             Annualrent
             ,
             
               Ianuary
               2.
               1667.
               
               Oliphant
            
             contra
             Hamiltoun
             .
          
           
             
               CHIROGRAPHVM
               apud
               debitorem
               repertum
            
             ,
             was
             found
             not
             only
             to
             extend
             to
             a
             Bond
             found
             by
             the
             debitor
             ,
             but
             to
             an
             Assignation
             made
             by
             the
             Cedent
             ,
             found
             by
             him
             ,
             and
             Witnesse
             were
             not
             admitted
             to
             prove
             delivery
             ,
             and
             instructing
             the
             Cedent
             to
             have
             the
             Assignation
             as
             Agent
             ,
             
               December
               13.
               1666.
               
               Thomson
            
             contra
             Stevinson
             .
          
           
             CIRCVMVENTION
             was
             not
             Sustained
             upon
             a
             parties
             making
             bargain
             anent
             the
             boot
             of
             an
             ●
             Horse
             ,
             though
             it
             was
             offered
             to
             be
             proven
             by
             the
             Defenders
             own
             Oath
             ,
             that
             according
             to
             his
             own
             estimation
             ,
             the
             Pursuer
             was
             lesed
             above
             the
             half
             ,
             and
             that
             he
             was
             Minor
             ,
             in
             respect
             of
             his
             Bond
             ,
             bearing
             upon
             his
             oath
             and
             conscience
             ,
             never
             to
             come
             in
             the
             contrary
             ,
             given
             at
             that
             same
             time
             in
             his
             minority
             ,
             and
             ratified
             after
             his
             Majority
             ,
             
               Iune
               23.
               1669.
               
               Fairie
            
             contra
             Inglis
             .
          
        
         
           
             Circumvention
             was
             found
             instructed
             upon
             several
             pregnant
             evidences
             of
             fraud
             ,
             and
             that
             not
             only
             against
             the
             circumveener
             ,
             who
             obtained
             a
             Bond
             blank
             in
             the
             Creditors
             Name
             ,
             but
             against
             a
             third
             Party
             ,
             whose
             Name
             was
             filled
             up
             in
             the
             blank
             ,
             he
             having
             acknowledged
             by
             his
             Oath
             of
             Calumny
             ,
             that
             there
             were
             not
             equivalent
             sums
             due
             to
             him
             by
             the
             circumveener
             ,
             the
             time
             that
             he
             delivered
             to
             him
             the
             blank
             Bond
             and
             filled
             up
             his
             Name
             ;
             but
             that
             he
             became
             Debitor
             to
             him
             thereafter
             in
             equivalent
             sums
             ,
             whereof
             he
             could
             give
             no
             evidence
             even
             by
             his
             own
             compt
             Book
             ,
             though
             he
             was
             an
             exact
             Merchant
             ,
             and
             lived
             in
             the
             same
             place
             with
             the
             granter
             of
             the
             Blank-bond
             ,
             who
             is
             commonly
             known
             to
             be
             a
             simple
             person
             ,
             and
             the
             obtainer
             thereof
             a
             subdolus
             person
             ,
             without
             asking
             the
             granter
             of
             the
             Bond
             ,
             if
             he
             had
             any
             thing
             to
             object
             ,
             whereof
             he
             should
             not
             accept
             of
             it
             ,
             February
             9.
             1670.
             
             Scot
             contra
             Che●sly
             and
             Thomson
             .
          
           
             Circumvention
             was
             sustained
             to
             Reduce
             or
             aba●e
             a
             Bond
             made
             up
             of
             the
             Rate
             of
             the
             Exchange
             of
             Money
             ,
             not
             agreed
             upon
             before
             the
             Money
             was
             advanced
             by
             the
             Merchant
             ,
             but
             thereafter
             ,
             the
             Merchant
             being
             intrusted
             ,
             and
             gave
             up
             the
             rate
             of
             Exchange
             ,
             much
             higher
             than
             he
             then●
             knew
             it
             was
             ,
             but
             not
             upon
             the
             agreement
             before
             hand
             ,
             although
             it
             had
             been
             far
             above
             the
             ordinary
             Rate
             ,
             
               Ianuary
               19.
               1671.
               
               Dickson
            
             contra
             Grahame
             .
          
           
             CITATION
             on
             a
             Bill
             without
             the
             Signet
             ,
             was
             sustained
             against
             a
             person
             dwelling
             in
             Edinburgh
             ,
             though
             no
             member
             or
             dependent
             on
             the
             Colledge
             of
             Iustice
             ,
             February
             12.
             1663.
             
             Earl
             of
             Southe●k
             contra
             Laird
             of
             Broo●●hal
             .
          
           
             Citation
             at
             the
             Mercat
             Cross
             of
             the
             Shire
             ,
             with
             certification
             to
             be
             holden
             as
             confest
             ,
             granted
             against
             a
             Defender
             absent
             ,
             where
             the
             Messengers
             Executions
             bear
             ,
             that
             he
             Charged
             the
             Defender
             at
             his
             dwelling
             House
             ,
             and
             that
             he
             knew
             that
             he
             was
             within
             ,
             but
             was
             forcibly
             holden
             out
             by
             his
             Wife
             ,
             
               Iuly
               1670.
               
               Lindsay
            
             and
             Swintoun
             her
             Spouse
             
               contra
               Inglis
            
             .
          
           
             A
             CLAVSE
             in
             a
             Bond
             whereby
             a
             Sum
             was
             payable
             to
             the
             Man
             and
             Wife
             ,
             the
             longest
             liver
             of
             them
             two
             and
             their
             Heirs
             ,
             which
             failing
             ,
             the
             Mans
             Heirs
             ,
             was
             found
             to
             constitute
             the
             Wife
             a
             Lif●erenter
             only
             ,
             and
             that
             she
             could
             not
             uplift
             the
             sum
             ,
             because
             the
             Heir
             was
             not
             concurring
             ,
             and
             was
             Infeft
             ,
             and
             behoved
             to
             concur
             ,
             December
             .
             10.
             1661.
             
             
               Kinross
               contra
            
             Laird
             of
             Hunthil
             .
          
           
             A
             Clause
             in
             a
             Tack
             ,
             that
             if
             two
             years
             duty
             run
             together
             unpayed
             ,
             the
             Tack
             should
             expire
             ,
             and
             renuncing
             the
             same
             in
             that
             case
             ,
             with
             a
             Bond
             bearing
             much
             Duty
             resting
             ,
             and
             if
             it
             were
             not
             payed
             by
             such
             a
             day
             ,
             that
             the
             Master
             of
             the
             Ground
             might
             enter
             in
             Possession
             of
             the
             Land
             and
             Cropt
             
               br●vi
               ma●●
            
             ,
             was
             found
             to
             exclude
             ejection
             and
             spuilzie
             by
             so
             entering
             without
             declarator
             .
             
               December
               19.
               1661.
               
               Dewar
               contra
            
             Countes
             of
             Murray
             .
          
           
             A
             Clause
             in
             a
             Missive
             whereby
             the
             Writer
             says
             (
             I
             have
             sent
             you
             such
             a
             sum
             ,
             and
             you
             shall
             have
             as
             much
             as
             long
             as
             you
             live
             ,
             if
             you
             carry
             your self
             as
             you
             do
             now
             )
             being
             questioned
             as
             a
             Postscript
             unsubscribed
             ,
             written
             with
             the
             Parties
             own
             hand
             ,
             at
             his
             Subscription
             ,
             was
             not
             found
             null
             on
             that
             ground
             ,
             but
             it
             being
             alleadged
             to
             import
             but
             a
             resolution
             ,
             and
             not
             a
             promise
             ,
             and
             that
             the
             Parties
             behaviour
             should
             only
             depend
             on
             the
             Writers
             opinion
             ,
             without
             necessitating
             him
             to
             prove
             it
             aliunde
             ;
             The
             Lords
             assoilzied
             ,
             
               Iuly
               15.
               1662.
               
               Wauchop
               contra
            
             Laird
             of
             Niddrie
             .
          
           
             A
             Clause
             obliging
             a
             party
             and
             his
             Heir-male
             ,
             and
             all
             others
             succeeding
             to
             him
             ,
             on
             this
             Narrative
             ,
             that
             his
             Heir
             male
             had
             the
             benefite
             of
             his
             Estate
             ,
             and
             the
             Heirs
             female
             excluded
             ,
             were
             found
             to
             burden
             the
             Heir-male
             
               primo
               loco
            
             ,
             and
             therefore
             behoved
             to
             be
             discussed
             first
             ,
             or
             the
             Executors
             could
             be
             lyable
             ,
             
               Iuly
               22.
               1662.
               
               Anderson
            
             contra
             Wauchop
             .
          
           
             A
             Clause
             destinating
             a
             Sum
             to
             be
             imployed
             for
             the
             Pursuer
             and
             his
             Heirs
             on
             Infeftment
             ,
             was
             found
             Heretable
             
               quo
               ad
               creditorem
            
             ,
             and
             to
             exclude
             the
             Wife
             and
             Bairns
             ,
             but
             Moveable
             
               quo
               ad
               d●bitorem
            
             ,
             and
             payable
             out
             of
             his
             Moveables
             ,
             
               Iuly
               22.
               1662.
               
               Nasmith
            
             contra
             Iaffray
             .
          
           
             A
             Clause
             that
             an
             Heir-male
             should
             pay
             a
             Sum
             to
             an
             Heir
             female
             out
             of
             ●enements
             ,
             was
             found
             personally
             to
             oblige
             him
             to
             pay
             ,
             but
             only
             
               quo
               ad
               valorem
            
             ,
             of
             the
             Tenements
             ,
             and
             therefore
             time
             was
             granted
             to
             dispose
             thereupon
             for
             that
             purpose
             ,
             
               December
               2.
               1662.
               
               C●●●k
            
             contra
             Clerk
             of
             Pit●ncre●●f
             .
          
           
             A
             Clause
             bearing
             such
             a
             quantity
             to
             be
             the
             just
             value
             of
             certain
             Aikers
             ,
             was
             found
             not
             to
             be
             drawn
             in
             consequence
             to
             necessitate
             the
             same
             party
             to
             accept
             the
             like
             quantity
             of
             other
             Aikers
             lying
             run-rig
             therewith
             ,
             December
             18.
             1662.
             
             Lord
             
               Balmerino
               contra
            
             Town
             of
             Edinburgh
             .
          
           
             The
             Clause
             of
             Command
             ,
             hunding
             out
             ,
             and
             Ratihabition
             in
             a
             Spuilzie
             ,
             was
             found
             not
             to
             be
             inferred
             by
             giving
             the
             Messenger
             the
             precept
             of
             Poinding
             simply
             ,
             but
             by
             sending
             him
             and
             other●
             Servants
             to
             a
             particular
             place
             
               extra
               territorium
            
             ,
             which
             made
             the
             poynding
             Spuilzie
             ,
             
               Ianuary
               9.
               1663.
               
               Mason
            
             contra
             Hunter
             .
          
           
             A
             Clause
             in
             a
             Bond
             providing
             a
             Sum
             to
             a
             Man
             and
             his
             Wife
             ,
             the
             longest
             liver
             of
             them
             two
             in
             Conjun●●see
             ,
             and
             the
             Bairns
             procreate
             betwixt
             them
             ,
             which
             failzying
             ,
             to
             two
             Bairns
             of
             his
             by
             a
             former
             Marriage
             ,
             contaning
             also
             a
             precept
             for
             Infefting
             the
             Spouses
             ,
             and
             the
             Bairns
             of
             the
             Marriage
             ,
             
             which
             failzying
             ,
             the
             two
             Bairns
             ,
             &c.
             was
             found
             to
             constitute
             the
             Husband
             Feear
             ,
             the
             whole
             Bairns
             of
             that
             Marriage
             Heirs
             of
             provision
             ,
             jointly
             male
             or
             female
             ,
             the
             two
             Bairns
             of
             the
             former
             Marriage
             Heirs
             Substitute
             ,
             and
             that
             they
             behoved
             to
             be
             served
             Heirs
             and
             Infeft
             ,
             there
             being
             an
             Infeftment
             before
             ,
             and
             that
             the
             Seasine
             
               in
               quantum
            
             ,
             to
             the
             two
             Bairns
             nominatim
             ,
             though
             Bairns
             of
             this
             Marriage
             should
             ●ail
             ,
             was
             not
             valide
             ,
             
               Ianuary
               14.
               1663.
               
               Beg
            
             contra
             Nicolson
             .
          
           
             A
             Clause
             in
             a
             Disposition
             of
             Lands
             ,
             bearing
             that
             it
             shall
             not
             be
             leisum
             to
             the
             Purchaser
             to
             alienate
             the
             Lands
             during
             such
             a
             Mans
             Life
             ,
             and
             if
             he
             did
             in
             the
             contrary
             ,
             to
             pay
             10000.
             pounds
             for
             damnage
             and
             interest
             ,
             
               ex
               pacto
               convento
            
             ,
             was
             found
             not
             to
             be
             as
             a
             liquidate
             penalty
             ,
             for
             the
             expences
             of
             the
             Failzi●
             to
             be
             pe●formed
             by
             and
             a●●our
             the
             principal
             obligement
             ,
             but
             to
             be
             a
             liquidation
             of
             the
             principal
             obligement
             it self
             ,
             and
             to
             resolve
             into
             an
             alternative
             Obligation
             ,
             February
             4.
             1663.
             
             Laird
             of
             Philorth
             contra
             Lord
             Frazier
             .
          
           
             A
             Clause
             in
             a
             Bond
             bearing
             to
             pay
             the
             sum
             to
             the
             Lender
             or
             his
             Brother
             ,
             was
             found
             not
             to
             give
             ground
             to
             use
             compensation
             against
             that
             Brother
             ,
             to
             exclude
             the
             Lender
             himself
             ,
             
               February
               14.
               1663.
               
               Robertson
            
             contra
             Buchannan
             .
          
           
             A
             Clause
             in
             a
             Bond
             whereby
             the
             sum
             was
             payable
             to
             the
             Man
             and
             Wife
             in
             Conjunctsee
             ,
             and
             to
             the
             Bairns
             of
             the
             Marriage
             ,
             whereupon
             Infeftment
             followed
             to
             the
             Man
             and
             Wife
             ,
             was
             found
             not
             payable
             to
             the
             Wife
             till
             all
             the
             Bairns
             equally
             male
             or
             female
             were
             served
             as
             Heirs
             of
             provision
             in
             the
             annualren●
             ,
             and
             Infeft
             and
             Renunced
             ,
             February
             14.
             1663.
             
             Hay
             contra
             Morison
             .
          
           
             A
             Clause
             bearing
             to
             accept
             such
             a
             sum
             in
             case
             there
             were
             Bairns
             of
             the
             Marriage
             ,
             was
             found
             to
             take
             place
             if
             there
             was
             a
             Bairn
             surviving
             the
             Mother
             never
             so
             shortly
             ,
             February
             17.
             1663.
             
             Forsyth
             contra
             Patoun
             .
          
           
             A
             Clause
             in
             a
             Bond
             bearing
             a
             sum
             payable
             to
             Man
             and
             Wife
             and
             their
             Heirs
             ,
             but
             not
             mentioning
             ,
             which
             failzying
             ,
             &c.
             was
             found
             to
             give
             the
             Wife
             the
             Liferent
             of
             the
             sum
             ,
             but
             not
             both
             the
             Liferent
             and
             half
             of
             the
             Stock
             ,
             though
             it
             bear
             no
             annualren●
             ,
             and
             she
             was
             the
             longest
             liver
             ,
             Iune
             24.
             1663.
             
             Scrymzour
             contra
             Murrays
             .
          
           
             A
             Clause
             in
             a
             Tack
             wherein
             the
             Tacks-man
             was
             to
             retain
             his
             annualrent
             ,
             or
             to
             pay
             the
             Bolls
             at
             20.
             shillings
             less
             nor
             the
             Feirs
             at
             his
             option
             ,
             was
             sustained
             not
             as
             usury
             ,
             or
             contrary
             the
             Act
             ,
             Debitor
             and
             Creditor
             ,
             
               November
               23.
               1664.
               
               Scot
               contra
            
             Laird
             of
             Barefoord
             .
          
           
             A
             Clause
             in
             a
             Contract
             of
             Marriage
             ,
             providing
             a
             Wife
             to
             the
             annualrent
             of
             all
             Goods
             and
             Gear
             ,
             Moveable
             and
             Immoveable
             ,
             was
             found
             to
             exclude
             her
             from
             her
             third
             of
             Moveables
             ,
             and
             that
             she
             could
             not
             both
             have
             the
             Liferent
             of
             the
             whole
             and
             a
             part
             of
             the
             Stock
             ,
             
               December
               20.
               1664.
               
               Young
            
             contra
             Buchannan
             .
          
           
             A
             Clause
             in
             a
             Contract
             of
             Marriage
             ,
             providing
             a
             Ioynture
             to
             a
             Wi●e
             ,
             with
             condition
             that
             she
             should
             restrict
             her self
             to
             so
             much
             less
             in
             favours
             of
             the
             Bairns
             ,
             and
             that
             the
             superplus
             should
             pertain
             to
             the
             Bairns
             for
             their
             Aliment
             ;
             This
             restriction
             was
             found
             not
             to
             be
             from
             the
             Father
             ,
             but
             from
             gratuity
             of
             the
             Mother
             ,
             the
             whole
             Ioynture
             being
             no
             more
             than
             proportionable
             to
             the
             condition
             of
             the
             parties
             ,
             and
             so
             not
             to
             be
             in
             defraud
             of
             the
             Fathers
             Creditors
             ,
             November
             16.
             
             1●●5
             .
             Wat
             contra
             Russel
             .
          
           
             A
             Clause
             obliging
             a
             Father
             and
             his
             Heirs
             of
             the
             first
             Marriage
             ,
             which
             failzying
             his
             other
             Heirs
             to
             pay
             to
             the
             Bairns
             of
             a
             second
             Marriage
             ,
             at
             such
             an
             age
             ,
             such
             s●ms
             ,
             was
             found
             to
             give
             no
             Right
             to
             the
             Assigney
             of
             them
             who
             attained
             not
             to
             that
             age
             ,
             so
             soon
             as
             they
             would
             have
             been
             of
             that
             age
             ,
             if
             they
             had
             lived
             ,
             but
             that
             it
             was
             
               dies
               ●ncertus
               qui
               pro
               conditions
               habet●r
               ,
            
             and
             accresced
             to
             the
             rest
             ,
             and
             the
             H●●●
             of
             the
             first
             Marriage
             failzying
             ,
             never
             being
             entered
             Heir
             ,
             the
             Heir
             of
             the
             second
             Marriage
             had
             no
             share
             as
             Heir
             of
             that
             Marriage
             ,
             but
             was
             excluded
             as
             Debitor
             in
             the
             Clause
             ,
             
               February
               17.
               1665.
               
               Edgar
            
             contra
             Edgar
             .
          
           
             In
             Clauses
             conceived
             passive
             ,
             the
             contracters
             are
             understood
             obliged
             ,
             though
             they
             do
             not
             nominatim
             oblige
             themselves
             
               February
               22.
               1665.
               
               Mowat
            
             contra
             Dumbar
             of
             Hemprigs
             .
          
           
             A
             Clause
             in
             a
             Bond
             obliging
             many
             parties
             conjunctly
             and
             severally
             ,
             without
             a
             Clause
             of
             Relief
             ,
             was
             found
             to
             import
             mutual
             Relief
             ,
             
               ex
               natura
               rei
               ,
               Iune
               28.
               1665.
               
               Monteith
            
             contra
             Anderson
             .
          
           
             A
             Clause
             in
             a
             Contract
             of
             Marriage
             ,
             obliging
             the
             Husband
             and
             his
             Cautioner
             ,
             that
             so
             soon
             as
             he
             should
             receive
             the
             Tocher
             from
             the
             Wifes
             Father
             ,
             the
             same
             with
             so
             much
             more
             should
             be
             imployed
             for
             the
             Wi●es
             Liferent
             use
             ,
             was
             found
             valide
             against
             the
             Cautioner
             ,
             40.
             years
             after
             the
             date
             of
             the
             Contract
             ,
             without
             necessity
             to
             instruct
             that
             the
             Tocher
             was
             payed
             ,
             seing
             it
             was
             the
             Husband
             and
             Cautioners
             ●ault
             that
             it
             was
             not
             demanded
             ,
             and
             now
             it
             cannot
             ,
             because
             Prescription
             was
             run
             ,
             
               Iuly
               5.
               1665.
               
               Mackie
            
             contra
             Steuart
             .
          
           
             A
             Clause
             in
             a
             Bond
             obliging
             a
             Cautioner
             as
             Sure●y
             and
             full
             debitor
             ,
             was
             found
             to
             make
             the
             Cautioner
             lyable
             for
             the
             whole
             Sum
             ,
             and
             not
             for
             the
             half
             only
             ,
             though
             it
             bear
             not
             conjunctly
             and
             severally
             ,
             
               Iuly
               5.
               1665.
               
               Dumbar
               contra
            
             Earl
             of
             Dundi●
             .
          
           
             A
             Clause
             in
             a
             Bond
             obliging
             to
             pay
             the
             price
             of
             Wine
             according
             to
             the
             conditions
             agreed
             on
             ,
             was
             found
             to
             burden
             the
             Debitor
             to
             prove
             the
             conditions
             ,
             or
             to
             pay
             the
             common
             Rate
             of
             Wine
             ,
             but
             it
             was
             found
             probable
             by
             Witnesses
             ,
             
               Iuly
               29.
               1665.
               
               Dowglas
            
             contra
             Cowan
             and
             Russel
             .
          
           
             A
             Clause
             providing
             a
             Tocher
             to
             the
             Husband
             and
             Wife
             ,
             the
             longest
             Liver
             of
             them
             two
             in
             conjunctsee
             and
             Liferent
             ,
             and
             to
             their
             Bairns
             in
             Fee
             ,
             was
             found
             not
             to
             constitute
             the
             Man
             and
             Wife
             Naked
             Liferenters
             ,
             but
             to
             have
             power
             to
             alter
             the
             Substitution
             ,
             seing
             there
             were
             no
             Bairns
             existent
             at
             that
             t●me
             ,
             
               D●●●mber
               12.
               1665.
               
               Pearson
            
             contra
             Mar●●e
             and
             his
             Son.
             
          
           
             A
             Clause
             in
             a
             Letter
             whereby
             three
             parties
             obliged
             them
             to
             pay
             such
             Bills
             as
             the
             bea●er
             would
             draw
             for
             Cows
             that
             he
             should
             buy
             for
             their
             use
             ,
             he
             having
             drawn
             a
             Bill
             upon
             them
             or
             any
             of
             them
             ,
             each
             of
             them
             was
             found
             lyable
             accordingly
             
               in
               solidum
               ,
               December
               20.
               1665.
               
               Mcl●●d
            
             contra
             Young
             and
             Giffan
             .
          
           
             A
             Clause
             in
             a
             Bond
             bearing
             a
             sum
             payable
             to
             two
             brethren
             ,
             or
             failing
             the
             one
             ,
             to
             the
             other
             ,
             being
             a
             mutual
             Substitution
             ,
             was
             found
             not
             
               jure
               accrescendi
            
             to
             belong
             to
             the
             Surviver
             ,
             but
             〈◊〉
             Heir
             Substitute
             to
             the
             Deceassing
             ,
             without
             Children
             ,
             yet
             so
             as
             not
             to
             be
             lyable
             as
             Heir
             
               in
               solidum
            
             ,
             but
             
               quo
               ad
               valorem
               ,
               Iuly
               3.
               1666.
               
               Fleming
            
             contra
             Fleming
             .
          
           
             A
             Clause
             in
             a
             Writ
             bearing
             a
             Narrative
             as
             a
             Testament
             ,
             and
             leaving
             such
             a
             〈◊〉
             Heir
             and
             Donator
             to
             such
             Tenenements
             ,
             and
             Assigning
             him
             to
             the
             Evidents
             ,
             with
             power
             to
             him
             after
             return
             to
             Recal
             ,
             was
             found
             effectual
             though
             not
             formal
             to
             inforce
             his
             Heir
             to
             perfect
             the
             same
             ,
             Ianuary
             31.
             1667.
             
             Henrison
             contra
             Henrison
             .
             The
             same
             was
             renewed
             upon
             full
             debate
             ,
             November
             4.
             1667.
             and
             the
             being
             of
             the
             Writs
             in
             the
             granters
             hands
             after
             his
             Retu●n
             ,
             was
             found
             a
             sufficient
             Evidence
             of
             Recalling
             it
             ,
             but
             its
             coming
             back
             in
             the
             hands
             of
             the
             other
             party
             ,
             was
             found
             not
             sufficient
             to
             Revive
             it
             ,
             but
             they
             were
             ordained
             to
             instruct
             how
             they
             came
             by
             it
             ,
             whether
             as
             delivered
             back
             again
             by
             the
             Granter
             ,
             or
             found
             amongst
             his
             Papers
             ,
             
               November
               14.
               1667.
               inter
               cosdem
            
             .
          
           
             A
             Clause
             obliging
             a
             party
             to
             pay
             such
             a
             sum
             ,
             as
             being
             the
             Annualrent
             of
             such
             a
             sum
             ,
             without
             any
             obligation
             for
             paying
             the
             principal
             exprest
             ,
             was
             found
             not
             to
             imply
             an
             obligement
             to
             pay
             the
             principal
             ,
             as
             acknowledged
             due
             ,
             but
             was
             found
             to
             constitute
             the
             Annualrent
             perpetual
             ,
             and
             not
             for
             the
             Womans
             life
             ,
             though
             it
             exprest
             not
             Heirs
             and
             Assign●ys
             ,
             
               February
               2.
               1667.
               
               Power
            
             contra
             Dykes
             .
          
           
             A
             Clause
             in
             a
             Bond
             bearing
             a
             sum
             to
             be
             lent
             by
             a
             Father
             for
             himself
             ,
             and
             as
             Administrator
             for
             his
             Son
             ,
             a●d
             payable
             to
             the
             Father
             ,
             and
             after
             his
             decease
             to
             the
             Son
             ,
             but
             bearing
             that
             it
             was
             the
             Sons
             own
             Money
             ,
             not
             expressing
             how
             or
             from
             whom
             it
             came
             ,
             was
             ●ound
             to
             constitute
             the
             Son
             Feear
             ,
             and
             the
             Father
             Naked
             Liferenter
             ,
             
               February
               14.
               1667.
               
               Campbel
            
             contra
             Constantine
             .
          
           
             A
             Clause
             disponing
             Lands
             ,
             was
             found
             to
             carry
             the
             Miln
             ,
             if
             the
             Lands
             were
             a
             Barony
             ,
             or
             if
             the
             Miln
             was
             not
             exprest
             in
             the
             Authours
             own
             Right
             ,
             otherways
             that
             it
             could
             not
             pass
             as
             part
             and
             per●inent
             ,
             February
             15.
             1667.
             
             Countess
             of
             Hume
             contra
             Tenents
             of
             Oldcambus
             and
             Mr.
             
               Rodger
               Hog
            
             .
          
           
             A
             Clause
             in
             a
             Contract
             of
             Marriage
             ,
             whereby
             the
             Husband
             is
             obliged
             to
             take
             the
             conquest
             to
             the
             future
             Spouse
             in
             Conjunct●ee
             ,
             and
             the
             Heirs
             betwixt
             them
             ▪
             Which
             failing
             ,
             the
             Heirs
             of
             the
             Mans
             Body
             ,
             which
             failing
             ,
             the
             Wifes
             Heirs
             whatsoever
             ,
             was
             found
             not
             to
             constitute
             the
             Wife
             Feear
             ,
             upon
             the
             ●ailing
             of
             Heirs
             of
             the
             Mans
             Body
             ,
             but
             the
             Husband
             ,
             
               February
               20.
               1667.
               
               Cranstoun
            
             contra
             Wilkison
             .
          
           
             A
             Clause
             in
             the
             dispositive
             part
             of
             a
             Charter
             
               Cum
               privilegio
               piscaudi
               in
               aqua
               ,
               &c.
            
             was
             found
             not
             to
             be
             a
             sufficient
             Right
             of
             Salmond-fishing
             ,
             unless
             Salmond-fishing
             had
             been
             thereby
             posses●
             forty
             years
             without
             interruption
             ,
             and
             so
             it
             is
             only
             a
             Title
             for
             Prescription
             ,
             February
             27.
             1667.
             
             Earl
             of
             
               Southesk
               contra
            
             Laird
             of
             Earlshall
             .
          
           
             A
             Clause
             in
             a
             Bond
             bearing
             sums
             to
             be
             payed
             to
             a
             Man
             and
             his
             Wife
             ,
             and
             their
             Heirs
             ,
             bea●ing
             Annualrent
             ,
             though
             no
             Infeftment
             followed
             ,
             was
             found
             to
             give
             the
             Wifes
             Heirs
             no
             share
             ,
             seing
             the
             Money
             appeared
             not
             to
             have
             been
             hers
             ,
             and
             was
             presumed
             to
             be
             the
             Mans
             ,
             and
             he
             surviving
             did
             Revock
             the
             Substitution
             ,
             as
             a
             Donation
             betwixt
             Man
             and
             Wife
             ,
             
               Iune
               19.
               1667.
               
               Iohnstoun
            
             contra
             Cuninghame
             .
          
           
             A
             Clause
             in
             an
             Assignation
             by
             a
             Father
             to
             his
             Daughter
             ,
             bearing
             a
             power
             to
             alter
             during
             his
             Life
             ,
             was
             found
             not
             to
             take
             effect
             by
             an
             Assignation
             to
             a
             third
             party
             ,
             who
             instantly
             granted
             a
             Back-bond
             bearing
             his
             Name
             was
             but
             in
             trust
             to
             do
             diligence
             ,
             and
             obliging
             himself
             to
             denude
             in
             favours
             of
             the
             Father
             his
             Hei●s
             and
             Assigneys
             ,
             but
             was
             not
             found
             to
             operate
             for
             the
             Fathers
             Heir
             ,
             but
             for
             the
             Daughter
             his
             Assigney
             ,
             
               Iuly
               17.
               1667.
               
               Scot
            
             contra
             Scot.
             
          
           
             A
             Clause
             in
             a
             Tack
             setting
             14.
             
             A●kers
             of
             Lands
             presently
             possest
             by
             the
             Tacks-man
             ,
             was
             found
             not
             to
             limite
             him
             to
             14
             ▪
             Aikers
             of
             any
             present
             Measure
             ,
             seing
             he
             had
             possessed
             still
             since
             the
             Tack
             these
             30.
             years
             ,
             albeit
             it
             was
             alleadged
             that
             besides
             14.
             
             Aikers
             ,
             there
             were
             six
             Aikers
             severally
             ●enned
             and
             possest
             by
             different
             persons
             before
             that
             Tack
             ,
             
               Iuly
               19.
               1667.
               
               Dae●
            
             contra
             Kyle
             .
          
           
             A
             Clause
             in
             a
             Bond
             bearing
             a
             sum
             borrowed
             from
             Husband
             
             and
             Wi●●
             ,
             and
             payable
             to
             the
             longest
             liver
             of
             them
             two
             in
             Conjunctfee
             ,
             and
             to
             the
             Heirs
             betwixt
             them
             ,
             or
             their
             Assigneys
             ,
             which
             failing
             to
             the
             Heirs
             or
             Assigneys
             of
             the
             last
             liver
             ,
             was
             found
             to
             constitute
             the
             Husband
             Fe●ar
             and
             the
             Wife
             Liferenter
             ,
             albeit
             she
             was
             last
             liver
             ,
             and
             the
             Heirs
             by
             the
             last
             Clause
             ,
             were
             but
             Heirs
             of
             provision
             to
             the
             Husband
             ,
             in
             case
             the
             Heirs
             of
             the
             Marriage
             failed
             ,
             Ianuary
             26.
             1668.
             
             Iustice
             contra
             Barclay
             his
             Mother
             .
          
           
             A
             Clause
             in
             a
             Bond
             whereby
             a
             Woman
             obliged
             her self
             to
             enter
             heir
             of
             Line
             to
             her
             Father
             ,
             and
             to
             resign
             certain
             Lands
             in
             favours
             of
             her self
             and
             the
             heirs
             of
             her
             body
             ,
             which
             failing
             to
             the
             heirs
             of
             her
             Father
             ,
             and
             obliged
             her self
             to
             do
             nothing
             contrary
             to
             that
             Succession●
             whereupon
             Inhibition
             was
             used
             before
             her
             Marriage
             ,
             was
             found
             effectual
             against
             her
             and
             her
             Husband
             whom
             she
             Married
             thereafter
             ,
             and
             disponed
             the
             Lands
             to
             him
             and
             his
             heirs
             ,
             as
             being
             a
             voluntar
             deed
             ,
             without
             an
             equivalent
             cause
             onerous
             ,
             albeit
             by
             the
             said
             Bond
             of
             ●ailzie
             ,
             the
             heir
             of
             provision
             beh●ved
             to
             be
             the
             heir
             to
             the
             Woman
             her self
             ,
             without
             discussing
             whether
             deeds
             done
             for
             causes
             onerous
             ,
             without
             collusion
             ,
             would
             be
             effectual
             against
             the
             said
             heir
             of
             provision
             ,
             Ianuary
             28.
             1668.
             
             Binn●●
             contra
             Binnie
             .
          
           
             A
             Clause
             in
             a
             second
             Contract
             of
             Marriage
             ,
             that
             the
             heirs
             of
             the
             Marriage
             should
             have
             right
             to
             Tacks
             acquired
             during
             the
             Marriage
             ,
             was
             found
             to
             extend
             to
             a
             new
             Tack
             obtained
             of
             Lands
             ,
             then
             possessed
             by
             the
             Father
             ,
             unless
             he
             had
             a
             Tack
             thereof
             before
             in
             Writ
             ,
             which
             if
             not
             expyred
             ,
             the
             new
             ▪
             Tack
             would
             not
             be
             esteemed
             conquest
             ,
             if
             the
             new
             Tack
             were
             given
             for
             the
             old
             ,
             
               Iuly
               3.
               1668.
               
               Frazer
            
             contra
             Frazer
             .
          
           
             A
             Clause
             in
             a
             Testament
             ,
             leaving
             a
             Legacy
             to
             a
             second
             Son
             in
             satisfaction
             of
             all
             he
             could
             befal
             by
             his
             Fathers
             deceass
             ,
             was
             found
             not
             to
             be
             in
             satisfaction
             of
             a
             debt
             due
             by
             his
             Father
             to
             that
             Son
             ,
             as
             having
             uplifted
             a
             Legacy
             left
             to
             him
             by
             his
             Mothers
             Father
             ,
             both
             not
             being
             above
             a
             competent
             provision
             by
             a
             Father
             in
             his
             condition
             to
             his
             Son
             ,
             
               December
               15.
               1668.
               
               Win●●●am
            
             contra
             Eleis
             .
          
           
             A
             Clause
             in
             a
             Contract
             of
             of
             Marriage
             ,
             providing
             all
             the
             Husbands
             Goods
             and
             Gear
             acquired
             during
             the
             Marriage
             ,
             to
             the
             Wife
             for
             her
             Liferent
             use
             ,
             was
             found
             to
             be
             with
             the
             burden
             of
             the
             Husbands
             debt
             ,
             and
             only
             to
             be
             meaned
             of
             free
             Gear
             ,
             and
             not
             to
             exclude
             the
             Husbands
             Creditors
             at
             any
             time
             contracting
             ,
             
               December
               23.
               1668.
               
               Smith
            
             contra
             Muire
          
           
             A
             CLAVSE
             OF
             CONQVEST
             in
             a
             Wifes
             Contract
             of
             Marriage
             ,
             who
             was
             competently
             otherwayes
             provided
             ,
             was
             ●ound
             to
             carry
             the
             Lands
             conquest
             ,
             with
             the
             burden
             of
             a
             sum
             ,
             which
             the
             Husband
             declared
             under
             his
             hand
             to
             be
             a
             part
             of
             the
             price
             ,
             though
             the
             same
             would
             not
             hold
             in
             the
             burdening
             of
             heirs
             of
             conquest
             ,
             December
             20.
             1665.
             
             Lady
             
               Kilbocho
               contra
            
             Laird
             of
             Kilbocho
             .
             This
             sum
             was
             due
             to
             the
             Seller
             of
             the
             Lands
             and
             exprest
             .
          
           
             A
             Clause
             of
             Conquest
             providing
             the
             Goods
             to
             be
             conquest
             and
             acquired
             during
             the
             marriage
             to
             the
             Children
             of
             a
             second
             Marriage
             ,
             was
             found
             to
             be
             understood
             of
             the
             Goods
             as
             they
             were
             at
             the
             Defuncts
             death
             ,
             and
             that
             he
             might
             dispone
             of
             ,
             or
             burden
             them
             during
             his
             life
             at
             his
             pleasure
             ;
             and
             therefore
             a
             Bond
             granted
             to
             the
             Children
             of
             the
             first
             Marriage
             ,
             was
             found
             valide
             against
             the
             Children
             of
             the
             second
             Marriage
             ,
             to
             affect
             the
             Goods
             acquired
             during
             that
             Marriage
             ,
             February
             9.
             1669.
             
             Cowan
             contra
             Young
             and
             Reid
             .
          
           
             A
             CLAVSE
             IRRITANT
             in
             a
             Reversion
             being
             committed
             ,
             was
             found
             not
             to
             be
             null
             but
             to
             be
             restricted
             to
             the
             damnage
             of
             the
             Granter
             ,
             so
             that
             if
             the
             Wodsetter
             would
             give
             as
             much
             ,
             or
             had
             offered
             the
             same
             before
             the
             Reverser
             had
             closed
             bargain
             with
             another
             ,
             the
             clause
             irritant
             would
             be
             sustained
             ,
             the
             Wodsetter
             paying
             in
             the
             superplus
             ,
             February
             12.
             1667.
             
             Earl
             of
             Tillibardin
             contra
             Murray
             of
             A●chter●yre
             .
          
           
             A
             Clause
             irritant
             in
             a
             Back
             bond
             after
             a
             Reversion
             discharged
             ,
             bearing
             that
             in
             payment
             of
             such
             sums
             ,
             the
             Acquirer
             should
             denude
             himself
             ,
             it
             being
             done
             within
             such
             a
             time
             ,
             and
             if
             not
             then
             done
             ,
             to
             be
             null
             
               ipso
               facto
            
             ,
             without
             declarator
             ,
             was
             found
             not
             to
             exclude
             Redemption
             after
             that
             Term
             before
             declarator
             ,
             which
             was
             found
             necessary
             in
             this
             case
             ,
             
               February
               ●
               .
               1667.
               
               Inter
               ●osdem
               .
            
          
           
             A
             Clause
             irritant
             on
             not
             payment
             of
             the
             Back-tack-duty
             ,
             was
             found
             not
             to
             be
             comprehended
             in
             that
             clause
             of
             the
             Act
             Debitor
             and
             Creditor
             ,
             
               November
               26.
               1662.
               
               Sawer
            
             contra
             Rutherfoord
             .
          
           
             A
             Clause
             irritant
             on
             not
             payment
             of
             the
             Back-tack-duty
             ,
             was
             found
             valide
             ,
             unless
             purged
             by
             payment
             at
             the
             Bar
             ,
             Ibidem
             .
          
           
             A
             CLAVSE
             OF
             SVBSTITVTION
             in
             an
             universal
             Legacy
             ,
             providing
             the
             Fathers
             free
             Goods
             to
             two
             daughters
             ,
             and
             falling
             of
             either
             of
             them
             to
             the
             other
             ,
             the
             one
             dying
             ,
             the
             portion
             was
             found
             to
             accresce
             to
             the
             other
             ,
             without
             necessity
             of
             her
             confirming
             her
             deceassed
             Sisters
             Testament
             ,
             
               ●ure
               accrescendi
               ,
               December
               5.
               1665.
               
               Helen
               H●●
            
             contra
             Maxwell
             .
          
           
             A
             Clause
             of
             Substitution
             upon
             the
             Margent
             of
             a
             Bond
             contrary
             the
             Substitution
             in
             the
             Body
             ,
             to
             wit
             by
             the
             Gran●er
             of
             the
             Bond
             himself
             ,
             who
             exprest
             that
             he
             had
             filled
             up
             the
             date
             and
             Witnesses
             ,
             and
             mentioned
             not
             that
             he
             had
             filled
             up
             the
             marginal
             Note
             ,
             And
             the
             Witnesses
             insert
             deponing
             that
             they
             remembered
             not
             that
             they
             did
             see
             that
             marginal
             Note
             ,
             though
             holograph
             ,
             was
             not
             found
             to
             be
             of
             the
             date
             of
             the
             Bond
             ,
             nor
             of
             any
             date
             before
             the
             Granter
             thereof
             was
             on
             death-bed
             ,
             therefore
             on
             all
             these
             Grounds
             joyntly
             it
             was
             found
             null
             as
             to
             the
             heir
             ,
             here
             the
             parties
             had
             accorded
             ,
             
             February
             ●8
             .
             1667.
             
             Laird
             of
             Dury
             contra
             ▪
             Gibson
             .
          
           
             A
             Clause
             of
             Substitution
             in
             an
             Assignation
             to
             a
             Bond
             of
             6000.
             merks
             ,
             whereof
             4000.
             merks
             to
             the
             Cedents
             eldest
             Son
             ,
             and
             2000.
             merks
             to
             Wiliam
             and
             Ianet
             his
             youngest
             Children
             ,
             and
             in
             case
             of
             the
             eldests
             deceass
             ,
             providing
             the
             other
             two
             to
             his
             part
             ,
             Ianet
             dying
             before
             Robert
             ,
             and
             he
             also
             dying
             after
             without
             Issue
             ,
             Ianets
             heir
             was
             found
             to
             succeed
             as
             heir
             of
             provision
             to
             Robert
             ,
             in
             her
             half
             of
             his
             part
             ,
             though
             she
             dyed
             before
             Robert
             ,
             and
             the
             clause
             did
             not
             substitute
             her
             and
             her
             heirs
             ,
             but
             only
             mentioned
             her self
             ,
             Ianuary
             5.
             1670.
             
             
               Innes
               contra
            
          
           
             A
             Clause
             in
             a
             Bond
             to
             be
             comptable
             for
             the
             profite
             of
             an
             Office
             ,
             and
             stating
             such
             a
             party
             Iudge
             in
             case
             of
             difference
             ,
             was
             found
             to
             be
             an
             effectual
             submission
             ,
             not
             only
             as
             to
             the
             subscriber
             ,
             but
             as
             to
             the
             accepter
             ,
             and
             not
             to
             terminate
             with
             a
             year
             ▪
             and
             to
             this
             effect
             ,
             if
             that
             person
             determined
             not
             being
             required
             ,
             or
             determined
             wrong
             ,
             the
             Lords
             would
             hear
             and
             rectifie
             the
             accompts
             themselves
             ,
             
               February
               3.
               1669.
               
               B●s●wel
            
             contra
             Lindsay
             of
             Wormistoun
             .
          
           
             A
             CLAVSE
             DE
             NON
             ALINANDO
             ,
             otherways
             the
             contraveeners
             right
             should
             be
             void
             ,
             and
             the
             next
             heir
             have
             place
             ,
             being
             insert
             in
             the
             original
             Charter
             and
             Seasine
             ,
             
               ad
               longum
            
             :
             and
             also
             i●
             the
             heirs
             Re●our
             and
             Seasine
             ,
             was
             sound
             to
             annul
             the
             Contravceners
             Infe●tment
             ,
             in
             favours
             of
             the
             next
             heir
             ,
             and
             in
             consequence
             to
             annul
             the
             Rights
             of
             appryzings
             from
             that
             heir
             ,
             February
             26.
             1662.
             
             Viscount
             of
             
               S●●rmount
               contra
            
             the
             Credi●ors
             of
             A●nandal●
             .
          
           
             A
             Clause
             in
             a
             Disposition
             of
             Tailzie
             
               de
               non
               alienando
            
             ,
             in
             common
             form
             ,
             with
             this
             addition
             ,
             that
             it
             should
             be
             leisom
             to
             the
             Feear
             and
             heirs
             of
             Tailzie
             ,
             to
             sell
             ,
             di●pone
             ,
             or
             Wodset
             such
             of
             the
             Lands
             ●ominatim
             ,
             to
             affect
             and
             burden
             the
             same
             for
             payment
             and
             satisfaction
             of
             the
             Disponers
             debt●
             This
             addition
             was
             not
             found
             to
             restrict
             the
             Feear
             ,
             or
             heirs
             of
             Tailzie
             ,
             to
             dispone
             only
             so
             much
             of
             these
             Lands
             as
             w●re
             sufficient
             to
             pay
             the
             Defuncts
             debts
             ,
             the
             Clause
             not
             running
             in
             these
             Terms
             ,
             but
             that
             they
             might
             dispone
             the
             whole
             ;
             so
             that
             the
             Disponers
             debt
             were
             paid
             therewith
             ,
             and
             needed
             not
             alleadge
             that
             the
             debt
             was
             as
             great
             as
             the
             price
             they
             got
             ,
             lanuary
             20.
             1669.
             
             Lady
             
               Kilbirnie
               contra
            
             the
             heirs
             of
             Tailzie
             of
             Kilbirnie
             and
             Schaw
             of
             Gr●●nock
             renewed
             ,
             F●bruary
             3.
             1669.
             
             
               Inter
               cosdem
            
             .
          
           
             A
             Clause
             in
             a
             Bond
             obliging
             many
             parties
             con●unctly
             and
             severally
             ,
             without
             a
             clause
             of
             Relief
             ,
             was
             found
             to
             import
             mutual
             Relief
             
               ex
               natura
               re●
               ,
               Iune
               28.
               1665.
               
               Mon●●th
            
             contra
             Anderson
             .
          
           
             COAL
             was
             found
             to
             be
             carried
             by
             the
             common
             clause
             of
             pertinents
             ,
             against
             a
             party
             expresly
             in●e●t
             in
             the
             Coal-heughs
             of
             the
             Lands
             ,
             Ianuary
             30.
             1662.
             
             Lord
             Burly
             contra
             Sym.
             
          
           
             COGNITION
             of
             Marches
             betwixt
             Vassals
             by
             Witnesses
             adduced
             before
             the
             Sheriff
             ,
             or
             by
             Arbiters
             ,
             was
             found
             valide
             ,
             albeit
             the
             Superiour
             was
             not
             called
             ,
             nor
             consenting
             ,
             but
             so
             that
             the
             Superiour
             should
             not
             be
             prejudged
             in
             case
             the
             Fee
             fell
             in
             his
             hand
             by
             Ward
             or
             Nonentry
             ,
             February
             8.
             1662.
             
             Lord
             
               Torphichen
               contra
            
          
           
             A
             COLLEDGE
             was
             found
             not
             excluded
             from
             setting
             long
             Tacks
             ,
             as
             being
             comprehended
             under
             beneficed
             Persons
             ,
             but
             their
             obligement
             to
             renew
             a
             Tack
             perpetually
             ,
             was
             found
             not
             obligatory
             ,
             unless
             there
             were
             an
             equivalent
             Cause
             onerous
             ,
             for
             which
             the
             obligement
             was
             granted
             ,
             Iuly
             13.
             1669.
             
             Colledge
             of
             
               Ab●rdene
               contra
            
             the
             Town
             of
             Aberdene
             .
          
           
             COMMAND
             or
             Warrand
             of
             a
             Servant
             ,
             taking
             off
             Furniture
             in
             his
             Masters
             Name
             ,
             was
             presumed
             to
             have
             been
             known
             to
             the
             Merchant
             ,
             and
             not
             to
             oblige
             the
             Servant
             ,
             though
             he
             gave
             Ticket
             acknowledging
             the
             Receipt
             in
             his
             Masters
             Name
             ,
             but
             not
             obliging
             himself
             to
             pay
             ,
             being
             pursued
             thereon
             after
             19.
             years
             ,
             and
             after
             his
             Masters
             death
             ,
             unless
             it
             were
             proven
             by
             his
             oath
             that
             he
             had
             no
             Warrand
             ,
             or
             applyed
             not
             the
             Goods
             for
             his
             Masters
             use
             ,
             November
             17.
             1665.
             
             Howison
             contra
             Cockburn
             .
          
           
             Command
             or
             direction
             was
             found
             probable
             by
             Witnesses
             ,
             being
             a
             part
             of
             a
             Bargain
             for
             Grassing
             an
             Horse
             ,
             Ianuary
             29.
             1667.
             
             Scot
             contra
             Gib
             .
          
           
             Command
             or
             Warrand
             was
             in●e●●ed
             by
             the
             presence
             of
             him
             who
             had
             Commission
             to
             do
             an
             Act
             ,
             and
             did
             not
             hinder
             or
             contradict
             the
             doing
             thereof
             by
             others
             ,
             who
             therefore
             were
             presumed
             to
             have
             Warrand
             from
             him
             ,
             February
             23.
             1667.
             
             Lord
             Ren●oun
             Iustice
             Clerk
             contra
             Laird
             of
             Lambertoun
             .
          
           
             THE
             COMMISSARS
             OF
             EDINBVRGH
             were
             not
             found
             to
             have
             right
             to
             confirm
             the
             Testament
             of
             a
             Defunct
             dying
             out
             of
             the
             Countrey
             on
             a
             Voyage
             ,
             not
             being
             away
             
               animo
               remanendi
            
             ,
             this
             was
             stopped
             till
             further
             hearing
             on
             the
             Petition
             of
             the
             Commissars
             of
             
               Edinburgh
               ,
               November
            
             23.
             1661.
             
             Dowglas
             contra
             Iohnstoun
             .
          
           
             A
             Commissar
             was
             found
             obliged
             by
             the
             Injunctions
             to
             reside
             at
             the
             place
             of
             the
             Commissariot
             ,
             albeit
             he
             had
             power
             
             of
             deputes
             ,
             that
             he
             might
             direct
             them
             ,
             being
             answerable
             for
             them
             ,
             and
             that
             under
             the
             pain
             of
             deprivation
             ,
             February
             14.
             1666.
             
             Arch●bishop
             of
             
               Glasgow
               contra
            
             the
             Commissar
             of
             Gl●sgow
             .
          
           
             A
             Commissar
             was
             foun●
             deposable
             if
             he
             be
             not
             found
             sufficient
             for
             discharge
             of
             the
             Office
             in
             his
             own
             person
             ,
             albeit
             he
             have
             the
             power
             of
             Deputes
             ,
             
               Ibidem
               Inter
               ●osdem
            
             .
          
           
             A
             Commissar
             having
             power
             to
             constitute
             Deputes
             by
             the
             Kings
             Gift
             ,
             and
             the
             former
             Arch-bishops
             ,
             was
             found
             ●●ereby
             not
             to
             have
             power
             to
             make
             use
             of
             any
             Deputes
             ,
             but
             such
             as
             were
             authorized
             by
             the
             Bishop
             ,
             conform
             to
             the
             injunctions
             ;
             but
             whether
             Deputes
             might
             be
             authorized
             
               pro
               re
               na●a
            
             ,
             only
             in
             the
             cases
             of
             Sickness
             ,
             or
             dec●arator
             mentioned
             in
             the
             injunctions
             ,
             or
             in
             other
             cases
             also
             ,
             so
             that
             there
             might
             be
             a
             constant
             deputation
             for
             things
             in
             ordinary
             course
             in
             Process
             ,
             and
             to
             advise
             with
             the
             principal
             Commissa●
             in
             matte●s
             of
             importance
             or
             not
             :
             The
             Lords
             recommended
             to
             the
             Bishops
             in
             common
             ,
             who
             made
             the
             injunctions
             ,
             to
             clear
             the
             parties
             thereanent
             ▪
             But
             found
             that
             the
             Commissars
             none-residence
             ,
             or
             acting
             by
             his
             own
             deputes
             ,
             albeit
             he
             was
             required
             in
             the
             co●trary
             did
             not
             annul
             his
             Office
             ,
             i●
             respect
             of
             his
             Gift
             ,
             with
             power
             of
             deputation
             ,
             and
             of
             the
             common
             custom
             of
             Bishops
             to
             grant
             deputations
             that
             way
             ;
             but
             as
             to
             the
             future
             ,
             seing
             the
             King
             had
             approven
             their
             Instructions
             ,
             The
             Lords
             ordained
             them
             to
             be
             insert
             in
             the
             Books
             of
             Sederunt
             ,
             and
             to
             be
             observed
             in
             all
             time
             coming
             ,
             February
             22.
             1666.
             
             
               Inter
               eosdem
            
             .
          
           
             The
             Commissars
             of
             Edinburgh
             were
             found
             to
             have
             right
             to
             Confirm
             the
             Testaments
             of
             Scots-men
             dying
             abroad
             
               ani●●
               r●manendi
            
             ,
             as
             to
             their
             Moveables
             in
             Scotland
             ,
             and
             that
             they
             might
             be
             confirmed
             ,
             and
             pay
             Quot
             here
             ,
             
               Iuly
               18.
               1666.
               
               Brown
            
             and
             Du●●
             contra
             Biss●t
             .
          
           
             A
             Commissars
             Decreet
             was
             not
             found
             null
             ,
             as
             being
             of
             matters
             exceeding
             the
             injunctions
             ,
             the
             Defender
             not
             compearing
             ,
             and
             the
             probation
             being
             lost
             by
             the
             Suspenders
             silence
             ten
             years
             ,
             yet
             the
             Lords
             allowed
             the
             Defender
             a
             contrary
             probation
             ,
             
               Iune
               25.
               1668.
               
               Black
            
             contra
             〈◊〉
             .
          
           
             The
             Commissars
             of
             Edinburgh
             upon
             a
             pursuit
             for
             Slander
             and
             Defa●ation
             ,
             having
             dece●ned
             the
             Defender
             to
             make
             an
             acknowledgement
             before
             the
             congregation
             ,
             and
             to
             pay
             100.
             pounds
             Scots
             to
             the
             party
             ,
             and
             another
             to
             the
             poor
             ,
             The
             Lords
             Sustained
             the
             Decreet
             ,
             
               February
               5.
               1669.
               
               Deans
            
             contra
             Bothwel
             .
          
           
             A
             COMMISSION
             or
             Factory
             was
             found
             Revockable
             ,
             though
             it
             had
             an
             express
             Term
             of
             endurance
             ,
             the
             Factor
             being
             satisfied
             of
             what
             he
             profitably
             debursed
             in
             contemplation
             of
             the
             Factory
             ,
             
               Iune
               30.
               1660.
               
               Chalmers
            
             con●●●
             Baffilli●
             .
          
           
             A
             Commission
             in
             a
             Minute
             impowering
             the
             buyer
             of
             Land
             to
             retain
             the
             price
             till
             he
             were
             secured
             ,
             and
             to
             Infeft
             the
             seller
             and
             himself
             ,
             and
             do
             all
             things
             necessary
             for
             his
             secu●●●y
             to
             be
             satisfied
             by
             a
             part
             of
             the
             price
             ,
             was
             found
             to
             oblige
             him
             to
             do
             no
             diligence
             ,
             
               December
               16.
               1668.
               
               Frazer
            
             contra
             Keith
             .
          
           
             COMMODATVM
             ,
             or
             the
             lending
             of
             Canons
             for
             defence
             of
             a
             Town
             in
             these
             Terms
             (
             to
             restore
             them
             without
             hurt
             ,
             skaith
             ,
             or
             damnage
             ,
             and
             in
             case
             of
             damnage
             to
             pay
             ●00
             .
             merks
             for
             them
             as
             the
             price
             agreed
             on
             )
             was
             found
             not
             to
             oblige
             the
             borrower
             to
             pay
             the
             price
             ,
             where
             the
             Cannon
             were
             taken
             by
             the
             Enemy
             ,
             all
             diligence
             being
             done
             to
             preserve
             them
             ,
             and
             that
             the
             peril
             was
             the
             Lenders
             ,
             and
             that
             this
             was
             not
             
               commodatum
               estimatum
            
             ,
             giving
             the
             borrower
             his
             option
             to
             restore
             or
             pay
             the
             price
             ,
             but
             only
             a
             liquidation
             in
             case
             of
             damnage
             ,
             
               November
               17.
               
               166●
               .
               Duncan
               contra
            
             Town
             of
             Ar●roth
             .
          
           
             Comm●datum
             ,
             or
             one
             lending
             a
             Watch
             to
             one
             who
             put
             forth
             his
             hand
             for
             it
             without
             words
             ,
             was
             found
             sufficient
             to
             oblige
             him
             to
             restore
             it
             ,
             though
             just
             then
             lending
             it
             to
             another
             ,
             not
             to
             liberate
             him
             ,
             though
             in
             the
             presence
             and
             silence
             of
             the
             first
             Lender
             ,
             seing
             it
             was
             so
             sudden
             an
             Act
             ,
             as
             his
             silence
             could
             not
             be
             thought
             nor
             esteemed
             a
             consent
             ,
             Iuly
             3.
             1662.
             
             Lord
             
               Cowper
               contra
            
             Lord
             Pitsligo
             .
          
           
             COMMON
             PASTVRAGE
             was
             found
             relevant
             by
             a
             clause
             
               cum
               comm●ni
               pastura
            
             in
             general
             ,
             and
             40.
             years
             possession
             ,
             to
             come
             in
             with
             another
             having
             a
             clause
             of
             common
             pasturage
             in
             the
             Muire
             in
             question
             
               per
               expressum
               ,
               November
               14.
               1662.
               
               Nicolson
               contra
            
             Laird
             of
             Balbirnie
             .
          
           
             Common
             pasturage
             in
             a
             Commonty
             of
             a
             Barony
             of
             the
             Kings
             property
             ,
             was
             found
             constitute
             by
             a
             Fe●
             
               cum
               pertinent
               :
               &
               ●um
               pas●●●s
               &
               pasturis
               ,
            
             though
             not
             special
             in
             this
             Muire
             ,
             being
             then
             a
             Common●y
             of
             the
             Barony
             ,
             February
             15.
             1668.
             
             Laird
             of
             
               Haming
               contra
            
             Town
             of
             Selkirk
             .
          
           
             Commonty
             was
             found
             inferred
             upon
             mutual
             declarators
             of
             property
             of
             two
             parts
             of
             a
             piece
             of
             Ground
             upon
             their
             Ma●ch
             ,
             wherein
             either
             party
             proved
             40.
             years
             possession
             ,
             and
             mutual
             interruptions
             ,
             and
             though
             the
             one
             proved
             more
             pregnantly
             then
             the
             other
             ,
             yet
             it
             was
             not
             sufficient
             to
             exclude
             him
             ,
             neither
             party
             having
             a
             bounding
             Charter
             ,
             Iune
             13.
             1668.
             
             Giabs●n
             contra
             Oswald
             .
          
           
             COMPENSATION
             was
             found
             not
             competent
             to
             the
             Debitor
             of
             a
             Defunct
             ,
             taking
             Assignation
             from
             the
             Creditor
             of
             the
             Defunct
             ,
             after
             the
             Defuncts
             death
             to
             exclude
             an
             Executor
             Creditor
             ,
             albeit
             the
             Assignation
             was
             anterior
             to
             the
             Confirmation
             ,
             at
             least
             any
             diligence
             of
             the
             Executor
             Creditor
             ,
             
               February
               8.
               1662.
               
               Crawfoord
               contra
            
             the
             Earl
             of
             
               Murray
               .
               February
            
             14.
             1662.
             
             Children
             of
             Mouswal
             contra
             Lowrie
             of
             Maxw●lstoun
             .
          
           
             Compensation
             against
             an
             Assignay
             was
             sustained
             on
             debts
             due
             by
             the
             cedent
             to
             the
             debitor
             himself
             ,
             or
             whereunto
             he
             had
             Assignation
             intimat
             before
             the
             Assignays
             intimation
             ,
             but
             not
             for
             debts
             whereunto
             he
             had
             taken
             Assignation
             ,
             but
             had
             made
             no
             Intimation
             before
             this
             other
             Assignay
             did
             intrtimat
             ,
             
               Ianuary
               22.
               1663.
               
               Wallace
            
             contra
             Edgar
             .
          
           
             Compensation
             of
             an
             illiquid
             Number
             of
             coals
             ,
             was
             found
             not
             receivable
             to
             take
             away
             a
             liquid
             Decreet
             ,
             here
             they
             bear
             a
             price
             far
             above
             the
             ordinary
             rate
             ,
             which
             behoved
             to
             be
             modified
             ,
             Ianuary
             17.
             1664.
             
             Laird
             of
             Tulliallan
             and
             Condie
             contra
             Crawfoord
             .
          
           
             Compensation
             was
             sustained
             upon
             Rents
             liquidat
             against
             the
             principal
             debitor
             ,
             before
             the
             Assignation
             ,
             which
             was
             found
             sufficient
             against
             the
             cautioner
             ,
             whose
             Right
             was
             accessory
             ,
             albeit
             not
             called
             in
             the
             Decreet
             of
             Liquidation
             ,
             
               Iune
               24.
               1665.
               
               Irving
            
             contra
             Strachan
             .
          
           
             Compensation
             against
             one
             of
             four
             Executors
             was
             sustained
             upon
             a
             debt
             of
             the
             Defuncts
             ,
             not
             only
             as
             to
             that
             Executors
             fourth
             part
             ,
             but
             
               in
               solidum
            
             ,
             being
             equivalent
             to
             a
             discharge
             ,
             
               Iun●
               15.
               1666.
               
               Stevinson
            
             contra
             Hermasheills
             .
          
           
             Compensation
             was
             found
             not
             competent
             against
             a
             Bond
             delivered
             ,
             being
             blank
             in
             the
             Creditors
             Name
             ,
             and
             by
             the
             Receiver
             ,
             for
             an
             equivalent
             cause
             ,
             delivered
             to
             a
             third
             party
             ,
             who
             was
             found
             not
             to
             be
             compensed
             by
             any
             debt
             of
             him
             who
             first
             received
             the
             Bond
             ,
             though
             prior
             to
             the
             filling
             up
             of
             the
             Name
             ,
             
               February
               27.
               1668.
               
               Hendrison
            
             contra
             Birnie
             .
          
           
             Compensation
             was
             sustained
             against
             the
             bygones
             of
             an
             Ann●alrent
             by
             Infeftment
             against
             a
             singular
             Successor
             ,
             upon
             his
             Authors
             liquid
             debt
             ,
             
               Ianuary
               2.
               1669.
               
               Oliphant
            
             contra
             Hamiltoun
             .
          
           
             Compensation
             was
             Sustained
             against
             a
             Donator
             of
             Escheat
             upon
             a
             debt
             due
             by
             the
             Rebel
             before
             the
             Rebellion
             ,
             
               Ianuary
               2●
               .
               1669.
               
               Drummond
            
             contra
             Stirling
             of
             Airdoch
             .
          
           
             Compensation
             of
             a
             Bond
             by
             Rents
             ,
             was
             sustained
             to
             take
             Effect
             ,
             not
             only
             from
             the
             date
             of
             the
             Decreet
             ,
             Liquidating
             the
             Rents
             ,
             but
             from
             the
             time
             the
             Rents
             were
             thereby
             proven
             to
             ●e
             due
             ,
             
               February
               5.
               1669.
               
               Cleiland
            
             contra
             Iohnstoun
             .
          
           
             COMPETENT
             AND
             OMITTED
             ,
             was
             ●ound
             Relevant
             as
             to
             Decreets
             of
             Suspension
             ,
             since
             the
             Act
             of
             Sederunt
             1649.
             and
             that
             a
             reason
             then
             past
             from
             in
             a
             Suspension
             
               pro
               loco
               &
               tempore
            
             ,
             could
             not
             
               in
               eodem
               statu
            
             be
             repeated
             against
             that
             Decreet
             ,
             or
             Appryzing
             thereon
             ,
             especially
             seing
             the
             Appryzing
             was
             not
             expyred
             ,
             and
             might
             be
             Redeemed
             ,
             Iuly
             17.
             1664.
             
             Laird
             of
             Tulliall●●●
             and
             Co●die
             contra
             Crawf●ord
             .
          
           
             Competent
             and
             omitted
             ,
             was
             not
             Sustained
             against
             Strangers
             in
             Decreets
             against
             them
             before
             the
             Admiral
             ,
             Iuly
             23.
             1667.
             
             
               I●rgan
               contra
            
             captain
             Logan
             .
          
           
             A
             COMP●
             sitted
             ,
             and
             bearing
             at
             the
             foot
             such
             a
             Sum
             resting
             ,
             not
             mentioning
             the
             Instructions
             of
             the
             Accompt
             ,
             or
             delivery
             thereof
             ,
             was
             found
             not
             to
             make
             the
             Debitor
             lyable
             to
             produce
             the
             Instructions
             ,
             or
             compt
             again
             ,
             unless
             it
             were
             proven
             by
             Writ
             ,
             or
             his
             Oath
             ,
             that
             the
             Instructions
             were
             in
             his
             hand
             ,
             albeit
             a
             considerable
             Article
             of
             the
             Accompt
             was
             general
             ,
             bearing
             paid
             for
             the
             Pursuer
             to
             his
             Creditors
             20000.
             pounds
             ,
             and
             though
             the
             foot
             of
             the
             Accompt
             was
             ●xhausted
             by
             debts
             paid
             upon
             Precepts
             from
             the
             Creditor
             ,
             after
             that
             Accompt
             ,
             December
             17.
             1667.
             
             Lord
             
               Abercrombic
               contra
            
             Lord
             Newwaak
             .
          
           
             A
             COMPT
             BOOK
             of
             a
             Factor
             in
             Campheir
             ,
             being
             proven
             ●o
             be
             unvitiate
             ,
             or
             Written
             by
             the
             Factor
             ,
             or
             a
             known
             Book-keeper
             ,
             and
             Sequestrat
             before
             any
             question
             ,
             was
             found
             to
             prove
             against
             the
             Factors
             Brother
             and
             Assignay
             ,
             even
             
               quo
               ad
               datam
            
             ,
             being
             instructed
             by
             the
             oaths
             of
             the
             Debitors
             ,
             who
             paid
             conform
             to
             the
             Articles
             in
             the
             Book
             ,
             
               Iuly
               19.
               1662.
               
               Skeen
            
             contra
             Lumbsdean
             .
             Renewed
             Ianuary
             9.
             1663.
             
             
               Inter
               eosdem
            
             .
          
           
             A
             Compt
             Book
             Written
             by
             the
             hand
             of
             a
             person
             of
             discretion
             ,
             was
             found
             sufficient
             to
             prove
             payment
             of
             his
             Rent
             against
             his
             Executor
             Creditor
             ,
             but
             the
             Tennent
             being
             on
             Life
             was
             ordained
             to
             depone
             on
             the
             Truth
             of
             the
             payment
             ,
             
               November
               20.
               1662.
               
               Wardlaw
            
             contra
             Gray
             .
          
           
             AFTER
             CONCLVSION
             of
             the
             Cause
             ,
             a
             Reply
             instantly
             verified
             ,
             and
             not
             putting
             the
             Defender
             to
             prove
             ,
             was
             admitted
             ,
             but
             a
             duply
             do●ose
             omitted
             before
             L●tiscontestation
             ,
             and
             not
             being
             instantly
             verified
             ,
             the
             same
             was
             repelled
             ,
             albeit
             there
             was
             a
             Reservation
             
               contra
               producenda
            
             ;
             this
             alleadgeance
             was
             upon
             part
             and
             pertinent
             of
             the
             Lands
             contained
             in
             the
             Infeftment
             produced
             ,
             
               December
               10.
               1664.
               
               Lyon
            
             of
             Mur●a●k
             contra
             Farquhar
             .
          
           
             After
             conclusion
             of
             the
             cause
             in
             a
             Reduction
             ,
             the
             same
             was
             found
             not
             to
             be
             advised
             till
             some
             representing
             some
             of
             the
             Authors
             ,
             who
             died
             
               pendente
               li●e
            
             ,
             were
             called
             ,
             
               Iuly
               14.
               1666.
               
               Le●th
               contra
            
             Laird
             of
             
               Lessemore
               ,
               Troup
            
             and
             others
             .
          
           
             CONFESSION
             to
             the
             Church
             ,
             and
             standing
             a
             year
             
             was
             found
             not
             to
             prove
             Adultery
             ,
             to
             〈◊〉
             infer
             the
             parties
             Escheat
             ,
             
               Ianuary
               9.
               1662.
               
               Baird
            
             contra
             Baird
             .
             Here
             the
             Defender
             had
             taken
             Remission
             .
          
           
             CONFIRMATION
             of
             Exchequer
             to
             a
             particular
             effect
             in
             so
             far
             as
             concerned
             the
             obtainers
             base
             Infeftment
             ,
             granted
             by
             him
             who
             was
             Infeft
             ,
             but
             not
             confirmed
             ,
             was
             found
             valide
             only
             
               ad
               istum
               effectum
            
             ,
             and
             not
             to
             accresce
             to
             any
             other
             ,
             Ianuary
             16.
             1663.
             
             Tennents
             of
             Kilhattan
             contra
             Laird
             of
             Kelhattan
             ,
             Major
             Campbel
             and
             Baillie
             Hamiltoun
             .
          
           
             Confirmation
             and
             paying
             of
             the
             Quote
             was
             found
             necessary
             ,
             though
             there
             was
             a
             Disposition
             
               omnium
               bonorum
            
             ,
             without
             a
             cause
             onerous
             ,
             or
             any
             delivery
             ,
             Iune
             23.
             1665.
             
             Procurator
             Fiscal
             of
             of
             Edinburgh
             contra
             Fairholm
             .
          
           
             Confirmation
             and
             Quote
             was
             not
             excluded
             by
             a
             Disposition
             
               omnium
               bonorum
            
             ,
             with
             a
             Reservation
             to
             the
             Disponer
             ,
             that
             he
             might
             dispose
             thereupon
             otherwise
             during
             his
             life
             ,
             Iuly
             4.
             1665.
             
             Commissar
             of
             
               Saint
               Andrews
            
             contra
             Hay
             of
             Bousie
             .
          
           
             Confirmation
             of
             a
             Scots-mans
             Testament
             ,
             who
             lived
             
               animo
               remanendi
            
             in
             Polland
             ,
             was
             found
             necessary
             in
             Scotland
             ,
             by
             the
             Commissars
             of
             
               Edinburgh
               ,
               Iuly
               18.
               1666.
               
               Brown
            
             contra
             Duff
             and
             Bisset
             .
          
           
             Confirmation
             of
             a
             Testament
             wherein
             the
             division
             of
             the
             whole
             Inventar
             was
             tripartite
             ,
             and
             yet
             much
             of
             it
             was
             Sums
             bearing
             annualrent
             ,
             wherefrom
             the
             Relict
             is
             excluded
             ,
             was
             found
             to
             need
             no
             Reduction
             ,
             as
             to
             that
             division
             ,
             but
             that
             notwithstanding
             thereof
             ,
             the
             Relict
             was
             excluded
             by
             Reply
             ,
             Ianuary
             18.
             1670.
             
             Doctor
             Bal●oure
             and
             his
             Spouse
             
               contra
               Wood.
            
             
          
           
             Confirmation
             Vide
             Homologation
             .
          
           
             Confirmation
             of
             an
             Annualrent
             granted
             by
             a
             Vassal
             to
             be
             holden
             of
             the
             Superiour
             ,
             was
             found
             not
             to
             take
             away
             any
             casuality
             belonging
             to
             the
             Superiour
             ,
             but
             that
             the
             same
             might
             be
             made
             use
             of
             against
             that
             Annualrent
             ,
             as
             communicating
             only
             a
             part
             of
             the
             Vassals
             Fee
             ,
             but
             no
             interest
             of
             the
             Superiority
             ,
             
               Ianuary
               14.
               1670.
               
               〈◊〉
            
             of
             Kirkaldy
             contra
             Duncan
             .
          
           
             CONFVSION
             was
             found
             not
             sufficient
             to
             take
             away
             an
             Adjudication
             against
             an
             appearand
             Heir
             on
             his
             own
             Bond
             assigned
             to
             himself
             ,
             and
             so
             simulate
             ,
             which
             was
             found
             a
             Ground
             to
             Reduce
             by
             ,
             but
             not
             to
             annul
             the
             Bond
             ,
             or
             Adjudication
             ,
             or
             make
             the
             Defender
             lyable
             as
             Heir
             ,
             Ianuary
             22.
             1662.
             
             Earl
             of
             Nithisdail
             contra
             Glendoning
             .
          
           
             CONIVNCTFEEARS
             Vide
             clause
             in
             a
             Contract
             of
             Marriage
             ,
             
               Iuly
               12.
               1671.
               
               Gairns
            
             contra
             Sandilands
             .
          
           
             CONQVEST
             VIDE
             CLAVSE
             .
          
           
             CONSENT
             of
             parties
             to
             a
             Decreet
             judicially
             ,
             was
             found
             not
             sufficiently
             instructed
             by
             the
             Decreet
             ,
             in
             respect
             there
             was
             a
             Minute
             of
             Process
             ,
             by
             which
             it
             appe●red
             that
             the
             said
             consent
             was
             not
             Minuted
             
               de
               recenti
            
             ,
             but
             half
             a
             year
             thereafter
             ,
             upon
             remembrance
             of
             the
             Iudges
             ,
             Iuly
             24.
             1661.
             
             Laird
             of
             Buchannan
             contra
             Osburn
             .
          
           
             Consent
             of
             a
             Minister
             to
             quite
             so
             much
             of
             his
             Stipend
             to
             an
             Helper
             ,
             was
             found
             not
             proven
             by
             an
             Act
             of
             Presbytery
             without
             a
             Warrand
             subscribed
             by
             him
             ,
             
               Iuly
               26.
               1661.
               
               Ker
               contra
            
             Minister
             and
             ●arochioners
             of
             Carrin
             .
          
           
             Consent
             to
             a
             March
             and
             building
             a
             Park-dyke
             thereon
             was
             found
             not
             sufficiently
             proven
             by
             the
             building
             of
             the
             dyke
             ,
             and
             silence
             of
             the
             other
             Heretors
             ,
             
               Ianuary
               8.
               1663.
               
               Nicol
            
             contra
             Hope
             .
          
           
             Consent
             was
             inferred
             by
             subscribing
             as
             Witness
             to
             a
             Writ
             on
             death-bed
             ,
             to
             take
             away
             the
             Reduction
             on
             death-bed
             ,
             which
             the
             Witnesses
             could
             not
             but
             know
             ,
             seing
             the
             sick
             man
             subscribe
             without
             Importing
             his
             consenting
             to
             the
             contents
             ,
             as
             in
             other
             cases
             ,
             
               Iune
               25.
               1663.
               
               Steuart
            
             of
             Ashcog
             contra
             Steuart
             of
             Amholme
             .
             The
             like
             ,
             
               Iuly
               24.
               1666.
               
               Halyburtoun
            
             contra
             Halyburtoun
             .
          
           
             Consent
             of
             a
             dumb
             Man
             ,
             was
             not
             inferred
             by
             his
             Subscription
             of
             a
             Discharge
             given
             to
             his
             Sister
             ,
             whereunto
             he
             put
             the
             initial
             Letters
             of
             his
             Name
             ,
             seing
             nothing
             was
             adduced
             to
             instruct
             that
             he
             knew
             what
             he
             did
             ,
             
               Iuly
               9.
               1663.
               
               Hamiltoun
            
             contra
             Ethdale
             .
          
           
             Consent
             of
             a
             Wodsetter
             in
             a
             Disposition
             with
             the
             Reverser
             ,
             was
             found
             not
             to
             carry
             his
             Right
             ,
             seing
             he
             assigned
             no
             part
             of
             the
             Sums
             ▪
             and
             that
             it
             only
             imported
             the
             Restricting
             of
             his
             Wodset
             to
             the
             remanent
             Land
             ,
             and
             Renuncing
             the
             rest
             ,
             
               Iuly
               4.
               1665.
               
               Boyd
            
             contra
             Kintor
             .
          
           
             Consent
             was
             not
             inferred
             by
             knowledge
             and
             silence
             ,
             in
             that
             a
             future
             Husband
             knew
             his
             future
             Spouse
             had
             disponed
             a
             part
             of
             her
             Ioynture
             ,
             and
             yet
             went
             on
             in
             the
             Marriage
             ,
             Ianuary
             5.
             1666.
             
             Heretors
             of
             
               Iohns-miln
               contra
            
             the
             Fewers
             .
          
           
             Consent
             to
             a
             Diiposition
             of
             a
             Wodset
             Right
             ,
             which
             Dis-Position
             disponed
             the
             Lands
             ,
             but
             neither
             exprest
             under
             Reversion
             ,
             or
             Irredeemable
             ,
             which
             consent
             was
             found
             not
             to
             take
             away
             the
             Reversion
             from
             the
             consenter
             ,
             who
             then
             had
             no
             present
             Right
             ,
             the
             Reversion
             being
             conceived
             to
             another
             person
             ,
             and
             the
             Heirs
             of
             his
             Body
             ,
             which
             failing
             to
             that
             consenter
             ,
             and
             that
             person
             being
             then
             alive
             ,
             so
             that
             the
             consenter
             falling
             thereafter
             to
             be
             Heir
             of
             Tailzie
             in
             the
             Reversion
             ,
             was
             not
             excluded
             by
             his
             consent
             from
             Redemption
             ,
             February
             23.
             1667.
             
             Earl
             of
             Errol
             contra
             Hay
             of
             Crimmonmogate
             .
             Here
             the
             consenter
             was
             not
             obliged
             for
             Warrandice
             .
          
           
             Consent
             without
             Warrandice
             to
             a
             Disposition
             ,
             imports
             only
             such
             Right
             as
             th●
             consenter
             then
             had
             ,
             but
             for
             no
             other
             supervenient
             ,
             
               Ianuary
               8.
               1668.
               
               Forbes
            
             contra
             Inne●
             .
          
           
             Consent
             of
             a
             Superiour
             to
             a
             Wodse●
             and
             Eke
             ,
             was
             found
             to
             carry
             the
             Liferent
             Escheat
             of
             the
             Vassal
             then
             in
             the
             Superiours
             hand
             ,
             and
             to
             exclude
             a
             gift
             by
             the
             Superiour
             of
             the
             same
             date
             with
             his
             consent
             ,
             seing
             the
             gift
             required
             declarator
             to
             make
             it
             effectual
             ,
             and
             the
             consent
             〈◊〉
             not
             ,
             Iune
             19.
             1669.
             
             Scot
             contra
             Langtoun
             .
          
           
             Consent
             of
             parties
             to
             a
             Decreet
             of
             the
             Lords
             ,
             bearing
             the
             particular
             Terms
             of
             an
             agreement
             ,
             and
             a
             Decreet
             thereupon
             Extracted
             ,
             the
             same
             was
             Sustained
             in
             respect
             of
             the
             offer
             of
             a
             Disposition
             by
             the
             Accepter
             ,
             who
             now
             quarrelled
             ,
             the
             Decreet
             as
             having
             a
             Warrand
             for
             his
             consent
             ,
             under
             his
             hand
             the
             offer
             being
             simple
             ,
             provided
             the
             same
             were
             instructed
             by
             the
             Oathes
             of
             the
             Witnesses
             insert
             in
             the
             Instrument
             of
             offer
             ,
             
               February
               4.
               1671.
               
               Lawrie
            
             contra
             Gibson
             .
          
           
             CONSIGNED
             SVMS
             cannot
             be
             aff●cted
             by
             arrestment
             or
             Escheat
             for
             the
             consigners
             debt
             ,
             but
             belong
             only
             to
             the
             Wodsetter
             ,
             
               Iune
               29.
               1661.
               
               Telz●●er
            
             contra
             Maxtoun
             and
             Cunninghame
             .
          
           
             Consigned
             sums
             in
             the
             hands
             of
             the
             Clerk
             to
             the
             Bills
             ,
             for
             obtaining
             Suspension
             ,
             was
             found
             not
             to
             be
             upon
             the
             peril
             of
             the
             consigner
             ,
             unless
             he
             were
             in
             the
             fault
             ;
             and
             therefore
             the
             consigner
             having
             first
             o●●ered
             by
             Instrument
             the
             principal
             sum
             and
             Annualrent
             ,
             and
             so
             much
             of
             the
             penalty
             as
             the
             charger
             would
             depone
             upon
             Oath
             that
             he
             truely
             debursed
             ,
             and
             the
             instrument
             being
             instructed
             by
             the
             Oaths
             of
             the
             Witnesses
             insert
             ,
             the
             consigner
             was
             declared
             free
             ▪
             though
             the
             then
             Clerk
             of
             the
             Bills
             was
             become
             insolvent
             ,
             
               Iuly
               28.
               1665.
               
               Scot
            
             contra
             Somervel
             .
          
           
             Consigned
             Sums
             being
             lifted
             by
             the
             consigner
             ,
             he
             was
             found
             lyable
             to
             produce
             the
             same
             with
             Annualrent
             ,
             since
             he
             lifted
             the
             same
             ,
             though
             he
             offered
             to
             depone
             he
             had
             keeped
             them
             by
             him
             and
             had
             made
             no
             profi●e
             ,
             and
             that
             the
             consignation
             was
             not
             by
             his
             fault
             ;
             Ianuary
             14.
             
             166●
             .
             Mcpherson
             contra
             Wedderburn
             of
             Kingeme
             .
          
           
             Consignation
             being
             truely
             and
             formally
             made
             ,
             and
             the
             Wodsetter
             truely
             in
             the
             fault
             ,
             that
             received
             not
             his
             Money
             ,
             he
             was
             only
             found
             to
             have
             right
             to
             his
             Annualrent
             after
             the
             consignation
             ,
             and
             not
             to
             the
             Rents
             of
             the
             Lands
             ,
             though
             he
             continued
             five
             years
             in
             possession
             before
             declarator
             ,
             and
             that
             the
             Sum
             was
             taken
             up
             by
             the
             Redeemer
             ,
             upon
             whose
             peril
             the
             consignation
             was
             ,
             being
             now
             produced
             by
             him
             at
             the
             Bar
             ,
             with
             Annualrent
             since
             the
             consignation
             ,
             
               February
               24.
               1670.
               
               Ierd●●n
            
             of
             Applegirth
             contra
             Iohnstoun
             of
             Lockerbie
             .
          
           
             Consigned
             Sums
             for
             Redemption
             being
             taken
             up
             ,
             and
             Annualrent
             craved
             therefore
             since
             the
             consignation
             ,
             the
             taking
             up
             thereof
             was
             found
             probable
             by
             the
             consignator
             and
             clerks
             oaths
             ,
             the
             consigner
             being
             dead
             ,
             February
             14.
             1671.
             
             
               Inter
               eosdem
            
             .
          
           
             CONTINVATION
             was
             not
             found
             necessary
             in
             a
             declarator
             of
             Redemption
             ,
             though
             not
             instantly
             verified
             ,
             February
             19.
             1662.
             children
             of
             Wolm●t
             contra
             
               Ker.
               Vide
            
             Improbation
             ,
             Laird
             of
             
               Auchinbreck
               contra
            
          
           
             Continuation
             was
             found
             necessary
             in
             Summonds
             ,
             for
             making
             Arrested
             Goods
             forthcoming
             ,
             albeit
             accessory
             to
             a
             Decreet
             ,
             seing
             they
             were
             not
             priviledged
             by
             deliverance
             ,
             as
             they
             would
             have
             been
             upon
             that
             ground
             ,
             if
             it
             had
             been
             demanded
             in
             the
             Bill
             ,
             
               November
               28.
               1665.
               
               Bruce
               contra
            
             Earl
             of
             Mortoun
             .
          
           
             Continuation
             was
             not
             found
             necessary
             to
             a
             declarator
             of
             Bastardy
             ,
             but
             that
             
               in
               favorem
               fisci
            
             ,
             upon
             a
             single
             Summonds
             it
             might
             be
             proven
             ,
             that
             the
             defunct
             was
             repute
             Bastard
             ,
             as
             in
             declarators
             of
             Nonentry
             ,
             the
             death
             of
             the
             Vassal
             may
             be
             proven
             without
             continuation
             ,
             
               Iune
               15.
               1670.
               
               Livingstoun
            
             contra
             Barns
             .
          
           
             A
             CONTRACT
             was
             found
             effectuall
             to
             a
             third
             party
             not
             contracting
             ,
             in
             whose
             favours
             an
             article
             to
             pay
             the
             debt
             due
             to
             him
             ,
             was
             found
             sufficient
             ,
             and
             not
             to
             be
             discharged
             by
             the
             contracter
             ,
             seing
             the
             bargain
             followed
             ,
             Iuly
             7.
             1664.
             
             Ogilbie
             contra
             Grant
             and
             Ker.
             
          
           
             A
             contract
             of
             Marriage
             ,
             by
             which
             the
             Wife
             declared
             her self
             to
             have
             a
             Sum
             ,
             and
             contracted
             the
             Sum
             to
             the
             Husband
             ,
             was
             found
             to
             give
             her
             no
             interest
             to
             the
             implement
             of
             the
             Husbands
             part
             ,
             till
             she
             instructed
             her
             part
             to
             be
             fulfilled
             ,
             which
             was
             not
             presumed
             to
             have
             been
             performed
             ,
             though
             after
             a
             long
             time
             without
             some
             Adminicles
             ,
             Iuly
             26.
             1665.
             
             Brotherstones
             contra
             Ogle
             and
             Orrock
             .
          
           
             A
             contract
             of
             marriage
             bea●ing
             a
             general
             clause
             whereby
             the
             Husband
             renunceth
             his
             
               jus
               mariti
            
             ,
             in
             the
             means
             of
             the
             Wife
             ,
             and
             all
             other
             Right
             he
             could
             have
             thereto
             by
             the
             subsequent
             Marriage
             ,
             was
             found
             not
             to
             take
             away
             a
             Right
             granted
             before
             the
             contract
             ,
             whereby
             in
             contemplation
             of
             the
             Marriage
             ,
             the
             Wife
             disponed
             her
             Liferent
             in
             Trust
             ,
             and
             took
             a
             back-bond
             ,
             that
             the
             benefite
             of
             it
             should
             be
             for
             intertaining
             the
             Wife
             and
             her
             future
             Husbands
             Family
             joyntly
             ,
             both
             being
             esteemed
             as
             parts
             of
             the
             same
             Treaty
             of
             Marriage
             ,
             and
             the
             general
             clause
             in
             the
             contract
             of
             Marriage
             ,
             not
             to
             be
             derogatory
             thereto
             ,
             February
             9.
             1667.
             
             Ratho
             and
             
               Colingtoun
               contra
            
             Tennents
             of
             Inn●rtil●
             and
             Lady
             Collingtoun
             .
          
           
             
             A
             contract
             of
             Marriage
             providing
             the
             Moveables
             of
             either
             party
             to
             return
             after
             the
             Marriage
             ,
             in
             case
             there
             were
             no
             children
             ,
             was
             found
             effectual
             to
             the
             Wifes
             Assignays
             ,
             and
             that
             the
             same
             did
             not
             return
             to
             the
             Husband
             by
             his
             
               jur
               marit●
            
             ,
             or
             was
             not
             inconsistent
             therewith
             ,
             
               Iune
               30.
               1670.
               
               Greig●
            
             contra
             Weims
             .
          
           
             A
             contract
             of
             Marriage
             by
             minute
             ,
             being
             craved
             to
             be
             declared
             void
             ,
             as
             to
             the
             payment
             of
             the
             Tocher
             ,
             because
             the
             mutual
             obligements
             therein
             could
             not
             be
             fulfilled
             .
             The
             Lords
             liberate
             the
             Pursuer
             ,
             he
             Renuncing
             the
             obligements
             on
             the
             other
             side
             ,
             
               Iuly
               13.
               1670.
               
               Raith
            
             and
             Wauchop
             of
             Edmonstoun
             contra
             Wolmet
             and
             Major
             Biggar
             .
          
           
             A
             contra●t
             of
             Marriage
             whereby
             a
             Father
             disponed
             his
             whole
             Estate
             in
             Fee
             to
             his
             Son
             ,
             and
             got
             the
             Tocher
             ,
             was
             ●ound
             not
             to
             annul
             a
             Bond
             of
             provision
             ,
             granted
             by
             the
             Son
             to
             the
             Father
             for
             his
             Bairns
             provisio●s
             ,
             after
             the
             Contract
             and
             before
             the
             Marriage
             ,
             as
             
               contra
               pacta
               dotalia
            
             ,
             but
             upon
             Examination
             of
             the
             Witnesses
             ,
             it
             being
             found
             communed
             ,
             that
             the
             Tocher
             should
             suffice
             for
             the
             Bairns
             Provisions
             ,
             and
             that
             by
             the
             new
             Bond
             ,
             there
             would
             little
             have
             ●emained
             to
             the
             Married
             persons
             :
             The
             Lords
             Reduced
             the
             Bond
             ,
             
               Ianuary
               21.
               1668.
               
               Patoun
            
             contra
             Patoun
             .
          
           
             Contract
             of
             Marriage
             vid.
             Clause
             .
          
           
             IN
             CONTRARY
             alleadgances
             of
             Minority
             and
             Majority
             ,
             neither
             party
             was
             preferred
             to
             Probation
             ,
             but
             Witnesses
             and
             Adminicles
             were
             admitted
             
               hinc
               ●nde
            
             ,
             that
             the
             Lords
             might
             follow
             the
             strongest
             ,
             and
             clearest
             Probation
             ,
             
               February
               20.
               1668.
               
               Farquhare
            
             of
             Tonley
             contra
             Gordoun
             .
          
           
             CONTRAVENTION
             was
             Sustained
             upon
             several
             times
             Herding
             ,
             for
             a
             considerable
             space
             together
             ,
             by
             the
             Defenders
             Herds
             at
             his
             command
             ,
             on
             the
             Pursuers
             Ground
             uncontroverted
             ,
             reserving
             to
             the
             Lords
             whether
             to
             make
             every
             special
             Pasturing
             ,
             a
             several
             contravention
             ,
             or
             one
             made
             up
             of
             all
             at
             the
             conclusion
             of
             the
             cause
             ,
             
             Iuly
             ●
             .
             1664.
             
             Earl
             of
             Airly
             contra
             Mcintosh
             .
          
           
             A
             CREDITOR
             personal
             ,
             was
             found
             to
             have
             no
             interest
             to
             compeat
             to
             exclude
             another
             Creditor
             ,
             alleadging
             his
             debt
             payed
             ,
             
               Iuly
               24.
               1662.
               
               Shed
            
             contra
             Gordoun
             and
             ●yle
             .
          
           
             A
             CROPT
             of
             Corn
             was
             ●ound
             not
             to
             be
             as
             a
             part
             of
             ,
             or
             accessory
             to
             the
             Ground
             ,
             or
             as
             
               sata
               solo
               cedunt
               solo
            
             ,
             so
             that
             after
             Possession
             attained
             by
             Removing
             ,
             against
             a
             violent
             Possessor
             warned
             ,
             the
             cropt
             on
             the
             Ground
             was
             found
             not
             thereby
             to
             belong
             to
             the
             Heretor
             entering
             ,
             even
             as
             to
             that
             part
             thereof
             ,
             which
             was
             sown
             after
             the
             Warning
             ,
             but
             as
             to
             what
             was
             sown
             after
             the
             Possessor
             was
             dispossed
             by
             the
             Removing
             ,
             and
             his
             Goods
             off
             the
             Ground
             ,
             the
             corn
             was
             found
             to
             accresce
             to
             the
             Heretor
             ,
             by
             paying
             the
             expense
             of
             the
             Seed
             and
             Labourage
             ,
             as
             
               Eatenus
               locupletior
               factus
               ,
               February
               22.
               1671.
               
               Gordoun
            
             contra
             Mcculloch
             .
          
           
             IN
             CRVIVES
             no
             necessity
             was
             found
             for
             the
             stream
             to
             be
             continually
             free
             besides
             the
             Saturdays
             slop
             ,
             but
             that
             the
             same
             is
             commonly
             in
             desuetude
             ,
             and
             particularly
             in
             the
             Cruive
             in
             question
             ,
             notwithstanding
             that
             it
             be
             speciall
             in
             the
             Act
             of
             Parliament
             ,
             Iuly
             29.
             1665.
             
             Heretors
             of
             
               Don
               contra
            
             Town
             of
             Aberdene
             .
          
           
             A
             CVRATORS
             Decreet
             obtained
             against
             him
             by
             a
             Minor
             ,
             for
             Liberation
             of
             the
             Curator
             from
             his
             Office
             ,
             upon
             consent
             of
             the
             Minor
             ,
             and
             his
             alleadged
             irregularity
             ,
             was
             ●ound
             not
             to
             Liberate
             that
             Curator
             from
             his
             Office
             ,
             even
             for
             Omissions
             after
             the
             Decreet
             ,
             
               Iuly
               21.
               1664.
               
               Scot
            
             of
             ●road-meadows
             contra
             Scot
             of
             Thirlestoun
             :
             But
             with
             consideration
             of
             the
             irregular
             forcible
             Acts
             ,
             that
             he
             should
             not
             be
             lyable
             therefore
             ,
             but
             liberat
             
               pro
               tanto
               vide
            
             Minor.
             Ibid.
             
          
           
             Curators
             being
             chosen
             three
             in
             number
             ,
             or
             any
             two
             of
             them
             ,
             the
             Mother
             being
             
               sine
               qua
               non
            
             ,
             and
             she
             being
             dead
             ,
             the
             Pupil
             was
             found
             sufficiently
             authorized
             by
             the
             other
             two
             ,
             he
             appearing
             judicially
             ,
             and
             acknowledging
             the
             same
             ,
             
               Ianuary
               4.
               1666.
               
               David
            
             and
             
               Andrew
               Fairfouls
            
             contra
             Binn●●
             .
          
           
             Curators
             ,
             or
             a
             Father
             as
             lawful
             Administrator
             ,
             authorizing
             Minors
             ,
             or
             Children
             to
             their
             own
             behove
             ,
             being
             Ca●tioners
             for
             ,
             or
             with
             them
             ,
             was
             found
             null
             ,
             December
             7.
             1666.
             
             Sir
             
               George
               Mckenzie
            
             contra
             Fairholme
             .
          
           
             CVSTODY
             of
             Money
             was
             found
             to
             liberate
             the
             Keeper
             ,
             where
             his
             whole
             means
             were
             sent
             for
             safety
             to
             a
             Garison
             ,
             and
             there
             lost
             ,
             and
             he
             being
             required
             to
             deliver
             the
             Money
             in
             custody
             ,
             declared
             that
             it
             was
             there
             ,
             and
             the
             owner
             might
             have
             it
             for
             sending
             for
             it
             ,
             without
             special
             probation
             as
             to
             the
             Money
             in
             question
             ,
             he
             giving
             his
             Oath
             in
             Supplement
             that
             it
             was
             there
             ,
             and
             was
             lost
             ,
             Iuly
             19.
             1662.
             
             Fiddes
             contra
             
               Iack
               ,
               vid.
               Novemb.
               16.
               1667.
               
               Whitehead
            
             contra
             Stra●to●n
             .
          
           
             DAMNAGE
             of
             a
             Tenement
             by
             the
             fall
             of
             a
             Neighbour
             Tenement
             ,
             was
             found
             competent
             against
             an
             Appryzer
             of
             a
             Liserent
             of
             the
             fallen
             Tenement
             ,
             possessing
             thereby
             ,
             
               February
               16.
               1666.
               
               Hay
            
             of
             Knockc●ndie
             contra
             Litlejohn
             .
             Renewed
             ,
             Ianuary
             13.
             1666.
             the
             ruinousness
             of
             the
             fallen
             House
             being
             Proven
             ,
             though
             no
             Requisition
             to
             Repair
             it
             .
          
           
             Damnage
             done
             to
             Victual
             Embarqued
             for
             the
             use
             of
             Merchants
             ,
             by
             the
             fault
             and
             negligence
             of
             the
             Skipper
             ,
             was
             found
             not
             to
             oblige
             the
             Skipper
             and
             Owners
             to
             take
             the
             Victual
             ,
             and
             pay
             the
             price
             ,
             but
             only
             to
             pay
             the
             damnage
             ,
             seing
             the
             Victual
             was
             not
             wholly
             corrupt
             ,
             but
             remained
             
               in
               Specie
               ,
               February
               19.
               1670.
               
               Leslie
            
             contra
             Guthrie
             .
          
        
         
           
             DATE
             of
             a
             Bond
             ,
             wanting
             as
             to
             day
             ,
             moneth
             ,
             and
             year
             ,
             was
             found
             not
             to
             annul
             it
             ,
             seing
             it
             bear
             in
             the
             Body
             ,
             Annualrent
             from
             such
             a
             Term
             ,
             in
             such
             a
             year
             ,
             last
             by-past
             ,
             which
             supplyed
             the
             date
             as
             to
             the
             year
             ,
             Iune
             15.
             1662.
             
             Grant
             contra
             Grant
             of
             Kirkdail
             .
          
           
             Date
             of
             a
             Discharge
             in
             a
             Merchants
             compt
             Book
             ,
             being
             ●nstructed
             by
             Witnesses
             and
             Adminicles
             ,
             was
             found
             to
             prove
             against
             the
             Merchants
             Assigney
             ,
             
               Ianuary
               9.
               1663.
               
               Skeen
            
             contra
             Lumsdean
             .
          
           
             Date
             being
             wanting
             in
             a
             Writ
             ,
             was
             sustained
             to
             be
             astructed
             by
             a
             Witness
             insert
             ,
             that
             it
             was
             anterior
             to
             an
             Assignation
             ,
             whereupon
             it
             was
             admitted
             as
             a
             compensation
             against
             the
             Assigney
             ,
             
               Iune
               29.
               1665.
               
               Thorntoun
            
             contra
             Milne
             .
          
           
             Date
             of
             a
             Writ
             being
             wanting
             ,
             was
             found
             not
             to
             annul
             it
             ,
             the
             party
             referring
             the
             verity
             of
             the
             Subscription
             to
             the
             Subscribers
             oath
             ,
             which
             was
             allowed
             ,
             with
             power
             to
             qualifie
             if
             it
             was
             undelivered
             ,
             or
             in
             minority
             ,
             Iuly
             7.
             1666.
             
               contra
               Duncan
            
             .
          
           
             Date
             of
             a
             Writ
             being
             false
             was
             found
             not
             to
             infer
             Falsehood
             of
             the
             whole
             ,
             or
             nullity
             thereof
             ,
             where
             the
             Witnesses
             insert
             proved
             the
             verity
             of
             the
             Subscription
             ,
             February
             23.
             1667.
             
             Laird
             of
             May
             contra
             Ross.
             
          
           
             The
             date
             of
             a
             Writ
             was
             not
             quarrelled
             by
             the
             Lords
             as
             false
             ,
             albeit
             it
             was
             not
             Subscribed
             the
             day
             that
             it
             bear
             ,
             in
             respect
             there
             was
             a
             Writ
             of
             the
             same
             Tenor
             truly
             subscribed
             that
             day
             ,
             but
             being
             a
             missing
             ,
             the
             Granter
             a
             long
             time
             after
             ,
             Subscribed
             another
             of
             the
             same
             Tenor
             and
             date
             ,
             and
             the
             first
             being
             found
             ,
             and
             both
             produced
             in
             Process
             ,
             the
             user
             abode
             by
             the
             first
             simply
             ,
             and
             by
             the
             last
             as
             to
             the
             verity
             of
             the
             Subscription
             ,
             but
             not
             of
             the
             date
             ,
             which
             was
             so
             insert
             for
             the
             reason
             foresaid
             .
             
               Iuly
               10.
               1669.
               
               Gardner
            
             contra
             Colvi●
             .
          
           
             DEATH
             of
             a
             party
             was
             found
             instructed
             by
             18.
             years
             absence
             out
             of
             the
             Countrey
             ,
             and
             repute
             dead
             ,
             and
             a
             Letter
             produced
             ,
             w●itten
             by
             a
             Comrad
             in
             the
             War
             ,
             bearing
             that
             he
             was
             dead
             ▪
             to
             Sustain
             an
             Adjudication
             upon
             a
             Bond
             granted
             by
             the
             next
             Heir
             ,
             which
             was
             to
             his
             own
             behove
             .
             February
             18.
             1670.
             
             Lowrie
             contra
             Drummond
             .
          
           
             DEATH-BED
             was
             not
             Sustained
             to
             Reduce
             a
             disposition
             by
             a
             Father
             to
             his
             Son
             of
             a
             Sum
             ,
             as
             prejudicial
             to
             his
             Heir
             ,
             seing
             by
             Contract
             with
             his
             eldest
             Son
             ,
             he
             reserved
             that
             power
             to
             burden
             the
             Estate
             to
             any
             he
             pleased
             ,
             though
             it
             bear
             not
             on
             death-bed
             ,
             yet
             that
             was
             not
             excluded
             ,
             nothing
             being
             there
             done
             but
             the
             designation
             of
             the
             Person
             ,
             Iune
             28.
             1662.
             
             Seatoun
             of
             
               Barns
               contra
            
             his
             Brother
             .
          
           
             Death-bed
             was
             found
             relevant
             to
             reduce
             a
             Disposition
             and
             Infeftment
             of
             Lands
             to
             an
             Heir
             female
             and
             of
             line
             ,
             in
             prejudice
             of
             a
             Brother
             and
             Heir-male
             ,
             who
             was
             provided
             to
             the
             Lands
             by
             the
             Disponer
             ,
             with
             a
             clause
             (
             with
             power
             to
             him
             to
             alter
             during
             his
             Life
             )
             which
             was
             found
             not
             to
             extend
             to
             death-bed
             ,
             though
             he
             should
             have
             been
             proven
             in
             soundness
             of
             mind
             ,
             as
             contrary
             to
             the
             
               presumptio
               juris
               &
               de
               jure
            
             ,
             that
             persons
             on
             death-bed
             are
             weak
             ,
             
               February
               25.
               1663.
               
               Hepburn
            
             of
             Humbie
             contra
             Hepburn●
             ,
             this
             clause
             not
             being
             in
             the
             Writ
             
               etiam
               in
               articulo
               mortis
            
             ,
             or
             on
             death-bed
             .
          
           
             Death-bed
             and
             a
             Testament
             was
             found
             equivalent
             ,
             albeit
             the
             Testament
             was
             made
             in
             
               leige
               poustie
            
             ,
             and
             so
             no
             provision
             therein
             ,
             prejudgeth
             the
             Heir
             ,
             December
             14.
             1664.
             
             Lady
             
               Colvil
               contra
            
             Lord
             Colvil
             .
          
           
             Death-bed
             was
             found
             not
             Relevant
             to
             hinder
             a
             Husband
             to
             provide
             a
             Wife
             with
             a
             Ioynture
             ,
             she
             having
             no
             Contract
             of
             Marriage
             ,
             nor
             competent
             provision
             ,
             nor
             any
             Terce
             ,
             he
             having
             only
             Tenements
             in
             Burgh
             ,
             of
             which
             no
             Terce
             is
             due
             ;
             but
             the
             Lords
             modified
             the
             Provision
             near
             to
             a
             Terce
             ,
             
               February
               22.
               1661.
               
               Rutherfoord
            
             and
             Pollock
             contra
             Iack.
             
          
           
             Death-bed
             was
             found
             not
             competent
             by
             way
             of
             exception
             or
             duply
             ,
             
               Ianuary
               12
               ,
               1666.
               
               Seatoun
            
             and
             the
             Laird
             of
             Touch
             contra
             Dundas
             .
          
           
             Death-bed
             was
             found
             Relevant
             to
             Reduce
             a
             Liferent
             Provision
             by
             a
             Husband
             to
             a
             Wife
             ,
             being
             unprovided
             ,
             and
             having
             no
             Contract
             ,
             except
             only
             in
             so
             far
             as
             it
             extended
             to
             her
             Terce
             ,
             due
             by
             Law
             ,
             
               Ianuary
               21.
               1668.
               
               Schaw
            
             contra
             Calderwood
             .
          
           
             Death-bed
             was
             found
             Relevant
             to
             Reduce
             a
             Bond
             granted
             by
             a
             Father
             to
             his
             Daughter
             ,
             who
             had
             a
             former
             Bond
             of
             another
             small
             Sum
             ,
             and
             that
             seing
             he
             went
             not
             out
             to
             Kirk
             and
             Mercat
             after
             Subscribing
             of
             the
             Bond
             ,
             and
             no
             equivalent
             ,
             or
             probation
             of
             his
             being
             in
             health
             ,
             or
             doing
             all
             his
             Affairs
             ,
             or
             that
             it
             was
             a
             small
             portion
             to
             a
             Daughter
             ,
             were
             Sustained
             ,
             
               February
               25.
               1668.
               
               Dun
            
             contra
             Duns
             .
          
           
             Death-bed
             was
             Sustained
             by
             Exception
             against
             a
             Bond
             wanting
             Witnesses
             ,
             and
             alleadged
             holograph
             ,
             seing
             the
             Bond
             was
             defective
             ,
             and
             the
             alleadgeance
             of
             death-bed
             was
             instantly
             verified
             ,
             and
             the
             presumption
             of
             Law
             ,
             that
             the
             holograph
             Writ
             proved
             not
             its
             own
             date
             to
             be
             before
             the
             Defuncts
             sicknesse
             ,
             
               November
               14.
               1668.
               
               Calderwood
            
             contra
             Schaw
             .
          
           
             Death-bed
             being
             insisted
             in
             as
             a
             Reason
             of
             Reduction
             ,
             and
             going
             to
             Kirk
             and
             Mercat
             being
             proponed
             in
             Defense
             ,
             
             and
             being
             supported
             ,
             and
             that
             the
             disease
             continued
             notwithstanding
             of
             the
             Defuncts
             going
             out
             being
             proponed
             ,
             The
             Lords
             ordained
             Witnesses
             to
             be
             Examined
             
               hinc
               inde
            
             ,
             anent
             the
             Defuncts
             condition
             and
             manner
             of
             going
             abroad
             ,
             whereby
             it
             being
             proven
             ,
             that
             the
             Defunct
             went
             freely
             unsupported
             ,
             a
             considerable
             difficult
             way
             ,
             having
             only
             a
             Staff
             in
             his
             hand
             :
             The
             disposition
             made
             by
             him
             was
             Sustained
             ,
             albeit
             it
             was
             proven
             that
             he
             was
             helped
             up
             Stairs
             and
             down
             Stairs
             ,
             to
             and
             from
             his
             Horse
             ,
             being
             an
             old
             man
             ,
             and
             that
             his
             Bridle
             was
             led
             ,
             and
             that
             he
             was
             not
             free
             of
             the
             disease
             of
             which
             he
             dyed
             ,
             and
             though
             he
             came
             abroad
             ,
             
               February
               26.
               1669.
               
               Pargillies
            
             contra
             Pargillies
             .
          
           
             Death-bed
             was
             found
             Receivable
             by
             Exception
             .
             to
             exclude
             a
             Recognition
             ,
             as
             not
             being
             a
             possessory
             ,
             but
             a
             petitory
             Iudgement
             ,
             
               Iuly
               20.
               1669.
               
               Barclay
            
             contra
             Barclay
             .
          
           
             Death-bed
             was
             found
             a
             sufficient
             ground
             to
             Reduce
             a
             disposition
             ,
             at
             the
             instance
             of
             the
             Defuncts
             Creditors
             ,
             or
             the
             Creditors
             of
             the
             appearand
             Heir
             ;
             neither
             did
             an
             offer
             to
             declare
             the
             Estate
             Iyable
             to
             the
             Defuncts
             own
             debts
             ,
             exclude
             their
             interest
             ,
             without
             security
             equivalent
             to
             the
             Appryzing
             ,
             November
             25.
             1669.
             
             Creditors
             of
             Cowper
             and
             
               Basmerino
               contra
            
             the
             Lady
             Cowper
             .
          
           
             Death-bed
             was
             not
             found
             Relevant
             to
             Reduce
             a
             Bond
             granted
             on
             death-bed
             by
             a
             party
             who
             had
             disponed
             his
             Estate
             ,
             reserving
             a
             power
             to
             himself
             to
             burden
             at
             any
             time
             during
             his
             Life
             ,
             though
             it
             did
             not
             bear
             
               etiam
               m
               articulo
               mortis
               ,
               Iune
               22.
               1670.
               
               Dowglas
            
             of
             Lumsdean
             contra
             Dowglas
             .
          
           
             Death-bed
             was
             found
             proven
             ,
             Witnesses
             being
             adduced
             before
             answer
             on
             either
             part
             ,
             concerning
             the
             Defuncts
             condition
             the
             time
             of
             the
             disposition
             quarrelled
             ,
             and
             thereafter
             till
             his
             death
             ,
             it
             being
             by
             them
             instructed
             that
             he
             contracted
             a
             palsie
             affecting
             his
             Brain
             before
             the
             Disposition
             ,
             whereby
             he
             remained
             sensless
             for
             a
             ti●e
             ,
             but
             thereafter
             continued
             to
             have
             a
             Palsie
             in
             his
             Tongue
             ,
             and
             Vertigo
             in
             his
             Head
             till
             his
             death
             ;
             but
             that
             he
             lost
             the
             remembrance
             of
             things
             ,
             and
             Names
             ,
             and
             was
             not
             sound
             thereafter
             in
             his
             Iudgement
             ,
             thoug●
             he
             went
             frequently
             to
             his
             Garden
             ,
             and
             half
             a
             pair
             of
             〈◊〉
             from
             his
             House
             unsupported
             ,
             never
             having
             gone
             to
             Kirk
             or
             Mercate
             after
             the
             disposition
             ,
             or
             to
             any
             publick
             Place
             ,
             but
             the
             disposition
             bearing
             for
             the
             better
             payment
             of
             the
             Disponers
             debt
             ,
             was
             sustained
             ,
             in
             so
             far
             as
             the
             Acquirer
             paid
             of
             his
             debt
             ,
             
               February
               7.
               1671.
               
               Lowrie
            
             of
             Blackwood
             contra
             Drummond
             .
          
           
             Death-bed
             being
             insisted
             in
             to
             Reduce
             a
             disposition
             ,
             Witnesses
             were
             appointed
             to
             be
             adduced
             for
             either
             party
             
               ex
               officio
            
             ,
             for
             clearing
             the
             condition
             the
             Defunct
             was
             in
             ,
             as
             to
             health
             and
             sickness
             the
             time
             of
             the
             Disposition
             ,
             and
             thereafter
             til
             his
             death
             ,
             and
             the
             manner
             of
             his
             going
             abroad
             ,
             whereupon
             the
             Relevancy
             and
             Probation
             were
             advised
             together
             ,
             and
             it
             was
             found
             that
             there
             was
             no
             necessity
             to
             libel
             the
             particular
             disease
             ,
             or
             that
             it
             was
             
               Morbus
               sonticus
            
             ,
             but
             ●ound
             it
             sufficiently
             proven
             that
             the
             Defunct
             had
             contracted
             a
             disease
             ,
             before
             Subscribing
             of
             the
             disposition
             ,
             and
             that
             he
             nev●r
             went
             abroad
             thereafter
             ,
             as
             the
             Law
             requires
             for
             the
             Evidences
             of
             Convalescence
             ,
             It
             was
             also
             found
             ,
             that
             the
             going
             to
             Kirk
             and
             Mercat
             was
             a
             Relevant
             defense
             ,
             but
             that
             it
             was
             elided
             by
             the
             Reply
             of
             Supportation
             ,
             and
             that
             the
             Defunct
             from
             his
             Entry
             to
             the
             Town
             of
             Cowper
             ,
             to
             the
             Mercate
             place
             ,
             and
             from
             the
             Mercate
             place
             till
             he
             went
             out
             of
             the
             Town
             ,
             did
             not
             walk
             freely
             unsupported
             ,
             and
             that
             even
             supporting
             by
             the
             hand
             was
             found
             Relevant
             ,
             without
             consideration
             of
             the
             unevenness
             of
             the
             Ground
             ,
             and
             that
             the
             Defunct
             was
             an
             old
             man
             ,
             and
             accustomed
             sometimes
             to
             take
             the
             hand
             of
             these
             that
             were
             with
             him
             in
             rouged
             places
             ,
             in
             respect
             that
             the
             attempt
             to
             go
             to
             Kirk
             and
             Mercat
             ,
             was
             the
             next
             day
             after
             the
             disposition
             ,
             and
             so
             was
             of
             design
             to
             validate
             the
             same
             ,
             and
             yet
             the
             Defunct
             was
             not
             able
             to
             forbear
             help
             for
             so
             short
             a
             way
             ,
             and
             attempting
             to
             go
             to
             the
             Kirk
             the
             next
             Sabbath
             ,
             was
             supported
             to
             it
             ,
             and
             from
             it
             ,
             and
             fel
             in
             a
             swoon
             in
             his
             return
             ,
             and
             dyed
             shortly
             after
             ,
             which
             though
             it
             was
             not
             necessary
             ,
             if
             he
             had
             gone
             freely
             to
             Mercat
             ,
             yet
             was
             an
             evidence
             of
             the
             continuance
             of
             the
             disease
             ;
             neither
             were
             private
             Evidences
             of
             putting
             on
             his
             Cloathes
             ,
             making
             of
             Bargains
             ,
             Compts
             ,
             and
             conveying
             of
             Strangers
             to
             the
             gate
             ,
             going
             to
             the
             Garden
             unsupported
             ,
             ●ound
             Acts
             sufficient
             to
             prove
             health
             and
             convalescence
             ,
             or
             equivalent
             to
             going
             to
             Kirk
             and
             Mercat
             unsupported
             ,
             seing
             in
             these
             publick
             meetings
             ,
             the
             party
             behoved
             not
             only
             to
             suffer
             the
             alteration
             of
             the
             free
             Air
             ,
             but
             that
             there
             was
             the
             Testimony
             of
             many
             unsuspect
             Witnesses
             ,
             whereas
             a
             few
             picked
             out
             Witnesses
             might
             be
             sufficient
             for
             these
             domestick
             Acts
             ,
             if
             these
             were
             Sustained
             ,
             Iune
             28.
             1671.
             
             Creditors
             of
             
               Balmerino
               contra
            
             Lady
             Cowper
             .
          
           
             Death-bed
             was
             found
             Relevantly
             libelled
             ,
             that
             the
             Defunct
             was
             inclosed
             on
             suspition
             of
             the
             Plague
             ,
             without
             proving
             infection
             ,
             seing
             he
             died
             and
             came
             never
             abroad
             ,
             February
             28.
             1665.
             
             
               Rutherfoord
               contra
            
          
           
             
               DEBITOR
               non
               presumitur
               donare
            
             ,
             was
             elided
             by
             a
             stronger
             contrary
             presumption
             ,
             viz.
             that
             an
             Assignation
             made
             to
             a
             creditor
             who
             was
             his
             nearest
             of
             Kin
             ,
             done
             
               mortis
               causa
            
             ,
             and
             in
             it
             another
             provision
             of
             a
             Sum
             to
             another
             person
             expresly
             ,
             in
             satisfaction
             of
             another
             debt
             ,
             which
             not
             being
             repeated
             in
             this
             ,
             must
             be
             thought
             
               ●o
               ammo
            
             ,
             not
             to
             be
             in
             Satisfaction
             of
             the
             other
             prior
             debt
             ,
             
               Iune
               16.
               1665.
               
               Crockshank
            
             contra
             
               Crookshank
               .
               Vide
            
             donation
             ,
             Fleming
             contra
             his
             children
             ,
             December
             20.
             1661.
             
          
           
             
               Debitor
               non
               presumit●r
               donare
            
             ,
             was
             found
             not
             to
             make
             a
             posterior
             Bond
             in
             favours
             of
             a
             Brothers
             Son
             ,
             to
             be
             in
             satisfaction
             of
             a
             former
             Bond
             to
             that
             Brother
             ,
             seing
             the
             posterior
             Bond
             bear
             for
             Love
             and
             Favour
             ,
             and
             no
             other
             cause
             ,
             neither
             did
             it
             mention
             the
             prior
             Bond
             ,
             
               December
               5.
               1671.
               
               Dickson
            
             contra
             Dickson
             .
          
           
             
               DEBIT
               A
               FVNDI
            
             cannot
             be
             effectual
             by
             voluntar
             Dispositions
             of
             the
             Lands
             affected
             thereby
             ,
             but
             only
             by
             poinding
             of
             the
             Ground
             ;
             and
             therefore
             an
             Appryzing
             ,
             and
             an
             Infeftment
             thereon
             ,
             was
             preferred
             to
             a
             posterior
             Disposition
             for
             Feu-duties
             ,
             But
             prejudice
             to
             make
             use
             of
             the
             Feu-duties
             ,
             by
             poinding
             the
             Ground
             ,
             whereby
             they
             would
             be
             preferred
             to
             the
             Appryzing
             ,
             
               Iuly
               8.
               1671.
               
               Margaret
               Scrymzour
            
             contra
             Earl
             of
             Northesk
             .
             By
             this
             Decision
             the
             Accumulation
             of
             Annualrents
             by
             the
             voluntar
             Disposition
             was
             Evacuate
             .
          
           
             DECLARATOR
             of
             the
             expyring
             of
             a
             Reversion
             upon
             a
             clause
             irritant
             ,
             was
             found
             null
             summarly
             without
             Reduction
             ,
             in
             respect
             the
             Decreet
             bear
             not
             the
             Production
             of
             the
             Instrument
             of
             Requisition
             whereupon
             the
             irritancy
             fell
             ,
             although
             the
             Instrument
             was
             now
             produced
             ,
             and
             the
             party
             long
             in
             Possession
             by
             vertue
             of
             the
             Decreet
             ,
             and
             albeit
             the
             Requisition
             was
             expresly
             libelled
             upon
             ,
             and
             that
             it
             seemed
             to
             be
             the
             Clerks
             omission
             in
             not
             mentioning
             of
             it
             in
             the
             production
             ,
             
               February
               22.
               1671.
               
               Pi●cairn
               contra
            
             Tennents
          
           
             DECLARATOR
             OF
             ESCHEAT
             was
             sustained
             without
             calling
             all
             parties
             having
             interest
             at
             the
             Mercat
             Cross
             ,
             though
             it
             was
             a
             part
             of
             the
             Style
             of
             the
             Summons
             in
             desuetude
             ,
             
               Iune
               23.
               1666.
               
               Masson
               contra
            
          
           
             DECLARATOR
             OF
             WARD
             AND
             NONEENTRIE
             should
             only
             be
             pursued
             before
             the
             Lords
             of
             Session
             not
             before
             the
             Exchequer
             ,
             Iune
             14.
             1665.
             
             His
             Majesties
             Letter
             Recorded
             in
             the
             Books
             of
             Sederunt
             .
          
           
             DECLARATOR
             OF
             THE
             NVLLITIE
             of
             Bonds
             and
             Rights
             to
             Creditors
             ;
             by
             a
             Feear
             in
             a
             Tailzie
             ,
             with
             a
             clause
             
               de
               non
               ali●nando
            
             ,
             was
             Sustained
             without
             the
             form
             of
             a
             Reduction
             ,
             or
             Production
             of
             the
             particular
             Rights
             ,
             Ianuary
             21.
             1662.
             
             Viscount
             of
             
               Stormount
               contra
            
             creditors
             of
             Annandale
             .
          
           
             In
             a
             Declarator
             of
             Property
             ,
             the
             Defender
             was
             not
             admitted
             to
             propone
             a
             Nullity
             in
             the
             Pursuers
             Right
             ,
             or
             that
             certification
             was
             granted
             against
             his
             Authors
             Seasine
             ,
             even
             at
             the
             Defenders
             instance
             ,
             unless
             the
             Defender
             alleadge
             a
             better
             Right
             ,
             Iuly
             10.
             1662.
             
             Lord
             
               Frazer
               contra
            
             Laird
             of
             Phillorth
             .
          
           
             A
             DECREET
             of
             Removing
             ,
             for
             not
             finding
             caution
             in
             absence
             ,
             was
             found
             null
             by
             Exception
             ,
             in
             respect
             the
             Title
             Libelled
             on
             ,
             was
             not
             produced
             ,
             but
             the
             Infeftment
             of
             another
             Person
             of
             the
             same
             name
             fraudfully
             mentioned
             in
             the
             production
             ,
             so
             that
             it
             was
             not
             Sustained
             as
             
               titulus
               bonafides
            
             ,
             to
             give
             the
             Possessor
             the
             Fruits
             ,
             
               Iune
               21.
               1671.
               
               Neilson
            
             contra
             Menzeis
             of
             Enoch
             .
          
           
             A
             Decreet
             being
             stopped
             on
             a
             Bill
             ,
             was
             found
             not
             to
             be
             recalled
             ,
             but
             only
             the
             Extracting
             thereof
             to
             be
             forborn
             till
             the
             Party
             were
             heard
             on
             the
             Grounds
             of
             the
             Bill
             ,
             and
             that
             though
             it
             lay
             over
             several
             years
             ,
             it
             needed
             not
             wakening
             ,
             Iuly
             1.
             1671.
             
             Broadie
             of
             Lethem
             and
             the
             Laird
             of
             
               Riccartoun
               contra
            
             Lord
             Kenmure
             .
          
           
             A
             DECREET
             ARBITRAL
             was
             found
             null
             ,
             as
             not
             being
             within
             a
             year
             of
             the
             Submission
             ,
             though
             it
             had
             no
             time
             ,
             but
             a
             power
             to
             the
             Arbiters
             to
             meet
             at
             their
             convenience
             and
             prorogat
             ,
             but
             did
             not
             prorogat
             the
             same
             ,
             February
             24.
             1665.
             
             Mcgregor
             contra
             Menzeis
             .
          
           
             A
             Decreet
             Arbitral
             was
             sustained
             without
             Submission
             in
             Writ
             ,
             it
             being
             proven
             by
             the
             Parties
             Oath
             ,
             that
             he
             so
             submitted
             ,
             and
             by
             the
             Arbiters
             Oath
             ,
             that
             they
             so
             decerned
             ,
             though
             both
             the
             Submission
             and
             Decreet
             were
             only
             verbal
             ,
             the
             matter
             being
             but
             of
             200.
             merks
             ,
             
               February
               7.
               1671.
               
               Hume
            
             contra
             Scot.
             Here
             the
             matter
             was
             a
             Bond
             of
             550.
             merks
             ,
             Suspended
             and
             determined
             to
             200.
             merks
             .
          
           
             DECREETS
             OF
             INFERIOVR
             COVRTS
             were
             found
             not
             to
             be
             taken
             away
             upon
             Iniquity
             ,
             though
             it
             be
             instantly
             verified
             by
             the
             Decreet
             ,
             by
             way
             of
             Suspension
             without
             Reduction
             ,
             
               Ianuary
               24.
               1662.
               
               Ker
               contra
            
             Lord
             Rentoun
             .
          
           
             A
             Decreet
             of
             an
             Inferiour
             Court
             was
             not
             Reduced
             simply
             ,
             because
             Advocation
             was
             produced
             before
             Extracting
             ,
             being
             after
             Sentence
             ,
             but
             was
             Reduced
             because
             the
             Advocation
             was
             produced
             before
             eleven
             hours
             ,
             which
             was
             the
             ordinary
             hour
             of
             beginning
             to
             sit
             ,
             but
             the
             Sheriff
             sat
             that
             day
             an
             hour
             before
             ordinary
             ,
             which
             the
             Lords
             found
             sufficient
             presumption
             that
             it
             was
             of
             purpose
             to
             prevent
             the
             Advocation
             ,
             Iuly
             10.
             1662.
             
             Laird
             of
             Lambertoun
             contra
             Hume
             of
             Kaimes
             .
          
           
             A
             Decre●et
             of
             an
             inferiour
             Court
             was
             not
             Sustained
             as
             
               in
               ●oro
            
             ,
             where
             a
             Term
             was
             taken
             by
             a
             Procurator
             ,
             to
             prove
             a
             Defense
             without
             a
             Mandat
             or
             Writ
             produced
             that
             might
             in●er
             the
             same
             ,
             
               November
               24.
               1665.
               
               Chalmers
               contra
            
             Lady
             Tinnel
             .
          
           
             A
             Decreet
             of
             an
             inferiour
             Court
             was
             found
             null
             for
             want
             
             of
             Probation
             ,
             bearing
             only
             that
             the
             Defender
             compeared
             ,
             and
             con●essed
             the
             debt
             ,
             without
             proponing
             any
             other
             alleadgeance
             or
             de●ense
             ,
             and
             not
             Subscribing
             his
             acknowledgement
             ,
             
               Iuly
               19.
               1665.
               
               Guine
            
             contra
             Mcken
             .
          
           
             A
             Decreet
             of
             an
             inferiour
             Court
             upon
             compearance
             ,
             was
             not
             found
             null
             by
             Suspension
             ,
             without
             Reduction
             ,
             though
             it
             had
             visible
             Nullities
             ,
             and
             was
             a
             small
             matter
             ,
             
               Inter
               pauperes
               .
               November
            
             21.
             1665.
             
             Baxters
             in
             the
             
               Cannongate
               contra
            
          
           
             A
             DECREET
             OF
             SESSION
             was
             Reduced
             as
             null
             ,
             being
             
               ultra
               petita
               ,
               Iuly
               21.
               1666.
               
               Waison
            
             contra
             Miller
             .
          
           
             A
             Decreet
             of
             Session
             
               in
               foro
            
             ,
             whereby
             in
             a
             Suspension
             a
             sum
             being
             alleadged
             paid
             &
             not
             instantly
             verified
             ,
             the
             Letters
             were
             found
             orderly
             proceeded
             conditionally
             ,
             if
             any
             thing
             were
             produced
             by
             such
             a
             time
             ,
             it
             should
             be
             received
             ,
             and
             was
             not
             produced
             after
             ,
             which
             the
             Lords
             would
             not
             admit
             ,
             it
             being
             now
             produced
             in
             a
             Reduction
             of
             an
             Appryzing
             of
             the
             said
             Decreet
             ,
             now
             in
             the
             hands
             of
             a
             singular
             Successor
             ,
             Iune
             16.
             1664.
             
             Laird
             of
             Tillieallan
             and
             Condie
             contra
             Crawfoord
             .
          
           
             A
             DECREET
             OF
             PARLIAMENT
             was
             taken
             away
             by
             double
             poynding
             without
             a
             Reduction
             ,
             the
             same
             being
             referred
             to
             the
             Lords
             by
             the
             Parliament
             upon
             Supplication
             on
             this
             Reason
             ,
             that
             it
             was
             pronunced
             against
             a
             Forefault
             person
             alter
             his
             death
             ,
             without
             calling
             the
             Kings
             Officers
             ,
             Iuly
             14.
             1665.
             
             Earl
             of
             Argile
             contra
             Mcd●wgal
             of
             Dinolich
             and
             Raca
             .
          
           
             A
             Decreet
             of
             Parliament
             Rescinding
             a
             dishabilitation
             of
             the
             Children
             of
             Forefault
             Persons
             without
             Citation
             ,
             was
             Sustained
             ,
             there
             being
             no
             Citation
             of
             the
             Children
             to
             the
             Dishabilitation
             ,
             nor
             Restitution
             by
             way
             of
             Grace
             ,
             but
             in
             Iustice
             ,
             the
             Children
             being
             Infants
             ,
             incapable
             of
             the
             Crime
             ,
             February
             24.
             1665.
             
             Sir
             
               Robert
               Sinclar
               contra
            
             the
             Laird
             of
             Wedderb●rn
             .
          
           
             DELIVERY
             
               Vide
               Chyrographum
               ,
               December
            
             13.
             1666.
             
             
               ●●net
               Thomson
            
             contra
             Stevinson
             .
          
           
             Delivery
             of
             an
             Assignation
             was
             not
             found
             necessary
             to
             validate
             the
             same
             ,
             being
             granted
             by
             a
             Defunct
             to
             his
             near
             Relation
             ,
             though
             not
             in
             his
             Family
             ,
             though
             it
             bear
             not
             a
             Clause
             to
             be
             valide
             without
             delivery
             ,
             seing
             it
             bear
             a
             Reservation
             of
             his
             Liferent
             ,
             and
             a
             power
             to
             dispose
             ,
             evidencing
             his
             purpuse
             ,
             not
             to
             deliver
             the
             same
             ,
             and
             so
             importing
             the
             Writ
             to
             be
             valide
             without
             delivery
             .
          
           
             Delivery
             of
             three
             Dispositions
             in
             Tailzie
             to
             a
             Daughters
             Son
             ,
             was
             found
             to
             be
             implyed
             by
             a
             Clause
             in
             the
             first
             dispensing
             with
             delivery
             ,
             and
             seing
             the
             Substantials
             of
             the
             rest
             were
             the
             same
             with
             the
             first
             ,
             and
             only
             qualified
             the
             same
             conform
             to
             the
             reserved
             power
             in
             the
             first
             ,
             they
             were
             all
             Sustained
             ,
             though
             the
             other
             two
             had
             no
             dispensatory
             Clause
             ,
             but
             so
             that
             what
             was
             in
             the
             first
             ,
             for
             the
             benefite
             of
             the
             Heir
             ,
             should
             be
             holden
             as
             repeated
             in
             the
             rest
             ,
             that
             by
             the
             rest
             ,
             the
             Heir
             might
             not
             be
             in
             a
             worse
             case
             ,
             
               Iuly
               23.
               1669.
               
               Elle●s
            
             contra
             Ingles●●●n
             .
          
           
             Delivery
             of
             Bonds
             of
             provision
             to
             Children
             is
             not
             presumed
             to
             have
             been
             at
             ;
             or
             near
             the
             date
             ,
             but
             must
             be
             proven
             to
             prefer
             them
             to
             posterior
             Creditors
             ,
             
               Iuly
               22.
               1668.
               
               Iohnstoun
            
             of
             Sh●ins
             contra
             Arnot
             .
          
           
             DEPOSITATION
             of
             a
             Writ
             was
             found
             probable
             by
             the
             Notar
             and
             Witnesses
             insert
             ,
             where
             the
             Writ
             was
             not
             produced
             by
             the
             Party
             ,
             in
             whose
             favours
             it
             was
             principally
             ,
             but
             by
             a
             third
             party
             ,
             
               Iuly
               5.
               1662.
               
               Drummond
            
             contra
             Campbel
             .
          
           
             A
             DESIGNATION
             of
             a
             Gleib
             by
             way
             of
             Instrument
             of
             a
             Nottar
             ,
             was
             not
             Sustained
             without
             Production
             of
             the
             Testificate
             of
             the
             Ministers
             Designers
             ,
             December
             17.
             1664.
             
             Paterson
             contra
             Watson
             .
          
           
             Designations
             of
             Gleibs
             must
             first
             be
             of
             Parsons
             before
             Bishops
             Lands
             ,
             though
             they
             were
             Feued
             before
             the
             Act
             anent
             Manses
             and
             Gleibs
             ,
             and
             built
             with
             Houses
             ,
             so
             that
             the
             Feuar
             must
             purchase
             as
             much
             ere
             the
             other
             Kirk
             Lands
             be
             affected
             ,
             Ianuary
             25.
             1665.
             
             Parson
             of
             Dysart
             contra
             Watson
             .
          
           
             Designation
             of
             one
             to
             be
             Tutor
             Testamentar
             by
             his
             own
             acknowledgement
             ,
             was
             found
             not
             to
             prove
             against
             him
             ,
             where
             by
             the
             Testament
             ,
             the
             contrary
             appeared
             ,
             
               Iune
               10.
               1665.
               
               Swin●●●n
            
             contra
             Notman
             .
          
           
             Designation
             of
             a
             Manse
             was
             Sustained
             by
             Intimation
             out
             of
             the
             Pulpit
             ,
             or
             at
             the
             Kirk
             door
             ,
             warning
             the
             Heretors
             thereto
             ,
             as
             being
             the
             constant
             custom
             ,
             though
             some
             of
             the
             most
             considerable
             were
             ou●
             of
             the
             Countrey
             ,
             Ianuary
             28.
             1668.
             
             Minister
             of
             Hassendene
             contra
             Duke
             of
             Buccl●●gh
             .
          
           
             Designation
             of
             a
             Gleib
             was
             Sustained
             ,
             though
             done
             but
             by
             two
             Ministers
             ,
             the
             Bishops
             Warrand
             being
             to
             three
             without
             〈◊〉
             Qu●run●
             ,
             unless
             weighty
             reasons
             upon
             the
             prejudice
             of
             parties
             were
             shown
             ,
             February
             7.
             1668.
             
             Minister
             of
             
               Cockburnspe●h
               contra
            
             his
             Parochioners
             .
          
           
             DEVASTATION
             total
             was
             found
             to
             Liberate
             from
             publick
             Maintainance
             ,
             February
             20.
             1663.
             
             Baxters
             of
             
               Edinburgh
               contra
            
             Heretors
             of
             Eastlouthian
             .
          
           
             DILIGENCE
             was
             not
             required
             of
             a
             Person
             whose
             Name
             was
             not
             intrusted
             in
             the
             Infeftment
             of
             Annualrent
             ,
             to
             make
             him
             Comptable
             for
             ommis●ion
             ,
             but
             only
             for
             intromission
             ,
             
               December
               18.
               1666.
               
               Cass
            
             contra
             Wat.
             
          
           
             A
             DISCHARGE
             to
             one
             of
             more
             Contutors
             ,
             was
             ●ound
             not
             to
             Liberate
             the
             rest
             ,
             except
             in
             so
             far
             as
             satisfaction
             was
             given
             by
             the
             Party
             discharged
             ,
             or
             in
             so
             far
             as
             the
             other
             Contutors
             would
             be
             excluded
             from
             Recourse
             against
             the
             Party
             Discharged
             ,
             
               December
               19.
               1668.
               
               Seatoun
            
             contra
             Seatoun
             .
          
        
         
           
             A
             Discharge
             of
             Rent
             not
             designing
             the
             Writer
             thereof
             ,
             was
             found
             null
             ,
             unless
             the
             user
             thereof
             designed
             the
             Writer
             ,
             because
             it
             was
             of
             80.
             pounds
             of
             Annualrent
             yearly
             ,
             and
             that
             thereby
             an
             Infeftment
             of
             Annualrent
             would
             be
             cled
             with
             Possession
             ,
             and
             preferred
             to
             another
             Annualrent
             ,
             Iuly
             14.
             1665.
             
             Scot
             contra
             Silvertoun●il
             .
          
           
             A
             Discharge
             being
             general
             ,
             was
             found
             not
             to
             extend
             to
             a
             Sum
             Assigned
             by
             the
             Discharger
             before
             the
             Discharge
             ,
             albeit
             it
             was
             not
             intimate
             before
             ,
             unless
             it
             were
             proven
             that
             payment
             was
             truly
             made
             for
             this
             sum
             ,
             
               February
               3.
               1671.
               
               Blair
            
             of
             Bagillo
             contra
             Blair
             of
             Denhead
             .
          
           
             A
             DISPOSITION
             of
             Moveables
             was
             preferred
             to
             an
             Arrestment
             on
             an
             horning
             anterior
             to
             the
             Delivery
             ,
             seing
             the
             Disposition
             was
             before
             the
             Horning
             ,
             and
             the
             delivery
             before
             the
             Arrestment
             ,
             
               Iuly
               ●
               .
               1662.
               
               Bouse
               contra
            
             Baillie
             Iohnsto●●
             .
          
           
             A
             Disposition
             was
             Reduced
             on
             the
             Act
             of
             Parliament
             1621.
             as
             
               in
               fraudem
               creditorum
            
             ,
             though
             the
             Disponer
             was
             not
             Bankrupt
             ,
             and
             that
             he
             had
             reserved
             the
             power
             of
             a
             considerable
             sum
             to
             sell
             Land
             to
             pay
             his
             debt
             ,
             which
             the
             Creditors
             might
             affect
             ,
             seing
             the
             Creditors
             ought
             to
             have
             Preference
             according
             to
             their
             Legal
             diligence
             on
             the
             whole
             Estate
             till
             payment
             ,
             February
             6.
             1663.
             
             Lord
             
               Lour
               contra
            
             Earl
             of
             Dundee
             .
          
           
             Dispositions
             of
             Heretable
             Rights
             are
             only
             Reducable
             upon
             the
             Act
             of
             Parliament
             against
             Bankrupts
             ,
             and
             not
             by
             exception
             or
             reply
             ,
             though
             betwixt
             Father
             and
             Son
             
               &
               in
               re
               parvi
               momenti
               ,
               viz.
            
             100.
             pounds
             ,
             
               Iune
               19.
               1663.
               
               Reid
            
             contra
             Harper
             .
          
           
             A
             Disposition
             by
             a
             Husband
             to
             his
             Wife
             of
             an
             additional
             Ioynture
             ,
             she
             being
             sufficiently
             provided
             before
             ,
             was
             found
             Reduceable
             at
             the
             instance
             of
             anterior
             Creditors
             ,
             albeit
             the
             Husband
             was
             no
             Bankrupt
             ,
             but
             because
             he
             had
             no
             Estate
             un-liferented
             or
             affected
             ,
             albeit
             the
             Reversion
             was
             much
             more
             worth
             nor
             the
             Creditors
             Sums
             ,
             but
             the
             Relick
             offering
             to
             purge
             the
             prejudice
             by
             admitting
             the
             Creditor
             ,
             who
             had
             appryzed
             ,
             to
             possess
             Lands
             equivalent
             to
             his
             Annualrent
             ,
             he
             Assigning
             to
             the
             Relick
             what
             he
             was
             satisfied
             by
             the
             Ioynture
             Lands
             ,
             and
             with
             this
             provision
             ,
             that
             if
             the
             Legal
             expired
             she
             should
             not
             be
             absolutely
             excluded
             .
             The
             Lords
             found
             the
             offer
             sufficient
             ,
             February
             10.
             1665.
             
             Lady
             Craig
             and
             
               Greenhead
               contra
            
             Lord
             Loure
             .
          
           
             A
             Disposition
             
               omnium
               bonorum
            
             ,
             without
             any
             cause
             onerous
             ,
             and
             without
             delivery
             ,
             was
             found
             not
             sufficient
             to
             exclude
             the
             necessity
             of
             Confirmation
             and
             paying
             of
             the
             Quote
             ;
             Iune
             23.
             1665.
             
             Procurator-fiscal
             of
             the
             Commissariot
             of
             Edinburgh
             contra
             Fairholm
             .
          
           
             A
             Disposition
             
               omnium
               bonorum
            
             ,
             though
             with
             possession
             was
             ●ound
             not
             to
             exclude
             the
             Quote
             and
             Confirmation
             ,
             seing
             it
             bear
             a
             ●eversion
             to
             the
             Disponer
             ,
             during
             his
             Life
             to
             dispone
             of
             the
             Goods
             notwithstanding
             ,
             Iuly
             4.
             1665.
             
             Commissar
             of
             
               Saint
               Andrews
               contra
            
             Laird
             of
             Bousie
             .
          
           
             A
             Disposition
             of
             Land
             was
             found
             to
             carry
             all
             Right
             that
             was
             in
             the
             Disponers
             Person
             ,
             and
             to
             import
             an
             Assignation
             to
             a
             Reversion
             ,
             which
             needed
             not
             intimation
             ,
             seing
             the
             Seasine
             was
             Registrat
             in
             the
             Register
             of
             Seasines
             ,
             December
             5.
             1665.
             
             Beg
             contra
             Beg.
             
          
           
             A
             Disposition
             of
             Lands
             was
             found
             imported
             by
             an
             Assignation
             to
             the
             Mails
             and
             Duties
             in
             all
             time
             coming
             ,
             against
             the
             Heir
             of
             him
             that
             granted
             that
             Right
             ,
             and
             that
             the
             Heir
             was
             obliged
             to
             renew
             a
             compleat
             legal
             Disposition
             ,
             with
             a
             Procuratory
             of
             Resignation
             ,
             and
             Precept
             of
             Seasine
             ,
             Iuly
             2.
             1667.
             
             Sinclar
             of
             Hirdmanstoun
             contra
             Cowper
             .
          
           
             A
             Disposition
             by
             one
             Brother
             to
             another
             of
             his
             whole
             Estate
             ,
             bearing
             for
             satisfying
             of
             his
             debts
             enumerat
             ,
             and
             containing
             a
             power
             to
             the
             Purchaser
             ,
             to
             satisfie
             what
             debts
             he
             pleased
             ,
             and
             to
             prefer
             them
             ,
             was
             found
             valide
             and
             not
             fraudulent
             ,
             in
             so
             far
             as
             extended
             to
             the
             Purchasers
             own
             Sums
             due
             to
             him
             ,
             and
             for
             which
             he
             was
             Cautioner
             for
             his
             Brother
             ,
             as
             if
             it
             had
             born
             these
             to
             be
             paid
             
               primo
               loco
            
             ,
             and
             thereupon
             one
             of
             the
             Creditors
             whose
             debt
             was
             enumerat
             in
             the
             Disposition
             ,
             was
             postponed
             to
             the
             Acquirers
             own
             debt
             and
             cautionry
             ,
             till
             they
             were
             first
             satisfied
             ,
             Ianuary
             8.
             1669.
             
             Captain
             
               Newman
               contra
            
             Tennents
             of
             White-hill
             and
             Mr.
             
               Iohn
               Prestoun
            
             .
          
           
             A
             Disposition
             was
             Reduced
             ,
             because
             given
             by
             a
             weak
             person
             to
             him
             ,
             who
             was
             lately
             her
             Tutor
             
               ante
               redditas
               rationes
            
             ,
             and
             done
             of
             the
             same
             date
             with
             a
             Contract
             of
             Marriage
             ,
             whereby
             she
             was
             married
             to
             his
             Nephew
             ,
             who
             got
             the
             Disposition
             ,
             and
             died
             ere
             he
             was
             Married
             ,
             albeit
             he
             who
             got
             the
             Disposition
             was
             her
             Mothers
             Brother
             ,
             who
             Educat
             and
             Alime●●ed
             her
             ,
             and
             the
             Pursuer
             of
             the
             Reduction
             was
             her
             Grand-Fathers
             Brothers
             Son
             ,
             who
             had
             not
             noticed
             her
             ,
             but
             she
             was
             an
             ignorant
             person
             ,
             half
             deaf
             ,
             February
             18.
             1669.
             
             French
             contra
             Watson
             .
          
           
             A
             Disposition
             of
             Moveables
             in
             Writ
             ,
             bearing
             onerous
             causes
             ,
             expressing
             a
             Sum
             ,
             and
             others
             generally
             ,
             was
             fou●●
             not
             to
             prove
             the
             cause
             onerous
             by
             the
             Narrative
             ,
             being
             〈◊〉
             dulent
             ,
             leaving
             nothing
             to
             other
             Creditors
             ,
             nor
             〈…〉
             by
             the
             Acquirers
             Oath
             ,
             but
             also
             by
             the
             Oaths
             of
             the
             〈◊〉
             
             whom
             payment
             was
             made
             ,
             
               November
               18.
               1669.
               
               Henderson
            
             contra
             Anderson
             .
          
           
             A
             Disposition
             of
             Lands
             bearing
             the
             Buyers
             Entry
             to
             be
             at
             Whitsonday
             ,
             and
             to
             the
             Cropt
             of
             that
             year
             ,
             was
             found
             not
             to
             extend
             to
             the
             Cropt
             of
             Corn
             that
             was
             Sowen
             ,
             and
             standing
             on
             the
             Ground
             that
             year
             the
             time
             of
             the
             Buyers
             Entry
             ,
             or
             to
             any
             part
             of
             the
             Rent
             ,
             payable
             for
             the
             Land
             ,
             f●om
             the
             Whitsunday
             before
             to
             the
             Whits●nday
             at
             which
             the
             Buyer
             was
             to
             Enter
             ,
             
               February
               22.
               1670.
               
               Murray
            
             of
             Auchtertyre
             contra
             Drummond
             .
          
           
             A
             Disposition
             of
             Lands
             and
             universal
             Legacy
             ,
             both
             contained
             in
             one
             Infeftment
             ,
             in
             which
             there
             is
             a
             Sum
             provided
             to
             Children
             ,
             not
             being
             particularly
             annexed
             either
             to
             the
             Disposition
             of
             Legacy
             ,
             the
             Disposition
             of
             Lands
             being
             found
             null
             ,
             as
             being
             in
             a
             Testament
             ,
             the
             universal
             Legacy
             was
             found
             burdened
             with
             no
             part
             of
             the
             Provision
             ,
             seing
             by
             the
             Nullity
             of
             the
             Disposition
             ,
             the
             Children
             had
             Right
             to
             their
             Portion
             of
             the
             Lands
             ,
             which
             exceeded
             the
             Sum
             they
             were
             provided
             to
             ,
             
               February
               1.
               1671.
               
               Pringle
            
             contra
             Pringles
             .
          
           
             A
             Disposition
             granted
             by
             a
             Person
             who
             was
             insolvent
             ,
             and
             thereafter
             notoriously
             Bankrupt
             ,
             was
             not
             reduced
             as
             not
             proceeding
             upon
             a
             necessary
             cause
             ,
             or
             as
             being
             a
             preference
             of
             one
             Creditor
             to
             another
             ,
             none
             having
             done
             diligence
             ,
             in
             respect
             the
             Disposition
             was
             granted
             for
             a
             Bargain
             of
             Victual
             sold
             and
             delivered
             a
             Month
             before
             the
             Disposition
             in
             question
             ,
             whereby
             the
             Disponer
             was
             alleadged
             to
             become
             Bankrupt
             ;
             but
             it
             was
             not
             decided
             ,
             whether
             a
             notorious
             Bankrupt
             could
             after
             he
             was
             so
             known
             ,
             prefer
             one
             Creditor
             to
             another
             ,
             when
             none
             of
             them
             had
             done
             diligence
             ,
             Iuly
             20.
             1671.
             
             Laird
             of
             Birken●●g
             contra
             Grahame
             of
             Craig
             .
          
           
             A
             Disposition
             of
             Lands
             was
             found
             to
             imply
             an
             Assignation
             to
             the
             Reversion
             of
             a
             former
             Wodset
             ,
             and
             that
             it
             needed
             no
             intimation
             ,
             the
             Infeftment
             on
             the
             Disposition
             being
             Registrate
             ,
             though
             a
             posterior
             Assigney
             had
             first
             redeemed
             ,
             
               November
               18.
               1664.
               
               Gu●hrie
            
             contra
             
               Idem
               December
            
             5.
             1665.
             
             
               Beg
               contra
               Beg.
            
             
          
           
             DIVISION
             of
             Lands
             and
             a
             Muire
             betwixt
             Co-heirs
             ,
             was
             reduced
             upon
             a
             considerable
             inequality
             ,
             though
             not
             near
             the
             half
             value
             ,
             and
             though
             the
             division
             proceeded
             upon
             the
             Reducers
             o●n
             Brief
             of
             division
             ,
             
               December
               2.
               1669.
               
               Monteith
            
             of
             Corruber
             contra
             Boid
             .
          
           
             A
             DONATION
             was
             not
             presumed
             by
             a
             Mother
             to
             her
             Child
             ,
             by
             giving
             out
             Money
             in
             her
             Name
             ,
             with
             power
             to
             uplift
             and
             re-imploy
             ,
             in
             so
             far
             as
             she
             was
             debitor
             to
             the
             Child
             ,
             but
             
               pro
               reliquo
               ,
               December
               20.
               1661.
               
               Fleming
               contra
            
             her
             Children
             .
          
           
             Donation
             of
             Aliment
             by
             a
             Mother
             to
             her
             Son
             ,
             who
             had
             no
             other
             means
             ,
             was
             presumed
             to
             Liberate
             him
             from
             Repetition
             ,
             but
             was
             not
             found
             so
             against
             his
             Step-Father
             ,
             for
             the
             years
             after
             his
             Marriage
             ,
             
               Iune
               25.
               1664.
               
               Melvil
            
             contra
             Ferguson
             .
          
           
             
               Donati●
               inter
               Virum
               &
               uxorem
            
             ,
             was
             found
             Revockable
             ,
             albeit
             it
             was
             not
             a
             pure
             donation
             ,
             but
             in
             lieu
             of
             another
             
               quo
               ad
               excessum
            
             ,
             seing
             it
             was
             
               notabilis
               excessus
               ,
               November
            
             20.
             1662.
             
             Children
             of
             
               Wolmet
               contra
            
             Lady
             Wolmet
             and
             Dankeith
             her
             Husband
             .
          
           
             
               Do●atio
               inter
               virum
               &
               uxorem
            
             ,
             was
             sustained
             to
             recal
             the
             acceptance
             of
             an
             Infeftment
             in
             satisfaction
             of
             the
             Wifes
             Contract
             .
             February
             12.
             1663.
             
             Relict
             of
             
               Morison
               contra
            
             his
             Heir
             .
          
           
             Donation
             betwixt
             Man
             and
             Wife
             Revockable
             ,
             was
             found
             not
             to
             extend
             to
             a
             Contract
             of
             Marriage
             ,
             though
             made
             up
             during
             the
             Marriage
             ,
             there
             being
             none
             before
             ,
             November
             22.
             1664.
             
             M●gil
             contra
             Ruthven
             of
             Gairn
             .
          
           
             
               Donatio
               inter
               virum
               &
               uxorem
            
             ,
             was
             found
             not
             revockable
             ,
             if
             it
             were
             granted
             upon
             consideration
             of
             what
             fell
             in
             by
             the
             Wife
             after
             her
             former
             Provisions
             ,
             though
             that
             would
             also
             have
             belonged
             to
             the
             Husband
             
               jure
               mariti
            
             ,
             yet
             might
             be
             the
             ground
             in
             gratitude
             of
             a
             Donation
             Remuneratory
             ,
             
               November
               23.
               1664.
               
               Halyburtoun
            
             contra
             Porteous
             .
          
           
             
               Donatio
               inter
               virum
               &
               uxorem
            
             ,
             being
             in
             question
             ,
             where
             there
             was
             no
             Contract
             of
             Marriage
             ,
             but
             an
             Infeftment
             of
             all
             that
             the
             man
             then
             had
             ,
             and
             after
             a
             second
             Infeftment
             ,
             but
             
               stante
               matrimonio
            
             ;
             The
             Lords
             found
             that
             the
             first
             was
             valide
             ,
             there
             being
             no
             Contract
             before
             ,
             but
             they
             reduced
             the
             second
             ,
             finding
             no
             remuneratory
             provision
             of
             the
             Wife
             to
             answer
             both
             
               November
               23.
               1664.
               
               Inter
               eosdem
               .
            
          
           
             
               Donatio
               inter
               virum
               &
               uxorem
            
             ,
             was
             found
             not
             to
             reach
             an
             Infeftment
             of
             Lands
             ,
             to
             warrand
             and
             make
             up
             the
             principal
             Lands
             in
             the
             Contract
             such
             a
             Rent
             ,
             albeit
             there
             was
             but
             a
             personal
             Obligement
             in
             the
             Contract
             ,
             and
             that
             the
             Obligement
             to
             Infeft
             in
             Warrandice
             ,
             was
             therein
             satisfied
             and
             extinct
             ,
             
               November
               24.
               1664.
               
               Nisbit
            
             contra
             Mur●ay
             .
          
           
             A
             Donation
             was
             presumed
             of
             Aliment
             by
             a
             Goodfire
             to
             his
             Daughters
             Child
             ,
             who
             was
             long
             in
             his
             House
             ,
             and
             after
             the
             Mothers
             death
             continued
             still
             without
             any
             agreement
             with
             the
             Father
             ,
             
               Iuly
               21.
               1665.
               
               Ludquharn
            
             contra
             Geight
             .
          
           
             
               Donatio
               inter
               virum
               &
               uxorem
            
             ,
             was
             found
             relevant
             to
             recal
             a
             Bond
             granted
             by
             a
             H●●band
             to
             his
             Wife
             bearing
             (
             that
             he
             thought
             it
             convenient
             that
             they
             should
             leave
             a
             part
             ,
             and
             therefore
             obliged
             him
             to
             pay
             a
             Sum
             yearly
             for
             her
             aliment
             )
             albeit
             it
             bear
             also
             that
             he
             should
             never
             quarrel
             or
             recal
             the
             same
             ,
             as
             importing
             a
             Renunciation
             of
             that
             priviledge
             ,
             February
             6.
             1666.
             
             
               Living
               stoun
            
             contra
             Beg.
             
          
        
         
           
             Donation
             betwixt
             Man
             and
             Wife
             was
             found
             to
             extend
             to
             a
             Charter
             bearing
             Lands
             and
             a
             Miln
             ,
             where
             the
             Contract
             of
             Marriage
             bear
             not
             the
             Miln
             ,
             and
             that
             it
             was
             not
             as
             an
             Explication
             of
             the
             parties
             meaning
             ,
             and
             so
             was
             revocked
             by
             a
             posterior
             disposition
             of
             the
             Husband
             to
             another
             ,
             February
             5.
             1667.
             
             Countess
             of
             Hume
             contra
             the
             Tenents
             of
             Old●a●●us
             and
             Hog
             .
          
           
             Donation
             betwixt
             Man
             and
             Wife
             was
             found
             not
             to
             extend
             to
             a
             donation
             by
             a
             Husband
             to
             his
             Wifes
             Children
             of
             a
             former
             Marriage
             ,
             of
             her
             Goods
             belonging
             to
             him
             
               jure
               mariti
            
             ,
             and
             so
             was
             not
             revockable
             as
             done
             to
             the
             Wife
             ,
             though
             to
             her
             Bairns
             at
             her
             desire
             ,
             
               Ianuary
               15.
               1669
               ,
               Hamiltoun
            
             contra
             Baynes
             .
          
           
             A
             Donation
             by
             a
             Husband
             to
             his
             Wife
             by
             a
             Tack
             of
             his
             whole
             Lands
             ,
             not
             Liferented
             by
             her
             ,
             and
             bearing
             for
             Love
             and
             Favour
             ,
             and
             for
             enabling
             her
             to
             Aliment
             her
             Children
             ,
             and
             bearing
             a
             small
             duty
             in
             case
             there
             were
             Children
             ,
             and
             the
             full
             Rent
             if
             there
             were
             none
             ,
             was
             found
             valide
             ,
             as
             being
             remuneratory
             to
             make
             up
             the
             defect
             of
             the
             value
             ,
             which
             by
             Contract
             ,
             her
             Liferent
             Lands
             were
             obliged
             to
             be
             so
             much
             worth
             ;
             Superceeding
             to
             give
             answer
             ,
             wheither
             the
             Tack
             would
             be
             null
             at
             the
             instance
             of
             Creditors
             ,
             lending
             Sums
             after
             the
             Tack
             ,
             as
             latent
             and
             fraudulent
             ,
             if
             it
             were
             not
             proven
             remuneratory
             ;
             or
             wheither
             a
             donation
             betwixt
             Man
             and
             Wife
             is
             null
             ,
             and
             pendent
             as
             a
             Bairns
             Portion
             till
             the
             Husbands
             death
             ,
             and
             if
             the
             borrowing
             thereafter
             would
             prejudge
             the
             same
             ,
             there
             being
             no
             Lands
             left
             un-liferented
             thereby
             ,
             
               Ianuary
               26.
               1669.
               
               Chis●holm
               contra
            
             Lady
             Bra●
             .
          
           
             Donation
             betwixt
             Man
             and
             Wife
             revockable
             ,
             was
             found
             not
             to
             extend
             to
             Wife
             Subscribing
             her
             Husbands
             Testament
             ,
             by
             which
             her
             Liferent
             Lands
             were
             pro●ided
             to
             their
             Daughter
             ,
             which
             was
             not
             ●ound
             alike
             ,
             as
             if
             it
             had
             been
             in
             favours
             of
             the
             Man
             himself
             ,
             who
             is
             naturally
             obliged
             to
             provide
             his
             Daughter
             ,
             
               Iuly
               12.
               1671.
               
               Murray
            
             contra
             Murray
             .
          
           
             Donation
             by
             a
             Man
             to
             his
             Wife
             ,
             by
             a
             great
             additional
             Iointure
             ,
             where
             she
             was
             competently
             provided
             before
             ,
             was
             found
             not
             to
             be
             taken
             away
             by
             a
             posterior
             Testament
             made
             
               in
               lecto
            
             ,
             providing
             a
             less
             additional
             Iointure
             ,
             without
             mention
             of
             the
             former
             ,
             and
             being
             conditional
             ,
             that
             the
             said
             last
             addition
             should
             be
             at
             the
             Testators
             Fathers
             disposal
             ,
             if
             he
             returned
             to
             Scotland
             ,
             and
             he
             having
             returned
             ,
             and
             having
             Ratified
             the
             fi●st
             additional
             Ioynture
             ,
             the
             same
             was
             Sustained
             ,
             Iuly
             18.
             1671.
             
             Countess
             of
             
               Cassils
               contra
            
             Earl
             of
             Roxburgh
             .
          
           
             DONATAR
             of
             Forefaulture
             obtaining
             Decreet
             of
             Parliament
             ,
             upon
             fewer
             dayes
             citation
             then
             are
             required
             by
             Law
             ,
             Reducing
             an
             Infeftment
             on
             this
             Ground
             ,
             that
             it
             is
             holden
             of
             the
             Forefault
             person
             base
             un-confirmed
             ,
             and
             so
             excluded
             by
             the
             Forefaulture
             ,
             and
             not
             upon
             the
             five
             years
             possession
             of
             the
             Forefault
             person
             ,
             as
             heretable
             Possessor
             ;
             The
             Lords
             Sustained
             the
             Decreet
             ,
             February
             22.
             1665.
             
             Marquess
             of
             Huntly
             contra
             Gordoun
             of
             Lesmore
             .
          
           
             A
             Donatar
             of
             single
             Escheat
             ,
             though
             excluded
             by
             the
             diligence
             of
             the
             Creditors
             of
             the
             Rebel
             before
             declarator
             ,
             upon
             debts
             before
             Rebellion
             ,
             was
             found
             not
             to
             extend
             to
             prefer
             an
             appryzing
             of
             a
             Wifes
             Liferent
             ,
             led
             against
             her
             Husband
             as
             having
             right
             thereto
             
               jure
               mariti
            
             ,
             in
             prejudice
             of
             the
             Donatar
             of
             the
             Husbands
             single
             Escheat
             ,
             though
             the
             Appryzing
             was
             before
             Declarator
             ,
             for
             a
             debt
             before
             Rebellion
             ,
             seing
             the
             Liferent
             had
             
               tractum
               futuri
               temporis
            
             ,
             and
             is
             not
             as
             Moveable
             Sums
             ,
             Iuly
             18.
             1668.
             
             Earl
             of
             Dumfreis
             contra
             Smart
             .
          
           
             DOVBLE
             POINDING
             being
             raised
             in
             Name
             of
             Tennents
             by
             one
             of
             the
             Parties
             competing
             ,
             the
             same
             was
             sustained
             ,
             though
             the
             Tennents
             did
             disclaim
             the
             same
             ,
             and
             that
             the
             other
             party
             was
             their
             present
             Master
             ,
             his
             possession
             being
             but
             of
             late
             and
             controverted
             ,
             it
             was
             also
             sustained
             ,
             though
             there
             was
             no
             particular
             duties
             libelled
             ,
             but
             in
             general
             to
             be
             answered
             of
             the
             Mails
             and
             Duties
             ,
             as
             is
             ordinary
             in
             Decreets
             conform
             ,
             Iuly
             14.
             1665.
             
             Earl
             of
             Argile
             contra
             Dinloch
             and
             Rara
             .
          
           
             A
             Double
             poynding
             ,
             calling
             two
             Ministers
             ,
             and
             preferring
             one
             ,
             the
             other
             being
             absent
             ,
             was
             found
             not
             irreduceabl●
             by
             the
             Act
             of
             Parliament
             anent
             double
             poindings
             ,
             seing
             the
             Decreet
             was
             only
             general
             ,
             without
             expressing
             the
             Teinds
             in
             question
             ,
             and
             so
             was
             only
             found
             valide
             as
             to
             what
             was
             uplifted
             ,
             but
             not
             in
             time
             coming
             ,
             without
             having
             a
             Right
             ,
             
               Iune
               15.
               1667.
               
               Gray
               contra
            
          
           
             IN
             DVBIIS●
             interpretatio
             facienda
             contra
             proferentem
             qui
             po●uit
             sibi
             lege●●
             dixisse
             clarius
             ,
             Iuly
             29.
             1665.
             
             Dowglas
             contra
             Cowan
             .
          
           
             EIECTION
             vide
             Clause
             in
             a
             Tack
             ,
             December
             19.
             1661.
             
             
               Dewar
               contra
            
             Countess
             of
             Murray
             .
          
           
             Ejection
             was
             not
             sustained
             at
             the
             Instance
             of
             an
             Heretor
             by
             the
             Tennents
             ceding
             the
             Possession
             to
             a
             Stranger
             ,
             seing
             the
             Tennent
             pursued
             not
             ,
             and
             that
             Tennent
             was
             not
             in
             natural
             possession
             ,
             but
             both
             were
             to
             compet
             for
             the
             duties
             ,
             that
             party
             having
             given
             an
             obligement
             to
             cede
             his
             Right
             ,
             December
             21.
             1661.
             
             
               Montgomry
               contra
            
             Lady
             Kirkcudbright
             .
          
           
             Ejection
             at
             the
             instance
             of
             Heirs
             infants
             ,
             who
             had
             an
             old
             Infeftment
             ,
             but
             were
             not
             Infeft
             themselves
             ,
             was
             Sustained
             for
             re-possessing
             ,
             albeit
             the
             Defender
             obtained
             Decreet
             of
             removing
             ,
             
             against
             their
             Mother
             ,
             and
             entered
             thereby
             ,
             though
             the
             Decreet
             bear
             to
             remove
             her self
             ,
             ●airns
             ,
             Servants
             ,
             &c.
             
             The
             Pursuer
             being
             then
             in
             her
             Family
             ,
             February
             19.
             1665.
             
             
               Scots
               contra
            
             Earl
             of
             Hume
             .
          
           
             Ejection
             was
             sustained
             upon
             putting
             the
             Pursuer
             out
             of
             his
             House
             and
             Land
             ,
             Naturally
             possessed
             by
             him
             ,
             though
             the
             Ejecter
             obtained
             Improbation
             against
             the
             Pursuer
             ,
             and
             thereupon
             Removing
             ,
             seing
             he
             entered
             not
             legally
             by
             Letters
             of
             Possession
             .
             But
             this
             was
             not
             extended
             to
             the
             Lands
             possest
             by
             Tennents
             ,
             who
             were
             induced
             to
             take
             Right
             from
             the
             Ejecter
             ,
             to
             give
             violent
             profits
             of
             these
             Lands
             ,
             Iuly
             25.
             1668.
             
             
               Campbel
               contra
            
             Laird
             of
             Glenure●y
             .
          
           
             ERECTION
             granted
             by
             the
             King
             ,
             erecting
             Kirk
             lands
             into
             a
             Temporal
             Lordship
             ,
             was
             found
             not
             to
             be
             
               habilis
               modus
            
             ,
             while
             the
             same
             was
             not
             vacant
             ,
             but
             in
             the
             hands
             of
             a
             Commendator
             ,
             albeit
             he
             was
             dishabilitat
             to
             brook
             any
             Estate
             by
             his
             Fathers
             Forefa●ture
             at
             the
             time
             of
             the
             erection
             ,
             seing
             his
             dishabilitation
             was
             thereafter
             rescinded
             in
             Parliament
             ,
             because
             he
             was
             no
             ways
             accessory
             to
             his
             Fathers
             crime
             ,
             whereupon
             his
             Temporal
             Provision
             was
             validate
             ,
             and
             the
             erection
             
               medio
               t●mpore
            
             ,
             was
             postponed
             to
             a
             posterior
             erection
             to
             the
             Commendator
             himself
             ,
             upon
             his
             own
             dimission
             ,
             February
             24
             ,
             1666.
             
             
               Sinclar
               contra
            
             Laird
             of
             Wedderburn
             .
          
           
             ESCHEAT
             single
             was
             found
             to
             reach
             a
             sum
             due
             as
             the
             Liquidation
             of
             an
             obligement
             not
             to
             alienate
             Lands
             ,
             which
             was
             found
             moveable
             
               quo
               ad
               fiscum
            
             ,
             albeit
             it
             came
             in
             the
             place
             of
             the
             Right
             Heretable
             ,
             which
             would
             have
             belonged
             to
             the
             Heir
             ,
             February
             4.
             1663.
             
             Laird
             of
             
               Philorth
               contra
            
             Lord
             Frazer
             .
          
           
             An
             Escheat
             gifted
             by
             the
             King
             ,
             was
             excluded
             by
             a
             Creditor
             ,
             who
             arrested
             during
             the
             Rebels
             life
             ,
             and
             pursued
             to
             make
             forthcoming
             after
             his
             death
             ,
             he
             having
             none
             to
             represent
             him
             
               in
               mobilibus
            
             ,
             dying
             at
             the
             Horn
             ,
             and
             so
             needed
             no
             Decreet
             establishing
             the
             debt
             in
             one
             representing
             the
             Defunct
             ,
             and
             calling
             the
             Representatives
             in
             the
             action
             for
             making
             forthcoming
             ,
             albeit
             the
             Arrestment
             was
             laid
             on
             after
             the
             Rebellion
             ,
             but
             before
             declarator
             ,
             and
             for
             a
             debt
             contracted
             before
             the
             Rebellion
             ,
             February
             19.
             1667.
             
             Glen
             contra
             Hume
             .
          
           
             Escheat
             was
             found
             to
             carry
             a
             Bond
             bearing
             annualrent
             ,
             the
             Rebellion
             ●alling
             before
             the
             first
             Term
             of
             payment
             of
             the
             annualrent
             .
             
               Iune
               26.
               1666.
               
               Dick
            
             contra
             
               Ker.
               Vide
            
             Donator
             of
             Escheat
             .
          
           
             Escheat
             was
             not
             burdened
             with
             debts
             contracted
             after
             Rebellion
             ,
             February
             24.
             1669.
             
             Countes
             of
             Dund●e
             contra
             
               Stra●town
               ▪
               Vide
            
             Gift
             of
             Escheat
             .
          
           
             AN
             EXECVTOR
             pursuing
             a
             debitor
             of
             the
             Defuncts
             ,
             was
             not
             excluded
             by
             Compensation
             ,
             because
             that
             debitor
             had
             taken
             Assignation
             from
             the
             Defuncts
             Creditor
             ,
             after
             the
             Defuncts
             death
             ,
             seing
             thereby
             the
             Defuncts
             debitor
             might
             prefer
             one
             of
             the
             Defuncts
             Creditors
             to
             another
             ,
             which
             neither
             a
             Debitor
             nor
             Executor
             can
             do
             ,
             but
             according
             to
             their
             diligence
             ,
             February
             14.
             1662.
             
             Children
             of
             Mouswal
             contra
             Lowry
             of
             Maxwelstoun
             .
          
           
             In
             a
             Competition
             of
             Executry
             of
             Defuncts
             amongst
             their
             Creditors
             ,
             all
             who
             do
             diligence
             within
             six
             Moneths
             of
             the
             defuncts
             death
             ,
             by
             Confirming
             themselves
             Executors
             Creditors
             ,
             or
             intenting
             any
             Action
             against
             the
             Executor
             or
             Intromettor
             ,
             should
             come
             in
             
               pari
               passu
            
             ,
             by
             Act
             of
             Sederunt
             ,
             February
             28.
             1662.
             
          
           
             An
             Executor
             was
             found
             lyable
             to
             pay
             a
             Creditor
             of
             the
             defuncts
             ,
             albeit
             it
             was
             the
             price
             of
             Land
             sold
             to
             the
             defunct
             by
             a
             Minute
             ,
             without
             restricting
             the
             debitor
             to
             the
             Heir
             ,
             who
             would
             only
             get
             the
             disposition
             ,
             or
             causing
             the
             Creditor
             dispone
             the
             Land
             to
             the
             Executor
             in
             lieu
             of
             the
             Moveables
             ,
             but
             reserving
             to
             the
             Executor
             to
             seek
             relief
             of
             the
             Heir
             as
             accords
             ,
             
               Iuly
               1.
               1662.
               
               Baillie
            
             contra
             Hendrison
             .
          
           
             Executors
             were
             found
             lyable
             for
             an
             Annual
             payment
             ,
             for
             years
             after
             the
             defuncts
             death
             ,
             
               February
               5.
               1663.
               
               Hill
            
             contra
             Maxwel
             .
          
           
             In
             the
             Executry
             a
             Child
             dying
             before
             Confirmation
             of
             the
             Mothers
             third
             ,
             the
             Father
             being
             alive
             ,
             was
             found
             not
             to
             transmit
             to
             the
             Father
             as
             nearest
             Ag●at
             ,
             but
             to
             the
             Mothers
             brother
             ,
             and
             that
             it
             was
             not
             in
             the
             case
             of
             the
             Legitim
             from
             a
             Father
             ,
             which
             is
             Transmissible
             without
             any
             Confirmation
             ,
             or
             adition
             to
             the
             Succession
             ,
             
               February
               17.
               1663.
               
               Forsyth
            
             contra
             Pa●oun
             .
          
           
             Executry
             was
             found
             bipartite
             ,
             where
             there
             was
             but
             one
             Child
             ,
             which
             was
             Forisfamiliat
             and
             provided
             ,
             without
             alleadging
             in
             satisfaction
             of
             the
             Bairns
             part
             ,
             seing
             here
             the
             Child
             offered
             not
             to
             confer
             ,
             
               February
               18.
               1663.
               
               Dumbar
            
             of
             Hemprigs
             contra
             Frazer
             .
          
           
             An
             Executors
             proper
             Creditor
             competing
             with
             a
             Creditor
             of
             the
             Defuncts
             ,
             both
             on
             Arrestments
             of
             a
             part
             of
             the
             Defuncts
             Inventary
             ,
             the
             Defuncts
             Creditor
             was
             preferred
             to
             the
             Executors
             doing
             more
             diligence
             ,
             especially
             before
             this
             Sum
             was
             established
             in
             the
             Executors
             person
             by
             Decreet
             ,
             Iuly
             8.
             1664.
             
             
               Ve●ch
               contra
            
             Lord
             Ley.
             
          
           
             An
             Executor
             was
             not
             liberat
             by
             a
             decreet
             of
             exoneration
             ,
             as
             to
             the
             Creditors
             not
             called
             ,
             who
             needed
             not
             reduce
             the
             same
             ,
             neither
             yet
             by
             exhausting
             ,
             by
             payment
             of
             lawful
             debts
             ,
             instructed
             by
             Writ
             ,
             before
             intenting
             of
             the
             Pursuers
             Cause
             ,
             unless
             sentence
             had
             been
             first
             obtained
             against
             the
             Executor
             ,
             who
             cannot
             prefer
             one
             Creditor
             to
             another
             ,
             but
             according
             to
             their
             diligence
             ,
             
               November
               11.
               1664.
               
               Iohustoun
               contra
            
             Lady
             Kincaid
             .
          
        
         
           
             An
             Executor
             
               ad
               non
               executa
            
             ,
             was
             found
             to
             have
             no
             place
             where
             the
             former
             Executor
             had
             obtained
             Sentence
             ,
             albeit
             no
             payment
             ,
             and
             albeit
             he
             was
             Executo●
             dative
             ,
             and
             a
             mee●
             Stranger
             ,
             
               November
               7.
               1666.
               
               Down
            
             contra
             Young.
             
          
           
             An
             Executor
             was
             found
             obliged
             to
             depone
             upon
             the
             kinds
             ,
             quantities
             and
             prices
             of
             the
             Goods
             in
             the
             Inventary
             ,
             at
             the
             instance
             of
             an
             Executor
             
               ad
               omissa
            
             .
             Notwithstanding
             of
             the
             Oath
             given
             by
             the
             Executor
             at
             the
             Confirmation
             ,
             Iuly
             18.
             1667.
             
             Ker
             contra
             Ker.
             
          
           
             The
             Executor
             of
             a
             donator
             of
             Liferent
             was
             found
             to
             have
             right
             to
             the
             bygones
             of
             that
             Liferent
             before
             the
             donatars
             death
             ,
             and
             that
             the
             donatars
             Heir
             had
             only
             right
             to
             the
             Liferent
             after
             the
             donatars
             death
             ,
             albeit
             there
             was
             no
             declarator
             establishing
             the
             Liferent
             in
             the
             donatars
             person
             before
             his
             death
             ,
             Ianuary
             28.
             1671.
             
             Kiry
             contra
             Nicolson
             .
          
           
             Executors
             having
             obtained
             decreet
             for
             the
             defuncts
             debt
             ,
             the
             Testament
             is
             thereby
             execute
             ,
             although
             they
             have
             not
             obtained
             payment
             ,
             and
             after
             the
             death
             of
             one
             of
             them
             ,
             the
             decreet
             doth
             not
             accresce
             with
             the
             Office
             to
             the
             other
             ,
             but
             the
             one
             half
             belongs
             to
             the
             executors
             of
             the
             deceast
             Executor
             ,
             
               Iune
               22.
               1671.
               
               Gordoun
               contra
            
             Laird
             of
             Drum.
             
          
           
             CO-EXECVTORS
             being
             Confirmed
             ,
             one
             dying
             ,
             the
             Office
             accresceth
             to
             the
             rest
             ,
             and
             all
             benefit
             that
             follows
             thereon
             ,
             but
             the
             defunct
             executor
             being
             nearest
             of
             kin
             ,
             his
             part
             as
             nearest
             of
             kin
             ,
             is
             Transmitted
             to
             that
             Executors
             nearest
             of
             kin
             ,
             and
             does
             not
             belong
             to
             the
             surviving
             Executors
             ,
             
               February
               12.
               1662.
               
               ●ells
            
             contra
             Wilk●e
             .
          
           
             Co
             Executors
             after
             obtaining
             Sentence
             ,
             may
             pursue
             for
             their
             shares
             severally
             ,
             without
             concourse
             or
             calling
             the
             rest
             ,
             
               Ianuary
               25.
               1665.
               
               Menzeis
               contra
            
             Laird
             of
             Drum.
             
          
           
             EXECVTORS
             CREDITORS
             were
             not
             excluded
             by
             the
             defunct
             debitors
             alleadging
             compensation
             upon
             an
             Assignation
             to
             a
             debt
             due
             by
             the
             defunct
             ,
             albeit
             anterior
             to
             the
             Confirmation
             or
             diligence
             ,
             yet
             posterior
             to
             the
             defuncts
             deceass
             ,
             whereby
             one
             Creditor
             is
             preferred
             to
             another
             ,
             which
             cannot
             be
             done
             ,
             either
             by
             the
             Executor
             or
             by
             the
             Debitor
             ,
             but
             according
             to
             their
             diligence
             ,
             
               February
               8.
               1662.
               
               Crawfoord
               contra
            
             Earl
             of
             Murray
             .
          
           
             An
             Executor
             Creditor
             was
             not
             found
             lyable
             for
             diligence
             ,
             where
             the
             confirmation
             was
             questionable
             ,
             whether
             it
             was
             by
             a
             competent
             Commissar
             or
             not
             ,
             December
             10.
             1664.
             
             Goldsmiths
             of
             Edinburgh
             contra
             Haliburtoun
             .
          
           
             An
             Executor
             creditor
             long
             since
             confirmed
             ,
             was
             found
             lyable
             for
             no
             diligence
             to
             other
             creditors
             ,
             but
             to
             assign
             them
             next
             to
             their
             own
             payment
             :
             And
             as
             to
             the
             future
             ,
             The
             Lords
             resolved
             to
             consider
             the
             Motives
             on
             both
             hands
             ,
             and
             make
             an
             Act
             of
             Sederunt
             thereanent
             ,
             
               Iuly
               18.
               1671.
               
               Harlaw
            
             contra
             Hume
             .
          
           
             EXECVTIONS
             of
             arrestment
             or
             the
             like
             on
             the
             Sabbath
             day
             ,
             are
             null
             by
             Exception
             ,
             as
             was
             found
             ,
             February
             1●
             .
             1663.
             
             Oliphant
             contra
             Dowglas
             of
             Dornoch
             .
          
           
             In
             Executions
             ,
             giving
             of
             a
             co●y
             was
             found
             an
             essential
             requisite
             ,
             and
             in
             Executions
             requiring
             Registration
             ,
             that
             the
             same
             must
             be
             exprest
             in
             the
             Execution
             Registrate
             ,
             else
             the
             same
             is
             null
             ,
             although
             it
             be
             added
             
               ex
               post
               facto
            
             by
             the
             Messenger
             ,
             and
             offered
             to
             be
             proven
             to
             be
             true
             ,
             
               Iuly
               28.
               1671.
               
               Keith
            
             contra
             Iohnstoun
             .
          
           
             EXCEPTIONS
             which
             do
             not
             acknowledge
             the
             Libel
             ,
             do
             not
             free
             the
             Pursuer
             from
             proving
             of
             the
             Libel
             ,
             but
             both
             parties
             must
             prove
             
               hinc
               ind●
               ,
               Iuly
               24.
               1661.
               
               Mitchel
            
             contra
             Hutcheson
             .
          
           
             The
             Exception
             of
             the
             Pursuers
             lossing
             the
             Plea
             by
             beating
             the
             defender
             in
             the
             Session-House
             ,
             was
             Sustained
             without
             necessity
             to
             alleadge
             effusion
             of
             Blood
             ,
             but
             the
             Lords
             determined
             not
             whether
             they
             would
             admit
             the
             probation
             of
             the
             Fact
             before
             themselves
             ,
             or
             assign
             a
             long
             Term
             ,
             that
             the
             defender
             might
             insist
             criminally
             before
             the
             Iustices
             ,
             that
             it
             being
             there
             cogno●ced
             ,
             it
             might
             be
             here
             repeated
             
               in
               termino
               ,
               Iuly
               29.
               1692.
               
               Harper
            
             contra
             Hamiltoun
             .
          
           
             An
             Exception
             being
             proponed
             without
             denying
             the
             Libel
             ,
             or
             quantities
             therein
             ,
             the
             Defender
             succumbing
             in
             probation
             ,
             the
             Libel
             was
             holden
             as
             acknowledged
             and
             proven
             ,
             albeit
             the
             Exception
             of
             its
             own
             Nature
             did
             not
             acknowledge
             the
             same
             ,
             but
             it
             was
             recommended
             to
             the
             parties
             to
             accord
             ,
             December
             13.
             1664.
             
             Lord
             
               Rollo
               contra
            
             his
             Chamberlane
             .
          
           
             EXHIBITION
             of
             defuncts
             Writs
             by
             his
             Heir
             was
             sustained
             ,
             not
             only
             for
             such
             as
             belonged
             to
             the
             defunct
             ,
             but
             for
             such
             also
             as
             were
             in
             his
             Possession
             at
             his
             death
             ,
             
               Ianuary
               10.
               1665.
               
               Reid
            
             contra
             Reid
             .
          
           
             Exhibition
             of
             Writs
             which
             the
             Defender
             before
             intenting
             of
             the
             cause
             had
             ,
             and
             fra●d●ully
             put
             away
             ,
             was
             sustained
             by
             Witnesses
             to
             prove
             the
             having
             ,
             in
             respect
             of
             the
             defenders
             fraud
             ,
             in
             indeavouring
             to
             transvert
             the
             Right
             ,
             yet
             not
             thereupon
             simply
             to
             decern
             to
             Exhibite
             ,
             but
             only
             unless
             the
             defender
             refu●e
             to
             tell
             
               quo
               modo
               des●●t
               possidere
               ,
               Iuly
            
             14.
             1666.
             
             Fountain
             and
             Brown
             contra
             Maxwel
             of
             Nethergate
             .
          
           
             Exhibition
             of
             an
             Assignation
             out
             of
             the
             granters
             hands
             ,
             was
             found
             not
             probable
             by
             Witnesses
             ,
             albeit
             the
             granter
             was
             alleadged
             to
             have
             received
             it
             as
             Agent
             for
             the
             Pursuer
             ,
             
               December
               14.
               1666.
               
               Fairly
               contra
            
             Creditors
             of
             Dick.
             
          
           
             
             Exhibition
             of
             compt
             Books
             being
             craved
             in
             a
             compt
             betwixt
             the
             Successors
             of
             two
             brethren
             ,
             not
             to
             instruct
             but
             to
             make
             up
             the
             charge
             ,
             in
             respect
             of
             their
             near
             interest
             and
             commerce
             ,
             and
             that
             they
             were
             co-partners
             ,
             the
             Books
             were
             ordained
             to
             be
             put
             in
             the
             Auditors
             hands
             ,
             and
             if
             thereby
             co-partnery
             appeared
             ,
             or
             trust
             as
             Factor
             for
             others
             ,
             they
             should
             be
             exhibite
             to
             the
             other
             party
             ,
             to
             frame
             his
             accompts
             by
             ,
             otherwayes
             to
             be
             given
             back
             ,
             and
             not
             to
             be
             seen
             by
             the
             pursuer
             ▪
             Iuly
             7.
             1668.
             
             Kelict
             of
             
               Patoun
               contra
            
             Relict
             of
             Patoun
             .
          
           
             
               EXHIBITION
               AD
               DELIBERANDVM
            
             was
             sustained
             for
             all
             Writs
             wherein
             there
             was
             any
             clause
             in
             favours
             of
             the
             Pursuers
             Predecessors
             ,
             and
             for
             Writs
             made
             by
             him
             ,
             to
             persons
             in
             his
             Family
             ,
             Wife
             ,
             Children
             and
             Servants
             ,
             on
             which
             no
             Infeftment
             followed
             ,
             December
             6.
             1661.
             
             Telzifer
             contra
             Forrester
             and
             Sc●aw
             of
             Sornbeg
             .
             The
             like
             
               November
               12.
               1664.
               
               Galbraith
               contra
               ▪
            
          
           
             EXTRACT
             of
             a
             Bond
             Registrate
             ,
             was
             found
             not
             to
             Instruct
             the
             debt
             against
             the
             Heir
             of
             a
             party
             ,
             whom
             the
             extract
             bear
             to
             have
             subscribed
             it
             ,
             but
             only
             against
             the
             consenters
             to
             the
             Registration
             :
             The
             like
             unless
             it
             were
             instructed
             that
             the
             Defenders
             Predecessor
             truely
             subscribed
             the
             Writ
             ,
             
               February
               7.
               1662.
               
               A●cheson
               contra
            
             Earl
             of
             Errol
             :
             Here
             Witnesses
             
               ex
               officio
            
             ,
             were
             admitted
             to
             instruct
             by
             way
             of
             Reply
             .
          
           
             Extract
             of
             a
             Bond
             Registrate
             against
             a
             party
             living
             ,
             consenting
             by
             the
             Procuratory
             ,
             was
             found
             not
             to
             instruct
             ,
             or
             prove
             against
             those
             who
             consented
             not
             ,
             unless
             other
             Adminicles
             to
             astruct
             the
             ●●uth
             thereof
             ,
             were
             adduced
             ,
             Iune
             24.
             1664.
             
             Hay
             Tailzeor
             
               contra
               Hume
            
             of
             Blackburn
             .
          
           
             A
             FATHER
             as
             Tutor
             of
             Law
             ,
             was
             found
             lyable
             to
             pursue
             for
             the
             Annualrent
             of
             his
             Childs
             Mothers
             third
             of
             moveables
             ,
             
               February
               4.
               1665.
               
               Beg
            
             contra
             Beg.
             
          
           
             A
             Father
             was
             ●ound
             lyable
             to
             receive
             his
             Son
             in
             his
             Family
             ,
             and
             to
             entertain
             him
             as
             the
             rest
             of
             his
             children
             ,
             or
             else
             to
             pay
             a
             Modification
             for
             his
             aliment
             ,
             albeit
             the
             Father
             was
             indigent
             ,
             seing
             the
             Son
             had
             no
             Means
             or
             Calling
             to
             aliment
             himself
             ,
             
               Ianuary
               13.
               1666.
               
               Dick
            
             contra
             Dick.
             
          
           
             A
             Father
             was
             sound
             to
             be
             lawful
             Administrator
             to
             his
             Son
             in
             his
             Family
             ,
             not
             only
             in
             his
             Pupillarity
             ,
             but
             Minority
             ,
             as
             
               curator●
               honorarius
            
             ,
             not
             lyable
             to
             o●●mission
             ,
             or
             exclusive
             to
             other
             Curators
             ,
             but
             deeds
             done
             without
             his
             consent
             were
             found
             null
             ,
             albeit
             his
             Son
             resided
             not
             in
             his
             Family
             ,
             but
             followed
             the
             Law
             ,
             living
             still
             on
             his
             Fathers
             charges
             ,
             and
             having
             no
             Calling
             or
             Patrimony
             to
             maintain
             himself
             ,
             neither
             was
             his
             Fathers
             Subscribing
             with
             him
             ,
             found
             a
             sufficient
             authorizing
             of
             him
             ,
             seing
             he
             subscribed
             with
             him
             as
             Cautioner
             for
             him
             ,
             
               December
               7.
               1666.
               
               Menzeis
            
             contra
             Fairholme
             .
          
           
             A
             Father
             taking
             a
             Bond
             blank
             in
             the
             Creditors
             Name
             ,
             and
             filling
             up
             his
             Brothers
             Name
             therein
             ,
             and
             obtaining
             an
             Assignation
             from
             him
             to
             his
             daughter
             ,
             was
             not
             found
             as
             a
             Bond
             of
             Provision
             ,
             Revockable
             by
             the
             Father
             ,
             in
             respect
             the
             Bond
             was
             Registrate
             in
             the
             Brothers
             Name
             ,
             November
             20.
             1667.
             
             Executors
             of
             Trotter
             contra
             Trotter
             .
          
           
             A
             Father
             was
             not
             found
             obliged
             for
             Annualrent
             of
             a
             Legacy
             ,
             uplifted
             by
             him
             ,
             belonging
             to
             his
             Son
             ,
             as
             being
             his
             Tutor
             of
             Law
             ,
             the
             Son
             being
             Alimented
             by
             the
             Father
             ,
             and
             in
             his
             Family
             ,
             
               December
               15.
               1668.
               
               Windrham
            
             contra
             Ele●s
             .
          
           
             A
             Father
             granting
             Bond
             to
             a
             Bairn
             in
             satisfaction
             of
             her
             Portion
             Natural
             ,
             was
             found
             thereby
             to
             increass
             the
             Bairns
             part
             of
             the
             rest
             of
             the
             Bairns
             ,
             and
             not
             to
             apply
             that
             Bairns
             part
             to
             the
             Heir
             ,
             Executor
             ,
             or
             universal
             Legator
             ,
             as
             they
             who
             were
             obliged
             for
             the
             Bond
             of
             Provision
             ,
             comprehending
             the
             Bairns
             part
             ,
             
               February
               17.
               1671.
               
               Megil
               contra
            
             Viscount
             of
             Oxenfoord
             .
          
           
             A
             FEW
             containing
             a
             clause
             irritant
             expresly●
             to
             be
             null
             upon
             the
             Failzle
             ,
             was
             found
             not
             to
             be
             purged
             at
             the
             Bar
             where
             offer
             of
             payment
             was
             made
             ,
             in
             which
             it
             differs
             from
             a
             Feu
             ,
             not
             having
             that
             clause
             ,
             February
             13.
             1666.
             
             Laird
             of
             Wedderburn
             contra
             Wardlaw
             .
          
           
             Feus
             of
             Ward-lands
             granted
             before
             the
             Act
             of
             Parliament
             1666.
             against
             Feus
             ,
             was
             found
             valide
             ,
             albeit
             granted
             by
             these
             who
             held
             Ward
             of
             Subjects
             ,
             without
             consent
             of
             their
             Superiour
             ,
             
               Iune
               24.
               1668.
               
               Steuart
            
             of
             
               Torrence
               contra
            
             Feuers
             of
             Ernoch
             .
          
           
             A
             Feu
             was
             found
             to
             be
             Renunceable
             by
             a
             Feuer
             ,
             to
             free
             him
             of
             the
             Feu-duty
             ,
             albeit
             it
             was
             constitute
             by
             a
             mu●ual
             contract
             ,
             obliging
             the
             Feuer
             and
             his
             Heirs
             ,
             to
             pay
             the
             Feu-duty
             yearly
             ,
             seing
             by
             a
             Back-bond
             of
             the
             same
             date
             ,
             he
             was
             allowed
             to
             Renunce
             when
             he
             pleased
             ,
             which
             was
             found
             effectual
             ,
             to
             take
             away
             that
             personal
             obligement
             ,
             being
             extrinsick
             to
             the
             Feu
             ,
             though
             in
             the
             Feudal
             Contract
             against
             a
             singular
             Successor
             in
             the
             Feu
             ,
             
               February
               1.
               1669.
               
               Brown
            
             contra
             Sibbald
             .
          
           
             A
             FEW-D●VTY
             was
             found
             personally
             to
             affect
             a
             Liferenter
             for
             these
             years
             only
             ,
             whereof
             she
             lifted
             the
             Rent
             ,
             
               Iuly
               19.
               1665.
               
               Windrham
               contra
            
             the
             Lady
             Idingtoun
             .
          
           
             FOREFAVLTVRE
             of
             a
             Paricide
             ,
             as
             having
             killed
             his
             own
             Mother
             ,
             being
             gifted
             by
             the
             King
             ,
             and
             Infeftment
             thereon
             ,
             was
             found
             to
             have
             no
             effect
             ,
             unless
             there
             had
             been
             a
             doom
             of
             Forefaulture
             pronunced
             by
             the
             Iustices
             ,
             but
             not
             upon
             the
             ordinary
             course
             against
             absents
             ,
             declaring
             parties
             Fugitives
             for
             not
             underlying
             the
             Law
             ,
             which
             can
             only
             reach
             their
             Moveables
             ,
             
               Iuly
               30.
               1662.
               
               Zeaman
            
             contra
             Oliphant
             .
          
        
         
           
             Forefaulture
             having
             with
             it
             dishabilitation
             of
             the
             Forefault
             persons
             Children
             ,
             declaring
             them
             incapable
             of
             Lands
             or
             Estate
             in
             Scotland
             ,
             whereby
             the
             Sons
             Estate
             fell
             in
             the
             Kings
             hand
             ,
             and
             was
             disponed
             to
             a
             donatar
             ,
             who
             set
             Tacks
             ,
             and
             the
             Son
             being
             restored
             by
             Sentence
             of
             Parliament
             ,
             as
             an
             Infant
             not
             accessory
             to
             the
             Crime
             ;
             The
             Infeftment
             and
             Tack
             thereon
             were
             found
             to
             fall
             without
             calling
             the
             Persons
             interressed
             before
             the
             Parliament
             ,
             notwithstanding
             of
             the
             Act
             1584.
             
             Prohibiting
             Restitutions
             by
             way
             of
             Reduction
             ,
             and
             declaring
             Rights
             granted
             
               medio
               tempore
            
             ,
             by
             the
             King
             to
             be
             valide
             ,
             which
             was
             not
             found
             to
             extend
             to
             dishabilitation
             of
             the
             Children
             ,
             but
             to
             the
             principal
             Forefalture
             ,
             February
             24.
             1665.
             
             Dowglas
             and
             Sinclar
             her
             Husband
             contra
             the
             Laird
             of
             Wedderburn
             :
             Here
             both
             the
             dishabilitation
             and
             remission
             thereof
             proceeded
             without
             citation
             .
          
           
             Forefalture
             and
             five
             years
             possession
             of
             the
             Forefalt
             person
             ,
             before
             the
             Forefalture
             ,
             makes
             a
             valide
             Right
             ,
             notwithstanding
             of
             the
             posterior
             Act
             of
             Parliament
             for
             registration
             of
             Seasines
             and
             Reversions
             ,
             &c.
             
             Yet
             interruption
             within
             the
             five
             years
             ,
             was
             found
             to
             elide
             the
             same
             by
             Inhibition
             ,
             and
             granting
             a
             new
             Corroborative
             Right
             ,
             especially
             where
             citation
             was
             used
             immediatly
             before
             the
             five
             years
             ,
             albeit
             the
             corroborative
             Right
             was
             
               post
               commissum
               crimen
               ,
               Iuly
            
             23.
             1666.
             
             Earl
             of
             
               Southesk
               contra
            
             Marquess
             of
             Huntly
             .
          
           
             Forefalture
             and
             five
             years
             possession
             was
             found
             not
             Relevant
             by
             exception
             or
             reply
             ,
             without
             a
             re●our
             by
             an
             Inquest
             ,
             
               Iune
               13.
               1666.
               
               Hume
               contra
               Hume
               .
            
          
           
             Forefalture
             gives
             the
             King
             or
             his
             Donator
             five
             years
             Rent
             of
             any
             Land
             the
             Forefalt
             person
             was
             in
             possession
             off
             the
             time
             of
             the
             Sentence
             ,
             whether
             by
             Tack
             or
             not
             ,
             Ianuary
             24.
             1667.
             
             
               Inter
               eosdem
            
             .
          
           
             In
             Forefalture
             a
             donatar
             was
             found
             excluded
             by
             Appryzing
             ,
             at
             the
             instance
             of
             the
             Creditors
             of
             the
             Forefalt
             person
             ,
             who
             had
             comprized
             before
             the
             committing
             of
             the
             Crime
             ,
             and
             had
             charged
             the
             Superiour
             after
             the
             crime
             ,
             but
             before
             the
             Process
             of
             Forefalture
             ,
             Iuly
             6.
             1667.
             
             Creditors
             of
             Hume
             of
             K●llo
             contra
             Hume
             .
          
           
             The
             Donatar
             of
             Forefalture
             pursuing
             Removing
             ,
             was
             found
             not
             to
             be
             excluded
             by
             an
             In●e●tment
             on
             an
             Appryzing
             granted
             by
             the
             King
             ,
             being
             then
             immediate
             Superiour
             before
             the
             Gift
             ,
             which
             was
             not
             found
             equivalent
             to
             a
             Confirmation
             ,
             but
             past
             in
             Exchequer
             of
             course
             without
             notice
             ,
             December
             9.
             1668.
             
             Earl
             of
             Argile
             contra
             Stirling
             .
          
           
             Forefalture
             was
             found
             to
             exclude
             a
             Creditor
             ,
             founding
             upon
             a
             clause
             in
             the
             disposition
             made
             to
             the
             Forefalt
             Person
             by
             his
             Father
             ,
             reserving
             a
             power
             to
             himself
             to
             affect
             and
             burden
             the
             Lands
             disponed
             by
             Wodset
             or
             Annualrent
             for
             such
             a
             sum
             ,
             though
             the
             Father
             had
             granted
             a
             Bond
             to
             the
             Pursuer
             ,
             declaring
             the
             sum
             to
             be
             a
             part
             of
             the
             Reservation
             ,
             seing
             there
             followed
             no
             Infeftment
             by
             Resignation
             ,
             or
             Confirmation
             by
             the
             King
             ,
             
               Iuly
               12.
               1671.
               
               Learmo●th
               contra
            
             Earl
             of
             Lauderdail
             .
          
           
             Forefalture
             Vide
             Gift
             ,
             Hague
             contra
             Moscrop
             and
             Rutherfoord
             .
          
           
             FRAVD
             of
             Creditors
             being
             insisted
             on
             to
             Reduce
             an
             additional
             Ioynture
             after
             the
             debt
             appryzed
             on
             ,
             the
             Liferenter
             offering
             access
             to
             the
             Appryzer
             for
             his
             Annualrent
             ,
             and
             to
             be
             totally
             excluded
             if
             it
             were
             not
             Redeemed
             within
             the
             Legal
             ,
             it
             was
             Sustained
             Relevant
             ;
             here
             the
             Husband
             was
             neither
             bankrupt
             nor
             insolvent
             ,
             but
             there
             was
             no
             ready
             execution
             ,
             because
             of
             the
             additional
             Ioynture
             ,
             February
             10.
             1669.
             
             Lady
             
               Greenhead
               contra
            
             Lord
             Lour
             .
          
           
             Fraud
             of
             Creditors
             upon
             the
             Act
             of
             Parliament
             1621.
             was
             not
             found
             Relevant
             by
             Reply
             without
             Reduction
             ,
             though
             of
             a
             disposition
             by
             a
             Father
             to
             a
             Son
             in
             a
             small
             matter
             ,
             
               Iune
               19.
               1663.
               
               Red
            
             contra
             Harper
             .
          
           
             Fraud
             of
             Creditors
             was
             not
             inferred
             by
             a
             clause
             in
             a
             Contract
             ,
             providing
             a
             Ioynture
             to
             a
             Wife
             ,
             with
             condition
             of
             restricking
             her self
             to
             a
             part
             ,
             that
             the
             superplus
             might
             belong
             to
             the
             Bairns
             for
             their
             Aliment
             ,
             the
             whole
             Ioynture
             being
             only
             proportionable
             to
             the
             condition
             of
             the
             parties
             ,
             
               November
               16.
               1665.
               
               Wat
            
             contra
             Russel
             .
          
           
             Fraud
             in
             a
             debitors
             granting
             a
             Bond
             to
             his
             Brother
             ,
             and
             taking
             a
             discharge
             of
             the
             same
             da●e
             and
             Witnesses
             ,
             and
             thereby
             proponing
             a
             defense
             against
             an
             Assigney
             ,
             was
             found
             Relevant
             ,
             and
             receivable
             by
             way
             of
             Exception
             ,
             unless
             the
             Debitor
             could
             condescend
             upon
             a
             reasonable
             cause
             ,
             for
             which
             the
             Bond
             and
             Discharge
             were
             so
             granted
             ▪
             that
             it
             might
             not
             in●e●
             their
             design
             to
             deceive
             any
             that
             should
             contract
             with
             the
             Receiver
             of
             the
             Bond
             ,
             
               December
               4.
               1665.
               
               Thomson
            
             contra
             Hendriso●
             .
          
           
             Fraudulent
             dispositions
             may
             be
             either
             Reduced
             by
             the
             Act
             of
             Parliament
             1621.
             or
             declared
             to
             be
             affected
             with
             all
             Execution
             ,
             as
             if
             they
             were
             in
             the
             disponers
             person
             ,
             December
             15.
             1665.
             
             Ele●s
             contra
             
               Keith
               .
               Vide
               Ianuary
            
             8.
             1669.
             
             Captain
             
               Newman
               contra
            
          
           
             Fraud
             was
             inferred
             by
             a
             Fathers
             granting
             a
             Bond
             to
             his
             Son
             who
             was
             Forisfamiliat
             without
             a
             cause
             oner●us
             ▪
             albeit
             the
             Bond
             bear
             borrowed
             Money
             ;
             yet
             formerly
             it
             was
             found
             to
             be
             gratuitous
             ,
             and
             it
             bearing
             no
             Annualrent
             ,
             and
             only
             payable
             after
             the
             Fathers
             death
             ,
             the
             Father
             after
             the
             date
             of
             the
             Bond
             continuing
             in
             a
             considerable
             Trade
             ,
             and
             his
             Estate
             being
             insufficient
             to
             pay
             his
             debt
             ,
             the
             foresaid
             Bond
             and
             
             Adjudication
             thereon
             ,
             was
             Reduced
             at
             the
             instance
             of
             posterior
             Creditors
             ,
             as
             being
             a
             fraudulent
             conveyance
             betwixt
             the
             Father
             and
             Son
             to
             insnare
             Creditors
             ,
             and
             very
             hurtful
             to
             commerce
             ,
             
               February
               12.
               1669.
               
               Pot
            
             contra
             Pollock
             .
             The
             same
             ,
             
               February
               16.
               1669.
               
               French
            
             contra
             Watson
             .
          
           
             Fraud
             of
             Creditors
             was
             found
             valide
             to
             Reduce
             a
             Disposition
             of
             Moveables
             ,
             being
             
               omnium
               ●●norum
            
             ;
             and
             that
             the
             Narrative
             bearing
             special
             onerous
             causes
             was
             not
             sufficient
             ,
             though
             the
             parties
             were
             not
             conjunct
             ,
             but
             that
             it
             behoved
             to
             be
             astructed
             otherwayes
             then
             by
             the
             acquirers
             Oath
             
               November
               18.
               1669.
               
               Hendrison
            
             contra
             Anderson
             .
          
           
             Fraud
             of
             Creditors
             was
             inferred
             by
             the
             Act
             of
             Parliament
             1691.
             against
             an
             only
             Son
             and
             appearand
             Heir
             ,
             provided
             to
             a
             great
             sum
             of
             Money
             by
             his
             Contract
             of
             Marriage
             ,
             so
             far
             as
             to
             make
             a
             part
             thereof
             forthcoming
             ,
             for
             satisfaction
             of
             an
             anterior
             creditor
             ,
             albeit
             the
             Father
             was
             not
             Insolvent
             ,
             or
             made
             Insolvent
             by
             the
             Contract
             ;
             and
             albeit
             the
             Contract
             bear
             no
             Assignment
             to
             an
             Heretable
             sum
             ,
             but
             actual
             payment
             of
             Money
             ,
             
               February
               8.
               1671.
               
               Wat
            
             contra
             Campbel
             of
             Kilpont
             .
          
           
             Fraud
             was
             not
             inferred
             by
             the
             latency
             of
             a
             Translation
             to
             a
             Tack
             by
             a
             Husband
             to
             his
             Wife
             ,
             granted
             for
             quiting
             of
             her
             Liferent
             of
             Lands
             to
             his
             Creditors
             ,
             and
             therefore
             was
             preferred
             to
             an
             Acquirer
             thereafter
             upon
             an
             onerous
             cause
             ,
             February
             7.
             1670.
             
             Dam
             
               Elizabeth
               Burnet
               contra
            
             Sir
             
               Alexander
               Frazer
            
             .
          
           
             A
             FRAVGHT
             was
             found
             only
             proportionably
             due
             to
             a
             Skipper
             ,
             where
             the
             Ship
             was
             not
             fully
             loaden
             ,
             unless
             he
             proved
             by
             Witness●s
             that
             he
             intimate
             his
             going
             to
             Sea
             ,
             and
             required
             more
             loading
             ,
             and
             abode
             his
             ●y
             dayes
             ,
             without
             necessity
             to
             alleadge
             an
             Instrument
             and
             Protest
             taken
             thereon
             mentioning
             he
             was
             not
             fully
             fraughted
             ,
             and
             craving
             more
             Fraught
             ,
             Ianuary
             13.
             1665.
             contra
             Charters
             .
          
           
             FRVITS
             Vide
             Cropt
             ,
             Gordoun
             contr
             M●●●lloch
             .
          
           
             GENERAL
             LETTERS
             upon
             Presentation
             or
             Collation
             of
             Ministers
             ,
             whether
             having
             benefices
             ,
             or
             modified
             Stipends
             ,
             are
             prohibite
             by
             Act
             of
             Sederunt
             ,
             and
             the
             same
             intimate
             to
             the
             Writers
             and
             Keepers
             of
             the
             Signet
             ,
             and
             Clerk
             to
             the
             Bills
             ,
             but
             that
             every
             Incumbent
             must
             have
             a
             Decreet
             conform
             ,
             although
             he
             produce
             his
             Predecessors
             Decrect
             conform
             ,
             Iune
             3.
             1665.
             
          
           
             A
             GIFT
             granted
             by
             the
             King
             ,
             Erecting
             Kirk-lands
             in
             a
             Temporal
             Lordship
             ,
             was
             found
             not
             to
             be
             
               habil●●
               modus
            
             ,
             while
             the
             same
             was
             not
             vacant
             ,
             but
             in
             the
             hands
             of
             the
             Commendator
             ,
             albeit
             he
             was
             dishabilitat
             from
             brooking
             any
             Estate
             by
             his
             Fathers
             forefa●ture
             ,
             at
             the
             time
             of
             the
             Erection
             ,
             seing
             his
             dishabilitation
             was
             thereafter
             Rescinded
             in
             Parliament
             ,
             because
             he
             was
             no
             wayes
             accessory
             to
             his
             Fathers
             Crime
             ,
             whereupon
             his
             Temporal
             Provision
             was
             validate
             ,
             and
             the
             Erection
             
               medio
               tempore
            
             was
             postponed
             to
             a
             posterior
             Erection
             to
             the
             Commendatar
             himself
             ,
             upon
             his
             own
             dimission
             ,
             
               February
               24.
               1666.
               
               Sinclar
               contra
            
             Laird
             of
             W●dderburn
             .
          
           
             Gifts
             of
             E●cheat
             competing
             ,
             the
             Gift
             last
             past
             in
             Exchequer
             ,
             but
             first
             past
             the
             Seals
             ,
             was
             preferred
             to
             the
             other
             ,
             though
             the
             other
             took
             Instruments
             against
             the
             Keeper
             of
             the
             Seal
             ,
             for
             delaying
             him
             ,
             seing
             the
             Instrument
             was
             after
             the
             other
             Gift
             was
             past
             ,
             
               December
               6.
               1662.
               
               Steuart
            
             contra
             Nasmith
             .
          
           
             A
             Gift
             of
             a
             Ward
             being
             to
             the
             behove
             of
             the
             Superiors
             Heir
             ,
             and
             made
             〈◊〉
             of
             against
             the
             Vassals
             ,
             who
             had
             the
             Rights
             with
             absolute
             Warrandice
             ,
             the
             Gift
             was
             ●ound
             to
             accre●ce
             to
             the
             Vassals
             ,
             they
             paying
             a
             proportional
             part
             of
             the
             Composition
             ,
             
               February
               15.
               1665.
               
               Boyd
            
             of
             
               P●nk●ll
               contra
            
             Tennents
             of
             Cars●l●ugh
             .
          
           
             A
             Gift
             was
             found
             to
             be
             affected
             with
             a
             Back-bond
             granted
             by
             the
             Donator
             ,
             when
             the
             Gift
             past
             the
             Exchequer
             ,
             and
             was
             Registrate
             in
             the
             Books
             of
             Exchequer
             ,
             albeit
             the
             Back-bond
             was
             not
             conceived
             in
             favours
             of
             the
             The●aurer
             ,
             but
             of
             a
             private
             person
             ,
             and
             albeit
             the
             Gift
             was
             assigned
             when
             it
             was
             incompleat
             before
             it
             past
             in
             Exchequer
             ,
             and
             the
             Assignation
             ,
             was
             intimat
             ,
             
               Ianuary
               31.
               1666.
               
               Dallace
            
             contra
             Frazer
             of
             Strei●ha●
             .
          
           
             Gifts
             of
             Escheat
             bearing
             all
             Goods
             to
             be
             acquired
             ,
             was
             ●ound
             to
             extend
             to
             Goods
             acquired
             within
             a
             year
             after
             the
             Gift
             only
             ,
             and
             not
             within
             a
             year
             after
             the
             Horning
             ,
             Iuly
             2.
             1669.
             
             Barclay
             contra
             Barclay
             .
          
           
             HEIRS
             ●ound
             to
             have
             the
             benefite
             of
             an
             obligement
             to
             re-dispone
             Lands
             ,
             albeit
             Heirs
             were
             not
             expressed
             ,
             but
             appeared
             to
             be
             omitted
             by
             negligence
             ,
             seing
             the
             clause
             bear
             not
             that
             they
             should
             be●redeemable
             any
             time
             in
             the
             Disponers
             Life
             ,
             Ianuary
             9.
             1662.
             
             Earl
             of
             
               Murray
               contra
            
             Laird
             of
             Gairn
             .
          
           
             Heirs
             were
             ●ound
             to
             have
             right
             to
             an
             Annualrent
             ,
             though
             Heirs
             were
             not
             exprest
             ,
             and
             though
             it
             bear
             only
             to
             be
             payed
             yearly
             to
             the
             Annualrenter
             ,
             and
             not
             Heretably
             or
             perpetually
             ,
             
               February
               2.
               1667.
               
               Pourie
            
             contra
             Dykes
             .
          
           
             An
             Heir
             ,
             viz.
             a
             Son
             being
             in●e●t
             as
             Heir
             to
             his
             Mother
             ,
             dying
             without
             Issue
             ,
             his
             Brother
             V●erine
             by
             that
             Mother
             not
             found
             Heir
             to
             him
             therein
             ,
             but
             his
             Father
             ,
             February
             5.
             1663.
             
             Lennox
             contra
             Lintoun
             .
          
           
             An
             Heir
             found
             conveenable
             for
             the
             avail
             of
             her
             Marriage
             ,
             without
             calling
             the
             other●Heir
             portioner
             who
             was
             dead
             ,
             
               Iune
               26.
               1666.
               
               Arbuthne●
            
             contra
             Keith
             .
          
           
             HEIRS
             OF
             LINE
             and
             not
             of
             Conquest
             ,
             ●ound
             to
             have
             right
             to
             a
             Tack
             ,
             albeit
             Conquest
             ,
             
               Iune
               23.
               1663.
               
               Ferguson
            
             contra
             Ferguson
             .
          
           
             An
             Heir
             of
             Line
             of
             a
             youngest
             Brother
             by
             a
             several
             Marriage
             ,
             found
             to
             be
             the
             immediate
             elder
             Brother
             of
             the
             former
             Marriage
             ,
             and
             not
             the
             eldest
             Brother
             ,
             Iune
             20.
             1664.
             
             Lady
             Clerkingtoun
             contra
             Steuart
             .
          
        
         
           
             AN
             HEIR
             MALE
             was
             found
             to
             be
             presently
             lyable
             without
             discussing
             the
             Heir
             of
             Line
             ,
             where
             he
             was
             obliged
             to
             relieve
             the
             same
             ,
             
               November
               22.
               1665.
               
               Scot
            
             contra
             Bothwel
             of
             A●●hinleck
             .
          
           
             AN
             HEIR
             SVBSTITVTE
             in
             a
             Bond
             ,
             was
             found
             not
             to
             make
             the
             Substitute
             Heir
             lyable
             
               in
               solidum
            
             ,
             but
             
               quo
               〈◊〉
               valorem
            
             of
             the
             sum
             ,
             this
             was
             a
             mutual
             Substitution
             of
             a
             sum
             payable
             to
             two
             Brothers
             ,
             or
             the
             surviver
             ,
             
               Iuly
               3.
               1666.
               
               Fleming
            
             contra
             Fleming
             .
          
           
             Heirs
             have
             right
             in
             a
             Substitution
             ,
             though
             only
             a
             person
             by
             Name
             was
             Substitute
             ,
             without
             mention
             of
             Heirs
             ,
             and
             though
             that
             perso●
             died
             before
             the
             Institute
             ,
             
               Ianuary
               5.
               1670.
               
               Innes
            
             contra
             Innes
             .
          
           
             AN
             HEIR
             APPARENT
             was
             allowed
             to
             have
             Aliment
             from
             the
             Liferenter
             ,
             seing
             the
             whole
             Estate
             was
             either
             affected
             with
             the
             Liferent
             ,
             or
             the
             remainder
             thereof
             was
             appryzed
             from
             the
             appeared
             Heir
             for
             the
             Defuncts
             debts
             ,
             exceeding
             the
             value
             thereof
             ,
             
               February
               13.
               1662.
               
               Brown
               contra
            
             Liferenters
             of
             Rossie
             .
          
           
             An
             Heir
             apparent
             was
             allowed
             to
             have
             Aliment
             of
             his
             Grand-Father
             ,
             though
             he
             had
             voluntarly
             infe●t
             his
             Son
             the
             Pursuers
             Father
             ,
             and
             though
             the
             Pursuer
             had
             a
             stock
             of
             Money
             ,
             Liferented
             by
             his
             Mother
             ,
             here
             the
             Grand-Father
             was
             Iately
             fallen
             to
             a
             plenteous
             Estate
             ,
             
               Iune
               17.
               1662.
               
               Ruthven
            
             Fe●ar
             of
             
               Gairn
               contra
            
             Laird
             of
             Gairn
             .
          
           
             An
             Heir
             apparent
             taking
             Right
             to
             Land
             from
             his
             Grand-Father
             ,
             was
             found
             not
             to
             enjoy
             the
             priviledge
             of
             a
             singular
             Successor
             ,
             and
             to
             be
             in
             no
             better
             case
             as
             to
             that
             Right
             than
             his
             Grand-Father
             ,
             albeit
             his
             Grand-Father
             was
             living
             ,
             and
             the
             Oye
             then
             not
             immediate
             Successor
             ,
             Iuly
             23.
             1662
             
             ▪
             Lord
             
               Frazer
               contra
            
             Laird
             of
             Phillorth
             .
          
           
             An
             Heir
             Apparent
             was
             found
             to
             have
             Right
             to
             the
             Rents
             of
             ●is
             predecessors
             Lands
             ▪
             although
             he
             dyed
             before
             he
             was
             Infeft
             ,
             and
             that
             the
             next
             Heir
             intrometting
             with
             the
             Re●●s
             of
             the
             years
             that
             the
             former
             appearand
             Heir
             lived
             ,
             was
             lyable
             to
             pay
             the
             said
             appearand
             Heirs
             Aliment
             ,
             in
             so
             far
             as
             he
             Intrometted
             ,
             December
             20.
             1662.
             
             Lady
             
               Tarsappie
               contra
            
             Laird
             of
             Tarsappie
             .
          
           
             An
             Heir
             apparent
             pursuing
             for
             Inspection
             
               ad
               deliberandum
            
             ,
             was
             found
             not
             to
             have
             interest
             ,
             to
             cause
             a
             party
             compt
             and
             run
             Probation
             ,
             that
             he
             might
             know
             the
             condition
             of
             the
             Her●tage
             ,
             though
             there
             was
             a
             contrary
             Decision
             observed
             by
             
               Dury
               ,
               March
               16.
               1637.
               
               Hume
            
             contra
             Hume
             of
             Blacketer
             ,
             seing
             the
             ordinary
             course
             since
             hath
             been
             contrary
             ,
             Iune
             22.
             1671.
             
             L●s●ies
             contra
             Ia●●ray
             .
          
           
             HEIRS
             IN
             A
             TACK
             found
             not
             to
             require
             service
             ,
             but
             that
             such
             as
             might
             be
             served
             Heirs
             ,
             might
             enjoy
             the
             benefite
             thereof
             ,
             
               Iune
               17.
               1671.
               
               Boyd
            
             contra
             Sinclar
             .
          
           
             HEIRSHIP
             MOVEABLES
             was
             found
             competent
             to
             one
             who
             was
             infeft
             in
             Lands
             ,
             and
             though
             the
             same
             was
             appryzed
             ,
             and
             the
             Appryzer
             infeft
             ,
             yet
             the
             legal
             was
             unexpyred
             ,
             and
             the
             appryzing
             stood
             but
             as
             a
             collateral
             Security
             ,
             not
             as
             a
             full
             Right
             ,
             
               February
               26.
               1663.
               
               Cuthbert
            
             of
             Draikies
             contra
             Monro●
             of
             Foul●s
             .
          
           
             Heirship
             moveable
             was
             found
             to
             belong
             to
             an
             Heir
             of
             person
             who
             dyed
             only
             infeft
             in
             an
             Annualrent
             ,
             Iuly
             19.
             1664.
             
             
               Scrymzeour
               contra
            
             Executors
             of
             Murray
             .
          
           
             Heirship
             moveable
             was
             not
             found
             competent
             to
             a
             person
             who
             was
             only
             Heir
             apparent
             of
             Tailzie
             ,
             and
             dyed
             never
             Infe●t
             .
             Ianuary
             27.
             1666.
             
             Collonel
             Montgomerie
             contra
             Steuart
             .
          
           
             Heirship
             moveable
             being
             renunced
             from
             the
             Heir
             of
             Line
             ,
             in
             favours
             of
             his
             Father
             ,
             was
             found
             not
             to
             return
             to
             him
             after
             his
             Fathers
             death
             ,
             but
             to
             belong
             to
             his
             Fathers
             Executors
             ,
             
               〈◊〉
               18.
               1666.
               
               Pollock
            
             contra
             Rutherfoord
             .
          
           
             Heirs
             〈◊〉
             clause
             .
          
           
             AN
             HERETABLE
             Obligement
             
               quoad
               creditorem
            
             may
             be
             moveable
             
               quoad
               debitorem
               ,
               Iuly
               25.
               1662.
               
               Nasmith
            
             contra
             Ia●●ray
             .
          
           
             An
             Heretable
             Sum
             was
             found
             so
             to
             remain
             notwithstanding
             of
             a
             Requisition
             not
             being
             made
             conform
             to
             the
             clause
             of
             Requisition
             ,
             and
             so
             null
             as
             being
             provided
             to
             be
             required
             by
             the
             Husband
             with
             consent
             of
             the
             Wife
             ,
             whose
             consent
             was
             not
             adhibite
             ,
             nor
             was
             the
             showing
             the
             Creditors
             intention
             to
             require
             his
             Money
             enough
             ,
             not
             being
             made
             
               debiro
               modo
               ,
               Ianuary
            
             18.
             
             166●
             .
             Steuart
             contra
             Steuarts
             .
          
           
             An
             Heretable
             Bond
             was
             found
             moveable
             by
             a
             charge
             ,
             thogh
             but
             against
             one
             of
             the
             Ca●tioners
             ,
             
               Ianuary
               24.
               1666.
               
               Montgomery
            
             and
             his
             Spouse
             
               contra
               Steuart
            
             .
          
           
             An
             Heretable
             Bond
             bearing
             a
             clause
             of
             Annualrent
             ,
             was
             found
             not
             to
             be
             moveable
             ,
             though
             the
             principal
             sum
             was
             not
             payable
             till
             the
             debitors
             death
             ,
             seing
             the
             first
             Term
             of
             payment
             of
             the
             Annualrent
             was
             past
             ,
             
               Iuly
               31.
               1666.
               
               Gordoun
            
             contra
             
               Keith
               .
               Vide
            
             Bond
             ,
             Iune
             28.
             1665.
             and
             Iun●
             26.
             1668.
             
          
           
             ONE
             HOLDEN
             AS
             CONFEST
             was
             reponed
             against
             a
             Decreet
             of
             an
             inferiour
             Iudge
             ,
             albeit
             a
             Procurator
             compeared
             ,
             and
             took
             a
             day
             to
             produce
             him
             ,
             but
             without
             a
             Procuratory
             ,
             or
             proponing
             any
             Defense
             that
             might
             show
             any
             Information
             of
             the
             cause
             ,
             and
             so
             no
             warrand
             to
             compear
             ,
             
               November
               24.
               1665.
               
               Chalmers
               contra
            
             Lady
             Tinnel
             .
          
           
             Holden
             as
             confest
             was
             not
             admitted
             against
             a
             Defender
             
             absent
             ,
             where
             the
             Messengers
             Execution
             did
             not
             bear
             personally
             apprehended
             ,
             but
             that
             the
             Messenger
             knew
             that
             the
             Defender
             was
             in
             his
             House
             ,
             but
             was
             forcibly
             keeped
             from
             access
             by
             his
             Wife
             ,
             
               Iuly
               5.
               1670.
               
               Lindsay
            
             and
             Swintoun
             contra
             Inglis
             .
          
           
             AN
             HOLOGRAPH
             Discharge
             was
             found
             not
             to
             prove
             its
             date
             against
             an
             Assigney
             ,
             unless
             it
             were
             astructed
             by
             Adminicles
             or
             Witnesses
             ,
             that
             knew
             it
             subscribed
             of
             that
             date
             ,
             
               Ianuary
               4.
               1662.
               
               Dickie
            
             contra
             Montgomery
             .
          
           
             A
             Holograph
             Writ
             proves
             not
             
               quo
               ad
               datam
            
             ,
             yet
             the
             date
             may
             be
             astructed
             by
             Witnesses
             above
             exception
             ;
             but
             persons
             of
             ordinary
             credite
             ,
             one
             of
             two
             being
             a
             Towns
             Officer
             ,
             were
             not
             found
             such
             Witnesses
             ,
             albeit
             no
             exception
             was
             competent
             against
             them
             for
             being
             ordinary
             Witnesses
             ,
             
               Iune
               21.
               1665.
               
               Bradie
               contra
            
             the
             Laird
             of
             Fairny
             .
          
           
             Holograph
             was
             found
             proven
             by
             production
             of
             a
             Transumpt
             done
             judicially
             ,
             and
             the
             Oaths
             of
             the
             Witnesses
             ,
             and
             Friends
             of
             the
             Defunct
             who
             made
             the
             Wri●
             Transumed
             amongst
             his
             Children
             ,
             altering
             their
             portions
             ;
             and
             though
             a
             part
             of
             it
             was
             written
             by
             another
             when
             the
             Defunct
             was
             so
             weak
             that
             he
             could
             not
             write
             ,
             yet
             the
             writ
             was
             found
             holograph
             as
             to
             the
             rest
             ,
             but
             not
             as
             to
             this
             Article
             ,
             albeit
             the
             principal
             writ
             was
             lost
             and
             not
             produced
             ,
             but
             only
             the
             judicial
             Transumpt
             taken
             off
             when
             it
             was
             produced
             ,
             Iuly
             30.
             1668.
             
             Mckenzie
             contra
             Balla●dine
             of
             Newhall
             .
          
           
             Vide
             Death-bed
             ,
             
               November
               14.
               1668.
               
               Calderwood
            
             contra
             Schaw
             .
          
           
             HOMOLOGATION
             to
             communicate
             Appryzings
             ,
             was
             found
             not
             to
             be
             inferred
             by
             the
             singular
             Successors
             concurring
             
               de
               facto
            
             against
             third
             parties
             ,
             unless
             it
             were
             proven
             by
             the
             singular
             Successors
             Oath
             ,
             that
             he
             knew
             of
             such
             a
             Bond
             ,
             
               Iuly
               6.
               1661.
               
               Tailzifer
            
             contra
             Maxtoun
             and
             Cunningham●
             .
          
           
             Homologation
             of
             a
             Decreet
             was
             not
             inferred
             by
             payment
             thereof
             ,
             without
             a
             Charge
             ,
             seing
             the
             Givers
             thereof
             were
             Officers
             having
             no
             Commission
             ,
             or
             any
             civil
             Authority
             ,
             Iuly
             24.
             1661.
             
             Iack
             contra
             Feddes
             .
          
           
             Homologation
             of
             a
             Decreet
             Arbitral
             quoad
             ,
             one
             of
             many
             Articles
             of
             different
             matters
             ,
             was
             found
             not
             sufficient
             for
             the
             whole
             ,
             
               November
               22.
               1662.
               
               Pringle
            
             contra
             Din.
             
          
           
             Homologation
             of
             a
             Fathers
             Legacy
             to
             his
             Children
             ,
             was
             inferred
             by
             his
             Wife
             ,
             Confirming
             the
             Testament
             without
             Protestation
             ,
             not
             to
             prove
             that
             Legacy
             ,
             here
             the
             Wife
             by
             her
             Contract
             was
             provided
             to
             the
             Liferent
             of
             all
             her
             Husbands
             Moveables
             ,
             
               February
               19.
               1663.
               
               More
            
             contra
             Stirling
             .
          
           
             Homologation
             of
             an
             Infeftment
             granted
             to
             a
             Wife
             in
             satisfaction
             of
             her
             Contract
             of
             Marriage
             ,
             was
             inferred
             by
             her
             continuing
             six
             or
             seven
             years
             to
             possess
             ,
             and
             setting
             several
             Tacks
             as
             Liferentrix
             ,
             where
             the
             clause
             in
             the
             Contract
             was
             only
             in
             general
             to
             imploy
             Money
             on
             Land
             ,
             or
             Annualrent
             ,
             and
             no
             Infeftment
             followed
             thereon
             ,
             nor
             was
             the
             Husband
             in
             possession
             in
             his
             Life
             ,
             but
             the
             Wise
             began
             the
             Possession
             ,
             albeit
             the
             acceptance
             of
             the
             Infeftment
             was
             to
             her
             prejudice
             ,
             and
             was
             not
             in
             her
             hand
             ,
             nor
             did
             the
             Seasine
             repeat
             that
             provision
             particularly
             ,
             But
             only
             according
             to
             the
             conditions
             contained
             in
             the
             Bond
             ,
             the
             Seasine
             being
             Registrate
             ,
             and
             the
             Bond
             still
             in
             the
             Nottars
             hand
             Who
             took
             the
             Seasine
             ,
             in
             which
             case
             the
             Wife
             was
             presumed
             to
             know
             and
             not
             to
             be
             ignorant
             of
             the
             Terms
             of
             her
             Infeftment
             ,
             
               November
               14.
               1665.
               
               Skeen
            
             and
             her
             Spouse
             
               contra
               Ramsay
            
             .
          
           
             Homologation
             of
             an
             Infeftment
             ,
             bearing
             in
             satisfaction
             ,
             &c.
             was
             sound
             not
             to
             be
             inferred
             by
             possessing
             the
             Lands
             ,
             seing
             the
             Possessor
             had
             another
             Title
             ,
             as
             Heir
             apparent
             to
             persons
             who
             dyed
             Infeft
             therein
             ,
             unless
             it
             were
             instructed
             that
             the
             possession
             was
             attained
             by
             Processe
             upon
             the
             Infeftment
             in
             satisfaction
             ,
             
               December
               12.
               1665.
               
               Barns
            
             contra
             Young
             and
             her
             Spouse
             .
          
           
             Homologation
             of
             a
             Feuars
             Right
             ,
             and
             passing
             from
             a
             Declarator
             against
             the
             same
             ,
             upon
             a
             clause
             irritant
             ,
             was
             found
             not
             to
             be
             inferred
             by
             acceptance
             of
             two
             years
             Feu-duties
             after
             the
             Declarator
             ,
             except
             as
             to
             these
             two
             years
             that
             more
             duty
             could
             not
             be
             demanded
             therefore
             ,
             Iune
             6.
             1666
             ,
             Earl
             of
             Cassils
             contra
             Agnew
             .
          
           
             Homologation
             of
             a
             Bond
             granted
             by
             a
             Minor
             ,
             without
             consent
             of
             his
             Father
             as
             lawful
             Administrator
             ,
             was
             found
             not
             inferred
             by
             payment
             of
             Annualrent
             by
             him
             after
             his
             Majority
             ,
             especially
             not
             being
             of
             his
             own
             Money
             ,
             nor
             by
             taking
             a
             Discharge
             of
             the
             Annualrent
             to
             the
             Principal
             ,
             and
             himself
             as
             Cautioner
             ,
             
               February
               14.
               1668.
               
               Mckenzie
            
             contra
             Fairholm
             ,
             Here
             the
             Discharge
             related
             the
             Bond
             both
             as
             to
             Principal
             and
             Cautioner
             .
          
           
             Homologation
             of
             a
             Minors
             Bond
             ,
             was
             not
             inferred
             by
             pursuing
             for
             his
             relief
             after
             his
             Majority
             ,
             but
             that
             in
             case
             he
             were
             not
             liberate
             by
             that
             mean
             ,
             he
             might
             return
             to
             his
             Reduction
             upon
             Minority
             ,
             
               February
               20.
               1668.
               
               Farquhar
            
             of
             To●ley
             contra
             Gordoun
             .
          
           
             Homologation
             of
             a
             Tack
             of
             Teinds
             which
             was
             null
             ,
             as
             wanting
             the
             consent
             of
             the
             Patron
             ,
             was
             not
             found
             inferred
             by
             the
             Ministers
             receiving
             the
             duty
             conform
             to
             the
             Tack
             before
             Reduction
             thereof
             ,
             
               February
               27.
               1668.
               
               Chalmers
            
             contra
             Wood
             of
             Balbegno
             .
          
           
             Homologation
             of
             a
             Decreet
             was
             not
             inferred
             by
             giving
             Bond
             of
             borrowed
             Money
             for
             the
             like
             sum
             ,
             and
             taking
             a
             Discharge
             of
             the
             Decreet
             ,
             seing
             it
             was
             no
             voluntary
             deed
             ,
             but
             the
             Debitor
             was
             then
             under
             Caption
             in
             the
             Messengers
             hands
             upon
             the
             Decreet
             ,
             neither
             a
             Transaction
             ,
             if
             the
             Bond
             contained
             all
             the
             sum
             in
             the
             Decreet
             ,
             unless
             abatement
             had
             been
             gotten
             ,
             
               Iuly
               3.
               1668.
               
               Row
            
             contra
             Ho●stoun
             .
          
        
         
           
             Homologation
             was
             not
             inferred
             by
             a
             Husbands
             Discharge
             of
             Annualrent
             ,
             as
             Tutor
             to
             his
             Wifes
             Child
             ,
             to
             infer
             the
             Child
             had
             right
             to
             the
             Annualrent
             ,
             whereas
             by
             the
             Bond
             it self
             the
             Wife
             was
             Liferenter
             ,
             Ianuary
             18.
             1670.
             
             Doctor
             Balfour
             and
             his
             Spouse
             
               contra
               Wood.
            
             
          
           
             Homologation
             of
             a
             Decreet
             of
             consent
             ,
             containing
             a
             Transaction
             of
             parties
             at
             the
             Bar
             ,
             without
             any
             Subscription
             ,
             was
             inferred
             by
             a
             simple
             offer
             of
             a
             Disposition
             conform
             to
             the
             said
             Transaction
             be
             that
             party
             who
             quarrelled
             the
             Decreet
             as
             without
             Warrand
             ,
             but
             was
             not
             inferred
             by
             consignation
             of
             the
             Disposition
             ,
             for
             obtaining
             a
             Suspension
             upon
             obedience
             to
             be
             delivered
             up
             ,
             if
             the
             Lords
             saw
             cause
             ,
             February
             4.
             1671.
             
             Lowrie
             contra
             Gibson
             .
          
           
             Homologation
             of
             a
             Contract
             of
             a
             Minor
             having
             Curators
             ;
             without
             their
             consent
             ,
             was
             not
             inferred
             by
             payment
             of
             a
             years
             Annualrent
             of
             the
             sum
             contained
             in
             the
             Contract
             ,
             being
             made
             ●o
             an
             indigent
             Sister
             ,
             who
             had
             no
             other
             provision
             ,
             but
             homologation
             was
             inferred
             by
             a
             Decreet
             of
             Registration
             of
             the
             Contract
             ,
             at
             the
             instance
             of
             the
             Party
             ,
             none
             quarrelling
             the
             same
             after
             his
             Majority
             ,
             though
             there
             was
             neither
             Charge
             nor
             Execution
             used
             thereon
             ,
             and
             in
             the
             Decreet
             of
             Registration
             ,
             there
             was
             neither
             Protestation
             nor
             Reservation
             ,
             that
             the
             same
             might
             be
             quarrelled
             in
             any
             point
             ,
             Iune
             2●
             ,
             1671
             ▪
             
               Hume
               contra
            
             Lord
             Iustice
             Clerk.
             
          
           
             Homologation
             of
             a
             Testament
             subscribed
             by
             a
             Wife
             at
             the
             desire
             of
             her
             Husband
             near
             his
             death
             ,
             was
             not
             in●erred
             by
             her
             Confirming
             the
             Testament
             under
             Protestation
             ,
             not
             to
             prejudge
             her
             own
             Right
             ,
             though
             she
             might
             have
             attained
             her
             interest
             in
             the
             Moveables
             ,
             by
             Confirming
             her self
             Executrix
             Creditrix
             ,
             
               Iuly
               12.
               1671.
               
               Murray
            
             contra
             Murray
             .
          
           
             HORNING
             granted
             Summarly
             upon
             the
             late
             Iudges
             Act
             ,
             at
             the
             instance
             of
             heirs
             or
             Executors
             confirmed
             ,
             was
             found
             to
             be
             ●ull
             ,
             upon
             the
             late
             Act
             of
             Parliament
             ,
             declaring
             their
             ludi●●●●
             proceedings
             to
             be
             quarrellable
             ,
             seing
             there●
             was
             no
             ●●justice
             in
             the
             matter
             ,
             but
             the
             Lords
             gave
             the
             Suspenders
             such
             time
             for
             their
             Defenses
             as
             in
             an
             ordinary
             Action
             ,
             Ianuary
             1.
             1662.
             
             
               Barnes
               contra
            
             Laird
             of
             Applegirth
             .
          
           
             Horning
             doth
             not
             affect
             the
             Rebels
             Moveables
             by
             the
             Act
             1592
             ▪
             but
             that
             the
             Rebel
             may
             effectually
             deliver
             them
             to
             one
             who
             had
             Disposition
             of
             them
             before
             the
             horning
             ,
             Iuly
             9.
             1662.
             
             Bower
             contra
             Barclay
             and
             Iohnstoun
             .
          
           
             Horning
             was
             not
             found
             null
             by
             payment
             before
             denunciation
             ,
             to
             be
             proven
             by
             the
             Creditors
             Oath
             ▪
             or
             holograph
             Discharges
             ,
             but
             by
             the
             Denuncers
             Oath
             of
             Verity
             ,
             February
             10.
             1663.
             
             Montgomery
             contra
             Montgomery
             and
             Lawder
             .
          
           
             Horning
             granted
             against
             the
             Magis●rates
             of
             a
             Town
             upon
             the
             Act
             of
             their
             Council
             ,
             obliging
             to
             pay
             a
             Debt
             upon
             a
             Bill
             without
             Signet
             ,
             though
             there
             was
             no
             Process
             whereon
             the
             Act
             proceeded
             ,
             or
             Clause
             of
             Registration
             therein
             ,
             February
             19.
             1663.
             
             Lady
             
               Swintoun
               contra
            
             Magistrates
             o●
             Edinburgh
             .
          
           
             Horning
             was
             sustained
             though
             on
             a
             Charge
             of
             six
             dayes
             beyond
             Dee
             ,
             contrary
             to
             the
             Act
             of
             Parliament
             1580.
             ●n
             respec●
             it
             proceeded
             on
             consent
             of
             parties
             upon
             a
             clause
             of
             Registration
             ,
             and
             since
             that
             Act
             ,
             such
             hornings
             had
             never
             been
             quarrelled
             ,
             December
             16.
             1664.
             
             Laird
             of
             Phillorth
             contra
             Forb●s
             of
             As●oun
             and
             the
             Lord
             Frazer
             .
          
           
             A
             HVSBAND
             was
             found
             lyable
             to
             his
             Wifes
             debt
             ,
             though
             not
             established
             against
             him
             during
             the
             Marriage
             ,
             in
             so
             far
             as
             might
             be
             extended
             to
             the
             benefite
             of
             her
             Lif●rent
             Duty
             resting
             after
             the
             Marriage
             dissolved
             ,
             which
             could
             not
             belong
             to
             the
             Husband
             ,
             but
             with
             the
             burden
             of
             her
             debt
             ,
             
               February
               1.
               1662.
               
               Cunninghame
            
             contra
             Dalmahoy
             .
          
           
             A
             Husband
             was
             found
             lyable
             for
             his
             interest
             in
             Moveables
             intrometted
             with
             by
             his
             Wife
             of
             her
             first
             Husbands
             ,
             albeit
             there
             was
             an
             interveening
             Husband
             who
             was
             not
             found
             to
             be
             first
             discust
             ,
             but
             reserving
             to
             the
             Defender
             to
             pursue
             his
             heirs
             as
             accords
             ,
             
               February
               18.
               1663.
               
               Dumbar
            
             or
             
               Hemprigs
               contra
            
             Lord
             
               Frazer
               ,
               Vide
            
             interdiction
             ,
             February
             27.
             1663.
             
             Laird
             of
             
               Milntoun
               contra
            
             Lady
             Milntoun
             .
          
           
             A
             Husband
             was
             assoilzied
             from
             his
             Wifes
             debt
             ,
             albeit
             Litiscontestation
             was
             past
             ,
             seing
             she
             was
             dead
             ,
             and
             albeit
             there
             was
             an
             Interlocutor
             ordaining
             him
             to
             give
             Bond
             to
             pay
             what
             his
             Lady
             should
             be
             found
             due
             ,
             
               Iuly
               11.
               1664.
               
               Inter
               eosdem
               .
            
          
           
             A
             Husband
             being
             pursued
             to
             remove
             from
             a
             Tenement
             ,
             which
             he
             possessed
             
               jure
               mar●ti
            
             ,
             no
             Process
             was
             sustained
             till
             the
             Wife
             was
             cited
             ,
             
               Iuly
               14.
               1665.
               
               Iohnstoun
            
             of
             Shee●s
             contra
             Brown.
             
          
           
             A
             Husband
             Confirming
             his
             Wifes
             Testament
             ,
             by
             giving
             up
             his
             own
             Moveables
             and
             Debt
             ,
             though
             he
             made
             Faith
             upon
             the
             Inventary
             ,
             yet
             was
             not
             excluded
             from
             debarring
             the
             Wifes
             Legatars
             upon
             another
             debt
             then
             forgotten
             ,
             though
             not
             old
             ,
             
               December
               7.
               1665.
               
               Anderson
            
             contra
             Cunninghame
             .
             But
             he
             being
             lately
             charged
             on
             a
             debt
             before
             the
             confirmation
             ,
             it
             was
             not
             allowed
             as
             forgotten
             ,
             
               Iune
               5.
               1666.
               
               Inter
               eosdem
               ,
            
          
           
             A
             Husbane
             was
             not
             found
             lyable
             for
             his
             Wifes
             debt
             
               jure
               Mariti
            
             after
             her
             death
             ,
             though
             in
             her
             life
             there
             was
             Decreet
             against
             her
             and
             him
             as
             Husband
             ,
             seing
             there
             was
             no
             Execution
             thereon
             in
             her
             life
             ,
             December
             23.
             1665.
             
             Dam
             
               Rachel
               Burnet
            
             contra
             Lepers
             .
          
           
             A
             Husband
             and
             Wife
             were
             not
             found
             lyable
             as
             lucrative
             Successors
             for
             a
             competent
             Tocher
             su●eable
             to
             their
             condition
             ,
             
             but
             for
             the
             superplus
             ,
             and
             if
             the
             provision
             was
             exorbitant
             ,
             not
             only
             the
             Wife
             but
             even
             the
             Husband
             is
             lyable
             
               in
               quantum
               lucratus
               est
               ,
               December
               23.
               1665.
               
               Inter
               eosdem
               .
            
          
           
             A
             Husband
             receiving
             a
             sum
             provided
             to
             his
             Wife
             for
             her
             use
             ,
             Ornaments
             ,
             or
             Abuilziaments
             ,
             or
             any
             other
             use
             she
             pleased
             ,
             excluding
             the
             Husband
             and
             his
             
               jus
               mariti
            
             ,
             was
             found
             to
             exclude
             the
             Wifes
             Executors
             ,
             seing
             the
             husband
             sufficiently
             furnished
             his
             Wife
             ,
             and
             the
             Granter
             of
             the
             Provision
             freely
             made
             payment
             to
             the
             husband
             ,
             February
             12.
             1667.
             
             Executors
             of
             the
             Lady
             Piltoun
             contra
             Hay
             of
             Balhousie
             .
          
           
             A
             Husbands
             Escheat
             falling
             by
             being
             denunced
             as
             husband
             for
             his
             in●erest
             upon
             his
             Wifes
             Bond
             ,
             not
             subscribed
             by
             him
             ,
             and
             only
             at
             the
             Mercat
             Cross
             of
             Edinburgh
             ,
             he
             residing
             out
             of
             the
             Countrey
             ,
             was
             found
             not
             to
             be
             Liberate
             by
             the
             dissolution
             of
             the
             Marriage
             ,
             February
             25.
             1668.
             
             Lord
             Almond
             contra
             Dalmahoy
             .
          
           
             A
             Husband
             was
             decerned
             for
             his
             Wifes
             debt
             ,
             as
             being
             holden
             as
             confest
             ,
             upon
             refusing
             to
             give
             his
             oath
             of
             Calumny
             whether
             he
             had
             just
             reason
             to
             deny
             what
             his
             Wife
             had
             declared
             upon
             Oath
             ,
             the
             Decreet
             for
             that
             reason
             was
             Reduced
             ,
             
               February
               26.
               1668.
               
               Grahame
            
             contra
             Touris
             and
             her
             Husband
             .
          
           
             A
             Husband
             having
             Married
             a
             Taverner
             ,
             who
             after
             Proclamation
             of
             the
             Marriage
             had
             bought
             twelve
             Hogsheads
             of
             Wine
             ,
             and
             the
             Pursuer
             having
             intented
             Action
             against
             her
             and
             him
             as
             Husband
             ,
             she
             dyed
             within
             four
             moneths
             after
             the
             Marriage
             ,
             the
             Husband
             delivered
             the
             Keys
             of
             the
             Sellar
             to
             the
             Magistrates
             ,
             and
             Inventared
             the
             Wines
             ,
             and
             abstained
             from
             intromett●ng
             ;
             the
             Husband
             was
             not
             found
             lyable
             for
             what
             was
             vended
             before
             the
             Marriage
             ,
             nor
             for
             what
             remained
             unfold
             after
             his
             Wifes
             death
             ,
             but
             the
             burde●
             of
             probation
             was
             put
             on
             the
             Husband
             ,
             to
             prove
             what
             was
             vended
             before
             ,
             and
             what
             remained
             after
             the
             Wifes
             death
             ,
             otherwise
             to
             pay
             the
             whole
             ,
             
               November
               25.
               1668.
               
               Andrew
            
             contra
             Corse
             .
          
           
             A
             Husband
             Ratifying
             his
             Wifes
             Disposition
             to
             her
             Children
             ,
             by
             the
             first
             Marriage
             ,
             though
             after
             Proclamation
             ,
             it
             was
             ●ound
             valide
             ,
             and
             not
             Revockable
             ,
             as
             
               Donatio
               inter
               virum
               &
               uxorem
               ,
               February
               15.
               1669.
               
               Hamiltoun
            
             contra
             Banes.
             
          
           
             HYPOTHECATION
             of
             the
             profites
             for
             the
             Rents
             ,
             was
             found
             to
             prefer
             a
             Town
             setting
             their
             Customes
             ,
             as
             to
             the
             duty
             due
             by
             a
             Sub●acksman
             therfore
             ,
             though
             not
             to
             the
             Town
             ,
             but
             to
             the
             principal
             Tacksman
             ,
             and
             though
             a
             Creditor
             of
             the
             Tacksmans
             had
             arrested
             the
             Sub-Tack-duty
             for
             the
             Tacks-mans
             debt●
             the
             Town
             using
             no
             diligence
             till
             they
             were
             called
             in
             a
             double
             Poynding
             ,
             yet
             were
             preferred
             ,
             Ianuary
             31.
             1665.
             
             
               Anderson
               ,
               &c.
               contra
            
             the
             Town
             of
             Edinburgh
             .
          
           
             Hypothecation
             of
             the
             Fruits
             of
             the
             Ground
             ,
             for
             the
             Rent
             of
             the
             same
             year
             ,
             was
             found
             valide
             to
             the
             Setter
             of
             a
             Fishing
             against
             the
             Do●atar
             of
             the
             Tenents
             Escheat
             ,
             who
             had
             intrometted
             therewith
             ,
             and
             was
             found
             lyable
             to
             restore
             ,
             Iuly
             4.
             1667.
             
             Cumming
             of
             Alter
             contra
             Lun●d●an
             .
          
           
             
               IGNORANTIA●IVRIS
               non
               excusat
               etiam
               in
               mulieribus
               ,
            
             as
             that
             a
             Bond
             moveable
             in
             the
             Wifes
             Name
             belonged
             to
             the
             Husband
             ▪
             
               Iune
               16.
               1664.
               
               Murray
               contra
            
          
           
             IN
             AN
             IMPROBATION
             a
             party
             user
             of
             a
             Writ
             challenged
             ,
             but
             not
             produced
             by
             himself
             ,
             was
             admitted
             to
             abide
             thereby
             
               qualificate
               ,
               viz.
            
             That
             he
             used
             it
             as
             a
             Writ
             produced
             by
             another
             ,
             which
             was
             in
             his
             favours
             ,
             and
             knew
             nothing
             of
             the
             Forgery
             thereof
             ,
             Iuly
             24.
             1661.
             
             Laird
             of
             
               Lambertoun
               contra
            
             Earl
             of
             Levin
             and
             Kennedy
             .
          
           
             Improbation
             of
             a
             Writ
             by
             Exception
             being
             proponed
             ,
             and
             an
             Act
             extracted
             ,
             the
             Defender
             was
             not
             admitted
             to
             alleadge
             nullities
             ,
             
               quia
               excepti●
               falsi
               est
               omnium
               ultima
               ,
               Iuly
               3.
               1661.
               
               Peacock
            
             contra
             Baillie
             .
          
           
             In
             an
             Improbation
             ,
             testimonies
             were
             published
             to
             both
             Parties
             ,
             and
             the
             Defender
             was
             made
             closs
             Prisoner
             ,
             Iuly
             26.
             1661.
             
             Lambertoun
             contra
             Kennedy
             .
          
           
             Improbation
             was
             found
             necessary
             to
             be
             continued
             ,
             though
             it
             bear
             an
             express
             priviledge
             without
             continuation
             ,
             which
             was
             thought
             to
             pass
             of
             course
             ,
             contrary
             to
             form
             ,
             February
             7.
             1662.
             
             Laird
             of
             Auchinbreck
             contra
             Mcleree
             .
          
           
             In
             an
             Improbation
             after
             Articles
             indirect
             for
             improving
             ,
             and
             Articles
             approving
             ,
             and
             a
             Dispute
             in
             Writ
             thereon
             ,
             and
             Witnesses
             
               hinc
               ind●
            
             examined
             on
             all
             before
             discussing
             the
             Relevancy
             ,
             and
             the
             Testimonies
             closed
             ,
             and
             new
             Articles
             
               hinc
               inde
            
             ,
             and
             a
             Dispute
             in
             Writ
             thereon
             ,
             the
             Parties
             were
             heard
             
               viva
               voc●
            
             ,
             and
             then
             all
             advised
             ,
             Iuly
             11.
             1662.
             
             Laird
             of
             
               Lambertoun
               contra
            
             Earl
             of
             Levin
             and
             Kennedy
             .
          
           
             In
             an
             Improbation
             a
             Writ
             was
             improven
             ,
             though
             two
             Witnesses
             in
             it
             were
             alive
             ,
             and
             examined
             thereon
             ,
             and
             deponed
             it
             was
             his
             Subscription
             ,
             the
             other
             deponed
             it
             was
             like
             his
             when
             he
             was
             young
             ,
             seing
             the
             Writ
             was
             null
             for
             want
             of
             the
             Designation
             of
             the
             Writer
             ,
             and
             other
             presumptions
             against
             it
             ,
             and
             seing
             none
             of
             the
             Witnesses
             remembred
             that
             they
             subscribed
             ,
             or
             that
             they
             saw
             the
             Party
             subscribe
             ,
             so
             tha●
             their
             Testimonies
             were
             held
             no
             more
             but
             as
             
               de
               credulitate
               ▪
            
             that
             this
             was
             their
             subscription
             ,
             seing
             no
             ●●n
             could
             possibly
             swear
             ,
             but
             that
             this
             might
             be
             ●en●ied
             by
             some
             other
             ,
             not
             remembring
             of
             his
             subscription
             ,
             neither
             was
             holograph
             Writs
             found
             sufficient
             to
             astruct
             ,
             and
             many
             Witnesses
             Deponing
             these
             were
             the
             hand
             Writ
             of
             the
             Parties
             ;
             yet
             seing
             they
             Deponed
             not
             that
             they
             saw
             these
             written
             by
             the
             Party
             ,
             it
             was
             but
             like
             the
             other
             ,
             that
             these
             were
             so
             like
             his
             ●and
             ,
             as
             that
             they
             believed
             it
             to
             be
             the
             same
             ,
             which
             therefore
             would
             have
             proven
             ,
             if
             there
             had
             not
             been
             contrary
             presumptions
             and
             evidences
             proven
             ;
             here
             some
             of
             the
             Lords
             were
             unclear
             that
             this
             Improbation
             could
             absolutely
             ●mprove
             as
             false
             ,
             but
             that
             the
             Writs
             never
             having
             been
             in
             the
             Creditors
             hands
             ,
             and
             long
             keeped
             up
             by
             the
             producer
             
               suspecta
               fama
            
             ,
             and
             many
             presumptions
             contrary
             proven
             ,
             it
             might
             conclude
             the
             Writs
             suspect
             ,
             and
             not
             authentick
             and
             probative
             ,
             but
             not
             to
             be
             forged
             or
             false
             .
             which
             infe●s
             
               p●nam
               sa●guinis
            
             ,
             and
             ought
             to
             be
             on
             clearer
             probation
             then
             such
             presumptions
             ,
             
               Iuly
               14.
               1662.
               
               Inter
               eosdem
               .
            
          
        
         
           
             Improbation
             of
             Rights
             of
             Lands
             was
             found
             not
             to
             be
             sustained
             upon
             the
             Advocates
             concourse
             ,
             without
             the
             Kings
             special
             Warrand
             ,
             albeit
             it
             was
             of
             Kirklands
             erected
             wherein
             the
             Pursuer
             stood
             infeft
             as
             Superiour
             till
             he
             were
             Redeemed
             by
             the
             King
             ,
             by
             the
             Act
             1637.
             and
             1661
             ▪
             anent
             Erections
             ,
             Iune
             24.
             1664.
             
             Laird
             of
             
               Prestoun
               contra
               Alred
            
             .
             Here
             some
             of
             the
             Lords
             remembred
             the
             like
             done
             in
             the
             case
             of
             Hopes
             Goodson
             when
             he
             was
             Advocate
             .
          
           
             Improbation
             being
             Sustained
             by
             exception
             against
             an
             assigney
             ,
             it
             was
             found
             sufficient
             that
             the
             Assigney
             abode
             by
             the
             Writ
             delivered
             to
             him
             as
             a
             true
             Writ
             ,
             and
             that
             he
             knew
             nothing
             to
             the
             contrary
             ,
             and
             producing
             his
             Cedent
             to
             bide
             by
             it
             ,
             who
             though
             alleadged
             to
             be
             Bankrupt
             ,
             yet
             was
             not
             obliged
             to
             find
             caution
             ,
             nor
             go
             to
             Prison
             ,
             but
             only
             to
             enact
             himself
             to
             appear
             judicially
             whensoever
             any
             thing
             that
             might
             infer
             the
             falshood
             of
             the
             Writ
             was
             referred
             to
             his
             Oath
             ▪
             and
             his
             being
             holden
             as
             confest
             ,
             should
             be
             effectual
             to
             prove
             both
             against
             Cedent
             and
             Assigney
             ,
             
               Ianuary
               3.
               1666.
               
               Grahame
            
             and
             Iack
             contra
             Bryen
             .
          
           
             Improbation
             being
             sustained
             by
             exception
             ,
             and
             Terms
             assigned
             to
             the
             Defender
             to
             improve
             ,
             and
             to
             the
             Pursuer
             to
             abide
             by
             the
             Write
             ,
             after
             the
             Term
             was
             come
             ,
             the
             Defender
             was
             admitted
             to
             propone
             payment
             by
             Bill
             ,
             the
             Act
             not
             being
             Extracted
             on
             the
             improbation
             ,
             though
             it
             be
             
               omnium
               exceptionum
               ultima
               ;
               Ianuary
               23.
               1666.
               contra
            
             Earl
             of
             Kinghorn
             .
          
           
             In
             Improbations
             the
             Lords
             declared
             they
             would
             grant
             three
             Terms
             for
             production
             of
             Rights
             of
             Lands
             ,
             and
             appointed
             the
             Ordinary
             to
             intimate
             the
             same
             ,
             
               November
               26.
               1667.
               
               Hay
            
             of
             Haystoun
             contra
             Drummond
             and
             Hepburn
             .
          
           
             Improbation
             upon
             certification
             was
             found
             null
             ,
             because
             the
             Defender
             was
             then
             Prisoner
             of
             War
             in
             Ireland
             ,
             and
             his
             Right
             was
             after
             acknowledged
             by
             an
             agreeement
             ,
             though
             not
             perfected
             ,
             
               Iuly
               25.
               
               16●8
               .
               Campbe●
               c●ntra
            
             Laird
             of
             Glen●rchy
             .
          
           
             In
             an
             Improbation
             the
             Witnesses
             insert
             were
             examined
             
               ex
               officio
            
             what
             they
             knew
             of
             the
             Truth
             ,
             or
             Forgery
             of
             the
             Writs
             in
             question
             ,
             though
             the
             Writs
             were
             not
             produced
             ,
             there
             being
             pregnant
             presumptions
             ,
             and
             fragrant
             fame
             of
             Forgery
             ,
             
               Iuly
               6.
               1669.
               
               Barclay
            
             contra
             Barclay
             .
          
           
             In
             an
             Improbation
             after
             certification
             was
             Extracted
             ,
             The
             Lords
             Examined
             Witnesses
             as
             to
             the
             Forgery
             ,
             in
             so
             far
             as
             it
             might
             be
             known
             ▪
             without
             production
             of
             the
             Writs
             in
             question
             ,
             and
             though
             th●
             Witnesses
             were
             accessory
             to
             the
             Forgery
             ,
             
               November
               9.
               1669.
               
               Inter
               eosdem
               .
            
          
           
             In
             an
             Improbation
             where
             the
             Writs
             were
             once
             judicially
             produced
             in
             Exchequer
             ,
             and
             wilfully
             keeped
             up
             ,
             certification
             being
             Extracted
             ,
             The
             Lords
             upon
             Copies
             Examined
             the
             Witnesses
             insert
             and
             Writer
             ,
             who
             confessed
             the
             Forgery
             and
             were
             moved
             thereto
             by
             the
             Defender
             ,
             whereupon
             the
             Writs
             were
             not
             improven
             as
             not
             being
             produced
             ,
             but
             the
             Writers
             and
             Witnesses
             were
             found
             Forgers
             ,
             and
             the
             Defender
             as
             user
             and
             accessory
             ,
             and
             all
             were
             declared
             infamous
             and
             remitted
             to
             the
             Council
             ,
             to
             use
             an
             extraordinary
             Remedy
             by
             Banishment
             against
             the
             Defender
             .
             
               Ianuary
               26.
               1670
               
               ▪
               Inter
               eosdem
               .
            
          
           
             In
             an
             Improbation
             where
             one
             of
             the
             Witnesses
             insert
             had
             a
             Designation
             alleadged
             competent
             to
             more
             persons
             ,
             all
             that
             were
             alleadged
             to
             be
             so
             designed
             that
             were
             alive
             were
             ordained
             to
             be
             Summoned
             ,
             and
             the
             hand
             writs
             of
             those
             that
             were
             dead
             to
             be
             produced
             ,
             
               Iune
               8.
               1671.
               
               Steuart
            
             contra
             Mckenzie
             and
             Kettlestoun
             .
          
           
             In
             an
             Improbation
             of
             the
             Minute
             of
             a
             Tack
             ,
             wherein
             one
             Deponed
             ,
             that
             he
             had
             subscribed
             at
             the
             Defenders
             Instigation
             ,
             who
             told
             him
             that
             he
             caused
             the
             Pursuers
             Name
             to
             be
             set
             to
             the
             Writ
             ,
             and
             another
             that
             he
             did
             not
             see
             the
             Pursuer
             subscribe
             ,
             and
             the
             third
             who
             was
             Writer
             of
             the
             Minute
             ,
             and
             also
             Brother
             to
             the
             Defender
             Deponed
             ,
             that
             he
             saw
             the
             Pursuer
             subscribe
             with
             her
             own
             hand
             ;
             The
             Writ
             was
             found
             improven
             and
             false
             ,
             but
             there
             was
             not
             two
             Witnesses
             instructing
             who
             was
             the
             Forge●
             ,
             
               Iuly
               22.
               1671.
               
               Miller
            
             contra
             Bothwel
             of
             Gl●●corse
             .
          
           
             INCIDENT
             was
             not
             Sustained
             upon
             an
             Act
             before
             answer
             ,
             ordaining
             all
             Writs
             to
             be
             produced
             ,
             the
             parties
             would
             make
             use
             of
             which
             was
             found
             only
             to
             extend
             to
             such
             Writs
             as
             they
             then
             had
             ,
             
               Iuly
               3.
               1662.
               
               Kello
            
             contra
             Pa●toun
             .
          
           
             In
             an
             Incident
             four
             Terms
             were
             allowed
             for
             proving
             the
             having
             of
             the
             Writs
             by
             Witnesses
             ,
             but
             the
             Terms
             were
             to
             be
             short
             .
             
               December
               15.
               1665.
               
               Mo●teith
            
             contra
             Anderson
             .
          
           
             An
             Incident
             was
             Rejected
             ,
             because
             the
             Pursuer
             of
             the
             principal
             Cause
             was
             not
             called
             thereby
             ,
             and
             the
             Executions
             suspect
             ▪
             December
             23.
             1665.
             
             Laird
             of
             
               C●●neck
               contra
            
             Lord
             Bargeni●
             .
          
           
             
             Incident
             was
             not
             Sustained
             at
             the
             instance
             of
             any
             but
             these
             whose
             Names
             as
             Purshers
             were
             filled
             up
             in
             the
             Bill
             ▪
             though
             it
             contained
             a
             blank
             ,
             but
             it
             was
             Sustained
             against
             the
             Defenders
             ,
             havers
             of
             the
             Writs
             ,
             for
             whom
             a
             blank
             was
             left
             ,
             though
             nor
             at
             first
             filled
             up
             ,
             in
             respect
             of
             the
             custom
             for
             the
             last
             and
             not
             for
             the
             first
             ,
             Iuly
             3.
             1667.
             
             Creditors
             of
             
               Wa●chtoun
               contra
            
             Counte●s
             of
             Hume
             .
          
           
             
               PRO
               INDIVISO
            
             was
             not
             sustained
             to
             hinder
             Removing
             of
             a
             Relick
             from
             an
             House
             ,
             as
             being
             a
             Tenement
             Indivisible
             ,
             though
             she
             had
             a
             Terce
             of
             it
             ,
             but
             the
             Heretor
             was
             found
             to
             have
             Right
             to
             possess
             ,
             yet
             so
             that
             if
             he
             dwelt
             not
             so
             himself
             ,
             she
             should
             be
             preferred
             to
             all
             others
             ,
             she
             giving
             like
             Mail
             as
             others
             would
             pay
             ,
             
               Ianuary
               26.
               1665.
               
               Logan
            
             contra
             Galbraith
             .
          
           
             INFEFTMENT
             of
             Annualrent
             holden
             base
             ,
             was
             found
             valide
             against
             a
             posterior
             Publick
             Infeftment
             ,
             because
             thereon
             there
             was
             a
             Decreet
             of
             poinding
             the
             Ground
             ,
             though
             it
             could
             take
             no
             effect
             for
             a
             long
             time
             ,
             seing
             the
             Entry
             to
             the
             Annualrent
             was
             not
             till
             after
             the
             Constituents
             death
             ,
             February
             26
             ,
             and
             27.
             1662.
             
             Creditors
             of
             Kinglassie
             competing
             .
          
           
             Infeftment
             past
             in
             Exchequer
             on
             an
             appryzing
             against
             one
             who
             was
             Infeft
             by
             his
             Authour
             not
             Confirmed
             ,
             was
             found
             not
             to
             supply
             or
             comprehend
             a
             Confirmation
             in
             prejudice
             of
             another
             Creditor
             ,
             who
             regularly
             had
             obtained
             Confirmation
             of
             that
             null
             Seasine
             ,
             in
             so
             far
             as
             might
             concern
             his
             base
             Right
             depending
             thereon
             .
             Ianuary
             16.
             1663.
             
             Tennents
             of
             
               Kilchattan
               contra
            
             Laird
             of
             Kilchattan
             ,
             Major
             Campbel
             and
             Baillie
             Hamiltoun
             .
          
           
             Infeftments
             gra●uitous
             to
             a
             Wife
             after
             she
             was
             provided
             by
             her
             Contract
             of
             Marriage
             ,
             was
             found
             not
             to
             be
             taken
             away
             at
             the
             instance
             of
             Creditors
             upon
             the
             Act
             1621.
             by
             Exception
             or
             Reply
             ,
             Iuly
             22.
             1664.
             
             Lord
             
               Loure
               contra
            
             Lady
             Craig
             .
          
           
             An
             Infeftment
             to
             a
             Wife
             in
             Liferent
             ,
             was
             Sustained
             by
             her
             Seasine
             adminiculat
             by
             her
             Contract
             ,
             albeit
             the
             Seasine
             was
             not
             immediatly
             upon
             the
             Contract
             ,
             but
             related
             a
             Bond
             granted
             for
             the
             same
             Cause
             ,
             which
             was
             not
             produced
             ,
             Ianuary
             29.
             1665.
             
             Norvil
             contra
             Sunter
             .
          
           
             Infeftment
             of
             warrandice
             Lands
             being
             in
             the
             same
             Investiture
             with
             the
             principal
             Lands
             ,
             and
             both
             holden
             base
             ,
             was
             preferred
             to
             a
             posterior
             publick
             Infeftment
             of
             th●
             same
             Warrandice
             Lands
             ,
             though
             cled
             with
             long
             possession
             ,
             and
             that
             upon
             an
             Action
             of
             Mails
             and
             Duties
             upon
             the
             Distresse
             without
             Reduction
             ,
             
               Ianuary
               9.
               1666.
               
               Brown
            
             contra
             Scot.
             
          
           
             An
             Infeftment
             of
             Kirklands
             was
             Sustained
             ▪
             though
             it
             bear
             to
             be
             upon
             Resignation
             ,
             and
             had
             not
             the
             
               r●ddendo●per
               expressum
            
             ,
             but
             relative
             to
             the
             former
             Infeftment
             ,
             without
             necessity
             to
             produce
             any
             original
             Right
             ,
             seing
             the
             Charter
             was
             subscribed
             by
             the
             Abbot
             with
             consent
             of
             the
             Convent
             ,
             Ianuary
             17.
             1666.
             
             Lord
             
               Rentoun
               contra
            
             Feuars
             of
             Coldinghame
             .
          
           
             An
             Infeftment
             to
             a
             person
             on
             her
             own
             Resignation
             ,
             bearing
             expresly
             her
             to
             be
             Heir
             to
             her
             Father
             ,
             who
             was
             last
             Infeft
             ,
             The
             Charter
             was
             found
             equivalent
             to
             a
             precept
             of
             
               clare
               constat
               ,
               Ianu●ry
               .
               20.
               1666.
               
               Inter
               eosdem
               .
            
          
           
             Infeftment
             of
             the
             Office
             Forrestrie
             ,
             with
             a
             Duty
             out
             of
             the
             whole
             Lands
             of
             an
             Abbacy
             ,
             was
             found
             valide
             being
             granted
             by
             the
             Abbot
             and
             Convent
             ,
             without
             Confirmation
             by
             the
             King
             or
             Pope
             ,
             Ibidem
             .
          
           
             Infeftment
             in
             warrandice
             granted
             by
             a
             Husband
             to
             his
             Wife
             though
             base
             holden
             of
             himself
             ,
             and
             
               ex
               intervallo
            
             ,
             after
             the
             principal
             Infeftment
             ,
             was
             found
             valide
             against
             a
             posterior
             publick
             Infeftment
             of
             the
             same
             warrandice
             Lands
             ,
             as
             being
             cled
             with
             the
             Husbands
             Possession
             in
             the
             principal
             Lands
             ,
             and
             that
             there
             needed
             no
             Declarator
             of
             Distress
             or
             Eviction
             ,
             but
             a
             pursuit
             of
             Removing
             ,
             or
             Mails
             and
             duties
             upon
             the
             Eviction
             is
             sufficient
             ,
             which
             cannot
             be
             excluded
             by
             a
             possessory
             Iudgement
             upon
             seven
             years
             Possession
             by
             the
             publick
             Infeftment
             ,
             unless
             it
             were
             seven
             years
             after
             the
             Eviction
             ,
             
               February
               20.
               1668.
               
               Forbes
            
             contra
             Innes
             .
          
           
             An
             Infeftment
             of
             Annualrent
             being
             before
             a
             Liferenters
             Infeftment
             ,
             after
             which
             there
             followed
             a
             corroborative
             Security
             ▪
             accumulating
             the
             bygone
             Annualrents
             ,
             and
             giving
             Infeftment
             for
             both
             ,
             which
             posterior
             Security
             was
             not
             Sustained
             against
             the
             Liferenter
             ,
             nor
             was
             it
             held
             as
             if
             it
             has
             been
             a
             poinding
             of
             the
             Ground
             ,
             
               February
               13.
               1669.
               
               Mclellan
               contra
            
             Lady
             Kilcu●bright
             .
          
           
             An
             Infeftment
             to
             be
             holden
             of
             the
             Superiour
             not
             Confirmed
             ▪
             wa●
             found
             null
             ▪
             albeit
             it
             was
             only
             granted
             for
             Security
             of
             ●
             Wi●es
             ●iferent
             ,
             conform
             to
             her
             Contract
             of
             Marriage
             ,
             
               Iuly
               2●
               .
               1669.
               
               Gray
            
             contra
             Ker.
             
          
           
             An
             Infeftment
             of
             Annualrent
             was
             found
             extinct
             by
             the
             Annualrenters
             intrometting
             with
             the
             Annualrents
             of
             the
             Lands
             equivalent
             to
             the
             principal
             sum
             ,
             
               February
               4.
               1671.
               
               Wishart
            
             contra
             Arthur
             .
          
           
             An
             Infeftment
             was
             found
             null
             by
             reply
             without
             Reduction
             ,
             whereby
             a
             Woman
             was
             served
             Heir
             to
             her
             Mother
             in
             a
             Tene●ent●
             in
             which
             her
             Mother
             and
             Father
             were
             infeft
             in
             Conjunct
             ●ee
             ,
             albeit
             she
             had
             probable
             ▪
             Ground
             to
             think
             her
             Mother
             was
             Feear
             ,
             seing
             her
             Father
             was
             found
             to
             be
             Feear
             ,
             and
             that
             she
             was
             not
             〈◊〉
             〈◊〉
             by
             Retour
             ,
             but
             by
             precept
             of
             favour
             ;
             here
             seven
             years
             possession
             was
             not
             alleadged
             to
             give
             the
             benefite
             of
             a
             possessory
             judgement
             ,
             
               Iuly
               1●
               .
               1671.
               
               Gairns
            
             contra
             Sa●●ilands
             .
          
           
             ●
             Infeftment
             Vide
             base
             Infeftment
             .
          
           
             INHIBITION
             was
             found
             not
             to
             Reach
             Lands
             acquired
             after
             it
             ,
             lying
             in
             another
             jurisdiction
             ,
             then
             where
             it
             was
             published
             and
             Registrate
             ,
             
               Iuly
               18.
               1662.
               
               Smeateun
               contra
            
          
           
             An
             Inhibition
             was
             found
             to
             be
             valide
             to
             reduce
             or
             declare
             against
             the
             Person
             Inhibite
             ,
             not
             only
             for
             the
             Lands
             he
             had
             the
             time
             of
             the
             Inhibition
             ,
             but
             these
             acquired
             thereafter
             ,
             
               December
               15.
               1665.
               
               Ele●s
            
             contra
             Keith
             .
          
           
             An
             Inhibition
             of
             Teinds
             was
             found
             sufficiently
             execute
             by
             a
             Sheriff
             in
             that
             part
             ,
             and
             not
             by
             a
             Messenger
             ,
             being
             direct
             to
             Messengers
             ,
             Sheriffs
             in
             that
             part
             ,
             which
             was
             sufficient
             to
             interrupt
             tacit
             Relocation
             ,
             Ianuary
             27.
             1666.
             
             Earl
             of
             
               Eglintoun
               contra
            
             Laird
             of
             Cunninghamehead
             .
          
           
             Inhibition
             being
             used
             on
             a
             Sum
             ,
             was
             found
             sufficient
             to
             reduce
             ,
             and
             that
             the
             Inhibition
             and
             Reduction
             thereon
             could
             not
             be
             purged
             by
             payment
             of
             the
             sum
             whereon
             it
             proceeded
             with
             Annualrent
             and
             Expenses
             ,
             seing
             there
             was
             a
             supervenient
             appryzing
             upon
             the
             Sum
             which
             was
             now
             expyred
             ,
             
               February
               24.
               1666.
               
               Grant
            
             contra
             Grant.
             
          
           
             Inhibition
             was
             found
             to
             extend
             to
             Rights
             acquired
             after
             the
             Inhibition
             ,
             but
             not
             to
             a
             Wodset
             acquired
             after
             ,
             and
             Renunced
             upon
             payment
             ,
             without
             abiding
             an
             Order
             ,
             albeit
             Renunciations
             be
             by
             the
             style
             of
             the
             Inhibitions
             prohibite
             ,
             yet
             they
             are
             but
             as
             Discharges
             of
             ●eretable
             debts
             or
             annualrents
             ,
             against
             which
             Inhibitions
             operate
             not
             ,
             to
             cause
             them
             pay
             again
             ,
             
               Iuly
               16.
               1667.
               
               Eleis
            
             contra
             Keith
             and
             Steuart
             .
          
           
             Inhibition
             was
             found
             to
             extend
             to
             Lands
             acquired
             after
             the
             publication
             thereof
             lying
             in
             the
             Shire
             where
             it
             was
             published
             ,
             
               February
               27.
               1667.
               inter
               eosdem
            
             .
          
           
             Inhibition
             on
             a
             Dependence
             was
             found
             to
             take
             no
             effect
             wh●re
             no
             judicial
             Sentence
             followed
             ,
             but
             a
             Transaction
             on
             arbitriment
             ,
             
               December
               16.
               1668.
               
               Frazar
            
             contra
             Keith
             .
          
           
             An
             Inhibition
             was
             found
             to
             reduce
             a
             disposition
             ,
             though
             its
             date
             was
             anterior
             to
             the
             Inhibition
             as
             to
             some
             Creditors
             ,
             whose
             Names
             and
             sums
             were
             filled
             up
             in
             it
             by
             another
             hand
             ,
             which
             was
             presumed
             to
             have
             been
             blank
             ,
             and
             filled
             up
             a●ter
             ter
             Inhibition
             ,
             unless
             the
             contrary
             were
             proven
             by
             Witnesses
             above
             exception
             .
             Ianuary
             15.
             1670.
             
             Lady
             
               Lucia
               Hamiltoun
               contra
            
             Creditors
             of
             Montcastle
             .
          
           
             An
             Inhibition
             was
             found
             null
             ,
             because
             the
             Executions
             thereof
             bear
             not
             a
             Copy
             to
             have
             been
             left
             at
             the
             Mercat
             Cross
             where
             it
             was
             published
             ,
             
               February
               12.
               1670.
               
               Naper
            
             contra
             Gordoun
             of
             Grange
             .
          
           
             Inhibition
             of
             Teinds
             was
             found
             not
             to
             give
             Right
             to
             draw
             the
             Teind
             without
             Sentence
             ,
             where
             the
             Here●or
             had
             any
             colourable
             Title
             ,
             
               Ianuary
               27.
               1665.
               
               Barefoord
            
             and
             
               Bennistoun
               contra
            
             Lord
             Kingstoun
             .
          
           
             Inhibition
             was
             found
             Relevant
             to
             Reduce
             the
             Rights
             of
             Creditors
             ,
             albeit
             there
             was
             a
             Disposition
             to
             two
             Parties
             for
             themselves
             and
             for
             the
             behove
             of
             other
             Creditors
             under-written
             ,
             after
             which
             there
             was
             a
             large
             blank
             filled
             up
             with
             an
             other
             hand
             ,
             in
             which
             the
             Creditors
             in
             question
             were
             insert
             ,
             which
             blank
             so
             filled
             up
             ,
             was
             holden
             as
             after
             the
             Inhibition
             ,
             and
             a
             prior
             communing
             to
             take
             in
             these
             Creditors
             ,
             and
             undertaking
             their
             debts
             by
             the
             persons
             to
             whom
             the
             Disposition
             was
             made
             ,
             was
             not
             Sustained
             to
             be
             proven
             by
             their
             oaths
             ,
             or
             by
             the
             oathes
             of
             Witnesses
             ,
             but
             only
             by
             Writ
             or
             oath
             of
             knowledge
             of
             the
             Pursuer
             ,
             Iuly
             8.
             1670.
             
             Lady
             
               Lucia
               Hamiltoun
            
             contra
             Boyd
             of
             Pitcon
             and
             others
             .
          
           
             Inhibition
             being
             pursued
             upon
             to
             Reduce
             ,
             and
             the
             Pursuer
             offering
             to
             accept
             the
             Sums
             in
             the
             Inhibition
             
               cum
               omni
               causa
            
             ,
             albeit
             there
             was
             an
             expyred
             Compryzing
             led
             upon
             the
             Sums
             ,
             the
             Defender
             craving
             that
             the
             Pursuer
             would
             assign
             the
             Sums
             ;
             The
             Lords
             found
             that
             the
             Pursuer
             could
             not
             be
             compelled
             to
             assign
             the
             same
             ,
             in
             respect
             the
             offer
             was
             only
             to
             take
             satisfaction
             and
             Renunce
             ,
             whereby
             the
             Cautioner
             might
             not
             be
             distrest
             
               Inter
               eosdem
            
             .
          
           
             Inhibition
             was
             found
             null
             by
             Declarator
             ,
             because
             the
             Executions
             as
             they
             were
             Registrate
             ,
             did
             not
             bear
             a
             Copy
             given
             to
             the
             party
             inhibite
             ,
             albeit
             the
             publication
             at
             the
             Mercat
             Cross
             bear
             a
             Copy
             affixed
             ,
             and
             that
             the
             Messenger
             had
             added
             upon
             the
             Margent
             the
             delivery
             of
             a
             Copy
             ,
             which
             was
             found
             an
             essential
             requisite
             in
             the
             Execution
             ,
             and
             that
             not
             being
             Registrate
             with
             the
             Execution
             ,
             the
             same
             was
             null
             and
             could
             not
             be
             supplyed
             ,
             by
             proving
             by
             the
             Witnesses
             insert
             ,
             tha●
             a
             Copy
             was
             truely
             given
             ,
             against
             a
             singular
             Successor
             who
             had
             bought
             the
             Lands
             for
             a
             just
             price
             ,
             
               Iuly
               28.
               1671.
               
               Keith
            
             contra
             Iohnstoun
             .
          
           
             ●INTERDICTION
             against
             a
             Defunct
             was
             found
             only
             to
             extend
             to
             the
             Lands
             lying
             within
             the
             lurisdiction
             where
             it
             was
             published
             and
             Registrate
             ,
             but
             not
             to
             the
             other
             Lands
             ,
             nor
             to
             Heirship
             moveable
             or
             other
             moveables
             ,
             so
             that
             the
             Heir
             succeeding
             therein
             is
             lyable
             notwithstanding
             ,
             
               February
               11.
               1662.
               
               Ramsay
            
             of
             Torbane
             contra
             Mcclella●
             .
          
           
             Interdiction
             albeit
             it
             be
             not
             Sustainable
             by
             way
             of
             Defense
             to
             delay
             a
             pursuit
             ,
             yet
             it
             was
             sustained
             by
             way
             of
             Reply
             ,
             seing
             the
             pursuer
             might
             delay
             himself
             ,
             ●●d
             that
             otherwise
             he
             behoved
             to
             quite
             the
             Possession
             ,
             and
             then
             Reduce
             to
             recover
             it
             again
             ,
             
               February
               13.
               1663.
               
               Lockhart
            
             contra
             Kennedy
             .
          
           
             In●erdiction
             of
             a
             Man
             by
             ●ond
             ,
             bearing
             he
             should
             not
             sell
             nor
             dispone
             without
             consent
             of
             his
             Wife
             on
             the
             Narrative
             of
             
             his
             facility
             whereupon
             Inhibition
             was
             used
             ,
             was
             found
             not
             to
             stand
             as
             an
             Interdiction
             ,
             being
             inconsistent
             to
             bind
             a
             man
             to
             the
             direction
             of
             his
             Wife
             ,
             but
             that
             it
             stood
             in
             so
             far
             as
             might
             be
             interpret
             an
             obligement
             in
             the
             Wifes
             own
             favours
             ,
             for
             her
             proper
             interest
             to
             secure
             her
             an
             Aliment
             according
             to
             her
             quality
             .
             February
             27.
             1665.
             
             Laird
             of
             
               Milntoun
               contra
            
             Lady
             Milntoun
             .
          
           
             Interdiction
             was
             found
             to
             give
             interest
             to
             Appryzers
             or
             Adjudgers
             from
             the
             Heir
             of
             the
             Person
             interdicted
             ,
             to
             reduce
             any
             voluntary
             Disposition
             thereupon
             ,
             albeit
             they
             had
             no
             special
             Title
             to
             the
             Interdiction
             ,
             but
             had
             only
             appryzed
             the
             Lands
             of
             the
             person
             Interdicted
             
               cum
               omni
               jure
            
             ,
             and
             albeit
             there
             was
             an
             anterior
             Appryzer
             ▪
             the
             benefite
             of
             the
             Interdiction
             was
             found
             appropriat
             to
             neither
             ,
             but
             common
             to
             both
             ,
             February
             20.
             1666.
             
             Lord
             
               Saltoun
               contra
            
             Laird
             of
             Park
             and
             Rothemay
             .
          
           
             Interdiction
             was
             found
             not
             to
             have
             any
             effect
             as
             to
             Moveables
             ,
             or
             personal
             Execution
             by
             may
             of
             Exception
             without
             Reduction
             ,
             
               Iune
               20.
               1671.
               
               Crawfoord
            
             contra
             Hallyburtoun
             .
          
           
             INTERRVPTION
             of
             the
             Prescription
             of
             a
             common
             Pasturage
             was
             found
             sufficient
             by
             turning
             off
             the
             Parties
             Cattel
             ,
             without
             necessity
             to
             alleadge
             an
             instrument
             of
             Interruption
             ,
             or
             keeping
             them
             off
             for
             a
             long
             time
             together
             ▪
             November
             14.
             1662.
             
             
               Nicolson
               contra
            
             Laird
             of
             Balbirnie
             .
          
           
             Interruption
             of
             a
             possessory
             judgement
             ,
             hinders
             the
             beginning
             of
             a
             new
             possessory
             judgement
             by
             seven
             years
             Possession
             after
             interruption
             until
             prescription
             ,
             
               Iuly
               22.
               1664.
               
               Montgomery
            
             contra
             Hume
             .
             The
             like
             of
             
               Decennalis
               &
               Tri●nnalis
            
             Possession
             ,
             Iune
             28.
             1666.
             
             Laird
             of
             
               Phillorth
               contra
            
             Lord
             Frazer
             .
          
           
             Interruption
             by
             a
             Summonds
             of
             Reduction
             and
             Citation
             thereupon
             was
             Sustained
             ,
             albeit
             the
             Reasons
             of
             Reduction
             were
             not
             filled
             up
             within
             the
             40.
             years
             ,
             seing
             the
             Reduction
             was
             upon
             Minority
             and
             Lesion
             ,
             which
             was
             insinuate
             by
             the
             interest
             libelled
             
               ab
               initio
               .
               viz.
            
             That
             the
             Pursuer
             as
             Heir
             to
             his
             Sister
             had
             good
             Interest
             to
             reduce
             all
             deeds
             done
             to
             her
             enorm
             lesion
             ,
             Iuly
             14.
             1669.
             
             Earl
             of
             Marischal
             contra
             Leith
             of
             White●augh
             .
          
           
             Interruption
             was
             Sustained
             by
             a
             Citation
             only
             at
             the
             Mercat
             Cross
             ,
             proceeding
             upon
             a
             Warr●nd
             to
             cite
             at
             the
             Mercat
             Cross
             ,
             
               quia
               non
               fuit
               ●utus
               accessus
            
             ,
             which
             was
             neither
             true
             not
             instructed
             ,
             but
             pas●
             by
             Bill
             of
             course
             amongst
             the
             common
             Bills
             ,
             and
             the
             Executions
             did
             not
             bear
             a
             Copy
             le●t
             at
             the
             Cross
             ,
             the
             Pursuer
             adding
             that
             to
             the
             Execution
             ,
             
               Iuly
               6.
               1671.
               
               Mcbrae
               contra
            
             Lord
             M●d●nald
             .
          
           
             Interruption
             was
             Sustained
             by
             a
             second
             Summonds
             ▪
             though
             the
             first
             Summonds
             should
             be
             found
             nul●
             ,
             and
             though
             the
             Citation
             was
             only
             a
             day
             before
             the
             fourty
             years
             compleat
             ,
             Ibidem
             .
          
           
             INTIMATION
             of
             a
             Right
             of
             Reversion
             was
             found
             not
             necessary
             ,
             where
             he
             that
             had
             the
             Right
             was
             Infe●t
             therein
             ,
             albeit
             he
             used
             no
             Diligence
             ,
             and
             which
             preferred
             him
             to
             a
             posterior
             Assigney
             ,
             although
             Redeeming
             first
             and
             possessing
             ,
             November
             1●
             .
             1664.
             
             
               Guthri●
               contra
            
             Laird
             of
             
               Sornbeg
               ▪
            
          
           
             INTROMISSION
             being
             by
             many
             persons
             promiscuous
             ,
             was
             found
             not
             to
             oblige
             them
             
               in
               solidum
               ▪
            
             but
             equally
             prorata
             ,
             unless
             a
             greater
             part
             were
             proven
             against
             them
             ,
             thogh
             the
             Intromission
             was
             vitious
             and
             had
             been
             a
             Spuilzie
             ▪
             but
             not
             pursued
             within
             three
             years
             ,
             Ianuary
             17●
             1667.
             
             Captain
             Strachan
             contra
             Morison
             .
          
           
             Intromission
             being
             proven
             by
             clear
             and
             pregnant
             Testimonies
             of
             Witnesses
             ,
             though
             not
             in
             Litiscon●esta●ion
             ,
             but
             to
             remain
             
               in
               〈◊〉
            
             ,
             no
             contrary
             probation
             was
             admitted
             even
             
               ex
               officio
            
             ,
             to
             prove
             that
             others
             did
             Intromet
             ,
             although
             Tacks
             and
             Wodsets
             granted
             to
             them
             were
             produced
             ,
             and
             the
             Possession
             and
             Intromission
             conform
             ▪
             was
             offered
             to
             be
             proven
             ,
             and
             though
             the
             Intromission
             was
             more
             then
             40.
             years
             since
             ,
             in
             respect
             the
             alleadgeance
             was
             founded
             
               super
               jure
               ter●ij
               ▪
            
             the
             Alleadger
             shewing
             no
             Right
             to
             the
             Wodsets
             ,
             or
             how
             the
             same
             were
             satisfied
             ▪
             and
             the
             intromission
             being
             proven
             by
             removing
             the
             common
             Author
             ,
             and
             entering
             to
             the
             Natural
             Possession
             by
             〈◊〉
             ▪
             
               Ianuary
               ●●
               .
               1671.
               
               Kello
            
             contra
             Kin●●●
             .
          
           
             
               ●VS
               MARITI
            
             was
             found
             to
             carry
             the
             Right
             of
             a
             sum
             assigned
             to
             a
             Wife
             while
             she
             was
             cled
             with
             ●
             Husband
             ▪
             without
             necessity
             to
             instruct
             that
             it
             was
             also
             intimate
             before
             his
             death
             ,
             
               Ianuary
               20.
               1663.
               
               Scot
            
             contra
             Dickson
             .
          
           
             
               Ius
               mariti
            
             was
             found
             not
             to
             carry
             the
             Right
             to
             a
             Provision
             granted
             by
             the
             Father
             to
             the
             Daughter
             ▪
             bearing
             and
             Annualrent
             ,
             though
             but
             five
             
               per
               c●nt
            
             ,
             the
             Term
             of
             payment
             of
             the
             Annualrent
             being
             past
             before
             the
             Marriage
             ,
             Iune
             28.
             1665.
             
             〈◊〉
             contra
             Edgar
             .
          
           
             
               Ius
               mariti
            
             being
             Renunced
             ▪
             was
             found
             not
             to
             take
             away
             the
             Husbands
             power
             of
             ordering
             his
             Family
             ▪
             and
             disposing
             of
             duties
             appointed
             by
             the
             Wife
             of
             her
             former
             Ioynture
             for
             the
             use
             of
             their
             Families
             joyntly
             ,
             which
             was
             not
             found
             to
             give
             the
             Wife
             a
             distinct
             ●●●are
             of
             it
             ,
             or
             a
             power
             to
             mannage
             it
             ,
             but
             to
             enjoy
             her
             share
             under
             the
             Husbands
             mannadgement
             ,
             
               February
               .
               1667.
               
               Ratho
            
             and
             
               Co●●ng●oun
               contra
            
             Tennents
             of
             In●ertile
             and
             Lady
             C●llingtoun
             .
          
           
             
               Ius
               mariti
            
             was
             found
             to
             be
             a
             Legal
             Assignation
             ,
             and
             being
             compleat
             with
             the
             Marriage
             ,
             a
             voluntar
             Right
             by
             the
             Wife
             of
             the
             same
             da●e
             ,
             with
             a
             Tack
             relating
             to
             the
             Agreement
             of
             Marriage
             granted
             by
             the
             Wife
             to
             her
             second
             Son●
             leaving
             nothing
             to
             her
             Husband
             ,
             was
             found
             excluded
             thereby
             ,
             as
             not
             being
             intimate
             before
             the
             Marriage
             ,
             and
             being
             fraudulent
             in
             the
             Wife
             ,
             and
             null
             even
             against
             her
             Son
             ,
             though
             not
             partaker
             of
             the
             fraud
             ,
             not
             being
             an
             Acquirer
             for
             an
             onerous
             Cause
             ,
             in
             so
             far
             as
             might
             prejudge
             the
             Husband
             ,
             
               December
               18.
               1667.
               
               Auchin●eck
            
             contra
             Williamson
             and
             Gillespie
             .
          
        
         
           
             
               IVS
               SVPERVENIENS
               &c.
            
             was
             e●tended
             to
             any
             Right
             real
             accrescing
             to
             the
             Here●or
             by
             one
             who
             had
             Right
             from
             the
             Vsurpers
             ,
             though
             that
             Right
             be
             fallen
             ,
             seing
             it
             was
             consequent
             on
             the
             true
             Here●ors
             Right
             ,
             as
             obtaining
             Improbation
             of
             other
             Rights
             ,
             Iuly
             13.
             1664.
             
             Earl
             of
             Lawderda●●
             contra
             Wolmet
             .
          
           
             
               Ius
               superven●ens
               authori
               accrescit
               successori
            
             ,
             was
             found
             not
             to
             hold
             where
             there
             does
             not
             appear
             a
             full
             equivalent
             Cause
             onerous
             of
             the
             Successors
             Right
             ,
             or
             absolute
             Warrandice
             ,
             here
             the
             first
             Right
             was
             Reduced
             ,
             and
             the
             new
             Right
             ▪
             but
             personal
             to
             the
             Mails
             and
             Duties
             till
             such
             a
             sum
             were
             satisfied
             ,
             
               Iuly
               19.
               1664.
               
               Dowglas
            
             and
             Longformacus
             her
             Spouse
             contra
             Laird
             of
             Wedderburn
             .
          
           
             
               Ius
               superveniens
               authori
               accrescens
               successori
            
             ,
             was
             found
             to
             make
             a
             gi●t
             of
             Ward
             to
             the
             behove
             of
             the
             Superiour
             accresce
             to
             the
             Vassal
             ,
             to
             whom
             he
             was
             bound
             in
             absolute
             Warrandice
             ,
             they
             paying
             a
             part
             of
             the
             expence
             ,
             
               February
               15.
               1665.
               
               Boyd
            
             of
             
               Pinkill
               contra
            
             Tennents
             of
             Cars●leu●●
             .
          
           
             
               Ius
               superveniens
               authori
               accrescens
               successori
               ▪
            
             was
             found
             to
             have
             thir
             effects
             that
             a
             Tack
             for
             a
             small
             duty
             granted
             for
             sums
             of
             Money
             with
             absolute
             warrandice
             ,
             was
             not
             prejudged
             ,
             because
             the
             ●etter
             was
             not
             then
             Infeft
             ,
             nor
             excluded
             by
             a
             posterior
             Heretable
             Disposition
             of
             the
             Lands
             ,
             albeit
             the
             Authors
             supervenient
             Right
             was
             procured
             by
             the
             Acquirer
             of
             the
             said
             Disposition
             ,
             who
             infeft
             his
             author
             and
             himself
             ,
             both
             of
             the
             same
             date
             ,
             and
             who
             alleadged
             that
             his
             Authors
             Right
             being
             procured
             by
             him
             ,
             could
             not
             accresce
             to
             the
             Tack●●man
             in
             his
             prejudice
             ,
             
               Iune
               21.
               1671.
               
               Nei●son
            
             contra
             Menzeis
             of
             Enoch
             .
          
           
             
               IVS
               TERTII
            
             was
             found
             to
             exclude
             an
             exception
             upon
             on
             Assignation
             intimate
             to
             the
             Debitor
             ,
             and
             a
             Decreet
             thereon
             ,
             seing
             there
             was
             no
             payment
             ,
             but
             gran●ing
             Suspension
             without
             ▪
             Caution
             or
             Consignation
             ,
             that
             the
             parties
             might
             dispute
             their
             Rights
             ,
             
               Iune
               16.
               1665.
               
               Bruce
               contra
            
             Earl
             of
             Mor●oun
             .
          
           
             
               ●us
               tertii
            
             was
             found
             not
             to
             hinder
             an
             Appryzer
             to
             quarrel
             another
             Appryzers
             Right
             as
             wanting
             an
             Assignation
             to
             the
             debt
             on
             which
             the
             Appryzing
             proceeded
             ,
             albeit
             he
             had
             no
             Right
             from
             that
             Cedent
             ,
             nor
             any
             other
             interest
             but
             to
             exclude
             the
             Appryzing
             as
             informal
             ▪
             albeit
             that
             Cedents
             Heir
             had
             renued
             the
             Assignation
             ,
             and
             de●lared
             that
             there
             was
             a
             prior
             Assignation
             by
             his
             Father
             ,
             and
             that
             his
             Right
             was
             in
             Trust
             ,
             
               Iuly
               22.
               1668.
               
               Iohnstoun
            
             of
             Shee●s
             contra
             Arnold
             .
          
           
             THE
             KINGS
             PALACE
             of
             H●ly-rude-house
             was
             found
             to
             be
             ex●mpted
             from
             the
             Regality
             of
             Brughtoun
             ,
             and
             in
             the
             Royalty
             ,
             and
             Citations
             against
             Parties
             residing
             there
             at
             the
             Cross
             of
             Edinburgh
             ,
             were
             Sustained
             ,
             Ianuary
             11.
             1662.
             
             Lady
             
               Carnagie
               contra
            
             Lord
             Cranburn
             .
          
           
             KNOWLEDGE
             though
             private
             hinders
             
               bonae
               fidei
               possessor
               lucrari
               fructus
               ,
               November
            
             20.
             
             166●
             .
             Children
             of
             
               Wolmet
               contra
            
             Lady
             Wolmet
             and
             Dankeith
             her
             Husband
             .
          
           
             LAW
             of
             Scotland
             only
             Regulates
             Succession
             of
             Scotsmen
             ,
             as
             to
             their
             Lands
             and
             Goods
             in
             Scotland
             ,
             though
             they
             reside
             and
             〈◊〉
             abroad
             ,
             and
             no
             nuncupative
             Testament
             there
             can
             exclude
             the
             nearest
             of
             kin
             h●re
             ,
             
               Ianuary
               19.
               1665.
               
               Schaw
            
             contra
             〈◊〉
             .
          
           
             The
             Law
             of
             England
             was
             found
             to
             reach
             the
             manner
             of
             probation
             of
             a
             Bond
             made
             there
             by
             an
             English-man
             to
             a
             Scots-man
             residing
             〈◊〉
             ,
             after
             the
             st●le
             of
             England
             ,
             and
             that
             payment
             to
             the
             Cedent
             was
             probable
             by
             the
             Cedents
             Oath
             ,
             and
             payment
             also
             probable
             by
             Witnesses
             ,
             
               Iune
               28.
               1666.
               
               Mom●rlane
               contra
            
             Lord
             Melvil
             .
             Yet
             a
             Bond
             by
             a
             Scots-man
             to
             an
             English-man
             in
             England
             ,
             after
             the
             stile
             of
             Scotland
             ,
             Registrable
             there
             ,
             was
             found
             Regulate
             by
             the
             Law
             of
             Scotland
             ,
             and
             no●
             taken
             away
             by
             Witnesses
             Ibidem
             .
          
           
             A
             LEGACY
             of
             an
             Heretable
             Right
             was
             found
             null
             ,
             though
             in
             
               le●ge
               po●stie
               ,
               February
               21.
               1663.
               
               Wardlaw
            
             contra
             Frazer
             of
             Kilmundie
             .
          
           
             A
             Legacy
             le●t
             of
             600.
             merk●
             ,
             and
             in
             part
             thereof
             the
             Executors
             ordained
             to
             Discharge
             or
             give
             Back-bond
             of
             200.
             merks
             due
             to
             the
             Testa●rix
             ,
             which
             Bond
             was
             found
             to
             belong
             ●o
             the
             Husband
             
               jure
               mariti
            
             ,
             and
             that
             being
             Moveable
             ,
             the
             Wife
             had
             but
             her
             half
             of
             it
             ,
             yet
             the
             Lords
             found
             that
             the
             Executors
             ought
             to
             make
             it
             up●
             to
             the
             Legata●
             as
             
               l●g●tum
               rei
               aliena
               scienter
               legat●
            
             ,
             for
             that
             being
             a
             palpable
             principle
             in
             Law
             ,
             they
             could
             not
             excuse
             the
             Wifes
             ignorance
             therein
             ,
             
               Iune
               16
               ▪
               1664.
               
               Murray
               contra
            
             Executors
             of
             Rutherfoord
             .
          
           
             A
             Legacy
             being
             special
             ,
             was
             found
             not
             to
             be
             abated
             proportionally
             with
             ordinary
             Legacies
             in
             case
             they
             exceed
             the
             Deeds
             part
             ,
             
               Iuly
               21.
               1665.
               
               Spr●●l
            
             contra
             Murray
             .
          
           
             A
             Legacy
             of
             a
             Bond
             in
             special
             was
             sustained
             ▪
             though
             the
             Executor
             had
             an
             Assignation
             thereto
             from
             the
             Defunct
             ▪
             seing
             the
             same
             Legacy
             might
             be
             made
             up
             of
             the
             〈◊〉
             Gear
             ,
             as
             being
             
               l●gatum
               rei
               alien●
            
             ,
             seing
             it
             was
             presumed
             that
             the
             Defunct
             
             remembred
             his
             own
             Assignation
             ,
             
               Iune
               24
               ,
               1664.
               
               Fal●●n●r
            
             contra
             Mcd●wgal
             .
          
        
         
           
             LICENCE
             to
             pursue
             was
             s●stained
             without
             Confirmation
             ,
             though
             granted
             after
             the
             principal
             Testament
             was
             Confirmed
             ,
             being
             to
             a
             Creditor
             ,
             
             Iune
             ●0
             ,
             1665.
             
             Stevinson
             contra
             Crawfoord
             .
          
           
             Licence
             to
             pursue
             was
             sustained
             after
             Confirmation
             of
             the
             principal
             Testament
             and
             before
             Confirmation
             of
             Datives
             
               ad
               ommissa
               ,
               February
               21.
               
               166●
               .
               Scot
            
             of
             
               Cl●rkingto●n
               contra
            
             Lady
             Cl●rkingtoun
             .
          
           
             AFTER
             LI●ISCONTESTATION
             Alleadgeances
             instantly
             verified
             are
             receivable
             ,
             
               Iune
               24.
               1663.
               
               Bruce
               contr●
            
             Laird
             of
             Str●●chan
             .
          
           
             Litiscont●●●ation
             being
             made
             before
             the
             Commissars
             at
             a
             parties
             instance
             as
             Factor
             ,
             it
             was
             found
             relevant
             against
             that
             party
             pursuing
             as
             Executor
             Creditor
             ,
             being
             instantly
             verified
             ,
             
               February
               10.
               1663.
               
               Crawfoord
               contra
            
             Creditors
             of
             Inglis
             .
          
           
             
               LOCVS
               PENITENTIAE
            
             was
             found
             to
             have
             no
             place
             in
             an
             agreement
             to
             take
             a
             les●
             sum
             ,
             it
             being
             as
             
               pact●●
               lib●ratori●m
            
             ,
             though
             writ
             was
             not
             interposed
             ,
             others
             of
             the
             parties
             Transactors
             having
             payed
             conform
             ,
             
               December
               12.
               1661.
               
               H●pburn
            
             contra
             Hamilt●●n
             of
             Orbi●●●um
             .
             The
             like
             in
             restricting
             an
             annualrent
             to
             a
             part
             of
             the
             Lands
             ●ffected
             ,
             
               February
               ●
               .
               1666.
               〈◊〉
            
             contr●
             Hunter
             and
             Tennents
             of
             Camb●
             .
          
           
             
               Locus
               〈◊〉
            
             was
             found
             competent
             to
             one
             who
             had
             bought
             Lands
             ,
             though
             he
             had
             written
             that
             he
             thought
             he
             could
             not
             be
             able
             to
             keep
             the
             Bargain
             and
             furnish
             the
             Money
             ,
             yet
             sub●oyned
             that
             he
             would
             not
             pass
             from
             the
             communing
             ,
             and
             albeit
             he
             had
             received
             the
             Key●
             of
             the
             House
             ,
             seing
             there
             was
             neither
             Minute
             nor
             other
             W●●t
             drawn
             up
             ●h●reupon
             ,
             
               Ianuary
               28.
               1663.
               
               M●ntgomry
            
             of
             Sk●lmorly
             contra
             Brown.
             
          
           
             THE
             LORDS
             Sallatles
             ,
             or
             the
             Pensions
             of
             the
             King
             are
             not
             arrestable
             ,
             conform
             to
             a
             Letter
             of
             the
             Kings
             and
             Act
             of
             Sederunt
             ,
             
               February
               8.
               1662.
               contra
               Murray
            
             .
          
           
             The
             Lords
             found
             themselve●
             competent
             to
             Iudge
             the
             Nullities
             of
             the
             Decreets
             of
             the
             Commission
             for
             Plantation
             of
             Kirk●
             ,
             which
             wer●
             visible
             and
             instantly
             v●rified
             ,
             and
             needed
             no
             Reduction
             ,
             as
             that
             a
             Decr●et
             against
             an
             Heretor
             not
             called
             was
             null
             ,
             Ianuary
             16.
             1663.
             
             Earl
             of
             Roxburgh
             contra
             Kinn●●r
             .
          
           
             The
             Lords
             found
             themselves
             competent
             to
             Iudge
             upon
             the
             Iustice
             Generals
             Decreet
             for
             Assythment
             ,
             which
             hath
             but
             a
             civil
             effect
             for
             damnage
             ,
             
               December
               16.
               1664.
               
               Innes
            
             contra
             Forb●s
             of
             Tolq●●●n●
             .
          
           
             The
             Lords
             gave
             warrant
             Summarly
             upon
             Supplication
             to
             take
             the
             person
             of
             a
             Bankrupt
             ,
             who
             was
             unexpectedly
             and
             fraudfully
             fled
             ,
             Nov●mb●r
             30.
             1665.
             
             Creditors
             of
             Masson
             Supplicants
             .
          
           
             The
             Lords
             albeit
             they
             are
             not
             Iudges
             in
             Causes
             Criminal
             ,
             yet
             they
             found
             themselves
             co●petent
             to
             Advoca●e
             a
             Criminal
             Cause
             of
             Theft
             ,
             but
             upon
             the
             old
             Act
             of
             Parliament
             of
             King
             Iam●s
             the
             second
             ,
             from
             ●
             Sheriff
             to
             the
             Iustice
             General
             ,
             February
             21.
             1●66
             contra
             Sheri●●
             of
             Inv●rn●ss●
             .
          
           
             The
             Lords
             deposed
             a
             Writer
             to
             〈◊〉
             ●igne●
             for
             inserting
             an
             Article
             for
             possessing
             a
             party
             in
             Letters
             of
             Horning
             ,
             having
             no
             warrand
             for
             the
             said
             Article
             ,
             
             Ianuary
             ●
             .
             1669.
             
             Zeaman
             contra
             Monreiff
             .
          
           
             The
             Lords
             upon
             a
             Bill
             for
             Horning
             upon
             Excommunication
             allowed
             the
             party
             Excommunicate
             〈◊〉
             object
             against
             the
             Gro●nds
             of
             Excommunication
             ,
             who
             having
             founded
             upon
             an
             appeal
             to
             the
             King
             and
             Council
             ,
             The
             Lord●
             having
             had
             an
             account
             from
             the
             Council
             ,
             that
             they
             had
             Remitted
             that
             matter
             to
             the
             ●ishop
             ,
             did
             pass
             the
             Ho●●ing
             ,
             Iuly
             6.
             1670.
             
             Archbishop
             and
             Presbytery
             of
             St.
             Andr●w●
             contra
             Pittill●
             .
          
           
             LVCRATIVE
             SVCCESSOR
             was
             not
             inferred
             by
             a
             Disposition
             and
             Infeftment
             to
             the
             behove
             of
             the
             appearand
             He●r
             ▪
             but
             only
             in
             so
             far
             as
             was
             Lucrative
             
               〈◊〉
               valor●m
               ,
               Ianuary
            
             14.
             1662
             ,
             Harper
             contra
             Hume
             of
             ●landergast
             .
          
           
             Lucrative
             Successor
             was
             not
             inferred
             by
             a
             Disposition
             by
             an
             Vncle
             to
             his
             Nephew
             the
             Brother
             being
             alive
             ,
             who
             was
             not
             found
             
               alioqui
               successurus
            
             ,
             as
             in
             the
             case
             of
             an
             Oye
             ,
             November
             22.
             
             166●
             .
             Sc●●
             co●tra
             B●ss●wel
             of
             Auchinleck
             .
          
           
             Lucrative
             Successor
             was
             inferred
             by
             an
             Assignation
             of
             an
             Heretable
             Bond
             by
             ●
             Father
             to
             his
             eldest
             Son
             ,
             who
             would
             have
             succeeded
             him
             as
             Heir
             therein
             ,
             and
             that
             the
             same
             was
             not
             alike
             with
             Bonds
             of
             Provision
             ,
             wherein
             in
             Father
             〈◊〉
             only
             De●itor
             to
             the
             Son
             ,
             
               D●c●mb●r
               ●
               .
               1665.
               
               Edgar
               contra
               Colvil
               .
            
          
           
             Lucrative
             Successor
             was
             not
             inferred
             by
             accepting
             of
             a
             Tocher
             ,
             yet
             so
             as
             if
             the
             Tocher
             were
             exorbitant
             ,
             both
             Husband
             and
             Wife
             were
             found
             lyable
             to
             the
             Fathers
             Creditors
             for
             what
             was
             above
             a
             competent
             Tocher
             ,
             December
             23.
             1665.
             
             Burnet
             contra
             Lepers
             .
          
           
             LIFE
             being
             presumed
             ,
             was
             taken
             off
             by
             the
             Parties
             being
             ●●
             .
             years
             out
             of
             the
             Coun●rey
             ,
             and
             commo●ly
             ●olden
             an●
             〈…〉
             There
             wa●
             also
             a
             Letter
             produced
             by
             a
             〈◊〉
             in
             the
             Wa●
             ▪
             bearing
             that
             the
             party
             was
             dead
             ,
             
               February
               .
               18.
               1670.
               
               Lowry
            
             contra
             Drummond
             .
          
           
             LIFERENTERS
             of
             an
             annuaIrent
             wa●
             found
             Iyable
             for
             publick
             burden
             with
             the
             〈◊〉
             ,
             albeit
             the
             Act
             164●
             ▪
             thereanent
             was
             Rescinded
             as
             being
             due
             
               in
               jure
               ,
               Iune
            
             18.
             
             166●
             
               Fleming
               contra
               Gillies
            
             .
          
        
         
           
             A
             Li●erenter
             being
             Infeft
             in
             a
             Liferent
             of
             Lands
             
               cum
               m●ll●ndini●
            
             ,
             was
             found
             to
             have
             right
             to
             a
             Miln
             builded
             thereafter
             upon
             the
             Land
             by
             her
             Husband
             ,
             but
             not
             to
             the
             abstracted
             Multures
             of
             his
             Lands
             ,
             except
             the
             Liferent
             Lands
             ,
             February
             16.
             1666.
             
             Lady
             
               Otter
               contra
            
             Laird
             of
             Otter
             .
          
           
             A
             Liferenter
             being
             by
             her
             Contract
             ●nfeft
             in
             Lands
             ,
             obliged
             to
             be
             worth
             such
             a
             Rent
             besides
             Teinds
             and
             Fe●-duties
             ,
             or
             at
             her
             option
             ,
             the
             heir
             was
             obliged
             to
             accept
             a
             Tack
             of
             the
             Lands
             for
             the
             like
             sum
             of
             free
             Rent
             (
             by
             free
             Rent
             )
             was
             not
             only
             understood
             free
             of
             Feu
             and
             Teind
             Duty
             ,
             as
             is
             exprest
             in
             the
             first
             part
             of
             the
             Clause
             ,
             but
             free
             of
             the
             ordinary
             publick
             burdens
             ,
             viz.
             Taxation
             ,
             but
             not
             of
             extraordinary
             publick
             burdens
             ,
             such
             as
             Cess
             ,
             but
             in
             so
             far
             as
             the
             Tennents
             relieved
             the
             Heretors
             ,
             February
             ,
             22.
             1670.
             
             Countess
             of
             
               Cassils
               contra
            
             Earl
             of
             Cas●ils
             .
          
           
             A
             Liferenter
             of
             a
             Miln
             surviving
             Martinmas
             ,
             her
             Executors
             were
             found
             to
             have
             Right
             to
             the
             whole
             years
             ●ent
             of
             the
             Mil●●
             ,
             in
             the
             same
             way
             as
             if
             it
             had
             been
             Ferm
             of
             Lands
             ,
             and
             that
             the
             Legal
             Terms
             thereof
             were
             Whi●sunday
             and
             Martinmass
             ,
             albeit
             the
             Milns
             Rent
             was
             payable
             in
             Money
             ,
             and
             that
             the
             first
             conventional
             Terms
             payment
             thereof
             was
             at
             Candlesmass
             after
             the
             separation
             of
             each
             Cropt
             ,
             and
             the
             second
             ,
             Whitsonday
             thereafter
             ,
             and
             that
             the
             Miln
             Rent
             was
             not
             to
             be
             accompted
             as
             House-mails
             ,
             
               Iuly
               20
               ,
               1671.
               
               Guthri●
               contra
            
             Laird
             of
             Mck●rstoun
             .
          
           
             A
             Liferenter
             was
             found
             to
             have
             Right
             to
             the
             Cro●t
             of
             Lands
             Laboured
             by
             her
             ,
             without
             payment
             of
             any
             Rent
             therefore
             ,
             albe●t
             she
             dyed
             in
             April
             ,
             and
             neither
             survived
             Whitsonday
             nor
             
               Mart●mass●
               Iuly
               25.
               1671.
               
               Inter
               cosdem
               .
            
          
           
             LIFRENT
             ESCHEAT
             of
             a
             Wodsetter
             affects
             the
             sum
             of
             the
             Wodset
             ,
             which
             being
             consigned
             and
             the
             Lands
             Redeemed
             was
             ordained
             to
             be
             given
             up
             to
             be
             Imployed
             
               de
               novo
            
             to
             the
             Redeemer
             in
             Fee
             ,
             and
             to
             the
             Donatar
             in
             Liferent
             ,
             
               Iune
               29.
               1661.
               
               Tailzifer
            
             contr●
             Maxiou●
             and
             Cunning●ame
             .
          
           
             Liferent
             Escheat
             is
             compleat
             by
             Rebellion
             year
             and
             day
             unrelaxed
             ,
             and
             no
             Appryzing
             led
             thereafter
             will
             pre●udge
             the
             same
             ,
             albeit
             it
             be
             before
             Declarator
             Ibid●m
             .
          
           
             Liferent
             Escheat
             was
             found
             preferable
             to
             a
             base
             Infeftment
             ,
             anterior
             to
             the
             Rebellion
             ,
             not
             having
             attained
             possession
             
               in
               cursu
               R●b●llionis
               February
               21.
               1667.
               
               Mil●●
            
             contra
             Clerkson
             .
          
           
             Liferent
             Escheat
             was
             excluded
             by
             the
             Superiou●●
             consent
             to
             a
             Wodset
             of
             the
             Rebels
             Land
             of
             the
             same
             date
             with
             the
             Donatars
             Gift
             ,
             seing
             the
             Wodsetter
             was
             in
             Possession
             ,
             and
             needed
             no
             Declarator
             ,
             Iune
             19.
             1669.
             
             Scot
             contra
             Langtoun
             .
          
           
             The
             Liferent
             Eschea●
             of
             a
             Vassal
             was
             found
             〈◊〉
             fall
             and
             affect
             the
             Ground
             against
             the
             Appryzer
             thereof
             ,
             and
             that
             the
             Charge
             ●gainst
             the
             Superiour
             did
             not
             so
             denude
             the
             Vassal
             as
             to
             evacuat
             his
             Liferent
             ,
             without
             disputing
             whether
             the
             Superiour
             was
             in
             the
             fault
             in
             not
             obeying
             the
             Charge
             ,
             Iune
             2●
             .
             1669.
             
             D●wglas
             contra
             Li●k
             .
          
           
             Liferent
             ●scheat
             of
             an
             annualrenter
             was
             found
             to
             Exclude
             an
             Appryzer
             of
             the
             Annualrent
             ,
             whereupon
             there
             was
             neither
             Infeftment
             or
             lawful
             Charge
             ▪
             as
             to
             the
             years
             
               post
               cursum
               R●b●llionis
               ,
               February
            
             23.
             1671.
             
             Lord
             Iustice
             Clerk
             
               contra
               Fair●olm
            
             .
          
           
             THE
             LYON
             was
             found
             competent
             Iudge
             to
             the
             deprivation
             of
             Messengers
             ,
             and
             to
             the
             Penalties
             contained
             in
             their
             Bonds
             of
             Caution
             ,
             both
             against
             themselves
             and
             their
             Cau●ioners
             ,
             but
             not
             as
             to
             the
             dam●●ge
             of
             Parti●s
             ,
             either
             as
             to
             the
             Messenger
             or
             Cautioner
             ,
             February
             13.
             
             166●
             .
             G●●●son
             contra
             M●●lrey
             Messenger
             .
             The
             same
             
               Iune
               27.
               
               167●
               .
               H●ri●●●
            
             contra
             C●rb●●
             .
          
           
             MAGISTRATES
             were
             found
             lyable
             for
             the
             debts
             of
             a
             Rebel
             Incarcerate
             by
             Act
             of
             Warding
             escaping
             ,
             without
             necessi●y
             of
             calling
             that
             person
             against
             whom
             there
             was
             De●reet
             standing
             ,
             
               February
               7.
               1662.
               
               B●nnar
            
             contra
             Fouli●
             .
          
           
             Magistrates
             were
             found
             lyable
             for
             the
             debt
             of
             a
             Rebel
             escaping
             ,
             though
             in
             the
             time
             of
             Richard
             the
             Vsurper
             ,
             being
             before
             any
             other
             Authority
             was
             set
             up
             ,
             and
             was
             not
             e●●ded
             because
             he
             escaped
             out
             at
             the
             Roo●
             of
             the
             Tolbooth
             and
             brok●
             it
             ,
             that
             being
             in
             day
             light
             ,
             
               November
               ●3
               .
               1664.
               
               Hay
               contra
            
             Magistrates
             of
             Elgin
             .
          
           
             A
             Magistrate
             ,
             viz.
             a
             Sheriff
             pursued
             for
             the
             debt
             of
             a
             Rebel
             escaping
             ,
             was
             assoilzied
             because
             the
             Rebel
             escaped
             
               Vi
               〈◊〉
            
             ,
             having
             wounded
             these
             who
             assisted
             the
             Sherist
             ,
             
               D●cember
               2.
               1664.
               
               Wilson
            
             contra
             Hum●
             of
             Linthil
             .
          
           
             Magistrates
             were
             not
             found
             lyable
             for
             the
             debt
             of
             a
             Rebel
             escaping
             
               Vi
               ma●or●
            
             ,
             though
             it
             was
             in
             the
             Night
             ,
             and
             that
             the
             Prison
             Door
             was
             opened
             to
             let
             in
             the
             Rebels
             Supper
             at
             the
             ordinary
             time
             ,
             
               Ianuary
               25.
               1665.
               
               Baird
               contra
            
             Magistrates
             of
             Elgin
             .
          
           
             Magistrates
             were
             found
             lyable
             for
             the
             debt
             of
             a
             Rebel
             escaping
             though
             he
             had
             taken
             the
             benefite
             of
             the
             Act
             of
             Debitor
             and
             Creditor
             ,
             seing
             at
             his
             Incarceration
             he
             shew
             not
             his
             attest
             of
             taking
             thereof
             and
             paying
             his
             annualrent
             conform
             ,
             
               February
               17.
               1665.
               
               〈◊〉
               contra
            
             Magistrates
             of
             Elgin
             .
          
           
             Magistra●es
             were
             ●ound
             Lib●ra●e
             ●●m
             the
             deb●●
             of
             a
             Rebel
             
             whom
             they
             were
             charged
             to
             take
             ,
             being
             charged
             in
             the
             Night
             ,
             and
             while
             they
             were
             ordering
             the
             quarters
             of
             the
             Army
             ,
             and
             offering
             the
             Towns
             Officers
             to
             concur
             ,
             and
             now
             offering
             to
             put
             the
             Rebel
             in
             Prison
             in
             as
             good
             case
             as
             he
             was
             then
             ,
             which
             was
             sustained
             joyntly
             ,
             albeit
             the
             Rebel
             was
             in
             the
             same
             House
             ,
             and
             did
             Deforce
             the
             Messenger
             ,
             wherein
             some
             of
             the
             Town
             Officers
             were
             assistant
             ,
             but
             without
             Warrand
             ,
             
             Iune
             ●3
             .
             1661.
             
             Antrobus
             contra
             Anderson
             Provost
             of
             Glasgow
             .
          
           
             A
             Magistrate
             Elected
             Bailli●
             of
             a
             Burgh
             ,
             Charged
             on
             General
             Letters
             to
             accept
             and
             exerce
             the
             Office
             ,
             was
             liberate
             in
             respect
             of
             the
             Act
             of
             Burrows
             ,
             that
             none
             shall
             continue
             in
             Office
             above
             two
             years
             ,
             which
             time
             he
             had
             been
             Baillie
             ,
             The
             Reason
             was
             found
             Relevant
             ;
             
               Ianuary
               2.
               1668.
               
               Wilson
               contra
            
             Magistrates
             of
             Queensferry
             .
          
           
             Magistrates
             suffering
             a
             Rebel
             to
             escape
             ,
             and
             being
             decerned
             for
             the
             debt
             thereupon
             and
             paying
             ,
             and
             taking
             Assignation
             to
             the
             debt
             ,
             were
             found
             to
             have
             no
             reco●●se
             against
             the
             Rebels
             Ca●tioners
             ,
             who
             if
             they
             had
             been
             distressed
             by
             the
             Creditors
             ,
             would
             have
             had
             Recourse
             against
             the
             Magistrates
             ,
             who
             were
             lyable
             not
             only
             of
             the
             Creditor
             ,
             but
             to
             all
             others
             having
             interest
             
               ex
               damno
               &
               delicto
            
             ,
             and
             they
             as
             Cautioners
             were
             interessed
             that
             the
             principal
             should
             not
             escape
             ,
             seing
             his
             continuing
             might
             obtain
             their
             Liberation
             by
             his
             payment
             ,
             but
             the
             ca●e
             was
             not
             debated
             whether
             the
             Magistra●e
             might
             not
             pursue
             the
             principal
             Debitor
             who
             ●●caped
             and
             was
             chiefly
             
               in
               delicto
            
             ,
             and
             they
             but
             acces●ory
             ,
             Ianuary
             24.
             1668.
             
             Magistrates
             of
             contra
             the
             Earl
             of
             Find●atour
             .
          
           
             Magistrates
             of
             a
             Burgh
             were
             decerned
             for
             the
             debt
             of
             a
             Rebel
             escaping
             ,
             though
             they
             were
             not
             Magistrates
             the
             time
             of
             his
             escape
             ,
             and
             without
             necessity
             to
             discuss
             these
             who
             were
             then
             Magistrates
             as
             being
             in
             the
             fault
             ,
             but
             prejudice
             to
             the
             Town
             and
             p●esent
             Magistrates
             ,
             to
             pursue
             them
             ●s
             accords
             ,
             
               Ianuary
               31.
               1668.
               
               Paplaw
               contra
            
             Town
             of
             Edinburgh
             .
          
           
             Magistrates
             of
             a
             Burgh
             of
             Regality
             were
             found
             lyable
             for
             a
             sum
             where
             they
             refused
             to
             receive
             a
             party
             taken
             by
             Caption
             ,
             albeit
             they
             had
             no
             Provost
             nor
             common
             Good
             ,
             no●
             were
             not
             in
             use
             to
             ●ncarcerate
             ,
             in
             respect
             of
             the
             Act
             1597.
             cap.
             273.
             
             Here
             the
             Burgh
             had
             a
             convenient
             Prison
             ,
             and
             the
             Rebel
             dwelt
             in
             their
             Burgh
             ,
             
               Iuly
               7.
               1668.
               
               Hamiltoun
            
             contra
             Callender
             .
          
           
             Magistrates
             were
             found
             lyable
             for
             the
             debt
             of
             a
             Rebel
             whom
             they
             were
             required
             to
             take
             ,
             and
             did
             not
             ,
             being
             within
             their
             Iurisdiction
             and
             the
             House
             designed
             ,
             and
             they
             charged
             by
             the
             Messenger
             ,
             who
             offered
             to
             go
             in
             before
             them
             ,
             which
             they
             were
             found
             obliged
             instantly
             to
             do
             ,
             without
             waiting
             to
             conveen
             the
             Neighbours
             ,
             unless
             they
             had
             been
             keeped
             out
             ,
             or
             repusled
             
               v●
               major●
               ,
               Iuly
               2.
               1669.
               
               Farquhar
               contra
            
             Magistrates
             of
             Elg●●
             .
          
           
             Magistrates
             of
             the
             head
             Burgh
             of
             a
             Steuartrie
             were
             found
             lyable
             for
             the
             debt
             of
             a
             Rebel
             escaping
             out
             of
             the
             Prison
             ,
             without
             disputing
             whether
             Burghs
             within
             Steuartries
             ,
             not
             being
             Royal
             Burrows
             ,
             were
             obliged
             to
             receive
             Prisoners
             ▪
             seing
             they
             had
             actually
             received
             this
             Prisoner
             ,
             but
             their
             keeping
             him
             in
             a
             private
             house
             ten
             dayes
             ,
             while
             a
             Treaty
             was
             continued
             with
             the
             Creditor
             ,
             was
             found
             not
             to
             infer
             disobedience
             of
             the
             charge
             ,
             or
             payment
             of
             the
             debt
             ,
             
               Iune
               8.
               1670.
               
               Cheap
               contra
            
             Magistrates
             of
             Faulkland
             .
          
           
             Magistrates
             were
             not
             found
             lyable
             for
             the
             debt
             of
             a
             Rebel
             escaping
             ,
             who
             was
             arrested
             in
             their
             Tolbooth
             ,
             but
             the
             arrestment
             was
             not
             formal
             ,
             and
             whereas
             it
             bear
             that
             upon
             Caption
             ,
             the
             Messenger
             came
             to
             the
             Tolbooth
             and
             comm●nded
             the
             Prisoner
             to
             continue
             in
             Prison
             ,
             as
             being
             arrested
             for
             that
             debt
             ,
             and
             that
             in
             presence
             of
             the
             Iaylour
             ,
             and
             that
             intimation
             was
             made
             to
             the
             Magistrates
             ,
             seing
             the
             intimation
             to
             the
             Magistrates
             was
             altogether
             improven
             ,
             and
             the
             arrestment
             in
             presence
             of
             the
             Iaylour
             contained
             three
             Witnesses
             whereof
             one
             affirmed
             ,
             and
             the
             other
             denyed
             ,
             and
             a
             third
             was
             dead
             ,
             and
             the
             Messenger
             was
             then
             Excommunicate
             for
             Crimes
             ,
             
               Iune
               18.
               1670.
               
               Hay
               contra
            
             Magistrates
             of
             Elgin
             .
          
           
             Magistrates
             were
             found
             lyable
             for
             the
             debt
             of
             a
             Rebel
             escaping
             out
             of
             their
             Tolbooth
             ,
             albeit
             the
             Tolbooth
             had
             ●our
             locked
             Doors
             without
             one
             another
             ,
             and
             that
             the
             Rebel
             had
             gotten
             in
             some
             Masons
             Tools
             ,
             and
             broken
             up
             all
             the
             Doors
             in
             the
             Night
             ,
             seing
             they
             had
             not
             Chains
             ,
             and
             Bonds
             locked
             upon
             the
             ou●er
             sides
             of
             the
             Doors
             ,
             to
             which
             the
             Rebel
             could
             not
             reac●
             ,
             albeit
             their
             custom
             was
             very
             ancient
             to
             put
             on
             Cat-bonds
             only
             upon
             Prisoners
             imprisoned
             for
             Crimes
             ,
             
               February
               11.
               1671.
               
               Will
               contra
            
             Town
             of
             Kirkald●●
             .
          
           
             Magistrates
             were
             not
             found
             lyable
             for
             the
             debt
             of
             a
             Person
             Incarcerate
             in
             their
             Tolbooth
             ,
             whom
             they
             had
             suffered
             to
             go
             free
             up
             and
             down
             their
             Streets
             several
             times
             ,
             whereupon
             the
             Creditor
             took
             Instruments
             and
             Protestation
             ,
             seing
             the
             suffering
             the
             Prisoner
             to
             go
             out
             was
             necessary
             to
             mendicat
             his
             Bread
             ,
             being
             altogether
             indigent
             ,
             and
             that
             he
             went
             once
             to
             the
             burial
             of
             a
             Child
             of
             his
             own
             ,
             and
             that
             he
             continued
             in
             Prison
             and
             died
             there
             ,
             
               February
               14.
               1671.
               
               Bain
               contra
            
             Baillies
             of
             Culross
             .
          
           
             Magistrates
             were
             not
             found
             lyable
             for
             the
             debt
             of
             a
             Rebel
             whom
             they
             suffered
             to
             come
             out
             of
             Prison
             with
             a
             Guard
             to
             go
             to
             the
             Kirk
             or
             to
             the
             Fields
             for
             health
             ,
             or
             any
             other
             necessary
             cause
             ,
             as
             to
             time
             past
             ,
             in
             regard
             of
             their
             common
             custome
             so
             to
             do
             ,
             but
             that
             in
             time
             coming
             they
             should
             let
             none
             go
             out
             except
             upon
             great
             hazard
             by
             sickness
             ,
             and
             upon
             Testificates
             upon
             Oath
             ,
             and
             when
             other
             application
             could
             not
             sa●ely
             and
             timeously
             be
             made
             to
             the
             Council
             or
             Session
             ,
             Iune
             14.
             1671.
             
             Town
             of
             
               Breichen
               contra
            
             Town
             of
             Dundee
             .
          
        
         
           
             MANDAT
             or
             Warrand
             of
             a
             Servant
             taking
             off
             Furniture
             from
             a
             Marchand
             for
             his
             Master
             ,
             and
             giving
             his
             Recept
             ,
             and
             bearing
             that
             he
             had
             received
             ▪
             such
             Furniture
             in
             Name
             of
             his
             Master
             and
             for
             his
             use
             ,
             was
             found
             not
             to
             oblige
             the
             Se●vant
             to
             pay
             ,
             nor
             yet
             to
             instruct
             that
             he
             had
             warrand
             ,
             but
             t●e
             warrand
             was
             presumed
             as
             known
             to
             the
             Merchant
             ,
             unless
             it
             were
             proven
             that
             the
             Servant
             did
             otherwayes
             imploy
             the
             Furnishing
             than
             to
             his
             Masters
             use
             ,
             and
             specially
             in
             the
             case
             where
             the
             Master
             was
             dead
             long
             ago
             ,
             
               November
               17.
               1665.
               
               How●eson
            
             contra
             
               Cockburn
               .
               Vide
            
             Command
             .
             Vide
             Wi●e
             ,
             
               February
               4.
               1665.
               
               Paterson
            
             contra
             Pringle
             .
          
           
             IN
             MAILS
             AND
             DVTIES
             the
             not
             calling
             of
             the
             De●enders
             Master
             was
             not
             ●ound
             Relevant
             as
             in
             a
             Removing
             ,
             nor
             may
             the
             Tennents
             alleadge
             peremptorly
             on
             their
             Masters
             Right
             ,
             which
             is
             
               jus
               terti●
            
             ,
             but
             they
             should
             have
             intimate
             to
             him
             to
             compear
             for
             himself
             ,
             and
             they
             may
             yet
             Suspend
             on
             double
             poynding
             ,
             and
             call
             the
             Party
             and
             their
             Master
             ,
             
               Iune
               10.
               1665.
               
               Hume
               contra
            
          
           
             In
             the
             Mails
             and
             Duties
             of
             a
             House
             ,
             the
             damnage
             sustained
             by
             the
             Tennent
             ,
             by
             the
             fall
             of
             a
             Neighbouring
             house
             was
             found
             to
             be
             allowed
             ,
             
               Ianuary
               2.
               1667.
               
               Hamiltoun
               contra
            
          
           
             MAINTAINANCE
             of
             August
             and
             September
             1650.
             being
             destinate
             for
             the
             provision
             of
             the
             Army
             ,
             and
             assigned
             to
             these
             who
             advanced
             the
             provisions
             ,
             they
             were
             not
             found
             to
             be
             excluded
             by
             any
             subsequent
             quarterings
             ,
             Iuly
             27.
             1665.
             
             
               Rae
               contra
            
             Heretors
             of
             
               Clackmannan
               .
               Vide
            
             Devastation
             ,
             here
             singular
             Successours
             were
             not
             liberate
             ,
             
               Iuly
               28.
               1665.
               
               Inter
               eosdem
               .
            
          
           
             The
             Maintainance
             appointed
             to
             be
             uplifted
             by
             Bogie
             by
             the
             Act
             of
             Parliament
             1661.
             which
             excepts
             singular
             Successors
             who
             bought
             the
             Lands
             ,
             was
             found
             not
             to
             extend
             to
             an
             appearand
             Heir
             who
             brooks
             by
             an
             appryzing
             ,
             which
             as
             to
             him
             is
             Redeemable
             within
             ten
             years
             for
             what
             he
             payed
             for
             it
             ,
             here
             it
             was
             not
             alleaged
             that
             the
             payed
             sums
             equivalent
             to
             the
             worth
             
               February
               8.
               1668.
               
               Weyms
               contra
            
             Laird
             of
             T●lquhon
             .
             Renewed
             
               Ianuary
               20.
               1669.
               
               Inter
               eosdem
               .
            
          
           
             The
             Maintainance
             1648.
             to
             be
             up●●fted
             by
             Bogie
             ,
             was
             found
             not
             to
             extend
             to
             these
             who
             had
             exemption
             upon
             consideration
             of
             burning
             by
             the
             King
             and
             Parliament
             ,
             1651
             ▪
             though
             that
             Parliament
             was
             Rescinded
             ;
             and
             though
             all
             exemptions
             were
             excluded
             by
             Bogies
             Commission
             ,
             seing
             by
             the
             Act
             Rescissory
             private
             Rights
             done
             by
             that
             Authority
             were
             excepted
             ,
             
               Iuly
               21.
               1668.
               
               Weyms
            
             contra
             Campbel
             of
             Edenample
             .
          
           
             Maintainance
             for
             the
             year
             1648.
             was
             found
             to
             burden
             Lands
             though
             they
             were
             now
             in
             the
             ●ands
             of
             singular
             Successo●s
             ,
             who
             had
             acquired
             the
             time
             of
             the
             Act
             ,
             
               Ia●uary
               23.
               1669.
               
               Weyms
            
             contra
             Frazer
             of
             To●lie
             .
          
           
             MARRIAGE
             pursued
             by
             a
             Donatar
             was
             not
             excluded
             because
             the
             Pursuer
             instructed
             not
             that
             the
             Lands
             held
             of
             that
             Superiour
             ,
             nor
             held
             Ward
             ,
             seing
             he
             disclaimed
             not
             ,
             nor
             by
             the
             Superiours
             Subsc●ibing
             Witness
             in
             the
             Vassals
             Contract
             of
             Marriage
             after
             the
             Donatars
             Gift
             ;
             it
             was
             also
             found
             that
             the
             Marriage
             might
             be
             pursued
             both
             
               Realiter
               &
               personaliter
            
             against
             the
             Vassal
             to
             pay
             ,
             
               February
               25.
               1662.
               
               Arbuthnet
            
             of
             Fiddes
             contra
             Keith
             .
          
           
             Marriage
             being
             dec●rned
             by
             the
             Commissar
             to
             be
             solemnized
             upon
             a
             Bond
             granted
             by
             a
             Man
             to
             a
             Woman
             ,
             bearing
             a
             Child
             to
             be
             gotten
             under
             promise
             of
             Marriage
             ,
             and
             it
             being
             alleadged
             that
             the
             Woman
             had
             been
             unchast
             since
             ,
             which
             as
             it
             would
             annul
             ,
             so
             much
             more
             hinde●
             the
             Solemnization
             of
             the
             Marriage
             ,
             and
             it
             being
             alleadged
             that
             the
             Child
             born
             after
             was
             presumed
             to
             be
             the
             same
             man's
             who
             got
             the
             first
             ,
             and
             so
             obliged
             to
             solemnize
             the
             Marriage
             ,
             The
             Lords
             found
             the
             presumption
             held
             not
             where
             there
             was
             no
             formal
             Marriage
             ,
             and
             so
             the
             Woman
             behoved
             to
             prove
             the
             second
             Child
             to
             be
             this
             mans
             ,
             
               Ianuary
               31.
               1665.
               
               Barclay
            
             contra
             Baptie
             .
          
           
             Marriage
             of
             an
             Heir
             was
             ●ound
             due
             as
             to
             the
             single
             avail
             ,
             albeit
             the
             Heir
             was
             Married
             before
             his
             Predecessors
             death
             by
             a
             fraudulent
             precipitation
             to
             exclude
             the
             Superior
             from
             the
             Marriage
             ,
             he
             being
             Married
             when
             his
             Predecessor
             was
             moribundus
             without
             previous
             Treaty
             or
             Proclamation
             ,
             the
             Predecessor
             dying
             within
             some
             ●ew
             ●ays
             ,
             and
             showing
             no
             other
             sufficient
             cause
             of
             the
             said
             precipitation
             but
             to
             exclude
             the
             Superiour
             ;
             here
             were
             adduced
             the
             Testimonies
             of
             Skeins
             explications
             upon
             
               Quonia●
               atachiamenta
               de
               maritagio
            
             ,
             bearing
             that
             this
             was
             
               praxis
               for●
            
             in
             his
             time
             ,
             and
             expressing
             three
             Decisions
             thereof
             ,
             February
             20.
             1667.
             
             Lord
             Thesau●er
             and
             Lord
             Advocat
             contra
             Lord
             Colv●●
             .
          
           
             Marriage
             ,
             vide
             Contract
             .
             Vide
             Clause
             ,
             December
             20.
             1664.
             
             Young
             contra
             Buchannan
             .
          
           
             MELIORATION
             of
             a
             Liferenters
             House
             by
             her
             was
             ●ound
             to
             oblige
             the
             Feear
             after
             her
             death
             
               in
               quantum
               Itucr●s
               est
            
             by
             a
             better
             Rent
             ,
             
               February
               23.
               1665.
               
               Iack
            
             contra
             Pollock
             and
             Rutherfoord
             .
          
           
             IN
             MERCHANTS
             ACCOMPTS
             taken
             off
             by
             persons
             intrusted
             ,
             and
             converted
             to
             the
             persons
             use
             ,
             was
             
             ●ound
             to
             make
             them
             lyable
             to
             the
             Merchand
             ,
             unless
             the
             party
             prove
             that
             they
             p●yed
             the
             price
             to
             the
             Party
             intrusted
             ,
             but
             if
             they
             knew
             the
             per●on
             intrusted
             took
             off
             the
             Ware
             ,
             not
             on
             their
             own
             Credite
             and
             Name
             but
             the
             Constituents
             and
             from
             what
             Merchant
             ,
             then
             they
             should
             have
             called
             for
             the
             Merchants
             Discharge
             ,
             else
             though
             they
             payed
             the
             person
             instrusted
             if
             they
             payed
             not
             the
             Merchant
             ,
             it
             is
             on
             their
             peril
             who
             knew
             the
             Merchants
             interest
             ,
             but
             not
             so
             when
             they
             payed
             and
             knew
             not
             who
             was
             Merchant
             ,
             or
             in
             whose
             Name
             and
             Credit
             the
             Ware
             was
             taken
             off
             ,
             
               February
               20.
               1669.
               
               Bruce
            
             Merchant
             contra
             Laird
             and
             Lady
             Stanhope
             .
          
           
             
               METVS
               CAVSA
            
             was
             found
             Relevant
             thus
             ,
             That
             a
             Wife
             shew
             her
             unwillingness
             at
             the
             subscribing
             by
             the
             Witnesses
             insert
             and
             other
             Witnesses
             ,
             and
             that
             the
             Husband
             was
             a
             fierce
             man
             accustomed
             to
             be●t
             her
             ,
             and
             that
             he
             did
             particularly
             threaten
             her
             to
             consent
             to
             quite
             a
             part
             of
             her
             Liferent
             ,
             Iune
             24.
             1664.
             
             Woodhead
             contra
             Nairn
             .
          
           
             Metus
             was
             sustained
             to
             take
             away
             a
             Bond
             given
             for
             fear
             of
             Caption
             ,
             the
             Party
             being
             sick
             when
             he
             was
             taken
             Prisoner
             ,
             
               Iune
               22.
               1667.
               
               Maire
            
             contra
             Steuart
             of
             Shambelly
             .
          
           
             A
             MILN
             being
             built
             by
             a
             Husband
             upon
             his
             Wifes
             Liferent
             Lands
             ,
             wherein
             she
             was
             Infeft
             
               cum
               ●olendinis
            
             in
             the
             ten●●dar
             ,
             was
             found
             to
             belong
             to
             the
             Wife
             for
             her
             Liferent
             u●e
             ,
             but
             not
             any
             Thirle
             Mul●ures
             of
             others
             of
             the
             Defuncts
             Lands
             ,
             February
             16.
             1666.
             
             Laird
             of
             Otter
             contra
          
           
             A
             Miln
             once
             going
             28.
             hou●es
             may
             not
             be
             De●olished
             as
             
               novum
               opus
               ,
               via
               fact●
            
             being
             a
             Common-good
             ;
             but
             by
             civil
             in●erruption
             
               &
               via
               jur●s
            
             ,
             though
             it
             was
             but
             a
             walk-miln
             ,
             Iune
             24.
             1667.
             
             Hay
             of
             
               Struie
               contra
            
             Fe●ers
             .
          
           
             A
             Miln
             was
             found
             to
             be
             in
             the
             same
             condition
             as
             Land
             in
             relation
             to
             Heirs
             and
             Executors
             ,
             Liferenter
             and
             Fe●ar
             ,
             so
             that
             the
             He●eto●
             surviving
             Whitsonday
             ,
             his
             Executor
             hath
             the
             half
             ,
             and
             surviving
             Marti●mas
             the
             whole
             Rent
             ,
             though
             the
             conventional
             Terms
             were
             Candlesmas
             for
             the
             first
             ,
             and
             Whitsonday
             for
             the
             second
             Term
             ,
             the
             Entry
             being
             at
             
               Whitsonday
               ,
               Iuly
            
             20.
             1671
             
             ▪
             Guthrie
             contra
             Mckerstoun
             .
          
           
             A
             MINISTERS
             Stipend
             by
             Decreet
             of
             Locality
             was
             found
             not
             to
             be
             understood
             the
             measure
             of
             Linli●hgow
             ,
             but
             the
             mea●ure
             of
             the
             Shire
             ,
             where
             the
             measure
             was
             indefinite
             ,
             and
             the
             Stipend
             not
             e●ght
             full
             Chalders
             of
             Victual
             ,
             and
             was
             usually
             payed
             by
             the
             measu●e
             of
             the
             Shire
             15.
             years
             before
             ,
             Iune
             27.
             1669
             ,
             Minister
             of
             
               Dalrymple
               contra
            
             Earl
             of
             Cas●il●
             .
          
           
             A
             MINOR
             was
             not
             restored
             ,
             who
             gav●
             a
             Bond
             bearing
             expresly
             he
             was
             Major
             ,
             unless
             it
             were
             proven
             the
             Minor
             knew
             he
             was
             Minor
             ,
             or
             did
             induce
             him
             to
             insert
             that
             Clause
             ,
             or
             that
             by
             inspection
             he
             might
             have
             known
             him
             Minor
             ,
             not
             being
             near
             Majority
             ,
             
               February
               23.
               1665.
               
               Kennedie
            
             of
             Auch●iford●●
             contra
             Weir
             .
          
           
             A
             Minor
             during
             his
             Minority
             having
             obtai●ed
             Decreet
             against
             his
             Curator
             to
             renunce
             his
             Office
             ,
             the
             Curator
             was
             not
             ●ound
             liberate
             thereby
             ,
             even
             of
             omissions
             after
             the
             Decreet
             ,
             but
             it
             being
             alleadged
             that
             the
             Minor
             was
             irregular
             ,
             and
             had
             forcibly
             intrometted
             with
             his
             Rents
             ;
             The
             same
             was
             sustained
             
               pro
               tanto
               ,
               Iuly
               21.
               1664.
               
               Scot
            
             of
             Broad-meadows
             contra
             Scot
             of
             Thirlestoun
             .
          
           
             A
             Minors
             Bond
             was
             found
             null
             by
             Exception
             ,
             because
             it
             was
             not
             with
             his
             Fathers
             consent
             as
             lawful
             Administr●tor
             to
             him
             ,
             unless
             it
             did
             appear
             he
             had
             an
             Estate
             of
             his
             own
             and
             mannaged
             it
             apart
             ,
             
               December
               22.
               1665.
               
               Leslie
            
             contra
             Sinclar
             of
             Dun.
             
          
           
             A
             Minors
             Disposition
             of
             Land
             was
             found
             v●lide
             ,
             unless
             Lesion
             appeared
             ,
             though
             it
             wanted
             the
             authority
             of
             a
             Iudge
             ,
             ●hich
             is
             only
             requisite
             to
             the
             Dispositions
             of
             Pupils
             ▪
             and
             though
             the
             Minor
             had
             no
             Curators
             ,
             
               December
               13.
               1668.
               
               Thomson
            
             contra
             Stevinson
             .
          
           
             A
             Minor
             was
             restored
             though
             he
             wai●ed
             on
             the
             Tolbooth
             as
             a
             student
             at
             Law
             ,
             but
             was
             intertained
             by
             his
             Father
             ,
             and
             though
             the
             Father
             Subscribed
             the
             same
             Writ
             ,
             seing
             the
             Son
             subscribed
             as
             Cautioner
             for
             him
             ,
             and
             so
             his
             Authorizing
             was
             to
             his
             own
             behove
             ,
             
               Dec●mber
               5.
               1666.
               
               Mckenzei
            
             contra
             Fairholm
             .
          
           
             A
             Minors
             Bond
             having
             Curators
             not
             authorized
             by
             them
             ,
             was
             found
             null
             and
             extended
             to
             a
             Son
             ,
             and
             a
             Father
             as
             lawful
             Administrator
             ,
             as
             Curator
             to
             him
             ,
             and
             that
             his
             Sons
             Subscribing
             with
             him
             as
             Cautioner
             for
             him
             or
             with
             him
             for
             any
             other
             principal
             Conjunctly
             and
             severally
             ,
             was
             not
             thereby
             sufficiently
             auth●rized
             ,
             neither
             as
             Cautioner
             for
             his
             Father
             ,
             nor
             the
             other
             
               ●orr●i
               debendi
            
             ,
             his
             obligation
             as
             to
             both
             being
             to
             the
             Fathers
             behove
             ,
             as
             giving
             his
             Father
             thereby
             Relief
             ,
             and
             so
             the
             Son
             could
             not
             be
             authorized
             by
             the
             Father
             to
             the
             Fathers
             own
             behove
             ,
             
               Iuly
               25.
               1667.
               
               Inter
               eosdem
               .
            
          
           
             A
             mi●or
             having
             ▪
             Transacted
             with
             consent
             of
             his
             Curators
             for
             a
             Right
             and
             after
             his
             majority
             ,
             having
             received
             the
             Bonds
             delivered
             to
             the
             Creditors
             upon
             the
             Transaction
             ,
             and
             having
             discharged
             the
             Curators
             as
             having
             Faithfully
             acted
             ,
             and
             having
             in
             the
             Curators
             Accompts
             reserved
             Reduction
             of
             that
             Transaction
             upon
             Minority
             and
             Lesion
             which
             then
             was
             raised
             ,
             was
             not
             found
             thereby
             excluded
             from
             the
             Reduction
             ,
             but
             〈◊〉
             being
             doubtful
             whether
             that
             Reservation
             was
             in
             the
             accompt
             when
             it
             was
             first
             Subscribed
             ,
             the
             Writer
             and
             Witnesses
             were
             appointed
             to
             be
             examined
             
               ex
               officio
            
             there●nent
             ,
             
               Ianuary
               26.
               1671.
               
               Car●●
            
             contra
             Cunninghame
             .
          
        
         
           
             
               MINOR
               NON
               TENETVR
               PLACITARE
               ▪
            
             was
             found
             not
             Relevant
             in
             a
             Recognition
             ,
             February
             19.
             
             166●
             .
             Lady
             
               Carnagy
               con●ra
            
             Lord
             Cranburn
             .
          
           
             
               Minor
               non
               tenetur
               placitare
               super
               heredita●●
               pa●erna
            
             was
             found
             to
             have
             no
             place
             where
             the
             Father
             had
             only
             a
             Disposition
             and
             was
             not
             Infeft
             ,
             but
             if
             his
             Infef●ment
             were
             instructed
             ,
             the
             Minor
             was
             found
             not
             obliged
             to
             produce
             ●a●der
             ,
             or
             to
             Dispute
             the
             Reason
             of
             Reduction
             ,
             albeit
             it
             was
             not
             upon
             priority
             or
             Solemnities
             of
             the
             Rights
             ,
             but
             
               super
               dolo
               aut
               me●●
            
             ,
             yet
             the
             Pursuer
             was
             admitted
             to
             produce
             Witnesses
             for
             any
             point
             of
             Fact
             to
             remain
             
               in
               re●entis
            
             ,
             least
             they
             might
             dye
             
               medio
               temp●re
               ,
               Ianuary
               31.
               1665.
               
               Kello
            
             contra
             Pringle
             and
             the
             Laird
             of
             W●dderburn
             .
          
           
             
               Minor
               non
               tenetur
               placitare
            
             was
             found
             not
             to
             defend
             a
             Liferenter
             ,
             whom
             the
             Minor
             Feear
             was
             obliged
             to
             warrand
             ,
             and
             that
             her
             Right
             being
             Reduced
             ,
             did
             not
             accresce
             to
             the
             minor
             Feear
             ,
             nor
             did
             his
             ●ollerance
             defend
             her
             Possession
             ,
             Iuly
             5.
             1665.
             
             Borthwick
             contra
             Skein
             .
          
           
             
               Minor
               non
               tenetur
               placitare
            
             was
             found
             valide
             ,
             though
             the
             Reduction
             was
             against
             the
             Fathers
             Authors
             Right
             as
             not
             being
             infeft
             ,
             
               Ianuary
               18.
               1667.
               
               Chapman
            
             contra
             W●ite
             .
          
           
             
               Minor
               non
               tenetur
               placitare
               super
               har●d●ta●●
               paterna
               ,
            
             was
             found
             not
             Relevant
             to
             stop
             a
             Process
             of
             Recognition
             of
             Ward
             Bands
             upon
             the
             Vassals
             alienation
             of
             the
             major
             part
             thereof
             ,
             although
             the
             Sub●vassal
             who
             was
             also
             cited
             was
             minor
             ,
             seing
             the
             Vassal
             who
             was
             major
             ▪
             his
             Right
             was
             principally
             in
             question
             ,
             and
             the
             Sub-vassal
             minor
             ,
             his
             Right
             fell
             in
             consequence
             ,
             
               February
               22.
               1668.
               
               Cochran
            
             contra
          
           
             MINORITY
             AND
             LESION
             was
             found
             Relevant
             to
             Reduce
             a
             Womans
             Contract
             of
             marriage
             in
             so
             far
             as
             it
             came
             short
             of
             the
             ordinary
             conditions
             in
             ●avours
             of
             such
             persons
             in
             their
             Con●racts
             of
             marriage
             ,
             which
             was
             not
             ●ound
             to
             annul
             the
             provisions
             of
             the
             Lands
             and
             Sums
             to
             the
             Heirs
             of
             the
             marriage
             ,
             which
             failing
             the
             mans
             Heirs
             ,
             nor
             yet
             to
             make
             any
             portion
             thereof
             to
             return
             to
             the
             Wife
             in
             that
             case
             ,
             as
             not
             being
             ordinary
             ,
             but
             only
             to
             rectifie
             the
             same
             as
             to
             the
             Wifes
             loynture
             ,
             
               November
               22.
               1664.
               
               M●gil
            
             contra
             Ruthven
             of
             Gairn
             .
          
           
             Minority
             and
             Lesion
             was
             found
             only
             competent
             by
             Reduction
             ,
             and
             not
             by
             Ex●eption
             or
             Suspens●on
             ,
             Iune
             28.
             1665.
             
             Ky●e
             contra
             sea●oun
             .
          
           
             Minority
             and
             Lesion
             was
             not
             ●lided
             ,
             because
             the
             money
             was
             delivered
             to
             pretended
             Curators
             ,
             who
             were
             lyable
             to
             the
             minor
             without
             di●cussing
             the
             Curators
             first
             ,
             seing
             they
             were
             not
             in
             this
             Process
             ,
             and
             the
             minor
             hath
             his
             option
             to
             Reduce
             against
             the
             Creditor
             ,
             or
             pursue
             his
             Curators
             and
             Intrometters
             ,
             Iuly
             2.
             1667.
             
             Lord
             Blantire
             contra
             Walkinshaw
             .
          
           
             Minority
             and
             Les●on
             being
             insisted
             in
             by
             reduction
             and
             majority
             being
             alleadged
             in
             defense
             ,
             neither
             party
             was
             preferred
             in
             probation
             ,
             but
             Witnesses
             allowed
             
               hinc
               inde
               ,
               February
            
             20
             ▪
             1668.
             ●arqu●ar
             of
             Towli●
             contra
             Gordou●
             .
          
           
             Minority
             and
             Lesion
             was
             sustained
             to
             Reduce
             a
             Disposition
             by
             a
             Wife
             to
             her
             Husbands
             Brother
             ,
             though
             it
             had
             been
             to
             her
             Husbands
             behove
             in
             contemplation
             of
             the
             marriage
             ,
             seing
             there
             was
             no
             remuneratory
             provision
             on
             the
             Husbands
             part
             ,
             and
             that
             the
             legal
             Terce
             was
             not
             enough
             ,
             but
             that
             the
             Husband
             ought
             to
             have
             acquiesced
             in
             his
             
               jus
               mariti
            
             ,
             as
             well
             as
             the
             Wife
             in
             ●er
             Terce
             ,
             or
             both
             had
             mutual
             provisions
             ,
             here
             the
             Wife
             was
             carried
             away
             and
             married
             without
             her
             Freinds
             consent
             ,
             Iuly
             14.
             1669.
             
             Earl
             of
             Marischal
             contra
             Keith
             of
             Whitehaugh
             .
          
           
             A
             MINVTE
             disponing
             Lands
             with
             part
             and
             pertinent
             ,
             was
             found
             to
             be
             extended
             ●o
             ,
             as
             to
             express
             common
             pasturage
             in
             a
             Muire
             possessed
             therewith
             the
             time
             of
             the
             Bargain
             ,
             
               February
               14.
               1668.
               
               Borthwick
            
             contra
             Lord
             Borthwick
             .
          
           
             A
             Minute
             was
             ex●ended
             by
             the
             Witnesses
             insert
             ,
             as
             to
             the
             manner
             of
             payment
             ,
             which
             was
             not
             so
             exprest
             therein
             ,
             
               Ianuary
               15.
               1666.
               
               Ch●ap
            
             contra
             Philip.
             
          
           
             A
             MISSIVE
             LETTER
             by
             a
             Merchant
             to
             a
             Factor
             to
             send
             home
             Wine
             on
             such
             another
             Factors
             credite
             ,
             with
             whom
             the
             Writer
             not
             being
             acquaint
             ,
             but
             upon
             the
             Factors
             account
             ,
             was
             found
             to
             oblige
             the
             Writer
             and
             not
             that
             third
             party
             ,
             unless
             he
             had
             accepted
             ,
             neither
             then
             did
             it
             liberate
             the
             Writer
             ,
             but
             the
             third
             party
             was
             expromissor
             ,
             in
             this
             the
             Lords
             would
             not
             take
             Examination
             of
             Merchants
             what
             such
             Letters
             did
             import
             ,
             
               February
               7.
               1665.
               
               Pallat
            
             Factor
             at
             Burdeux
             contra
             Fairholm
             .
          
           
             A
             Missive
             Letter
             was
             found
             to
             instruct
             an
             accompt
             of
             100.
             pound
             sterling
             received
             and
             Furniture
             sent
             ,
             albeit
             it
             was
             not
             holograph
             nor
             amongst
             Merchants
             ,
             but
             betwixt
             noble
             persons
             ,
             being
             for
             ●urniture
             sent
             from
             London
             to
             the
             Writer
             of
             the
             Letter
             ,
             by
             the
             other
             noble
             person
             ,
             being
             then
             at
             London
             ,
             to
             whom
             it
             was
             written
             ,
             the
             said
             receiver
             of
             the
             Letter
             making
             Faith
             that
             this
             was
             the
             true
             Letter
             that
             he
             received
             from
             the
             other
             ,
             February
             28.
             1671.
             
             Earl
             of
             
               Northesk
               ●ntra
            
             Viscount
             of
             Stormont
             .
          
           
             Missive
             vide
             Clause
             ,
             
               Iuly
               15.
               1662.
               
               Wauchop
               contra
            
             Laird
             of
             Niddrie
             ,
             &c.
             
          
           
             A
             MOTHER
             was
             found
             obliged
             by
             the
             Law
             to
             aliment
             her
             Children
             according
             to
             her
             means
             ,
             they
             having
             no
             means
             of
             their
             own
             ,
             or
             any
             person
             representing
             their
             Father
             able
             to
             aliment
             them
             in
             their
             Family
             ,
             but
             that
             the
             Mother
             was
             only
             
             ●bliged
             to
             aliment
             them
             in
             her
             Family
             ,
             d●d
             not
             to
             pay
             modification
             for
             their
             Education
             out
             of
             her
             Family
             ▪
             albeit
             they
             were
             ●oble
             persons
             and
             the
             Mother
             had
             miscarried
             ,
             February
             23.
             1666.
             
             Children
             of
             the
             Earl
             of
             
               Buchan
               ▪
               contra
            
             Countess
             of
             Buchan
             .
          
           
             A
             Mother
             taking
             a
             Bond
             to
             her self
             in
             Liferent
             ,
             and
             to
             her
             Children
             in
             Fee
             ▪
             was
             ●ound
             not
             to
             have
             powe●
             to
             alter
             or
             assign
             that
             Bond
             to
             another
             ,
             as
             being
             presumed
             to
             be
             made
             by
             her
             own
             means
             ,
             but
             the
             same
             was
             presumed
             to
             be
             the
             Childrens
             means●
             by
             their
             Father
             ,
             though
             their
             Mother
             was
             not
             Tu●rix
             or
             Curatrix
             to
             them
             ,
             seing
             the
             Bond
             did
             not
             express
             it
             to
             be
             the
             Mothers
             own
             means
             ,
             no●
             reserved
             a
             power
             to
             the
             Mo●●er
             to
             Dispone
             ,
             
               February
               18.
               1671.
               
               Dundas
               contra
            
             the
             Lairds
             of
             Ardros●
             and
             ●ouch
             .
          
           
             MOVEA●●ES
             being
             craved
             to
             be
             restored
             as
             being
             the
             Pursuers
             ,
             the
             Libel
             was
             not
             found
             Relevant
             ,
             unless
             he
             condescended
             
               quomodo
               des●t
               ●osildire
            
             ,
             and
             instruct
             the
             same
             ,
             and
             he
             having
             condescended
             that
             it
             was
             by
             Loan
             ,
             it
             was
             found
             probable
             by
             Witnesses
             ,
             
               〈◊〉
               21.
               1665.
               
               Scot
            
             contra
             Fletcher
             .
          
           
             In
             Moveables
             possession
             presumes
             a
             Title
             ,
             without
             necess●ty
             to
             instruct
             the
             possessors
             authors
             Right●
             without
             distinction
             of
             ordinary
             moveables
             or
             lewels
             ,
             unless
             the
             presump●ion
             be
             elided
             by
             ●●onger
             probation
             ,
             that
             such
             Iewels
             could
             not
             have
             belonged
             to
             him
             that
             impigno●ate
             the
             same
             ,
             who
             neither
             had
             them
             as
             a
             Merchand
             nor
             leweler
             ,
             neither
             did
             nor
             could
             make
             use
             of
             them
             for
             his
             own
             wearing
             ▪
             Dec●mber
             12.
             1665.
             
             Ramsay
             contra
             Wilson
             .
             Here
             the
             first
             Author
             Impignorat
             them
             by
             Writ
             ,
             and
             immediatly
             ●ent
             abroad
             .
          
           
             NEAREST
             OF
             KIN
             surviving
             the
             De●unct
             ,
             Transmit
             their
             share
             of
             the
             deads
             part
             to
             their
             ●xecutors
             ,
             and
             it
             doth
             not
             accres●o●●●
             the
             rest
             of
             the
             nearest
             of
             kin
             or
             to
             their
             Executors
             ,
             February
             1●
             .
             166●
             .
             ●ell
             contra
             Wilkie
             .
          
           
             IN
             NONE●TRY
             the
             full
             Rent
             is
             due
             from
             the
             citation
             in
             the
             general
             De●●arator
             ,
             and
             not
             from
             the
             time
             of
             the
             Sentence
             only
             〈◊〉
             ,
             and
             accordingly
             the
             special
             Declarator
             was
             sustained
             ▪
             
               Iuly
               25.
               1666.
               
               Harper
               contra
            
             his
             Vassals
             
               Idem
               .
               Iune
               12.
               1673.
               
               Faw
               contra
            
             Lord
             Balmerin●
             and
             Laird
             Pourie
             .
          
           
             
               NOVITER
               V●NIENS
               AD
               NOT
               ITIAM
            
             was
             sustained
             to
             reduce
             the
             Circumduction
             of
             a
             Term
             ,
             upon
             the
             Suspenders
             making
             Faith
             that
             the
             Writs
             now
             produced
             to
             prove
             what
             was
             then
             ●o
             have
             been
             proven
             ,
             were
             found
             out
             by
             her
             ,
             since
             the
             Term
             was
             Circumduced
             ,
             Iune
             29.
             1665.
             
             Norvil
             contra
             Suntar
             .
          
           
             OATH
             OF
             A
             WIFE
             never
             to
             come
             in
             the
             contrary
             of
             her
             Bond
             granted
             〈…〉
             ,
             was
             found
             not
             to
             hinder
             her
             to
             alleadge
             that
             the
             Bond
             was
             null
             
               ipso
               jure
               ,
               February
            
             18.
             1662.
             contra
             〈◊〉
             .
          
           
             Oath
             of
             parties
             being
             taken
             ,
             and
             they
             deponing
             upon
             the
             Tenor
             of
             a
             Writ
             and
             assoilzied
             thereupon
             ,
             were
             decerned
             thereafter
             upon
             production
             of
             the
             same
             Writ
             ,
             as
             not
             being
             contrary
             to
             the
             Oath
             ▪
             but
             being
             only
             in
             so
             far
             as
             the
             Deponent
             Remembred
             the
             Tenor
             of
             the
             Writ
             ,
             November
             23.
             1665.
             
             
               Campbel
               contra
            
             Doctor
             〈◊〉
             .
          
           
             The
             Oa●h
             of
             an
             author
             was
             found
             competent
             against
             a
             singular
             Successor
             in
             an
             Appryzing
             ,
             for
             proving
             the
             ●ame
             satified
             by
             intromission
             ,
             seing
             before
             this
             Defenders
             Right
             the
             matter
             was
             Litigious
             ,
             and
             an
             Act
             Extracted
             ,
             referring
             the
             intromission
             to
             that
             Authors
             Oath
             ,
             
               Iuly
               14.
               1666.
               
               Sharp
            
             contra
             Glen
             .
          
           
             OATH
             OF
             CALVMNIE
             was
             found
             Competent
             as
             to
             one
             point
             of
             a
             Libel
             ,
             where
             the
             rest
             was
             not
             to
             be
             proven
             by
             Oath
             ,
             but
             in
             respect
             there
             could
             be
             no
             evident
             difference
             as
             to
             that
             point
             betwixt
             the
             Oath
             of
             Calumny
             and
             Verity
             ,
             and
             that
             the
             point
             was
             no
             ways
             probable
             but
             by
             the
             Oath
             of
             Verity
             ,
             the
             Oath
             of
             Calumny
             thereanent
             was
             refused
             ,
             
               February
               20.
               1667.
               
               〈◊〉
            
             contra
             〈◊〉
             .
          
           
             OATH
             EX
             OFFICIO
             ●nent
             having
             of
             Writs
             ,
             was
             found
             to
             be
             given
             ,
             if
             at
             any
             time
             the
             Deponent
             had
             them
             ,
             and
             how
             he
             put
             them
             away
             ,
             that
             it
             might
             appear
             if
             fraudulently
             ,
             but
             not
             to
             depone
             if
             he
             knew
             who
             had
             them
             ,
             as
             not
             being
             proper
             ,
             November
             1●
             .
             1662.
             
             Children
             and
             Creditors
             of
             Bryson
             .
          
           
             OATH
             
               IN
               LITE
               ●
            
             was
             admitted
             for
             proving
             of
             Ware
             in
             a
             Pack
             given
             in
             custody
             ,
             where
             the
             keeper
             opened
             the
             same
             ,
             though
             he
             made
             Inventary
             before
             Witnesses
             by
             a
             Baillies
             Warrant
             ▪
             
               Ianuary
               3.
               1667.
               
               Packman
            
             contra
             Bran.
             
          
           
             OATH
             QVALIFIED
             was
             not
             sustained
             importing
             a
             compensation
             ,
             yet
             the
             ●ame
             was
             admitted
             to
             be
             proven
             as
             an
             Exception
             at
             advising
             of
             the
             cause
             ,
             
               December
               9.
               1664.
               
               Lermont
            
             contra
             R●ssel
             .
          
           
             AN
             OBLIGATION
             by
             three
             persons
             to
             cause
             a
             Minor
             releave
             a
             sum
             not
             bearing
             conjunctly
             and
             severally
             ,
             was
             found
             not
             to
             oblige
             every
             one
             
               in
               solidum
            
             ,
             as
             being
             for
             an
             indivisible
             Fact
             ,
             but
             resulting
             in
             a
             divisible
             sum
             ,
             Iuly
             16.
             1669.
             
             Dennistoun
             contra
             Semple
             of
             Fulwood
             .
          
           
             OFFER
             of
             the
             remander
             of
             a
             Sum
             not
             being
             special
             and
             not
             being
             Consigned
             ,
             was
             found
             not
             to
             purge
             a
             Failzie
             ,
             
               December
               19.
               1661.
               
               Deuar
               contra
            
             Countess
             of
             Murray
             .
          
           
             Offer
             conditional
             to
             pay
             a
             su●
             for
             a
             Mother
             on
             condition
             it
             were
             at
             such
             a
             time
             and
             place
             ,
             and
             were
             made
             known
             whether
             or
             not
             it
             were
             accepted
             ,
             was
             found
             not
             obligatory
             after
             the
             Mothers
             death
             ,
             unless
             the
             condition
             had
             been
             fulfilled
             then
             〈◊〉
             ,
             
               Iune
               ▪
               24.
               1664.
               
               Allan
            
             contra
             Colner
             .
          
        
         
           
             Offer
             of
             Caution
             to
             a
             Wodsetter
             that
             he
             ought
             to
             quite
             possession
             ,
             or
             restrict
             to
             the
             Annualrent
             ,
             was
             sustained
             though
             made
             at
             the
             parties
             dwelling
             House
             ,
             when
             he
             was
             out
             of
             the
             Countrey
             ,
             seing
             the
             Act
             of
             Parliament
             did
             not
             require
             that
             offer
             to
             be
             by
             Instrument
             ;
             and
             though
             the
             instrument
             of
             offer
             did
             not
             bear
             a
             Procuratory
             to
             him
             that
             made
             the
             offer
             ,
             the
             said
             procuratory
             being
             now
             produced
             ,
             Iune
             16.
             1671.
             
             Lord
             
               Lovi●
               contra
            
             Lord
             Mcdonald
             .
          
           
             THE
             OFFICE
             of
             a
             Commissar
             Clerk
             was
             found
             no●
             to
             be
             annulled
             by
             his
             absence
             for
             a
             time
             out
             of
             the
             Countrey
             ,
             and
             being
             denunced
             sine
             
               crimine
               ,
               February
            
             6.
             1666
             ,
             Archbishop
             of
             Glasgow
             contra
             Logan
             .
          
           
             An
             Office
             of
             a
             common
             Servant
             ,
             viz.
             a
             Town
             Clerk
             being
             given
             
               ad
               vitam
               ▪
            
             was
             found
             to
             imply
             a
             tacite
             condition
             to
             be
             also
             
               ad
               culpam
            
             ,
             and
             that
             such
             a
             fault
             did
             resolve
             the
             same
             ,
             as
             was
             of
             knowledge
             and
             consequence
             ,
             February
             14.
             1665.
             
             Town
             of
             
               Edinburgh
               contra
               Thomson
            
             .
          
           
             OVERSE●RS
             were
             found
             lyable
             for
             nothing
             ,
             if
             they
             intrometted
             not
             ,
             
               Ianuary
               10.
               1665.
               
               Swintoun
            
             contra
             Norman
             .
          
           
             PART
             AND
             PERTINENT
             of
             Lands
             disponed
             by
             a
             Minute
             ,
             was
             found
             to
             extend
             to
             a
             common
             Pa●●urage
             in
             a
             Muire
             possessed
             as
             pertinent
             of
             the
             Land
             in
             the
             Bargain
             ,
             and
             that
             the
             Writes
             upon
             the
             extension
             of
             the
             Minute
             ,
             ought
             to
             bear
             the
             ●ame
             expresly
             ,
             
               February
               14
               ,
               1668.
               
               Borthwick
            
             contra
             Lord
             Borthwick
             .
          
           
             Part
             and
             pertinent
             
               cum
               pascuis
               &
               pasturn
            
             in
             a
             Charter
             given
             by
             the
             King
             to
             the
             Feuars
             of
             his
             Property
             ,
             was
             found
             to
             carry
             common
             pasturage
             in
             the
             Muire
             of
             the
             Barony
             ,
             which
             being
             now
             possessed
             40.
             years
             by
             the
             Feuars
             of
             the
             Barony
             ,
             is
             presumed
             to
             have
             been
             so
             at
             the
             time
             of
             the
             Charter
             ,
             being
             past
             memory
             ,
             and
             that
             interruptions
             of
             any
             other
             Right
             exclusive
             of
             this
             common
             pasturage
             ,
             was
             sufficient
             to
             preserve
             the
             same
             ,
             February
             15
             166●
             .
             Laird
             of
             
               Haining
               contra
            
             Tow●
             of
             Selkirk
             .
          
           
             ●art
             and
             pertinent
             was
             not
             excluded
             ,
             albeit
             an
             alleadgeance
             was
             proponed
             on
             an
             old
             Se●sine
             of
             the
             Lands
             in
             question
             ,
             as
             being
             
               separatum
               tenementum
            
             ,
             the
             Seasine
             being
             ●ound
             null
             ,
             and
             no
             Title
             for
             Prescription
             ,
             February
             15.
             1671.
             
             Earl
             of
             
               Argile
               contra
            
             Laird
             of
             Mcnauchtoun
             .
          
           
             ALL
             PARTIES
             HAVING
             INTEREST
             not
             necessary
             to
             be
             cited
             at
             the
             M●r●at
             Cross
             in
             the
             Declarator
             of
             the
             Expyring
             of
             a
             Feu
             
               ob
               non
               solutum
               〈◊〉
            
             ,
             though
             the
             Summons
             bear
             warrand
             for
             the
             citation
             ,
             December
             1.
             1664.
             
             Ea●l
             .
             of
             S●therland
             contra
             Gordoun
             .
          
           
             PARIOIDE
             doth
             not
             infer
             Treason
             as
             against
             the
             Act
             of
             Parliament
             against
             murder
             under
             Trust
             ,
             which
             is
             meaned
             by
             paction
             ,
             in
             re●pect
             of
             the
             special
             Act
             of
             Parliament
             against
             Paricide
             ,
             which
             doth
             not
             exclude
             the
             Paricides
             Collaterals
             ,
             but
             him
             and
             his
             descendents
             from
             the
             succession
             of
             the
             slain
             ,
             which
             therefore
             cannot
             belong
             to
             the
             Fisk
             ,
             
               Ianuary
               22.
               1663.
               
               Zeaman
            
             contra
             Oliphant
             .
          
           
             PASSING
             FROM
             A
             REASON
             of
             Suspension
             
               pro
               loco
               &
               tempore
            
             ,
             was
             found
             not
             to
             hinder
             the
             proponing
             of
             the
             same
             against
             that
             Decreet
             ,
             and
             against
             an
             Appryzing
             thereon
             ,
             the
             matter
             being
             yet
             illiquid
             ,
             and
             a
             singular
             Successor
             in
             the
             Appryzing
             ▪
             Iune
             17.
             1664.
             
             Laird
             of
             Tulli●llan
             contra
             〈◊〉
             and
             Bra●foord
             .
          
           
             Passing
             from
             a
             Reason
             of
             Compensation
             ,
             and
             taking
             up
             a
             Writ
             for
             instructing
             thereof
             ,
             was
             admitted
             before
             Extracting
             of
             a
             Decreet
             ,
             though
             the
             Writ
             was
             long
             in
             the
             Chargers
             hand
             ,
             not
             being
             judicially
             given
             up
             to
             him
             ,
             and
             that
             another
             emergent
             exception
             might
             now
             be
             admitted
             ,
             Iuly
             14.
             1664.
             
             Lord
             
               Balmerino
               contra
            
             the
             Creditors
             of
             Dick.
             
          
           
             PAYMENT
             made
             before
             the
             hand
             ,
             was
             found
             Relevant
             against
             a
             singular
             Successor
             ,
             the
             Kings
             Dona●ar
             of
             Forefa●lture
             ,
             because
             it
             was
             but
             of
             one
             Term
             ,
             and
             so
             accustomed
             by
             the
             Baro●y
             to
             pay
             at
             the
             Entry
             ,
             and
             be
             free
             at
             the
             ●sh
             ,
             Ianuary
             7.
             1662.
             
             Earl
             of
             
               Laud●●dail
               contra
            
             Tennents
             of
             Swintoun
             .
          
           
             Payment
             made
             
               b●na
               fide
            
             to
             Bai●ns
             of
             a
             Sum
             by
             a
             Disponer
             in
             ●avours
             of
             these
             Bairns
             ,
             was
             sustained
             though
             after
             Reduction
             raised
             ,
             unless
             a
             Reason
             had
             been
             Libelled
             against
             that
             which
             was
             ordained
             to
             be
             payed
             to
             Bairns
             ▪
             and
             shown
             before
             payment
             ,
             
               Iuly
               14.
               1662.
               
               M●ntgomerie
            
             of
             Mack●ichill
             contra
             Wallace
             .
          
           
             Payment
             made
             
               bona
               fide
            
             to
             a
             Procurator
             ,
             was
             thought
             to
             be
             Relevant
             ,
             though
             the
             Procuratory
             should
             be
             improven
             ,
             if
             therein
             there
             did
             appear
             no
             ground
             suspition
             to
             have
             put
             the
             Debitor
             
               in
               ma●●
               fide
               ,
               February
               1.
               
               166●
               .
               Elphingstoun
            
             of
             
               Selms
               contra
            
             Lord
             Rollo
             and
             Laird
             of
             Niddrie
             .
          
           
             Payment
             made
             by
             Heretors
             to
             Ministers
             of
             their
             Stipends
             during
             the
             time
             they
             Preached
             and
             before
             any
             Process
             against
             them
             ,
             was
             found
             to
             liberate
             the
             Heretors
             ,
             notwithstanding
             they
             were
             outed
             by
             the
             Act
             of
             Parliament
             anent
             these
             Ministe●s
             who
             entered
             since
             the
             year
             1649
             ▪
             and
             had
             not
             gotten
             Presentation
             and
             Collation
             ,
             whereunto
             the
             Heretors
             ●e●e
             not
             obliged
             t●
             inquire
             ,
             seing
             the
             Ministers
             were
             suffered
             to
             Preach
             without
             challenge
             ,
             February
             10.
             1666.
             
             Collector
             of
             the
             vacant
             Stipends
             contra
             the
             Heretors
             of
             May●ole
             and
             Gi●van
             .
          
           
             Payment
             made
             
               b●na
               fide
            
             was
             found
             not
             to
             extend
             to
             payment
             
             made
             by
             a
             Tennent
             before
             the
             time
             ,
             nor
             to
             a
             Sub-Tenent
             to
             the
             Tennent
             before
             the
             Term
             ,
             February
             5.
             1667.
             
             Lady
             Traquair
             contra
             Howa●son
             .
          
           
             Payment
             made
             of
             a
             Decreet
             by
             giving
             Bond
             of
             borrowed
             money
             ,
             and
             taking
             Discharges
             of
             the
             Decreet
             ,
             was
             found
             no
             Homologa●ion
             or
             Transaction
             ,
             but
             that
             after
             the
             party
             might
             quarrel
             both
             Decreet
             and
             Bond
             in
             consequence
             ,
             unless
             abatement
             were
             gotten
             upon
             Transaction
             of
             the
             Sum
             in
             the
             Decreet
             ,
             seing
             it
             was
             not
             voluntarly
             done
             but
             upon
             Caption
             ,
             
               I●ly
               3.
               1668.
               
               Rew
            
             contra
             Houstoun
             .
          
           
             Payment
             of
             the
             Rent
             of
             a
             Shop
             was
             sustained
             ,
             being
             a
             Ta●k
             set
             by
             a
             Father
             to
             a
             Tennent
             for
             the
             annualrent
             of
             a
             sum
             ,
             though
             the
             Father
             had
             given
             a
             Right
             to
             his
             Son
             ,
             reserving
             his
             own
             Liferent
             ,
             seing
             he
             set
             the
             Tack
             as
             Feear
             ,
             and
             though
             the
             Son
             after
             his
             death
             warned
             only
             by
             Chalking
             the
             Door
             ,
             without
             any
             other
             intimation
             ,
             the
             Tacks-man
             was
             Liberate
             of
             the
             Rent
             for
             his
             Annualrent
             ,
             as
             
               bonae
               fidei
               possessor
            
             by
             his
             Tack
             ,
             till
             he
             was
             cited
             on
             the
             Sons
             Right
             ,
             February
             16.
             1669.
             
             Hamiltoun
             contra
             Harper
             .
          
           
             Payment
             inferred
             by
             consecutive
             Discharges
             of
             all
             years
             preceeding
             ,
             was
             found
             not
             effectual
             where
             a
             preceeding
             year
             was
             acknowledged
             ●esting
             by
             these
             ,
             who
             obtained
             the
             discharge
             ,
             and
             where
             the
             Giver
             thereof
             had
             given
             a
             Warrand
             to
             a
             third
             party
             to
             li●t
             that
             year
             to
             his
             own
             behove
             ,
             albeit
             that
             was
             not
             intimate
             to
             the
             Tennents
             ,
             
               February
               18.
               1669.
               
               Cockburn
            
             and
             Gilespie
             her
             Husband
             
               contra
               St●uar●
            
             and
             the
             Tennents
             of
             Lintoun
             .
          
           
             Payment
             being
             proponed
             by
             one
             pursued
             as
             Representing
             ,
             if
             he
             deny
             not
             the
             passive
             Titles
             ,
             the
             Pursuer
             is
             liberate
             from
             proving
             thereof
             ,
             
               November
               6.
               1669.
               
               Scot
            
             of
             Hartwoodmires
             Supplicant
             .
          
           
             Payment
             of
             a
             Tocher
             contracted
             by
             a
             Wife
             for
             her self
             ,
             was
             inferred
             by
             presumption
             that
             she
             lived
             twenty
             two
             years
             ,
             and
             that
             in
             his
             Testament
             he
             acknowledged
             his
             Tocher
             was
             payed
             ,
             which
             was
             not
             esteemed
             as
             
               legatum
               liberatio●●s
            
             to
             affect
             the
             Deads
             part
             only
             ,
             but
             with
             the
             presumption
             did
             import
             an
             absolute
             Discharge
             ,
             
               February
               16.
               1671.
               
               Scot
            
             contra
             Dods
             .
          
           
             A
             PENSION
             secular
             was
             ●ound
             only
             as
             an
             Assignation
             to
             Mails
             and
             Duties
             ,
             not
             to
             affect
             the
             Ground
             against
             singular
             Successors
             ,
             albeit
             it
             bear
             to
             be
             payed
             out
             of
             the
             readiest
             Fruits
             of
             such
             Lands
             ,
             and
             was
             cled
             with
             possession
             ,
             December
             11.
             1662.
             
             
               Clapp●rtoun
               contra
            
             Laird
             of
             Ed●em
             .
          
           
             PERRIL
             of
             a
             Hous●
             sold
             ,
             and
             thereafter
             burnt
             was
             found
             to
             ●e
             the
             buyers
             ,
             though
             the
             Disposition
             bear
             an
             obligement
             to
             put
             the
             buyer
             in
             possession
             ▪
             seing
             he
             voluntarly
             took
             possession
             and
             Re-built
             the
             House
             ,
             and
             payed
             all
             the
             price
             ,
             
               December
               13.
               1667.
               
               Hunter
            
             contra
             Wilson
             .
          
           
             PERSONAL
             OBLIGATIONS
             of
             Appryzers
             to
             communicat
             their
             appryzings
             ,
             are
             not
             effectual
             against
             the
             Appryzers
             singular
             Suc●essors
             ,
             
               Iuly
               6.
               1661.
               
               Telzifer
            
             contra
             Max●oun
             and
             Cunningh●me
             .
          
           
             Personal
             provision
             by
             a
             Back-bond
             of
             the
             same
             date
             with
             a
             Feu
             ,
             bearing
             that
             the
             Feuar
             might
             Renunce
             the
             Feu
             when
             he
             pleased
             ,
             was
             found
             valide
             against
             the
             singular
             Successor
             of
             the
             granter
             of
             the
             Feu
             ,
             seing
             it
             did
             not
             alter
             any
             thing
             of
             the
             real
             Right
             of
             the
             Feu
             ,
             but
             only
             the
             personal
             obligation
             in
             the
             Feudal
             Contract
             ,
             obliging
             the
             Feuer
             and
             his
             Heirs
             to
             pay
             the
             Feu-duty
             ▪
             yearly
             ,
             
               February
               12.
               1669.
               
               Brown
            
             contra
             Sibbald
             .
          
           
             POSSESSION
             of
             stollen
             Goods
             by
             using
             them
             in
             the
             Pleugh
             four
             moneths
             ,
             was
             found
             not
             to
             secure
             the
             possessors
             ,
             but
             that
             they
             might
             be
             recovered
             summarly
             by
             the
             Sheriffs
             warrand
             without
             citation
             ,
             but
             if
             the
             Possessors
             did
             acquire
             Right
             by
             an
             onerous
             Title
             ,
             they
             were
             not
             to
             be
             Restored
             ,
             but
             prejudice
             to
             the
             Owner
             to
             recover
             the
             same
             by
             Process
             ,
             yet
             so
             as
             the
             Sheriffs
             warrand
             did
             exclude
             from
             violent
             profites
             ,
             
               Iuly
               6.
               1671.
               
               Strachan●
            
             contra
             Gordouns
             .
          
           
             
               POSSESSOR
               BONAE
               FIDEI
               facit
               fructus
               consumptos
               suos
               ,
            
             was
             found
             not
             to
             extend
             to
             a
             Mother
             ,
             who
             by
             several
             presumptions
             appeared
             to
             have
             known
             the
             Right
             of
             her
             Children
             ,
             wherein
             private
             knowledge
             was
             enough
             ,
             November
             20.
             1662.
             
             Children
             of
             Wolmet
             contra
             Lady
             Wolmet
             and
             Dankeith
             her
             Husband
             .
          
           
             
               Possessor
               bon●
               fidei
            
             ,
             &c.
             albeit
             his
             authors
             Right
             was
             Reduced
             in
             Parliament
             ,
             whereto
             he
             having
             but
             a
             Tack
             needed
             not
             be
             called
             ,
             and
             so
             he
             had
             no
             standing
             Title
             ,
             his
             Tack
             falling
             in
             consequence
             ,
             seing
             nothing
             was
             done
             to
             interrupt
             his
             possession
             ,
             
               Iuly
               19.
               1664.
               
               Dowglas
            
             and
             Sinclar
             her
             Spouse
             contra
             Laird
             of
             Wedderburn
             .
          
           
             
               Possessor
               bon●
               fidei
            
             ,
             &c.
             was
             extended
             to
             one
             who
             had
             a
             second
             Right
             to
             a
             Reversion
             ,
             and
             had
             first
             Redeemed
             and
             possessed
             thereby
             ,
             and
             was
             not
             found
             lyable
             to
             the
             other
             pursuing
             upon
             his
             prior
             Right
             as
             to
             bygones
             before
             Citation
             ,
             although
             he
             had
             not
             acquired
             the
             benefite
             of
             a
             possessory
             judgement
             by
             possessing
             7.
             years
             ,
             
               November
               18.
               1664.
               
               Guthrie
               contra
            
             Laird
             of
             Sornbeg
             .
          
           
             
               Possessor
               bon●
               fidei
            
             ,
             &c.
             was
             found
             not
             to
             take
             effect
             to
             one
             who
             had
             obtained
             a
             Decreet
             to
             Removing
             ,
             for
             not
             payment
             of
             ●he
             duties
             in
             absence
             ,
             and
             produced
             not
             his
             Infeftment
             ,
             but
             〈◊〉
             infef●ment
             of
             another
             person
             of
             that
             same
             Name
             ,
             which
             being
             a
             fraudulent
             deed
             ,
             he
             could
             not
             thereby
             have
             a
             Title
             
               cum
               bona
               fid●
               ,
               Iune
               21.
               1671.
               
               Neilson
            
             contra
             Menzies
             of
             Knock.
             
          
        
         
           
             A
             POSSESSORY
             ●IVDGEMENT
             was
             not
             sustained
             upon
             five
             or
             six
             years
             possession
             ,
             or
             less
             then
             seven
             years
             ,
             
               December
               13.
               1669.
               
               Hamiltoun
               contra
            
             Tennents
             of
             Vppersheils
             and
             Rowan
             .
          
           
             A
             possessory
             judgement
             was
             found
             not
             competent
             upon
             seven
             years
             after
             interruption
             ,
             but
             that
             the
             Interruption
             continued
             till
             prescription
             ,
             
               Iuly
               22.
               1664.
               
               Montgomerie
            
             contra
             Hume
             .
             Here
             the
             interruption
             was
             by
             a
             Decreet
             of
             Removing
             ,
             which
             gave
             the
             other
             civil
             possession
             .
          
           
             A
             possessory
             judgement
             was
             not
             admitted
             against
             an
             annualrent
             ,
             which
             is
             
               debitum
               fundi
               ,
               Iune
               25.
               1662.
               
               Adamf●nt
               contra
            
             Lord
             Balmerino
             .
          
           
             A
             possessory
             judgement
             was
             found
             not
             competent
             to
             a
             Wife
             by
             her
             Husbands
             possession
             ,
             against
             another
             deriving
             Right
             from
             him
             ,
             the
             wifes
             infeftment
             not
             being
             onero●s
             ,
             or
             upon
             her
             Contract
             ,
             but
             gratuitous
             ,
             December
             7.
             1664.
             
             Lady
             Craig
             and
             Green-head
             her
             Husband
             contra
             Lord
             Loure
             .
          
           
             Possessory
             judgement
             is
             not
             competent
             upon
             Possession
             of
             Warrandice
             Lands
             against
             Recourse
             upon
             Eviction
             ,
             which
             may
             be
             without
             Reduction
             ,
             
               Ianuary
               9.
               1666.
               
               Brown
            
             contra
             Sco●
             .
          
           
             A
             possessory
             ludgement
             on
             7.
             years
             possession
             was
             found
             valide
             to
             a
             party
             infeft
             ,
             though
             entering
             by
             the
             Conjunct
             fe●ar
             as
             Heir
             to
             her
             who
             was
             not
             F●●ar
             but
             Li●erenter
             ,
             February
             20.
             1667.
             
             Cranstoun
             contra
             Wilkison
             .
          
           
             A
             possessory
             judgement
             was
             not
             found
             competent
             upon
             seven
             years
             possession
             ,
             by
             vertue
             of
             an
             Appryzing
             ,
             on
             which
             there
             neither
             followed
             Infeftment
             nor
             Charge
             against
             the
             Superiour
             to
             Infeft
             ,
             
               February
               6.
               1668.
               
               Iohnstoun
            
             contra
             Erskin
             .
          
           
             A
             Possessory
             judgement
             upon
             a
             publick
             Infeftment
             ,
             and
             seven
             years
             possession
             ,
             was
             ●ound
             not
             Relevant
             against
             a
             Pursuit
             for
             Recourse
             upon
             Eviction
             by
             Infeftment
             of
             warrandice
             ,
             unlesse
             there
             were
             seven
             years
             Possession
             after
             the
             Eviction
             ,
             
               February
               20.
               1668.
               
               Forbes
            
             contra
             I●nes
             .
          
           
             A
             Possessory
             Iudgement
             was
             Sustained
             upon
             seven
             years
             possession
             peaceably
             before
             intenting
             of
             the
             Cause
             ,
             albeit
             there
             was
             interruption
             by
             Citation
             before
             these
             seven
             years
             ,
             and
             albeit
             there
             was
             ●urceals
             of
             lustice
             during
             the
             last
             seven
             years
             ,
             and
             that
             the
             Pursuer
             was
             Minor
             ,
             Iuly
             15.
             
             166●
             .
             Earl
             of
             Wintonn
             contra
             Gordoun
             of
             Letter●urry
             .
          
           
             A
             Possessory
             Iudgement
             was
             sustained
             on
             an
             Infeftment
             on
             a
             voluntary
             Disposition
             against
             an
             appryzer
             ,
             who
             had
             denunced
             the
             Lands
             before
             that
             Disposition
             ,
             who●e
             Denunciation
             was
             not
             found
             to
             render
             the
             matter
             so
             litigious
             as
             to
             exclude
             a
             possessory
             judgement
             by
             seven
             years
             uninterrupted
             Possession
             thereafter
             ,
             
               Iuly
               17.
               1668.
               
               Steuart
            
             contra
             Murrayes
             .
          
           
             POYNDING
             OF
             THE
             GROVND
             for
             an
             annualrent
             de●●rned
             was
             found
             to
             take
             effect
             ,
             not
             only
             against
             the
             Master
             and
             Tennents
             therein
             called
             ,
             but
             all
             others
             coming
             in
             after
             ,
             though
             singular
             Suncessors
             ,
             and
             not
             to
             be
             abated
             by
             vastation
             as
             a
             Feu-duty
             ,
             and
             to
             have
             access
             against
             the
             whole
             ,
             or
             any
             part
             of
             the
             Ground
             ,
             though
             now
             belonging
             to
             several
             Heretors
             ,
             but
             so
             as
             the
             payer
             should
             have
             Assignation
             to
             the
             debt
             ,
             and
             a
             time
             to
             recover
             relief
             o●●
             the
             rest
             ,
             neither
             was
             the
             Decreet
             excluded
             by
             20
             ,
             or
             30.
             years
             possession
             of
             a
             singular
             Successor
             as
             a
             possessory
             judgement
             ,
             
               Iune
               26.
               1662.
               
               Adamsons
               contra
            
             Lord
             Balmerino
             .
          
           
             Poinding
             of
             the
             Ground
             was
             found
             competent
             against
             the
             apparent
             Heir
             of
             the
             Granter
             of
             the
             Annualrent
             ,
             without
             a
             Charge
             to
             enter
             Heir
             ,
             
               Ianuary
               2.
               1667.
               
               Olephant
            
             contra
             Hamiltoun
             .
          
           
             Poinding
             of
             the
             Ground
             was
             sustained
             on
             an
             annualrent
             ,
             although
             there
             was
             no
             possession
             thereon
             for
             above
             seven
             years
             without
             Declarator
             ,
             and
             though
             a
             posterior
             appryzer
             was
             in
             possession
             more
             than
             seven
             years
             ,
             which
             was
             not
             found
             to
             give
             a
             possessory
             judgement
             against
             a
             prior
             annualrent
             ,
             Ianuary
             1.
             1668.
             
             Old
             Lady
             Clerkingtoun
             and
             the
             young
             Lady
             .
          
           
             A
             PRECEPT
             was
             ●ound
             to
             oblige
             the
             Granter
             thereof
             ,
             it
             not
             being
             answered
             ,
             albeit
             it
             did
             not
             bear
             value
             received
             ,
             seing
             it
             was
             upon
             an
             other
             Precept
             ,
             direct
             to
             the
             Drawer
             of
             the
             last
             precept
             ,
             and
             so
             was
             an
             acceptance
             ,
             
               Ianuary
               22.
               1667.
               
               Findlason
               contra
            
             Lord
             Cowper
             .
          
           
             A
             precept
             of
             Seasine
             upon
             obedience
             was
             found
             not
             to
             hinder
             the
             Reduction
             nor
             improbation
             ,
             nor
             to
             import
             acknowledgement
             of
             the
             Defenders
             Right
             ,
             February
             20
             1662.
             
             Laird
             of
             
               Mochrome
               contra
            
             Laird
             of
             
               Martoun
               ,
               Ariol
            
             and
             others
             .
          
           
             PREMONITION
             by
             a
             Procurator
             was
             sustained
             ,
             though
             it
             bear
             not
             the
             Procuratory
             shown
             ,
             seing
             it
             bear
             not
             it
             was
             called
             for
             ,
             if
             it
             now
             be
             shown
             ,
             or
             proving
             by
             the
             other
             parties
             oath
             that
             a
             procuratory
             was
             shown
             ,
             
               Ianuary
               18.
               1662.
               
               Veatch
            
             contra
             Lyel
             of
             Bassendoun
             .
          
           
             PRESCRIPTION
             was
             found
             only
             to
             run
             from
             the
             Term
             of
             payment
             of
             Bonds
             not
             from
             the
             date
             ,
             and
             that
             the
             Interruption
             by
             Citation
             upon
             the
             first
             Summons
             is
             sufficient
             to
             interrupt
             ,
             though
             there
             was
             no
             continuation
             or
             second
             summons
             ,
             
               February
               17
               ,
               1665.
               
               Butter
            
             contra
             Gray
             .
          
           
             Prescription
             on
             40.
             years
             silence
             was
             found
             not
             effectual
             against
             a
             Wife
             pursuing
             the
             Cautioner
             for
             her
             ●u●band
             
             in
             her
             Contract
             of
             Marriage
             ,
             obliging
             to
             imploy
             a
             Sum
             to
             her
             in
             Liferent
             ,
             
               quia
               non
               val●bat
               agere
            
             ,
             during
             her
             Husbands
             life
             ,
             who
             would
             not
             concur
             ,
             and
             therefore
             the
             prescription
             was
             compted
             from
             his
             death
             and
             yet
             the
             other
             obligement
             in
             the
             same
             Contract
             ,
             in
             favours
             of
             the
             Husband
             obliging
             the
             Wifes
             Father
             to
             pay
             the
             Tocher
             ,
             was
             found
             to
             prescribe
             from
             the
             date
             ,
             
               Iuly
               5.
               1665.
               
               Mckie
            
             contra
             Steuart
             .
          
           
             Prescription
             was
             ●ound
             interrupted
             by
             a
             citation
             ,
             albeit
             not
             so
             legal
             but
             that
             the
             Defender
             might
             have
             excluded
             the
             pursuit
             upon
             informality
             ,
             especially
             being
             
               in
               re
               antiqua
            
             ,
             and
             where
             the
             custom
             of
             the
             Regality
             did
             not
             appear
             ,
             Novem.
             25.
             1665.
             
             White
             contra
             Horn.
             
          
           
             Prescription
             was
             ●ound
             ne●er
             to
             extend
             to
             exclude
             any
             person
             to
             serve
             themselves
             to
             any
             of
             their
             predecessors
             ,
             if
             no
             other
             hath
             been
             served
             before
             ,
             in
             which
             case
             the
             Retoure
             cannot
             be
             quarrelled
             ,
             but
             within
             40.
             years
             ,
             if
             deduced
             after
             the
             year
             1617.
             or
             if
             before
             ,
             then
             it
             must
             be
             quarrelled
             within
             fourty
             years
             ,
             or
             else
             it
             must
             prescribe
             by
             the
             general
             Act
             of
             prescription
             ,
             
               November
               28.
               1665.
               
               Young
            
             contra
             Iohnstouns
             .
          
           
             Prescription
             by
             not
             paying
             Teind
             for
             fourty
             years
             ,
             was
             found
             not
             to
             take
             away
             the
             Right
             of
             the
             Teind
             totally
             ,
             having
             been
             once
             payed
             ,
             but
             only
             as
             to
             years
             prec●eding
             the
             fourty
             years
             ,
             February
             7.
             1666.
             
             Earl
             of
             Pa●mure
             contra
             Parochioners
             .
          
           
             Prescription
             
               non
               c●rcit
               contra
               non
               valentem
               agere
               ,
            
             which
             is
             understood
             of
             Actions
             ,
             which
             might
             have
             attained
             possession
             ,
             and
             not
             of
             Declarators
             or
             Reductions
             ,
             February
             last
             1666.
             
             Earl
             of
             
               Lauderdail
               contra
            
             Viscount
             of
             Oxenfoord
             .
          
           
             Prescription
             was
             found
             interrupted
             by
             a
             Decreet
             of
             poynding
             the
             Ground
             ,
             though
             therein
             the
             Heretor
             was
             not
             Called
             ,
             
               Iuly
               15.
               1666.
               
               Sinclar
               contra
            
             Laird
             of
             H●rdmanstoun
             .
          
           
             Prescription
             of
             an
             oblation
             of
             a
             Cautioner
             ,
             bound
             conjunctly
             and
             severally
             with
             the
             principal
             ,
             was
             not
             inferred
             by
             the
             Creditors
             not
             getting
             payment
             ,
             or
             pursuing
             the
             Coutioner
             for
             fourty
             years
             ,
             which
             did
             not
             presume
             he
             past
             from
             him
             ,
             but
             his
             getting
             annualrent
             from
             the
             principal
             within
             the
             fourty
             years
             ,
             was
             ●ound
             sufficient
             to
             preserve
             the
             Bond
             as
             to
             both
             ,
             
               December
               18.
               1667.
               
               Gairns
            
             contra
             Arthure
             .
          
           
             Prescription
             of
             a
             Tack
             of
             Teinds
             not
             cled
             with
             possession
             for
             more
             than
             40.
             years
             from
             its
             date
             ,
             was
             ●ound
             not
             to
             annul
             that
             Tack
             ,
             but
             as
             to
             years
             before
             possession
             ,
             and
             a
             prorogation
             of
             the
             Tack
             ,
             was
             sustained
             as
             to
             times
             coming
             ,
             Ianuary
             19.
             1669.
             
             Earl
             of
             
               Athole
               contra
            
             Laird
             of
             Strowan
             .
          
           
             Prescription
             was
             not
             sustained
             upon
             40.
             years
             uninterrupted
             possession
             ,
             and
             one
             single
             Seasine
             as
             the
             Title
             of
             prescription
             ,
             unless
             according
             to
             the
             Terms
             of
             the
             Act
             of
             Parliament
             singular
             Successors
             produce
             as
             their
             Title
             ,
             not
             only
             a
             Seasine
             but
             a
             Charter
             or
             Precept
             as
             the
             warrand
             thereof
             ,
             and
             that
             universal
             Successors
             produce
             one
             or
             more
             Seasines
             upon
             Retoures
             or
             Precepts
             or
             
               clare
               constat
            
             continuing
             and
             standing
             together
             by
             the
             space
             of
             fourty
             years
             ;
             which
             standing
             together
             was
             not
             understood
             of
             standing
             unreduced
             ,
             but
             standing
             not
             fallen
             in
             the
             hands
             of
             the
             Superior
             by
             Noi●-entry
             ,
             so
             that
             either
             the
             obtainer
             of
             the
             Seasine
             behoved
             to
             live
             after
             the
             ●ame
             and
             possess
             40.
             years
             ,
             in
             which
             case
             one
             Seasine
             were
             sufficient
             ;
             or
             if
             he
             dyed
             within
             the
             fourty
             years
             ,
             his
             Heirs
             possession
             were
             not
             sufficient
             by
             that
             Seasine
             ,
             b●t
             behoved
             to
             be
             renewed
             ,
             and
             so
             to
             continue
             Seasines
             as
             well
             as
             possession
             for
             fourty
             years
             from
             the
             beginning
             of
             the
             first
             Seasine
             ;
             but
             no
             necessity
             was
             found
             to
             produce
             the
             Retour
             or
             Precept
             ,
             where
             Possession
             was
             by
             Seasines
             one
             or
             more
             ,
             the
             Seasines
             as
             well
             as
             Possession
             being
             continued
             for
             fourty
             years
             ,
             February
             15.
             1671.
             
             Earl
             of
             
               Argile
               contra
            
             Laird
             of
             M●naughtoun
             .
          
           
             Prescription
             of
             an
             annualrent
             constitute
             indefinitely
             out
             of
             two
             distinct
             Tenements
             ,
             was
             found
             not
             incurred
             as
             to
             the
             one
             ,
             in
             respect
             of
             the
             annualrenters
             uplifting
             the
             whole
             annualrent
             out
             of
             the
             other
             in
             the
             same
             manner
             ,
             as
             payment
             of
             annualrent
             by
             the
             principal
             Debitor
             preserves
             the
             obligement
             of
             the
             Cautioners
             ,
             though
             they
             payed
             no
             annualrent
             for
             fourty
             years
             ,
             and
             the
             Heretor
             distressed
             was
             found
             to
             have
             proportionable
             relief
             out
             of
             the
             other
             Tenement
             ,
             though
             both
             were
             now
             in
             the
             hands
             of
             different
             singular
             Successors
             ,
             and
             required
             different
             Seasines
             ,
             Iuly
             22.
             1671.
             
             Lord
             Balmerino
             contra
             Hamiltoun
             of
             Litle-prestoun
             .
          
           
             Prescription
             of
             annualrent
             mortified
             to
             an
             Hospital
             ,
             was
             sustained
             by
             freedom
             there
             from
             fourty
             years
             without
             consideration
             of
             the
             pious
             use
             ,
             or
             that
             the
             Poor
             had
             yearly
             Overseers
             chosen
             ,
             and
             were
             not
             esteem'd
             as
             Minors
             ,
             or
             without
             any
             abatement
             of
             the
             time
             of
             the
             Troubles
             when
             there
             could
             be
             no
             Process
             ,
             Iune
             30.
             1671.
             
             Bead-men
             of
             the
             
               Magdalen
               ▪
               Chapel
            
             contra
             Drysdail
             .
          
           
             Prescription
             of
             the
             annualrent
             of
             a
             Bond
             was
             elided
             ,
             because
             the
             principal
             sum
             was
             payed
             to
             the
             Feear
             ,
             and
             it
             was
             sufficient
             that
             the
             annualrent
             was
             due
             within
             fourty
             years
             preceeding
             that
             payment
             ,
             which
             annualrent
             was
             due
             to
             the
             Executors
             of
             a
             Liferenter
             this
             was
             stopped
             and
             altered
             as
             to
             this
             ,
             that
             it
             was
             not
             found
             relevant
             to
             preserve
             the
             annualrents
             that
             were
             within
             fourty
             years
             before
             the
             last
             payment
             ,
             but
             that
             they
             were
             within
             fourty
             years
             before
             the
             intention
             of
             the
             Cause
             ,
             all
             annualrents
             or
             actual
             prestations
             preceding
             that
             fourty
             years
             prescribe
             ,
             because
             every
             years
             payment
             is
             a
             several
             obligation
             ,
             and
             that
             hath
             no
             effect
             as
             to
             the
             rest
             ,
             the
             first
             interlocutor
             was
             ,
             Iuly
             22.
             1671.
             
             And
             the
             second
             ,
             
               February
               7.
               1672.
               
               Blair
            
             of
             Balhead
             contra
             Blair
             of
             Denhead
             .
          
           
             PRESVMPTION
             of
             allowance
             was
             sustained
             to
             take
             away
             publick
             burdens
             payed
             by
             a
             Tennent
             ,
             though
             his
             Tack
             bear
             to
             be
             relieved
             thereof
             ,
             and
             he
             produce
             Discharges
             of
             his
             Rent
             ,
             and
             also
             Discharges
             of
             publick
             burdens
             ,
             unless
             by
             writ
             or
             his
             Masters
             Oath
             he
             prove
             they
             were
             not
             allowed
             ,
             
               December
               2.
               1664.
               
               Veatch
            
             contra
             Paterson
             .
          
           
             Presumption
             that
             Tickets
             of
             publick
             burdens
             were
             allowed
             to
             Tennents
             in
             their
             Rent
             ,
             was
             sustained
             to
             elide
             the
             Tennents
             pursuit
             thereon
             for
             payment
             thereof
             ,
             albeit
             his
             Tack
             bear
             a
             clause
             to
             relieve
             him
             of
             all
             publick
             burdens
             ,
             Here
             the
             Tennent
             left
             the
             Land
             several
             years
             before
             the
             pursuit
             ,
             and
             never
             did
             any
             diligence
             to
             get
             these
             allowed
             ,
             but
             it
             was
             sustained
             by
             the
             Masters
             Oath
             ,
             that
             these
             were
             not
             allowed
             ,
             
               December
               20.
               
               ●664
               .
               Paterson
            
             contra
             Veatch
             .
          
           
             Presumption
             of
             a
             Wifes
             Warrand
             to
             borrow
             a
             smal
             sum
             and
             impignorat
             a
             Bond
             therefore
             ,
             was
             sustained
             ,
             she
             having
             the
             Bond
             in
             her
             custody
             ,
             
               February
               4.
               1665.
               
               Paterson
            
             contra
             Pringle
             .
          
           
             PRIVILEDGE
             of
             Burghs
             to
             arrest
             persons
             of
             find
             Caution
             of
             answer
             as
             Law
             will
             ,
             was
             found
             to
             extend
             to
             the
             Pear
             of
             Leith
             as
             a
             part
             of
             the
             Burgh
             Royal
             of
             Edinburgh
             its
             priviledge
             ,
             and
             if
             done
             by
             the
             Water
             Baillie
             ,
             but
             not
             if
             in
             the
             Burgh
             of
             Batony
             of
             Leith
             ,
             or
             by
             the
             Baron
             Baillie
             ,
             Ianuary
             18.
             1663.
             
             Hamiltoun
             contra
             Mitchel
             and
             Keith
             .
          
           
             Priviledge
             of
             Burgh
             was
             ●ound
             not
             to
             extend
             to
             Incarcerat
             unfreemen
             found
             within
             their
             Burgh
             till
             they
             find
             Caution
             as
             Law
             will
             ,
             albeit
             by
             a
             former
             Decreet
             they
             were
             Decerned
             to
             desist
             from
             Merchandice
             competent
             to
             free
             Burrows
             ,
             and
             that
             thereby
             they
             might
             only
             seize
             upon
             these
             Goods
             by
             the
             Act
             of
             Parliament
             ,
             Ianuary
             30.
             1663.
             
             Town
             of
             Lin●●thgow
             contra
             Borrowstounness
             .
          
           
             PROBATION
             of
             immemorial
             possession
             or
             Custom
             ,
             was
             not
             found
             instructed
             by
             a
             Decreet
             mentioning
             a
             former
             Decreet
             wherein
             the
             same
             was
             proven
             ,
             unless
             the
             Testimonies
             were
             extant
             or
             produced
             ,
             December
             13
             ,
             1664.
             
             Bishop
             of
             the
             Isles
             contra
             Hamiltoun
             .
          
           
             Probation
             of
             a
             Disposition
             being
             onerous
             to
             exclude
             ●ucrative
             Succession
             and
             absolvitor
             thereon
             in
             a
             Process
             ,
             was
             not
             found
             sufficient
             as
             repeated
             from
             another
             Decreet
             ,
             not
             being
             
               de
               recent●
            
             ,
             except
             it
             had
             been
             after
             a
             long
             time
             when
             Witnesses
             were
             dead
             ,
             and
             in
             that
             case
             their
             Testimonies
             if
             extant
             ,
             behoved
             to
             be
             seen
             again
             ,
             Ianuary
             6.
             1665.
             contra
             Edmonstoun
             of
             Carden
             .
          
           
             Probation
             of
             a
             Defense
             was
             admitted
             partly
             by
             Oath
             what
             was
             the
             Cause
             of
             the
             Bond
             ,
             and
             partly
             by
             Witnesses
             ,
             that
             the
             condition
             thereof
             was
             contraveened
             ,
             
               Iune
               15.
               1665.
               
               Aikman
            
             contra
          
           
             Probation
             of
             the
             Delivery
             of
             a
             great
             bargain
             of
             Victual
             ,
             was
             not
             inferred
             from
             the
             Declaration
             of
             a
             person
             intrusted
             by
             the
             Debitor
             to
             receive
             it
             ,
             seing
             there
             was
             a
             time
             limited
             to
             obtain
             his
             Declaration
             ,
             after
             which
             his
             condition
             and
             trustinesse
             might
             change
             ,
             and
             could
             not
             perpetually
             oblige
             the
             Intruster
             ,
             Iuly
             18.
             1667.
             
             Executors
             of
             the
             Earl
             of
             Dirletoun
             contra
             Duke
             of
             Hamiltoun
             ,
             Earl
             of
             Crawfoord
             and
             others
             .
          
           
             Probation
             was
             found
             to
             be
             according
             to
             the
             most
             pregnant
             Testimonies
             ,
             though
             others
             Witnessed
             a
             greater
             quantity
             ,
             this
             was
             in
             a
             matter
             old
             ,
             and
             in
             the
             estimation
             of
             ●osse
             ,
             November
             23.
             1667.
             
             Lord
             Iustice
             Clerk
             contra
             Laird
             of
             Lambertoun
             .
          
           
             Probation
             by
             one
             Witness
             and
             the
             Oath
             of
             the
             Pursuer
             in
             supplement
             ,
             in
             favours
             of
             a
             party
             who
             had
             been
             absent
             ●ut
             of
             the
             Countrey
             in
             the
             Kings
             Service
             ,
             pursuing
             for
             his
             share
             of
             a
             Ship
             and
             Goods
             against
             the
             remnant
             Owners
             medled
             with
             by
             them
             in
             Anno
             1638.
             was
             sustained
             by
             the
             Admiral
             ,
             but
             Reduced
             by
             the
             Lords
             ,
             and
             the
             Pursuer
             ordained
             to
             adduce
             farther
             probation
             ,
             February
             12.
             1668.
             
             Captain
             Strachan
             contra
             Morison
             .
          
           
             PROCESSES
             being
             Dispute
             to
             the
             full
             
               in
               present●a
            
             ,
             The
             Lords
             by
             Act
             of
             Sederunt
             ,
             ordained
             the
             Clerks
             not
             to
             give
             up
             the
             same
             ,
             or
             any
             Process
             Dispute
             at
             full
             ,
             though
             there
             were
             no
             Interlocutor
             thereon
             ;
             But
             ordained
             it
             to
             be
             keeped
             till
             the
             Dispute
             were
             advised
             and
             Interlocutor
             pronunced
             ,
             Iune
             6.
             1665.
             
             Town
             of
             Edinburgh
             contra
             Thomson
             .
          
           
             PROMISE
             to
             relieve
             a
             Cautioner
             who
             relieved
             the
             promisers
             Goods
             of
             poinding
             ,
             was
             found
             not
             probable
             by
             Witnesses
             ,
             though
             within
             an
             hundred
             pounds
             ,
             where
             the
             promiser
             was
             dead
             ,
             
               Iuly
               3.
               1668.
               
               Don●ldson
            
             contra
             
               Harrower
               ▪
            
          
           
             A
             Promise
             by
             a
             Wife
             after
             her
             Husbands
             death
             ,
             never
             to
             quarrel
             a
             Tack
             of
             Liferent
             Lands
             which
             was
             in
             Writ
             for
             several
             years
             ,
             was
             found
             to
             exclude
             her
             ,
             and
             not
             to
             be
             as
             a
             verbal
             Tack
             valide
             only
             for
             a
             year
             ,
             but
             as
             
               pactum
               de
               non
               repugnando
               ,
               Ianuary
               8.
               1670.
               
               Scot
            
             contra
             Murray
             .
          
           
             A
             PRO-TVTOR
             being
             an
             Overseer
             intrometting
             with
             the
             Pupils
             Bond●
             ,
             was
             found
             only
             lyable
             for
             the
             whole
             Bonds
             received
             by
             him
             ,
             though
             he
             uplifted
             the
             annualrent
             of
             a
             part
             of
             them
             only
             ,
             and
             for
             the
             annualrent
             thereof
             ,
             but
             not
             for
             any
             other
             means
             or
             Estate
             of
             the
             Defunct
             ,
             because
             there
             was
             no
             antecedent
             Law
             or
             Rule
             to
             oblige
             him
             ,
             but
             an
             Act
             to
             Sederunt
             was
             ordained
             to
             be
             made
             and
             published
             ,
             that
             all
             persons
             ●edling
             so
             in
             the
             future
             should
             be
             lyable
             both
             for
             intromission
             
             and
             omission
             as
             Tutors
             ,
             
               Iune
               10.
               1665.
               
               Swin●oun
               contra
               .
            
          
           
             A
             PRYZE
             Ship
             was
             found
             not
             justly
             taken
             ,
             belonging
             to
             a
             Prince
             holding
             of
             the
             Kings
             Enemies
             ,
             unless
             he
             contribu●e
             to
             the
             War
             ,
             
               Ianuary
               4.
               1667.
               
               Harison
               contra
            
             Laird
             of
             Lud●uhurn
             .
          
           
             A
             Prize
             Ship
             was
             liberate
             belonging
             to
             Neuters
             ,
             not
             the
             Kings
             Enemies
             nor
             Alies
             ,
             albeit
             carrying
             Counterband-Goods
             ,
             unless
             it
             were
             proven
             that
             the
             War
             was
             known
             at
             the
             place
             they
             ●o●sed
             from
             when
             they
             loused
             ,
             and
             that
             Acts
             of
             Hostility
             ,
             and
             declaring
             Prizes
             in
             Neighbouring
             places
             was
             not
             sufficient
             without
             publication
             of
             the
             War
             ,
             or
             knowledge
             thereof
             ,
             
               Iuly
               23.
               1667.
               
               Iurgan
               contra
            
             Captain
             Logan
             .
          
           
             A
             ●rize
             Ship
             was
             found
             justly
             adjudged
             as
             carrying
             Counterband-Goods
             ,
             albeit
             a
             Swedish
             Sh●p
             ,
             and
             by
             the
             Swedish
             Treaty
             ,
             such
             Counterband-Goods
             were
             allowed
             to
             the
             Sweds
             ,
             which
             was
             only
             understood
             ,
             (
             they
             being
             the
             g●owth
             of
             their
             own
             Countrey
             )
             Iuly
             27
             ,
             and
             31.
             1667.
             and
             
               November
               6.
               1667.
               
               Packman
               contra
            
             Captain
             Allan
             .
          
           
             A
             Prize
             being
             taken
             pursued
             by
             two
             Privateers
             ,
             was
             ●ound
             equally
             to
             be
             divided
             betwixt
             both
             ,
             and
             not
             according
             to
             the
             proportion
             of
             their
             Guns
             ,
             seing
             the
             least
             and
             lightest
             of
             the
             Frigots
             did
             Seaze
             when
             the
             other
             was
             at
             a
             considerable
             distance
             ,
             and
             his
             conco●rse
             and
             con●ortship
             ,
             though
             made
             without
             consent
             or
             special
             Commission
             from
             the
             Owners
             ,
             being
             both
             
               in
               precinct●
               belli
            
             and
             profitable
             for
             the
             security
             of
             either
             party
             ,
             
               February
               7.
               1668.
               
               Cuningskie
               contra
            
             Captain
             Mastertoun
             .
          
           
             Prize
             Ships
             being
             Questioned
             as
             having
             in
             them
             the
             product
             of
             Co●nterband-Goods
             carried
             in
             to
             the
             Kings
             Enemies
             in
             the
             same
             Voyage
             ,
             from
             which
             the
             Ship
             was
             returning
             ,
             was
             found
             not
             sufficient
             by
             the
             Tenor
             of
             the
             Admiral
             of
             Scotlands
             Commission
             ,
             bearing
             Warrant
             to
             seaze
             if
             the
             product
             of
             Counterband-Goods
             in
             that
             Voyage
             were
             found
             ,
             but
             by
             the
             Law
             and
             Custome
             of
             Nations
             ,
             and
             therefore
             the
             Lords
             granted
             Commission
             to
             ●ry
             the
             Custome
             of
             
               Holland
               ,
               France
               ,
               England
            
             and
             
               Spain
               ,
               February
               21.
               1668.
               
               Packman
            
             contra
             Allan
             .
          
           
             A
             Prize
             being
             taken
             upon
             probable
             grounds
             ,
             and
             adjudged
             by
             the
             Admiral
             ,
             the
             Kings
             tenth
             part
             ,
             and
             Admirals
             fifteenth
             part
             ,
             being
             payed
             ,
             and
             the
             Goods
             sold
             ,
             the
             Decreet
             of
             Adjudication
             being
             Reduced
             ,
             the
             privateer
             was
             found
             lyable
             but
             for
             the
             value
             that
             the
             Goods
             might
             have
             given
             by
             rouping
             ,
             if
             they
             had
             been
             preserved
             and
             sold
             when
             and
             where
             they
             were
             adjudged
             ,
             February
             24.
             1668.
             
             Captain
             
               Mastertoun
               contra
            
             Strangers
             of
             O●●end
             ,
             but
             the
             Kings
             10th
             part
             ,
             and
             Admirals
             15th
             part
             ,
             were
             not
             allowed
             .
          
           
             A
             Pryze
             Ship
             of
             Hamburgh
             taken
             as
             carrying
             Counterband-Goods
             to
             the
             Da●es
             ,
             after
             Acts
             of
             Hostility
             betwixt
             the
             King
             and
             them
             ,
             was
             liberate
             ,
             because
             she
             was
             taken
             before
             the
             Proclamation
             of
             the
             War
             against
             the
             Danes
             ,
             but
             the
             Captain
             was
             found
             to
             have
             probable
             Ground
             to
             Seaze
             ,
             and
             was
             found
             only
             lyable
             for
             what
             profite
             he
             had
             made
             of
             the
             Ship
             and
             Goods
             ,
             unless
             he
             had
             been
             
               th●
               culpa
            
             by
             the
             spoiling
             or
             mis-appryzing
             thereof
             ,
             February
             25.
             1668.
             
             Merchants
             of
             
               Hamburgh
               contra
            
             Captain
             Dis●ingtoun
             .
          
           
             A
             Pryze
             Ship
             belonging
             to
             the
             Sweds
             ,
             was
             found
             War●antably
             taken
             ,
             because
             she
             was
             Navigat
             with
             Hollanders
             the
             Kings
             Enemies
             ,
             contrary
             the
             Kings
             Proclama●ion
             of
             War
             ,
             albeit
             they
             h●d
             a
             pass
             conform
             to
             the
             Swedish
             Treaty
             ,
             wherein
             it
             is
             permitted
             to
             the
             Sweds
             to
             make
             use
             of
             Hollanders
             as
             Masters
             ,
             he
             becoming
             a
             sworn
             Burges
             of
             their
             Town
             ,
             without
             mention
             of
             what
             Nation
             the
             remnant
             company
             migh●
             be
             of
             ,
             February
             25.
             1668.
             
             Owners
             of
             the
             Ship
             called
             the
             Castle
             of
             
               Riga
               contra
            
             Captain
             Sea●oun
             .
          
           
             A
             Prize
             Ship
             was
             found
             justly
             adjudged
             ,
             because
             a
             great
             part
             of
             the
             company
             were
             Hollanders
             ,
             in
             respect
             of
             the
             Kings
             Proclamation
             of
             War
             ,
             ordaining
             Ships
             to
             be
             taken
             that
             had
             in
             them
             any
             number
             of
             men
             ,
             or
             goods
             belonging
             to
             Enemies
             ,
             albeit
             the
             Ship
             was
             a
             Swedish
             Ship
             ,
             and
             had
             a
             pass
             conform
             to
             the
             Swedish
             Treaty
             ,
             which
             bear
             that
             such
             a
             pass
             being
             found
             there
             should
             be
             no
             further
             inquiry
             in
             men
             or
             goods
             
               ●isi
               gravis
               suspiti●o
               subsit
            
             ,
             seing
             that
             Treaty
             bear
             a
             liberty
             to
             the
             S●eds
             to
             have
             a
             Hollands
             Master
             becoming
             a
             sworn
             Burges
             of
             any
             Town
             of
             Sweden
             ,
             and
             had
             no
             such
             priviledge
             for
             the
             mariners
             ,
             
               Iune
               30.
               1668.
               
               Paterson
               contra
            
             Captain
             Anderson
             .
          
           
             A
             prize
             Ship
             was
             found
             justly
             taken
             being
             insisted
             against
             on
             several
             grounds
             ,
             as
             having
             a
             number
             of
             the
             Kings
             Enemies
             the
             Hollanders
             Sailers
             ,
             being
             only
             proven
             to
             be
             three
             ,
             and
             the
             company
             nine
             ,
             as
             having
             been
             two
             years
             with
             the
             Kings
             Enemies
             Merchandizing
             ,
             but
             not
             in
             the
             War
             ,
             and
             by
             having
             a
             small
             parcel
             of
             Tar
             ,
             as
             Counterband
             in
             the
             same
             Voyage
             ,
             upon
             all
             joyntly
             ,
             the
             Lords
             declared
             but
             not
             upon
             any
             point
             alone
             ,
             Iuly
             9.
             1668.
             
             Capta●●
             Allan
             contra
             Parkman
             .
          
           
             In
             prize
             Ships
             competent
             and
             omitted
             as
             a
             particular
             custom
             of
             Scotland
             ,
             was
             not
             sustained
             against
             the
             strangers
             ,
             but
             they
             were
             found
             to
             have
             the
             benefite
             of
             the
             Law
             of
             Nations
             ,
             
               Iune
               15.
               1669.
               
               Loyson
               contra
            
             Laird
             of
             Lud●uhar●
             and
             Captain
             Wilson
             .
          
           
             A
             prize
             Ship
             declared
             as
             carrying
             Counterband
             ,
             having
             on
             Board
             Oak
             cutted
             at
             three
             foot
             and
             an
             half
             for
             making
             Barrels
             ,
             in
             respect
             the
             Admirals
             Commission
             bear
             Clapboard
             as
             counterband
             ▪
             though
             Testimonies
             from
             the
             Admiralities
             of
             
               England
               ,
               Holland
            
             ,
             and
             Flanders
             were
             produced
             ,
             that
             such
             Timber
             was
             not
             accompted
             counterband
             ,
             a
             great
             number
             of
             the
             Lords
             being
             of
             a
             contrary
             judgement
             ,
             Iune
             29.
             1669.
             
             Captain
             contra
          
        
         
           
             A
             prize
             Ship
             being
             in
             question
             ,
             which
             being
             alleadged
             to
             be
             fraughted
             from
             Norway
             to
             London
             with
             Timber
             ,
             by
             the
             Kings
             proclamation
             ,
             warranding
             Ships
             even
             of
             his
             Enemies
             Countreys
             to
             be
             imployed
             for
             bringing
             Timber
             for
             the
             Rebuilding
             of
             London
             ,
             they
             getting
             certificates
             and
             passes
             from
             the
             Duke
             of
             York
             ,
             the
             Ship
             having
             on
             Board
             1500.
             
             Dails
             not
             belonging
             to
             the
             London
             Merchants
             ,
             the
             same
             was
             found
             sufficient
             to
             confi●cate
             the
             Ship
             and
             these
             Dails
             ,
             but
             not
             to
             confiscate
             the
             Cargo
             belonging
             to
             the
             English
             Merchands
             ▪
             if
             he
             could
             produce
             a
             pass
             conform
             to
             the
             Proclamation
             and
             the
             Kings
             Letter
             ,
             bearing
             that
             he
             was
             sufficiently
             informed
             that
             this
             Ship
             had
             a
             valide
             pass
             ,
             and
             therefore
             ordering
             her
             to
             be
             restored
             ,
             was
             not
             found
             Relevant
             to
             liberate
             the
             Ship
             ,
             or
             Merchants
             Cargo
             without
             production
             of
             the
             pass
             ;
             but
             the
             Letter
             was
             understood
             to
             be
             
               ●alvo
               jure
            
             ,
             not
             proceeding
             upon
             the
             hearing
             of
             parties
             ,
             albeit
             the
             Duke
             of
             York
             did
             asset
             that
             he
             had
             formerly
             given
             a
             pass
             to
             that
             Ship
             ,
             Iuly
             13.
             1669.
             
             Captain
             Wood
             contra
             Ne●lson
             ,
             here
             the
             Skippers
             Testimony
             alon●
             was
             received
             to
             prove
             against
             the
             Owners
             .
          
           
             A
             prize
             Ship
             being
             adjudged
             by
             the
             Admiral
             and
             the
             Decreet
             being
             quarrelled
             ,
             because
             the
             Skipper
             had
             a
             pass
             declaring
             the
             Ship
             and
             Goods
             wholly
             belonging
             to
             the
             Sweds
             the
             Kings
             Allys
             ,
             the
             pass
             was
             conform
             to
             the
             Swedish
             Treaty
             ,
             which
             clears
             expresly
             that
             where
             such
             passes
             are
             ,
             
               ●eq●id
               ampl●s
               exigatur
               in
               bon●
               ,
               aut
               homines
               nullo
               modo
               inquiratur
               ,
            
             The
             adjudication
             was
             sustained
             ,
             in
             respect
             that
             the
             pass
             by
             the
             oath
             of
             the
             Skipper
             and
             company
             was
             found
             to
             be
             a
             contrivance
             ,
             and
             there
             was
             no
             sufficient
             probation
             that
             the
             Ship
             and
             Goods
             belonged
             to
             the
             Sweds
             ,
             and
             that
             the
             Treaty
             bears
             
               si
               qua
               gravis
               susp●●io
               subsit
            
             ,
             that
             seazure
             may
             be
             made
             ,
             Iune
             29.
             1671.
             
             Burrow
             contra
             Captain
             〈◊〉
             .
          
           
             A
             PVPILS
             person
             was
             found
             to
             be
             keeped
             by
             her
             Mother
             who
             was
             Widow
             ,
             till
             her
             age
             of
             eleven
             years
             ,
             and
             then
             by
             a
             Friend
             of
             her
             Fathers
             side
             ,
             but
             not
             by
             the
             Tutor
             who
             was
             nearest
             to
             succeed
             .
             February
             6.
             1666
             
             ▪
             Laird
             of
             
               D●ry
               contra
            
             Relict
             and
             Daughter
             of
             his
             Brother
             .
          
           
             RATIHABITION
             Vide
             Clause
             
               Ianuary
               9.
               1663.
               
               Mason
            
             contra
             Hunter
             .
          
           
             RECOGNITION
             committed
             by
             a
             Defunct's
             alienation
             was
             not
             stopped
             upon
             the
             priviledge
             of
             Minority
             
               quo
               minor
               non
               tenetur
               placitare
            
             ,
             &c.
             February
             19.
             1662.
             
             Lady
             
               Carnagy
               contra
               a
            
             Lord
             Cranburn
             .
          
           
             Recognition
             was
             not
             clided
             ,
             because
             as
             importing
             ingratitude
             which
             is
             criminal
             ,
             it
             was
             purged
             with
             the
             death
             of
             the
             Committer
             ,
             but
             was
             sustained
             against
             his
             Successor
             ,
             Ibidem
             .
          
           
             Recognition
             was
             found
             to
             be
             incurred
             by
             alienation
             of
             Ward
             Lands
             ,
             albeit
             the
             Seasine
             taken
             was
             without
             the
             Acquirers
             Mandat
             subscribed
             ,
             but
             by
             a
             general
             Mandat
             out
             of
             the
             Chancellary
             ,
             seing
             it
             was
             taken
             by
             his
             Grand-father
             ,
             giver
             of
             the
             Alienation
             ,
             and
             albeit
             the
             Disposition
             bear
             only
             (
             ●ailing
             of
             the
             Disponers
             Heirs
             of
             his
             Body
             )
             seing
             it
             had
             a
             Warrand
             for
             seasing
             this
             party
             
               de
               prese●ti
               nominatim
            
             ;
             nor
             was
             it
             reduced
             upon
             Minority
             to
             annul
             the
             Seasine
             and
             shun
             the
             Recognition
             ,
             
               Ianuary
               30.
               1663.
               
               Inter
               eosdem
               .
            
          
           
             Recognition
             was
             incurred
             by
             giving
             an
             Infeftment
             base
             to
             a
             Grand
             child
             ,
             not
             being
             then
             
               alioqui
               successuru●
            
             of
             Ward
             Lands
             ,
             though
             Taxed
             Ward
             ,
             and
             though
             granted
             to
             Heirs
             and
             Assigneys
             ,
             which
             was
             only
             understood
             that
             the
             Disposion
             ,
             Charter
             or
             Precept
             before
             Seasine
             might
             be
             assigned
             but
             not
             after
             ,
             nor
             was
             it
             respected
             that
             the
             Seasine
             as
             not
             Confirmed
             was
             null
             ,
             nor
             that
             it
             implyed
             a
             tacit
             condition
             that
             the
             Superior
             consented
             ,
             nor
             that
             the
             Giver
             was
             an
             illiterat
             person
             ,
             and
             the
             case
             dubious
             ,
             here
             the
             case
             was
             favourable
             for
             the
             Donatar
             ,
             who
             was
             the
             Disponers
             eldest
             Daughter
             ,
             and
             who
             was
             past
             by
             ,
             and
             the
             second
             Daughters
             Heirs
             ,
             though
             strangers
             ,
             were
             preferred
             in
             all
             ,
             
               February
               5.
               1663.
               
               Inter
               eosdem
               .
            
          
           
             A
             Donatar
             of
             Recognition
             granting
             a
             Precept
             to
             a
             Vassal
             in
             the
             Lands
             falling
             in
             Recognition
             ,
             acknowledging
             that
             Vassals
             predecessors
             Right
             and
             his
             own
             in
             the
             ordinary
             Terms
             of
             a
             precept
             of
             
               clare
               constat
            
             ,
             albeit
             the
             precept
             did
             also
             bear
             in
             obedience
             of
             Precepts
             out
             of
             the
             Chancellary
             ,
             yet
             the
             same
             with
             the
             Seasine
             following
             thereon
             ,
             was
             found
             to
             exclude
             the
             Donatat
             and
             all
             deriving
             Right
             from
             him
             thereafter
             ,
             
               Iune
               24.
               1668.
               
               Gray
            
             contra
             Howison
             and
             Gray
             .
          
           
             Recognition
             was
             found
             not
             to
             be
             incurred
             by
             an
             Infeftment
             taken
             upon
             a
             Tutors
             Precept
             ,
             being
             no
             Act
             of
             lawful
             Administration
             ,
             and
             done
             under
             the
             Vsurpation
             when
             Recognitions
             were
             not
             allowed
             on
             that
             ground
             ,
             Iuly
             15.
             1669.
             
             Iack
             contra
             lack
             .
          
           
             Recognition
             was
             found
             not
             in●erred
             by
             a
             Disposition
             not
             subscribed
             ,
             nor
             delivered
             till
             the
             granter
             was
             on
             death-bed
             ,
             and
             that
             death-bed
             was
             competent
             by
             exception
             against
             the
             Recognition
             ,
             as
             not
             being
             a
             possessory
             but
             a
             pe●itory
             judgement
             ,
             
               Iuly
               20.
               1669.
               
               Barclay
            
             contra
             Barclay
             .
          
           
             Recognition
             was
             found
             inferred
             by
             Infeftment
             of
             Ward
             Lands
             ,
             when
             the
             Disposition
             contained
             a
             Precept
             of
             Seasine
             and
             was
             delivered
             in
             
               leige
               po●stie
            
             ,
             without
             reservation
             ,
             albeit
             the
             Seasine
             was
             taken
             when
             the
             Disponer
             was
             on
             death-bed
             ,
             Ibidem
             .
          
           
             
             Recognition
             was
             incurred
             by
             Alienation
             of
             Ward
             Lands
             holden
             of
             the
             King
             ,
             though
             done
             when
             the
             Superiours
             consent
             was
             not
             required
             before
             the
             Kings
             Restauration
             ,
             seing
             neither
             after
             the
             Ves●al
             nor
             Sub-vas●al
             ●ought
             Confirmation
             ,
             not
             being
             refused
             by
             the
             King
             to
             these
             who
             sought
             it
             ,
             
               December
               15.
               1669.
               
               Ma●tland
            
             of
             P●●trichi●
             contra
             Gord●un
             of
             Geight
             .
          
           
             In
             a
             Recognition
             the
             Donatar
             was
             found
             only
             obliged
             to
             produce
             the
             Kings
             Gift
             as
             his
             Title
             ,
             without
             neces●ity
             to
             instruct
             that
             the
             King
             was
             Superior
             of
             the
             Lands
             Ward
             ,
             Law
             presuming
             these
             if
             the
             contrary
             be
             not
             proven
             ,
             and
             a
             Term
             was
             assigned
             for
             obtaining
             the
             Infef●ment
             to
             be
             produced
             ,
             whereby
             Recognition
             was
             incurred
             ,
             February
             17.
             1671.
             
               contra
               M●●ulloch
            
             .
          
           
             DECLARATOR
             OF
             REDEMPTION
             was
             not
             stopped
             ,
             because
             the
             Reversion
             was
             not
             produced
             ,
             the
             Pursuer
             being
             an
             appryzer
             ,
             and
             offering
             to
             pr●ve
             by
             the
             De●enders
             oath
             that
             it
             was
             in
             his
             own
             hand
             ,
             February
             18.
             1662.
             
             Children
             of
             Wolmet
             contra
             Ker.
             
          
           
             Redemption
             was
             sustained
             at
             the
             instance
             of
             a
             singular
             Successor
             ,
             albeit
             he
             shewed
             not
             the
             Reversion
             at
             the
             time
             of
             the
             order
             ,
             nor
             now
             ,
             but
             offered
             to
             prove
             that
             it
             was
             in
             the
             defenders
             own
             hands
             ,
             February
             14.
             1663.
             
             Collonel
             Montgomery
             contra
             Halyburton
             .
          
           
             In
             a
             Redemption
             the
             sums
             were
             not
             ordained
             to
             be
             given
             up
             till
             a
             Wodsetters
             apparent
             Heir
             was
             Infeft
             as
             Heir
             ,
             and
             that
             the
             Declarator
             without
             Resignation
             was
             not
             sufficient
             ,
             
               February
               10.
               1665.
               
               Campbel
            
             contra
             Bryson
             .
          
           
             Redemption
             was
             sustained
             upon
             Consignation
             of
             a
             liquid
             debt
             due
             by
             the
             Wodsetter
             to
             the
             Reverset
             ,
             upon
             a
             Clause
             in
             the
             Contract
             of
             Wodset
             ,
             
               Ianuary
               2.
               1667.
               
               H●g
            
             contra
             Hog
             .
          
           
             REDVCTION
             of
             a
             Retour
             was
             found
             sufficient
             to
             reduce
             a
             Decreet
             against
             the
             party
             as
             Heir
             ,
             albeit
             the
             Decreet
             was
             obtained
             before
             the
             Reduction
             of
             the
             Retour
             ,
             and
             the
             obtainer
             of
             the
             decreet
             was
             not
             called
             to
             the
             said
             Reduction
             
               Iuly
               24.
               1661.
               
               Mitchel
            
             contra
             Hutches●n
             .
          
           
             Reduction
             of
             a
             Decreet
             upon
             the
             Reduction
             of
             the
             Retour
             ,
             whereupon
             the
             Decreet
             proceeded
             was
             sustained
             ,
             albeit
             the
             Obtainer
             of
             the
             Decreet
             was
             not
             called
             to
             the
             Reduction
             ,
             though
             after
             his
             Decreet
             as
             not
             being
             a
             party
             necessary
             ,
             Ibidem
             .
          
           
             Reduction
             of
             a
             Decreet
             obtained
             against
             Infants
             charged
             to
             Enter
             Heir
             ,
             was
             ●ustained
             ,
             though
             not
             raised
             
               inter
               anno●
               utiles
            
             ,
             seing
             it
             lay
             over
             and
             was
             not
             insisted
             in
             all
             that
             time
             ,
             since
             it
             was
             not
             known
             till
             
               anni
               utiles
            
             were
             past
             ,
             Iuly
             17
             1661.
             
             Fleming
             contra
             Forrester
             .
          
           
             Reduction
             was
             not
             found
             necessary
             where
             all
             was
             produced
             that
             was
             craved
             to
             be
             annulled
             ,
             and
             the
             rest
             only
             in
             consequence
             ,
             but
             that
             a
             Libel
             by
             Declarator
             of
             nullity
             was
             competent
             ,
             February
             26.
             1662.
             
             Viscount
             of
             
               Stormont
               contra
            
             Creditors
             of
             Annandail
             .
          
           
             In
             a
             Reduction
             and
             improbation
             ,
             the
             Defender
             was
             allowed
             to
             propone
             his
             Defenses
             upon
             the
             Writs
             produced
             by
             him
             as
             sufficient
             to
             exclude
             the
             Rights
             produced
             by
             the
             Pur●uer
             before
             certification
             
               contra
               non
               producta
            
             ,
             without
             necessity
             to
             the
             De●ender
             to
             declare
             that
             he
             would
             make
             use
             of
             no
             more
             writs
             ,
             December
             20.
             1662.
             
             Laird
             of
             
               Mochrom
               contra
            
             Laird
             of
             Martoun
             and
             others
             .
          
           
             In
             a
             Reduction
             of
             a
             Valuation
             no
             need
             was
             found
             of
             calling
             a
             Wodsetter
             publickly
             Infeft
             ,
             being
             an
             improper
             Wod●et
             ,
             and
             seing
             the
             Obtainer
             of
             the
             Decreet
             his
             Heir
             having
             the
             reversion
             and
             possession
             was
             called
             ,
             
             Iuly
             ●3
             .
             1664.
             
             Earl
             of
             
               Landerdail
               contra
            
             Laird
             of
             Wolmet
             .
          
           
             Reductions
             take
             ●away
             all
             consequent
             Rights
             that
             need
             no
             several
             Reasons
             as
             falling
             in
             consequence
             ,
             albeit
             the
             parties
             interressed
             therein
             were
             not
             called
             to
             the
             Reduction
             of
             the
             principal
             right
             ,
             
               Iuly
               1●
               .
               1664.
               
               Dowglas
            
             and
             her
             Husband
             contra
             the
             Laird
             of
             Wedderburn
             .
          
           
             Reduction
             of
             a
             Decreet
             of
             Exoneration
             was
             sustained
             against
             the
             Executor
             without
             calling
             the
             Creditors
             or
             Legators
             ,
             
               Ianuary
               11.
               1665.
               
               Arnot
            
             contra
             Arnot
             .
          
           
             Reduction
             of
             an
             Heretable
             Right
             was
             sustained
             on
             an
             Appryzing
             on
             the
             pursuers
             own
             Bond
             assigned
             to
             himself
             and
             a
             charge
             thereon
             ,
             without
             Infeftment
             ,
             and
             the
             general
             Clause
             thus
             limited
             ,
             against
             all
             Writs
             granted
             by
             the
             Pursuer
             and
             his
             Predecessors
             to
             whom
             he
             doth
             succeed
             
               jure
               sanguin●s
            
             or
             his
             authors
             ,
             whose
             Rights
             and
             Pogresses
             thereto
             he
             produces
             ,
             or
             to
             the
             Defender
             or
             his
             Predecessors
             to
             whom
             he
             may
             succeed
             
               jure
               sangu●nis
            
             or
             his
             authors
             ,
             who
             ,
             or
             some
             to
             represent
             them
             are
             called
             ,
             
               Ianuary
               20.
               1665.
               
               Little
               contra
            
             Earl
             of
             N●thisdail
             ,
          
           
             In
             a
             Reduction
             no
             Process
             was
             sustained
             for
             reducing
             an
             Heretable
             Right
             till
             the
             Defender●
             authors
             were
             called
             ,
             though
             the
             Pursuer
             declared
             he
             insisted
             not
             against
             that
             authors
             right
             being
             common
             author
             ,
             but
             against
             the
             Defenders
             right
             from
             that
             author
             ,
             seing
             that
             author
             was
             bound
             in
             Warrandice
             ,
             and
             therefore
             behoved
             to
             be
             called
             ,
             Ianuary
             30.
             1665.
             
             Lord
             Borthwick
             contra
             Ker.
             
          
           
             In
             a
             Reduction
             
               ex
               capite
               inhibitionis
            
             ,
             the
             Defender
             producing
             a
             sufficient
             Right
             to
             exclude
             the
             Pursuer
             ,
             being
             before
             the
             inhibition
             ,
             the
             Defender
             being
             indigent
             ,
             the
             Lords
             ordained
             the
             parties
             to
             dispute
             their
             Rights
             as
             if
             it
             had
             been
             in
             a
             general
             Reduction
             ,
             
               Ianuary
               2.
               1666.
               
               Brown
            
             contra
             Wilson
             ,
             and
             Callender
             .
          
           
             Reduction
             was
             ●ound
             to
             extend
             to
             a
             Term
             before
             Sentence
             
               February
               16.
               1666.
               
               Borthwick
            
             contra
             Skein
             .
          
           
             In
             a
             Reduction
             the
             authors
             being
             cal●ed
             ,
             one
             dying
             a●●er
             conclusion
             of
             the
             Cause
             ,
             the
             same
             was
             not
             advised
             ●il
             one
             ●●presenting
             him
             were
             called
             ,
             though
             the
             reasons
             were
             only
             against
             the
             first
             authors
             Right
             ,
             and
             ●o
             the
             rest
             would
             fall
             in
             consequence
             ,
             seing
             all
             were
             interressed
             in
             the
             Wa●randice
             to
             Defend
             the
             first
             authors
             right
             ,
             
               Iuly
               14.
               1666.
               
               L●ith
            
             contra
             Lesmore
             and
             others
             .
          
           
             Reduction
             of
             a
             Bond
             was
             not
             sustained
             against
             the
             Creditor
             who
             was
             denuded
             by
             Assignation
             intimate
             to
             the
             Pursuer
             before
             the
             Citation
             ,
             Iuly
             2.
             1667.
             
             Lord
             Blantire
             contra
             Walk●●●haw
             .
          
           
             In
             Reductions
             of
             Rights
             of
             Lands
             without
             improbation
             ,
             The
             Lords
             declared
             they
             would
             grant
             two
             Terms
             to
             produce
             ,
             
               N●vem●er
               26.
               1667.
               
               H●y
            
             of
             Hay●●●un
             contra
             Drummond
             and
             ●ep●urn
             .
          
           
             Reduction
             
               ex
               capite
               inhibitionis
            
             ,
             was
             sustained
             though
             the
             inhibition
             was
             only
             on
             a
             Clause
             of
             Warrandice
             ,
             and
             there
             was
             yet
             no
             actual
             distress
             ,
             only
             to
             take
             effect
             when
             the
             distress
             should
             take
             place
             as
             a
             Declarator
             of
             Right
             ,
             December
             10.
             1667
             
               ●og
               contra
            
             Countess
             of
             Hume
             .
          
           
             In
             a
             Reduction
             
               ex
               capite
               inhibitionis
            
             ,
             the
             Defender
             was
             admitted
             to
             exclude
             the
             Pursu●rs
             Title
             and
             Right
             by
             other
             rights
             〈◊〉
             to
             the
             Inhibition
             ,
             which
             the
             Lords
             would
             not
             reserve
             ,
             but
             received
             them
             by
             way
             of
             Defense
             ,
             December
             11.
             1667.
             
             
               Inter
               eosdem
            
             .
          
           
             A
             Reduction
             on
             death-bed
             was
             sustained
             at
             the
             instance
             of
             the
             Creditors
             of
             the
             apparent
             Heir
             on
             this
             interest
             ,
             that
             the
             debts
             of
             the
             apparent
             Heir
             might
             affect
             the
             Estate
             disponed
             ,
             if
             the
             Disposition
             were
             Reduced
             ,
             February
             16.
             1669.
             
             Creditors
             of
             my
             Lord
             Balmerino
             and
             Lord
             
               Cowper
               contra
            
             Lady
             Cowper
             .
          
           
             Reduction
             was
             found
             necessary
             to
             take
             away
             a
             Decreet
             of
             Double
             poynding
             ,
             and
             that
             a
             second
             Suspension
             of
             Double●poynding
             ●aised
             by
             a
             party
             who
             compeared
             not
             in
             the
             first
             instance
             ,
             was
             not
             sufficient
             ,
             though
             in
             Decreets
             in
             absence
             Suspension
             without
             Reduction
             is
             sufficient
             ,
             
               February
               4.
               1670.
               
               Watson
            
             contra
             Sympson
             .
          
           
             REGALITIES
             cannot
             be
             prejudged
             by
             the
             Bloodwits
             or
             Amerciaments
             of
             the
             Iustices
             of
             Peace
             within
             the
             Regality
             ,
             but
             that
             ●uch
             only
             belong
             to
             the
             Lord
             of
             ●egality
             as
             was
             ●ound
             Iuly
             22.
             1664.
             
             Earl
             of
             Sutherland
             contra
             M●●tosh
             of
             C●nadge
             .
          
           
             Regalities
             having
             Chappel
             and
             Chancellary
             ,
             general
             services
             need
             not
             be
             retoured
             to
             the
             Kings
             Chancellary
             ,
             
               Ianuary
               19.
               1667.
               
               Reid
               contra
            
          
           
             RELIEF
             amongst
             persons
             bound
             conjunctly
             and
             severally
             ,
             was
             fo●nd
             to
             follow
             ,
             where
             one
             is
             distrest
             for
             all
             ,
             though
             there
             be
             no
             clause
             of
             relies
             exprest
             ,
          
           
             Relict
             of
             the
             Minister
             of
             
               Ednem
               contra
            
             Laird
             of
             Wedderburn
             .
             The
             like
             
               Iune
               19.
               1662.
               
               Wallace
            
             contra
             Forbes
             .
             The
             like
             
               Iune
               28.
               1665.
               
               Mont●ith
            
             contra
             
               Anderson
               ,
               Vide
            
             Clause
             ,
             Ibidem
             .
          
           
             A
             RELICT
             was
             found
             neither
             to
             have
             share
             of
             stock
             nor
             Terce
             of
             Annualrent
             of
             a
             sum
             bearing
             Annualrent
             without
             Infeftment
             ,
             
               Iune
               24.
               1663.
               
               S●ry●zeour
            
             contra
             Murrayes
             .
          
           
             A
             Relicts
             third
             of
             moveables
             was
             found
             not
             to
             be
             abated
             by
             the
             Husbands
             heretable
             debts
             ,
             as
             bearing
             annualrent
             ,
             whether
             they
             exceeded
             the
             heretable
             sums
             due
             to
             the
             Defunct
             or
             not
             ,
             
               Iuly
               19.
               1664.
               
               Inter
               eosdem
               .
            
          
           
             REMOVIN●
             cannot
             be
             stopped
             by
             alleadging
             the
             De●ender
             is
             Tennent
             by
             payment
             of
             Mails
             and
             Duties
             to
             such
             a
             man
             who
             is
             not
             warned
             ,
             unless
             it
             be
             alleadged
             he
             hath
             infeftment
             ,
             or
             Tacks
             for
             Terms
             to
             run
             after
             the
             warning
             ,
             but
             tacite
             relocation
             sufficeth
             not
             ,
             
               Ianuary
               30.
               1663.
               
               Rl●●art
               contra
            
          
           
             Removing
             was
             sustained
             on
             a
             warning
             on
             40.
             dayes
             ,
             albeit
             the
             party
             was
             out
             o●f
             the
             Countrey
             ,
             being
             now
             cited
             upon
             60.
             dayes
             ,
             without
             necessity
             to
             warn
             him
             by
             Letters
             of
             Supplement
             on
             60.
             dayes
             ,
             
               February
               20.
               1666.
               
               M●●ra●r
            
             contra
             Crichtoun
             .
          
           
             Removing
             was
             not
             sustained
             by
             a
             warning
             made
             by
             the
             Feear
             before
             the
             Liferenters
             death
             ,
             no
             not
             to
             take
             effect
             at
             the
             next
             Whitsonday
             without
             a
             new
             warning
             ,
             Iune
             30.
             1669.
             
             
               Agnew
               contra
            
             Tennents
             of
             Dronlaw
             .
          
           
             RENVNCIATION
             to
             be
             heir
             was
             admitted
             ,
             and
             a
             Decreet
             thereupon
             reduced
             ,
             obtained
             against
             the
             Renuncer
             as
             charged
             to
             Enter
             heir
             ,
             albeit
             they
             had
             raised
             no
             Reduction
             thereof
             
               intra
               annos
               utiles
            
             ,
             because
             the
             Decreet
             was
             obtained
             at
             the
             Vncles
             instance
             ,
             in
             her
             in●ancy
             ,
             and
             not
             insisted
             in
             within
             the
             
               anni
               utiles
               ,
               Iuly
            
             17.
             1661.
             
             Relict
             of
             Fleming
             contra
             Forrester
             .
          
           
             A
             Renunciation
             of
             a
             Fe●
             was
             sustained
             to
             liberate
             the
             Vassal
             from
             the
             Fe●
             duty
             ,
             albeit
             the
             Feu
             was
             constitute
             by
             a
             mutual
             Contract
             obliging
             the
             Feear
             and
             his
             heirs
             to
             pay
             the
             Feu
             duty
             yearly
             ,
             ●eing
             there
             was
             a
             Back-bond
             of
             the
             same
             date
             ,
             that
             the
             Feuar
             might
             renunce
             when
             he
             pleased
             ,
             February
             12.
             1669.
             
             Brown
             contra
             Sibbald
             .
          
           
             Renunciation
             of
             all
             Right
             and
             interest
             was
             found
             only
             to
             extend
             to
             all
             right
             the
             Renuncer
             had
             ,
             and
             not
             to
             any
             future
             right
             or
             rights
             ,
             to
             which
             the
             Renuncer
             might
             succeed
             unless
             it
             had
             been
             mentioned
             ,
             
               Iuly
               27.
               1671.
               
               Baillie
            
             contra
             Baillie
             .
          
           
             REPARATION
             of
             a
             Kirk
             was
             found
             in
             no
             part
             to
             affect
             
             the
             Titular
             of
             the
             Teinds
             ,
             but
             the
             Heretors
             of
             the
             Land
             only
             ,
             Ianuary
             16.
             1663.
             
             Relict
             of
             the
             Minister
             of
             
               Ednem
               contra
            
             Laird
             of
             Wedderburn
             .
          
           
             Reparation
             of
             Manses
             done
             by
             the
             Incumbents
             before
             1649.
             was
             found
             not
             to
             burden
             the
             Heretors
             for
             t●e
             value
             of
             1000.
             merks
             conform
             to
             the
             Act
             1649
             ▪
             renewed
             1661.
             but
             only
             for
             500.
             merks
             ,
             which
             was
             the
             Quota
             before
             these
             Acts
             ,
             and
             that
             not
             against
             singular
             Successors
             ,
             
               Ianuary
               8.
               1670.
               
               Charters
               contra
            
             Parochioners
             of
             Currie
             .
          
           
             REPROBATVRES
             were
             sustained
             though
             not
             protested
             for
             at
             the
             Examination
             of
             the
             Witnesses
             ,
             against
             whose
             Testimonies
             the
             Reprobature
             was
             now
             used
             ,
             being
             protested
             for
             before
             Sentence
             ,
             Iuly
             30.
             1668.
             
             Laird
             of
             
               Milntoun
               contra
            
             Lady
             Milntoun
             .
          
           
             Reprobature
             was
             not
             admitted
             to
             be
             added
             after
             a
             Reduction
             was
             filled
             up
             and
             discust
             in
             a
             Devorce
             ,
             but
             reserved
             to
             a
             special
             Action
             of
             Reprobature
             ,
             
               February
               25.
               1669.
               
               Inter
               eosdem
               .
            
          
           
             Reprobature
             for
             annulling
             a
             Decreet
             of
             Divorce
             of
             the
             Commissars
             ,
             was
             sustained
             at
             the
             instance
             of
             one
             who
             had
             bought
             the
             Liferent
             from
             the
             Husband
             ,
             and
             which
             would
             fall
             back
             to
             the
             Wi●e
             by
             the
             Divorce
             ,
             who
             compea●ing
             before
             the
             Commissars
             to
             object
             against
             the
             Witnesses
             ,
             and
             interrogate
             th●m
             was
             not
             admitted
             ,
             and
             having
             in
             a
             Reduction
             before
             the
             Lords
             obtained
             the
             Witnesses
             to
             be
             re-examined
             ,
             their
             own
             Testimonies
             of
             corruption
             were
             not
             admitted
             to
             ener●ate
             their
             former
             Testimonies
             ,
             but
             Reprobatures
             were
             reserved
             ,
             and
             being
             insisted
             in
             ,
             it
             was
             not
             found
             relevant
             that
             they
             were
             
               viles
               &
               pauperes
            
             ,
             the
             principal
             cause
             being
             Adultery
             which
             is
             a
             latent
             crime
             ,
             neither
             that
             they
             were
             infamous
             by
             common
             report
             ,
             unless
             they
             had
             been
             declared
             infamous
             by
             a
             Iudge
             ,
             or
             found
             culpable
             of
             a
             Crime
             or
             Fact
             ,
             that
             the
             Law
             declares
             to
             infer
             infamy
             ,
             
               Ianuary
               31.
               1671.
               
               Inter
               eosdem
               .
            
          
           
             Reprobatur●
             were
             found
             relevant
             being
             libelled
             upon
             instructing
             or
             prompting
             of
             Witnesses
             ,
             without
             necessity
             to
             alleadge
             that
             the
             Witnesses
             undertook
             or
             deponed
             conform
             ,
             and
             that
             
               in
               odium
               corrumpentis
            
             ,
             without
             inferring
             any
             blemish
             upon
             the
             Witnesses
             of
             prompted
             ,
             who
             consented
             not
             or
             swoar
             falsely
             ,
             Ibidem
             .
          
           
             Reprobatures
             were
             found
             relevant
             upon
             libelling
             of
             corrupting
             of
             Witnesses
             ,
             upon
             giving
             or
             promising
             of
             good
             deeds
             more
             than
             would
             be
             suitable
             for
             their
             Charges
             ,
             Ibidem
             .
          
           
             Reprobatures
             upon
             corrupting
             of
             Witnesses
             ,
             by
             giving
             or
             promising
             bribes
             ,
             or
             prompting
             Witnesses
             to
             depone
             ,
             was
             ●ound
             only
             Probable
             by
             writ
             or
             oath
             of
             the
             parties
             who
             adduced
             the
             Witnesses
             after
             Decreet
             ,
             and
             not
             by
             Witnesses
             ,
             unless
             the
             Reprobatures
             had
             been
             pursued
             before
             Decreet
             proceeding
             upon
             the
             Testimonies
             of
             the
             Witnesses
             quarrelled
             ,
             this
             was
             stopped
             till
             the
             further
             hearing
             and
             was
             recalled
             ,
             and
             Witnesses
             above
             exception
             were
             found
             competent
             whether
             before
             or
             after
             Sentence
             ,
             and
             the
             Witnesses
             were
             ordained
             to
             be
             condescended
             upon
             ;
             The
             first
             Interlocutor
             was
             the
             14.
             of
             Iuly
             1671.
             and
             the
             second
             the
             20th
             .
             of
             
               February
               1672.
               
               Inter
               eosdem
            
             .
          
           
             REQVISITION
             of
             a
             sum
             was
             sustained
             though
             it
             mentioned
             not
             the
             Procutatory
             produced
             ,
             seing
             it
             bear
             that
             the
             same
             was
             known
             to
             the
             Nottar
             and
             Witnesses
             ,
             and
             thereupon
             the
             Defunct
             party
             did
             appryze
             ,
             
               Ianuary
               10.
               1665.
               
               Steuart
            
             contra
             Steuarts
             .
          
           
             A
             Requisition
             was
             sustained
             though
             it
             bear
             not
             a
             Procuratory
             produced
             ,
             seing
             it
             was
             not
             called
             for
             then
             ,
             and
             is
             now
             produced
             ,
             and
             the
             Procurator
             shew
             Writs
             whereupon
             the
             Requisition
             was
             to
             be
             made
             ,
             as
             the
             Instrument
             bears
             ,
             
               I●ne
               28.
               1671.
               
               Hume
               contra
            
             Lord
             Iustice
             Clerk.
             
          
           
             A
             RETOVR
             was
             found
             reduceable
             without
             the
             solemnitie
             of
             a
             Summons
             of
             Error
             in
             Latine
             calling
             the
             Inquest
             ,
             seing
             the
             point
             in
             question
             was
             that
             point
             of
             the
             Brieve
             ,
             that
             the
             parties
             Grand-father
             died
             last
             Vest
             and
             Seased
             ,
             whereas
             the
             Seasine
             of
             an
             Vncle
             and
             Father
             were
             now
             produced
             ,
             which
             inferred
             ●o
             Error
             in
             the
             Inquest
             ,
             who
             behoved
             to
             serve
             to
             the
             last
             they
             saw
             infeft
             ,
             and
             therefore
             the
             Lords
             reduced
             ,
             Iuly
             7.
             1663
             ,
             
               Mow
               contra
            
             Dutches
             of
             Balcleugh
             .
          
           
             A
             Retour
             being
             called
             for
             to
             be
             reduced
             as
             proceeding
             without
             warrand
             or
             probation
             ,
             and
             nothing
             being
             produced
             but
             the
             Brieve
             ,
             Executions
             and
             Service
             ,
             but
             no
             Witnesses
             having
             deponed
             on
             the
             propinquity
             of
             Blood
             ,
             and
             none
             of
             the
             Inquest
             having
             declared
             so
             on
             proper
             knowledge
             ,
             The
             Lords
             would
             not
             therefore
             annul
             the
             Service
             ,
             but
             ordained
             the
             Inquest
             to
             be
             cited
             ,
             to
             give
             their
             oaths
             on
             what
             ground
             they
             served
             ,
             
               February
               24.
               1665.
               
               Mercer
            
             of
             Aldie
             contra
             Cowan
             .
          
           
             Retoures
             of
             Heirs
             are
             not
             reduceable
             unless
             they
             be
             quarrelled
             within
             20.
             years
             by
             the
             special
             Act
             Parl.
             1617.
             thereanent
             ,
             which
             was
             only
             found
             to
             relate
             to
             Retoures
             deduced
             since
             that
             Act
             ,
             but
             by
             the
             general
             Act
             of
             Prescription
             1617.
             the
             action
             of
             Reduction
             of
             Retoures
             
               quando
               ecunque
            
             deduced
             ,
             prescribes
             if
             not
             quarrelled
             within
             40.
             years
             ,
             
               November
               28.
               1665.
               
               Young
            
             contra
             
               Iohnstouns
               ,
               Vide
            
             Heir
             .
          
           
             A
             Retour
             of
             five
             years
             possession
             of
             a
             Fo●efaulted
             person
             ,
             was
             not
             sustained
             to
             be
             Reduced
             by
             way
             of
             ordinary
             Action
             ,
             but
             by
             a
             Summons
             of
             Error
             in
             Latine
             under
             the
             Quarter-Seal
             ,
             though
             such
             Reduction
             were
             oft
             time●
             allowed
             before
             ,
             
               Iune
               28.
               1667.
               
               Hume
               contra
            
             Creditors
             of
             Kell●
             .
          
        
         
           
             A
             REVERSION
             granted
             by
             a
             person
             obliging
             a
             buyer
             to
             dispone
             to
             the
             Seller
             ,
             was
             found
             to
             extend
             to
             the
             Disponers
             Heirs
             ,
             though
             not
             exprest
             ,
             seing
             the
             ordinary
             Clause
             of
             paying
             the
             sum
             in
             the
             Disponers
             own
             time
             ,
             was
             not
             ad●ected
             ,
             and
             it
             was
             held
             but
             as
             an
             omission
             
               non
               dedita
               opera
            
             ,
             that
             Heirs
             were
             not
             exprest
             ,
             Ianuary
             9.
             1662.
             
             Earl
             of
             
               Murray
               contra
            
             Laird
             of
             Grant.
             
          
           
             A
             Reversion
             was
             not
             ●ound
             null
             ,
             not
             being
             Registrate
             before
             1617.
             by
             the
             Act
             1555.
             which
             was
             found
             in
             de●uetude
             ,
             Iuly
             5.
             1666.
             
             Earl
             of
             
               Hume
               contra
            
             his
             Wodsetters
             .
          
           
             A
             Reversion
             bearing
             payment
             at
             the
             Wodse●●ers
             House
             at
             London
             ,
             was
             ●ound
             satisfied
             by
             Consignation
             at
             Edinburgh
             where
             his
             Successor
             dwelt
             ,
             February
             1.
             1667.
             
             Creditors
             of
             Murray
             contra
             Murray
             .
          
           
             A
             Reversion
             to
             a
             person
             and
             the
             Heirs
             of
             his
             Body
             ,
             was
             found
             ●ufficient
             to
             redeem
             by
             that
             person
             ,
             albeit
             he
             had
             before
             as●igned
             the
             Reversion
             ,
             and
             disponed
             the
             Land
             to
             another
             ,
             February
             1.
             1667.
             
             Earl
             of
             Tillibardin
             and
             Sir
             
               Iohn
               Drummo●d
            
             contra
             Murray
             of
             Ochter●yre
             .
          
           
             A
             RIGHT
             REAL
             of
             Lands
             was
             found
             not
             burdened
             with
             a
             provision
             in
             the
             Disposition
             ,
             that
             the
             Lands
             should
             be
             affected
             with
             such
             a
             sum
             ,
             against
             an
             Appryzer
             or
             singular
             Successor
             ,
             
               Ianuary
               25.
               1664.
               
               Colquhoun
            
             contra
             Adamson
             ;
             But
             thereafter
             this
             case
             being
             considered
             and
             the
             Clause
             for
             payment
             in
             the
             Infeftment
             ,
             the
             Father
             who
             granted
             it
             being
             in
             possession
             ,
             it
             was
             ●ound
             relevant
             against
             the
             singular
             successor
             till
             it
             were
             performed
             ,
             November
             7.
             1606.
             
             
               Inter
               eosdem
            
             .
          
           
             SALMOND
             FISHING
             in
             a
             River
             was
             found
             not
             to
             impede
             the
             letting
             out
             of
             a
             Loch
             into
             that
             River
             ,
             though
             hurtful
             to
             the
             fishing
             as
             was
             the
             Lords
             opinion
             ,
             but
             because
             it
             was
             a
             reference
             from
             the
             Parliament
             ,
             who
             might
             make
             a
             Law
             thereanent
             ,
             The
             Lords
             granted
             Commission
             to
             visite
             before
             answer
             ,
             Iuly
             1.
             1661.
             
             Mayor
             of
             Bervick
             contra
             Laird
             of
             Hayning
             .
          
           
             Salmond
             fishing
             by
             C●uives
             was
             found
             valide
             by
             an
             Infeftment
             to
             a
             Burgh
             
               cum
               piscationibus
               &
               piscariis
            
             ,
             without
             special
             mention
             of
             Salmond
             fishing
             or
             Cruives
             ,
             cled
             with
             immemorial
             possession
             ,
             and
             which
             Cruives
             the
             Burgh
             was
             suffered
             to
             change
             from
             one
             part
             to
             another
             within
             their
             own
             bounds
             ,
             being
             without
             pre●udice
             of
             the
             other
             fishings
             above
             ,
             or
             putting
             them
             in
             worse
             condition
             then
             they
             were
             before
             with
             the
             former
             Cruives
             ,
             and
             being
             but
             one
             Cruive
             Dyke
             ,
             whereof
             the
             Lords
             would
             not
             determine
             the
             height
             ,
             or
             whether
             it
             should
             be
             stopped
             or
             not
             ,
             but
             seing
             they
             possessed
             immemorially
             the
             former
             Dike
             ,
             this
             was
             to
             be
             made
             conform
             in
             all
             points
             ,
             and
             found
             that
             the
             Hecks
             ought
             to
             be
             three
             inches
             wide
             and
             not
             five
             ,
             and
             that
             the
             Act
             of
             King
             〈◊〉
             the
             4th
             .
             bearing
             five
             ,
             was
             an
             Error
             in
             relating
             a
             former
             Act
             of
             King
             Davids
             ,
             there
             being
             no
             such
             Act
             amongst
             his
             Acts
             ,
             but
             there
             being
             one
             Act
             of
             King
             Alexanders
             amongst
             his
             Acts
             for
             three
             inches
             ,
             it
             was
             ●ound
             that
             that
             should
             have
             been
             related
             ,
             as
             the
             Rule
             ,
             and
             that
             Saturndays
             slop
             should
             be
             keeped
             of
             all
             the
             Cruives
             ,
             and
             not
             of
             one
             only
             in
             the
             midle
             stream
             by
             opening
             an
             eln
             in
             each
             Cruive
             ,
             pulling
             up
             the
             Hecks
             thereof
             ,
             and
             that
             from
             Saturnday
             at
             six
             a
             Clock
             till
             Munday
             at
             Sun
             rising
             ,
             and
             ordained
             the
             common
             custom
             ,
             to
             be
             proven
             the
             
               hinc
               inde
            
             concerning
             a
             constant
             open
             midle
             stream
             ,
             which
             was
             not
             repeated
             in
             King
             ,
             la.
             6.
             his
             Act
             ;
             nor
             had
             the
             Lords
             respect
             ●o
             the
             Ratifications
             of
             these
             Acts
             purchased
             in
             the
             Parliament
             1661.
             being
             impetrate
             by
             private
             parties
             ,
             not
             Printed
             or
             past
             the
             Articles
             ,
             or
             done
             in
             the
             stile
             of
             a
             general
             Law
             ,
             Ianuary
             26.
             1665.
             
             Heretors
             of
             
               Don
               contra
            
             the
             Town
             of
             Aberdene
             .
          
           
             SATISFACTION
             of
             an
             Appryzing
             ,
             and
             of
             the
             sums
             whereupon
             the
             same
             proceeded
             ,
             was
             admitted
             by
             Exception
             upon
             what
             sums
             the
             apparent
             Heir
             ,
             to
             whose
             behove
             the
             right
             returned
             payed
             out
             therefore
             ,
             and
             that
             by
             intromission
             and
             present
             offer
             of
             what
             remained
             after
             compt
             and
             reckoning
             ,
             albeit
             the
             pursuit
             was
             not
             upon
             the
             Appryzing
             ,
             but
             a
             Reduction
             on
             an
             Inhibition
             upon
             the
             Bond
             whereupon
             the
             Appryzing
             proceeded
             ,
             
               Iune
               28.
               1671.
               
               Forbes
            
             of
             Watertoun
             contra
             
               Shein
               ,
               Vide
            
             Appryzing
             .
          
           
             A
             SEASINE
             on
             an
             appryzing
             within
             Burgh
             was
             sustained
             ,
             though
             not
             given
             by
             the
             Baillies
             but
             by
             the
             Provest
             ,
             nor
             by
             the
             Town
             Clerk
             ,
             but
             by
             another
             Nottar
             ,
             because
             the
             Baillies
             and
             Clerk
             were
             excluded
             by
             the
             English
             for
             the
             Tender
             ,
             
               Iuly
               3.
               1663.
               
               Thomson
            
             contra
             Mckitrick
             .
          
           
             A
             Seasine
             not
             registrate
             of
             a
             Liferent
             to
             a
             Wife
             ,
             was
             found
             valide
             against
             the
             apparent
             Heir
             of
             the
             Granter
             ,
             though
             brooking
             by
             a
             prior
             Disposition
             ,
             seing
             it
             contains
             a
             power
             to
             the
             Father
             to
             dispone
             and
             grant
             annualrents
             ,
             February
             27.
             1667.
             
             Countess
             of
             
               Carnwath
               contra
            
             Earl
             of
             Carnwath
             .
          
           
             A
             Seasine
             
               propriis
               manibus
            
             of
             a
             Husband
             to
             a
             Wife
             who
             had
             no
             Contract
             of
             Marriage
             nor
             other
             provision
             ,
             and
             had
             disponed
             a
             former
             Liferent
             to
             the
             behoof
             of
             the
             Husband
             ,
             was
             found
             a
             sufficient
             Title
             without
             a
             warrand
             or
             Adminicle
             in
             writ
             ,
             in
             respect
             of
             the
             Marriage
             and
             Duty
             of
             the
             Husband
             to
             provide
             his
             Wife
             ,
             Iune
             19.
             1668.
             
             Relict
             of
             Garigs
             contra
             Wallace
             of
             Garigs
             .
          
           
             A
             Seasine
             within
             Burgh
             under
             the
             Clerks
             hand
             was
             sustained
             without
             necessity
             to
             〈◊〉
             it
             was
             regi●●rate
             in
             the
             Town
             
             Books
             ,
             in
             re●pect
             of
             the
             Exception
             in
             the
             Act
             anent
             Registration
             of
             Seasines
             within
             Burgh
             not
             requiring
             them
             to
             be
             regist●ate
             in
             the
             Towns
             Books
             ,
             Iune
             30.
             
             166●
             .
             Bur●et
             contra
             Swan
             .
             The
             ●ike
             though
             the
             Seasine
             was
             by
             the
             Sherif●
             Clerk
             ,
             there
             being
             no
             Town
             Clerk
             in
             Office
             ,
             
               Iuly
               21
               ,
               1666.
               
               Thomson
            
             contra
             Mcki●rick
             .
          
           
             A
             Seasine
             
               propri●s
               manibus
            
             ,
             albeit
             sustained
             to
             a
             Wife
             without
             one
             Adminicle
             ,
             who
             had
             no
             Contract
             of
             Marriage
             ,
             and
             had
             at
             that
             time
             quite
             her
             loynture
             by
             a
             former
             Husband
             to
             the
             Husbands
             Creditors
             ,
             yet
             two
             of
             the
             Witnesses
             being
             positive
             that
             they
             were
             never
             Witnesses
             to
             any
             Seasine
             given
             to
             her
             ,
             a
             third
             deponing
             he
             remembred
             not
             ,
             a
             ●ourth
             abiding
             by
             the
             Seasine
             ,
             but
             deponed
             it
             was
             in
             Summer
             ,
             where
             the
             Seasine
             bear
             in
             Winter
             ,
             was
             improven
             ,
             though
             the
             Nottar
             offered
             to
             abide
             by
             it
             ,
             but
             the
             Lords
             refused
             to
             Examine
             him
             or
             any
             extrinsick
             Witness
             ,
             in
             respect
             the
             Seasine
             had
             no
             Warrand
             in
             writ
             ,
             
               Ianuary
               9.
               1669.
               
               Wallace
            
             of
             〈◊〉
             contra
             ●l●kerrel
             .
          
           
             A
             Seasine
             
               propriis
               manibus
            
             by
             a
             Father
             to
             his
             Son
             ,
             reseving
             his
             Fathers
             Liferent
             ,
             was
             found
             valide
             against
             a
             second
             Wifes
             Infeftment
             in
             the
             same
             Lands
             ,
             though
             granted
             for
             a
             competent
             Tocher
             ,
             albeit
             the
             Seasine
             had
             but
             two
             Witnes●es
             ,
             and
             had
             no
             Disposition
             or
             Precept
             to
             Warrand
             it
             ,
             but
             an
             Adminicle
             ,
             viz.
             a
             Bond
             by
             the
             Father
             of
             the
             same
             date
             ,
             obliging
             him
             to
             warrand
             the
             Seasine
             ,
             and
             that
             it
             was
             not
             a
             fraudulent
             ●atent
             deed
             ,
             it
             being
             Registrate
             ,
             nor
             was
             it
             alterable
             by
             the
             Father
             as
             a
             Bairns
             portion
             ,
             
               February
               11.
               1669.
               
               Buchan
            
             contra
             Taits
             .
          
           
             SERVICE
             of
             Harrage
             and
             Carriage
             in
             a
             〈◊〉
             was
             ●ound
             not
             due
             but
             when
             demanded
             within
             the
             year
             ,
             Iune
             27.
             1662.
             
             Watson
             contra
             Eleis
             .
          
           
             SERVITVDE
             of
             Fail
             and
             Divot
             ,
             Clay
             and
             Stone
             granted
             in
             a
             Muire
             definitely
             ,
             where
             there
             was
             no
             pas●urage
             therewith
             ,
             was
             found
             not
             to
             hinder
             the
             Proprietar
             of
             the
             Muire
             to
             Plew
             and
             rive
             out
             a
             par●
             ,
             where
             there
             was
             more
             le●t
             then
             was
             like
             to
             serve
             the
             use
             of
             the
             Servitude
             ●or
             ever
             ,
             yet
             so
             as
             if
             it
             should
             happen
             at
             any
             time
             thereafter
             not
             to
             suffice
             ,
             a
             part
             of
             that
             riven
             out
             should
             be
             laid
             ●ee
             for
             the
             same
             purpose
             ,
             in
             this
             ,
             respect
             was
             had
             to
             the
             publick
             utility
             ,
             the
             whole
             Muire
             being
             otherwayes
             improfi●able
             ▪
             and
             the
             restriction
             was
             not
             allowed
             till
             the
             Muire
             was
             actually
             riven
             out
             and
             pl●wed
             ,
             
               Iune
               21.
               1667.
               
               Watson
               contra
            
             Feuers
             of
             Dunkeir
          
           
             A
             Servitude
             of
             putting
             over
             a
             Miln
             Damn
             upon
             other
             mens
             ground
             was
             ●ound
             not
             consti●ute
             without
             his
             consent
             ,
             though
             he
             shew
             no
             detriment
             to
             him
             thereby
             ,
             
               Iune
               22.
               1667.
               
               Hay
            
             of
             
               Strowi●
               contra
            
             Feuers
             .
          
           
             A
             Servitude
             of
             common
             pasturage
             ,
             though
             if
             ordinarly
             carry
             Fail
             and
             Divot
             ,
             yet
             if
             by
             cu●●ome
             Fail
             and
             Divot
             be
             excluded
             and
             hindered
             ,
             it
             is
             ●ot
             excluded
             ,
             February
             15.
             1668.
             
             Laird
             of
             
               Haining
               contra
            
             Town
             of
             Se●kirk
             .
          
           
             SIMVLATION
             of
             a
             Gift
             of
             E●cheat
             was
             inferred
             upon
             the
             Act
             of
             Parliament
             1592.
             because
             the
             Rebel
             was
             suffered
             to
             possess
             four
             or
             five
             years
             ,
             in
             which
             〈◊〉
             were
             patent
             ,
             albeit
             the
             Donatar
             obtained
             g●neral
             declarator
             long
             before
             ,
             and
             was
             himself
             a
             lawful
             Creditor
             ,
             and
             that
             the
             Lands
             were
             appryzed
             before
             the
             Rebellion
             ,
             seing
             the
             Appryzer
             possessed
             not
             but
             the
             Rebel
             ,
             
               Ianuary
               9.
               1666.
               
               Oliphant
            
             contra
             Drummond
             .
          
           
             Simulation
             of
             a
             gift
             of
             Liferent
             Escheat
             ,
             was
             ●ound
             probable
             by
             the
             Superiour
             and
             Witnesses
             insert
             in
             the
             gift
             their
             oathes
             ,
             that
             it
             was
             to
             the
             Rebels
             behove
             ,
             
               Iune
               19.
               1669.
               
               Scot
            
             contra
             Langtoun
             .
          
           
             Simulation
             of
             a
             gift
             of
             Liferent
             taken
             by
             a
             party
             who
             had
             bought
             Lands
             for
             securing
             himself
             ,
             in
             respect
             the
             Sellers
             Escheat
             was
             ●●llen
             ,
             was
             not
             inferred
             by
             allowing
             the
             Expenses
             of
             the
             Gift
             in
             the
             price
             of
             the
             Land
             ,
             which
             the
             Seller
             was
             obliged
             to
             warrand
             ,
             seing
             he
             did
             not
             extend
             the
             gift
             any
             further
             than
             to
             the
             Lands
             bought
             to
             himself
             ,
             unless
             it
             were
             proven
             he
             knew
             of
             the
             other
             party
             competing
             his
             Right
             ,
             that
             it
             was
             perfected
             before
             he
             took
             the
             other
             Disposition
             of
             the
             same
             Lands
             ,
             and
             thereby
             was
             
               particeps
               fraudis
            
             with
             the
             Seller
             who
             granted
             double
             Dispositions
             ,
             22.
             1669.
             
             Hamiltoun
             of
             Corsse
             contra
             Hamiltoun
             and
             Viscount
             of
             Frendraught
             .
          
           
             Simulation
             of
             a
             Gift
             of
             Escheat
             and
             Liferent
             was
             not
             inferred
             ,
             because
             it
             was
             granted
             to
             the
             Rebels
             Son
             ,
             who
             was
             not
             in
             his
             Family
             ,
             but
             had
             means
             of
             his
             own
             ,
             nor
             that
             the
             Father
             continued
             in
             possession
             for
             sometime
             after
             Declarator
             ,
             nor
             were
             the
             members
             of
             Exchequer
             admitted
             to
             prove
             that
             the
             Gift
             was
             procured
             by
             the
             Fathers
             means
             and
             moyen
             ,
             seing
             the
             Son
             gave
             Back-bond
             ,
             that
             being
             satisfied
             of
             the
             debt
             in
             the
             Horning
             ,
             his
             own
             debt
             and
             expenses
             of
             the
             gift
             ,
             there
             should
             be
             place
             to
             the
             Rebels
             Credi●ors
             ,
             and
             did
             make
             Faith
             at
             the
             passing
             of
             the
             Gift
             ,
             that
             it
             was
             to
             his
             own
             behove
             ,
             
               December
               4.
               1669.
               
               ●●ffrey
               contra
            
             Doctor
             〈◊〉
             .
          
           
             Simulation
             of
             a
             Gi●t
             of
             Li●erent
             was
             inferred
             from
             the
             Rebels
             obtaining
             the
             gift
             b●ank
             in
             the
             Donatars
             Name
             ,
             which
             being
             in
             his
             hand
             and
             delivered
             to
             a
             Creditor
             for
             security
             of
             a
             just
             debt
             ,
             the
             same
             was
             found
             null
             even
             as
             to
             him
             ,
             
               December
               17.
               1670.
               
               Langtoun
            
             contra
             Scot
             ,
          
           
             A
             SINGVLAR
             SVCCESSOR
             was
             not
             found
             lyable
             for
             publick
             burdens
             imposed
             by
             Committees
             of
             Parliament
             ,
             Ratified
             in
             Parliament
             ,
             
               Iuly
               13.
               1664.
               
               Grahame
            
             of
             
               Hiltoun
               contra
            
             Heretors
             of
             Cla●kmannan
             Shire
             .
          
           
             SLANDER
             ,
             Vide
             Commissaries
             .
          
        
         
           
             IN
             A
             SPECIAL
             DECLARATOR
             of
             Eschea●
             ▪
             the
             payment
             of
             the
             debt
             before
             denunciation
             ,
             was
             ●ound
             relevant
             upon
             the
             Creditors
             Oath
             ,
             but
             Nullity
             of
             the
             Horning
             upon
             informality
             of
             Process
             was
             found
             not
             relevant
             ,
             seing
             these
             purged
             not
             the
             Contempt
             and
             Disobedience
             ,
             in
             not
             paying
             or
             suspending
             ,
             
               February
               10.
               1663.
               
               Montgomrie
            
             contra
             Montgomrie
             and
             Lawder
             ;
             in
             this
             case
             the
             alleadgea●ce
             on
             the
             Back-bond
             granted
             to
             the
             Thesaurer
             by
             the
             Donatar
             ,
             in
             favours
             of
             the
             Creditors
             ,
             was
             not
             found
             relevant
             without
             a
             second
             gift
             or
             warrand
             from
             the
             Thesaurer
             .
          
           
             SP
             VILZIE
             was
             elided
             by
             Disposition
             and
             Instrument
             of
             possession
             ,
             though
             it
             was
             
               omnium
               bonorum
            
             ,
             and
             no
             natural
             possession
             ●ollowed
             for
             two
             years
             ,
             seing
             there
             was
             no
             forcible
             resistance
             ,
             
               Ianuary
               29.
               1662
               ,
               Irwing
            
             contra
             M●kartnay
             .
          
           
             In
             a
             spuilzie
             many
             persons
             being
             called
             as
             accessory
             ,
             there
             being
             on
             others
             whereby
             the
             Defender
             might
             prove
             his
             Defense
             ,
             The
             Lords
             declared
             if
             the
             pursuer
             insisted
             against
             them
             all
             ,
             they
             would
             ordain
             him
             first
             to
             insist
             against
             the
             accessories
             ,
             that
             such
             as
             were
             assoilzied
             might
             be
             Witnesses
             ,
             February
             24.
             1662.
             
             
               Inter
               eosdem
            
             .
          
           
             Spuilzie
             of
             Teinds
             was
             not
             elided
             by
             ther
             15
             ,
             and
             17.
             
             Acts
             of
             Parliament
             1633.
             
             Declaring
             the
             Teinds
             to
             be
             the
             fifth
             part
             of
             the
             Rents
             ,
             and
             that
             every
             Heretor
             shall
             have
             their
             own
             Teind
             until
             valuation
             be
             intented
             ,
             December
             18.
             1662.
             
             Lord
             
               Balmerino
               contra
            
             the
             Town
             of
             Edinburgh
             .
          
           
             Spuilzie
             no●
             being
             pursued
             ●ithin
             three
             years
             can
             only
             be
             pursued
             thereafter
             as
             wrongous
             intromission
             ,
             and
             the
             parties
             are
             not
             lyable
             
               in
               solidum
            
             ,
             but
             if
             all
             be
             proven
             intromettors
             ,
             they
             are
             lyable
             equally
             ,
             as
             being
             all
             presumed
             to
             have
             equally
             intrometted
             ,
             unless
             the
             greater
             intromission
             of
             some
             of
             them
             be
             prove
             m
             ,
             
               Ianuary
               17.
               1668.
               
               Strachan
            
             contra
             Morison
             .
          
           
             A
             Spuilzie
             was
             not
             elided
             by
             a
             poinding
             ,
             though
             one
             offered
             to
             make
             Faith
             the
             Goods
             were
             anothers
             then
             the
             debitors
             ,
             not
             being
             offered
             by
             himself
             ,
             his
             Servant
             ,
             or
             by
             his
             Commission
             ,
             seing
             that
             partie
             had
             a
             Disposition
             with
             an
             instrument
             of
             possession
             ,
             and
             several
             Acts
             alleadged
             o●
             his
             nat●ral
             possession
             ,
             from
             whom
             the
             Goods
             were
             poinded
             ,
             
               Iuly
               6.
               1666.
               
               Corbet
            
             contra
             Stirling
             .
          
           
             Spuilzie
             of
             Oxen
             the
             Pursuers
             had
             in
             the
             Pleugh
             four
             moneths
             was
             elided
             ,
             because
             the
             Defenders
             had
             intrometted
             with
             them
             by
             an
             order
             of
             the
             Sheri●●
             ,
             execute
             by
             his
             Officers
             ,
             as
             being
             stollen
             Goods
             ,
             though
             there
             was
             no
             citation
             of
             pa●●ies
             for
             obtaining
             the
             warrand
             ,
             which
             might
             be
             summarly
             used
             for
             recovering
             of
             Goods
             ,
             notwithstanding
             of
             4.
             moneths
             peaceable
             possession
             ,
             unless
             with
             the
             possession
             the
             pursuer
             should
             instruct
             a
             lawful
             and
             onerous
             Title
             ,
             as
             having
             bought
             the
             Oxen
             in
             which
             case
             Sentence
             was
             found
             necessary
             before
             the
             possessors
             were
             dispossessed
             ,
             
               Iu●y
               7.
               1671.
               
               Strachans
            
             contra
             Gordouns
             .
          
           
             STIPENDS
             of
             Ministers
             affect
             the
             Teinds
             as
             a
             real
             burden
             ,
             and
             all
             intrometters
             even
             these
             who
             buy
             ,
             as
             Merchands
             buying
             the
             whole
             .
             Teind
             of
             a
             Mans
             Land
             for
             a
             year
             ▪
             so
             that
             they
             cannot
             pretend
             payment
             made
             to
             the
             Heretor
             
               bona
               fide
            
             ,
             seing
             they
             should
             know
             that
             real
             burden
             ,
             Iune
             24.
             1662.
             
             Vernor
             contra
             Brown.
             
          
           
             Stipends
             quoad
             Intrants
             were
             found
             to
             divide
             in
             two
             Terms
             ,
             that
             the
             Intrant
             before
             Whitsond●y
             hath
             ●oth
             Terms
             ,
             but
             after
             Whitsonday
             and
             before
             Michalmass
             only
             one
             Term
             ,
             
               Iuly
               24.
               1662.
               
               W●yms
            
             contra
             Cunninghame
             .
          
           
             Stipends
             were
             not
             found
             to
             burden
             and
             Heretor
             where
             there
             is
             a
             Liferenter
             living
             ,
             
               Iune
               24.
               1663.
               
               Menzeis
               contra
            
             Laird
             of
             Glen●rchie
             .
          
           
             Stipend
             of
             a
             Minister
             reponed
             shortly
             after
             Michalmass
             as
             having
             Presentation
             ,
             Collation
             and
             Possession
             before
             ,
             and
             wrongously
             put
             out
             ,
             was
             found
             not
             to
             prefer
             him
             to
             that
             years
             stipend
             against
             the
             lncumbent
             possessing
             and
             serving
             the
             Cure
             〈◊〉
             
               Michalmas
               bona
               fide
               ,
               Iuly
            
             9.
             1663.
             
             Kirkaldy
             contra
             Balcanquel
             .
          
           
             A
             Stipend
             whereto
             a
             Stipendiar
             was
             presented
             at
             Lambass
             ,
             and
             served
             from
             thence
             ,
             and
             was
             admitted
             shortly
             after
             Michalmass
             ,
             reached
             not
             the
             whole
             stipend
             ,
             but
             the
             half
             ,
             though
             the
             Presentation
             was
             before
             Michalmass
             and
             the
             actual
             service
             ,
             seing
             the
             Admission
             was
             shortly
             after
             ,
             
               Iune
               7.
               1664.
               
               Hay
               contra
            
             Collector
             of
             Vaccand
             stipends
             .
          
           
             A
             stipend
             was
             found
             to
             affect
             the
             whole
             Teinds
             unbought
             where
             there
             was
             not
             a
             Locality
             ,
             and
             so
             the
             Minister
             might
             take
             himself
             to
             any
             Here●or
             for
             his
             whole
             free
             Teind
             ,
             and
             not
             
               pro
               rata
            
             without
             prejudice
             to
             him
             to
             pursue
             for
             Relief
             ,
             
               December
               3.
               1664.
               
               Hutcheson
               contra
            
             Earl
             of
             Cas●●ls
             .
          
           
             A
             Stipend
             was
             found
             instructed
             by
             seven
             years
             possession
             without
             any
             Title
             in
             Writ
             ,
             so
             as
             to
             give
             a
             possessory
             judgement
             ,
             November
             25.
             1665.
             
             Petrie
             contra
             Mitchelson
             .
          
           
             A
             stipend
             was
             found
             to
             belong
             to
             a
             Minister
             Transported
             in
             Ianuary
             ,
             who
             continued
             preaching
             till
             April
             ,
             and
             not
             to
             his
             Successors
             ,
             who
             was
             presented
             before
             Whitsonday
             ,
             but
             not
             admitted
             till
             L●mbass
             ,
             none
             compearing
             for
             the
             Collector
             of
             the
             vaccand
             stipends
             ,
             
               Ianuary
               26.
               1670.
               
               Mcqu●en
               contra
            
             Marquess
             of
             Dowglass
             and
             Purves
             .
          
           
             STOLLEN
             GOODS
             were
             ●ound
             recoverable
             by
             the
             owner
             ,
             by
             warrand
             from
             the
             Sherif●
             summarly
             without
             citation
             of
             the
             possessors
             ,
             though
             they
             had
             peaceably
             possessed
             the
             Gooods
             four
             moneths
             in
             that
             pleugh
             ,
             unless
             they
             had
             acquired
             
             possession
             by
             an
             onerous
             Title
             ,
             Iuly
             7.
             1671
             
             ▪
             Strachan●
             contra
             Gordoun●
             and
             others
             ,
             Vide
             Spuilzie
             .
          
        
         
           
             SVBMISSION
             betwixt
             Commissars
             to
             the
             Bishop
             without
             any
             determinat
             Ish
             ,
             or
             time
             determined
             to
             be
             filled
             up
             ,
             or
             blank
             ,
             but
             generally
             referring
             all
             controversies
             that
             should
             arise
             to
             the
             Bishop
             was
             found
             valide
             and
             not
             determined
             by
             a
             year
             ,
             but
             a
             Term
             was
             affixed
             to
             determine
             what
             differences
             are
             now
             occurring
             ,
             
               February
               3.
               1669.
               
               Bosewel
            
             contra
             Lindsay
             of
             Wormis●oun
             .
          
           
             SVBSTITVTION
             ,
             Vide
             Clause
             .
          
           
             SVCCESSOR
             LVCRATIVE
             was
             not
             inferred
             by
             a
             Disposition
             by
             a
             Father
             to
             a
             Son
             having
             an
             elder
             Brother
             living
             ,
             or
             so
             presumed
             ,
             as
             lately
             before
             gone
             out
             of
             the
             Countrey
             ,
             and
             so
             not
             then
             
               alioqui
               successurus
               ,
               February
            
             28.
             1662.
             
             Hamiltoun
             contra
             M●farlane
             of
             Kirktoun
             .
          
           
             Successor
             lucrative
             being
             alleadged
             by
             a
             Disposition
             of
             Land
             by
             a
             Father
             to
             his
             Son
             in
             his
             contract
             of
             Marriage
             for
             a
             Tocher
             payed
             to
             the
             Father
             ,
             and
             debts
             and
             Bairns
             Portions
             far
             within
             the
             value
             of
             the
             Land
             ,
             he
             was
             not
             found
             lyable
             
               in
               solidum
            
             ,
             nor
             yet
             the
             pursuer
             put
             to
             a
             Reduction
             ,
             but
             the
             passive
             Title
             was
             sustained
             personaliter
             in
             so
             far
             as
             the
             onerous
             Cause
             was
             less
             then
             the
             ordinary
             price
             at
             that
             time
             ,
             with
             annualrent
             since
             the
             intenting
             of
             the
             Cause
             ,
             Iune
             17.
             1664.
             
             Ly●n
             of
             Mu●resk
             contra
             〈◊〉
             .
          
           
             Successor
             Lucrative
             was
             not
             inferred
             by
             a
             Disposition
             ,
             being
             only
             to
             a
             Nephew
             ,
             the
             brother
             being
             alive
             who
             was
             not
             ●ound
             
               alioqui
               successurus
            
             ,
             as
             in
             the
             case
             of
             an
             Oye
             ,
             
               November
               22.
               1665.
               
               Scot
            
             contra
             Bos●w●l
             of
             
               Auchm●eck
               ,
               Vide
            
             Lucrative
             Successor
             .
          
           
             A
             SVMMONS
             whereof
             the
             Executions
             appeared
             visibly
             new
             ,
             and
             the
             user
             would
             not
             abide
             by
             it
             ,
             was
             found
             not
             to
             be
             transferred
             ,
             but
             whether
             an
             Inhibition
             raised
             on
             that
             summons
             ,
             would
             thereby
             fall
             ,
             or
             if
             warrand
             might
             be
             granted
             to
             use
             new
             Executions
             on
             that
             Summons
             ,
             though
             year
             and
             day
             was
             past
             ,
             and
             that
             by
             special
             priviledge
             to
             validate
             the
             Inhibition
             ,
             was
             not
             decided
             ,
             
               Ianuary
               12.
               1665.
               
               Wilson
            
             and
             Callender
             her
             Spouse
             contra
          
           
             Summons
             not
             being
             execu●e
             within
             year
             and
             day
             from
             the
             date
             thereof
             ,
             no
             process
             was
             sustained
             thereon
             ,
             
               Iuly
               22.
               1665.
               
               Row
               contra
            
             Viscount
             of
             Stormont
             .
          
           
             Summons
             on
             an
             Assignation
             libelled
             at
             the
             Assignays
             instance
             was
             not
             sustained
             ,
             seing
             the
             date
             of
             the
             Assignation
             was
             posterior
             to
             the
             date
             of
             the
             summons
             ,
             albeit
             the
             Cedent
             concurred
             ,
             
               Novemb●r
               15.
               1666.
               
               Ab●rcromb●e
            
             contra
             Andersons
             .
          
           
             A
             SVPERIOR
             not
             being
             called
             to
             a
             Cognition
             of
             Marches
             by
             Arbiters
             ,
             or
             legally
             cited
             ,
             doth
             not
             annul
             the
             same
             ,
             but
             it
             is
             but
             prejudice
             to
             the
             superiour
             when
             the
             Fee
             shall
             be
             in
             his
             hand
             ,
             February
             8.
             1662.
             
             Lord
             
               Torphichan
               contra
            
          
           
             A
             Superiour
             by
             receiving
             an
             Appryzer
             was
             found
             not
             to
             derogat
             from
             the
             Right
             of
             Ward
             in
             the
             Superiour
             ,
             though
             he
             made
             no
             reservation
             ,
             seing
             it
             was
             a
             necessary
             Act
             for
             him
             to
             receive
             ,
             Iuly
             19.
             1664.
             
             Hospital
             of
             Glasgow
             contra
             Campbell
             .
          
           
             A
             Superiour
             bound
             in
             absolute
             warrandice
             against
             Ward
             ,
             having
             a
             gift
             of
             his
             own
             Ward
             to
             his
             own
             behove
             ,
             was
             found
             not
             to
             distress
             his
             Vassals
             thereby
             farder
             then
             for
             a
             proportional
             part
             of
             the
             composition
             and
             expense●
             ,
             February
             15.
             1665.
             
             Boid
             of
             
               Penkil
               contra
            
             Tennents
             of
             Cars●uth
          
           
             A
             Superiour
             was
             decern●d
             to
             receive
             an
             Adjudger
             ,
             though
             the
             superiour
             himself
             had
             appryzed
             and
             alleadged
             a
             better
             right
             ,
             but
             the
             Infeftment
             to
             be
             
               salvo
               jur●
            
             〈◊〉
             
               &
               s●o
               ,
               Iuly
               4.
               1667.
               
               Chein
            
             contra
             Christie
             .
          
           
             A
             Superiour
             giving
             a
             disposition
             of
             his
             Vassals
             superiority
             ,
             reserving
             their
             property
             ,
             and
             which
             disposition
             bear
             that
             the
             A●quirer
             should
             hold
             of
             the
             superiour
             himself
             ;
             The
             said
             disposition
             with
             the
             Infeftment
             thereon
             was
             found
             null
             ,
             as
             interponing
             the
             Acquirer
             betwixt
             the
             superiour
             and
             his
             vassal
             ,
             but
             was
             sustained
             as
             a
             gift
             of
             Non-entry
             ,
             in
             respect
             it
             bear
             an
             assignation
             to
             all
             the
             casualities
             of
             the
             superiority
             ,
             and
             the
             general
             declarator
             thereon
             was
             found
             to
             extend
             to
             the
             fe●-duties
             after
             citation
             ,
             
               Ianuary
               30.
               1671.
               
               Dowglas
            
             of
             
               K●●head
               contra
            
             his
             Vassal
             .
          
           
             A
             Superiour
             being
             charged
             to
             receive
             an
             Adjudger
             ,
             was
             ●ound
             to
             have
             his
             option
             either
             to
             receive
             him
             for
             a
             years
             rent
             ,
             or
             to
             pay
             his
             sums
             getting
             assignation
             to
             the
             adjudication
             ,
             but
             ●o
             that
             the
             Land
             should
             be
             redeemable
             from
             the
             superiour
             for
             the
             sums
             ,
             princ●pal
             and
             annualrent
             contained
             in
             the
             adjudication
             ,
             without
             any
             sum
             for
             composition
             of
             Entry
             ,
             and
             that
             the
             adjudication
             was
             in
             this
             as
             an
             appryzing
             by
             the
             36.
             
             Act
             King
             
               Iames
               3d.
               Iune
               10.
               1671.
               
               Scot
            
             of
             
               Thirl●stane
               contra
            
             Lord
             Dru●la●rig
             .
          
           
             SVPERIORITY
             of
             Kirk
             Lands
             annexed
             to
             the
             Crown
             Anno
             1633.
             reserving
             the
             Feu-duties
             to
             the
             Lords
             of
             Erection
             who
             consented
             to
             the
             surrender
             ,
             was
             ●ound
             not
             to
             be
             a
             ground
             for
             the
             Vassal
             to
             force
             the
             superiour
             to
             instruct
             his
             consent
             ,
             but
             that
             it
             is
             presumed
             ,
             
               Iuly
               27.
               1662.
               
               Watson
            
             contra
             
             El●is
             ●
             ▪
             Here
             Ha●●age
             and
             Carrage
             were
             excepted
             to
             the
             King.
             
          
           
             Superiority
             and
             property
             of
             the
             same
             right
             coming
             in
             the
             same
             persons
             by
             distinct
             means
             ,
             and
             they
             infeft
             in
             the
             superiority
             ,
             and
             supplicating
             the
             Lords
             that
             they
             would
             ordain
             precepts
             out
             of
             the
             Chancellary
             to
             infeft
             them
             in
             the
             property
             ,
             seing
             they
             could
             not
             infeft
             themselves
             ;
             The
             Lords
             thought
             that
             they
             might
             be
             either
             infeft
             upon
             the
             Kings
             precept
             or
             their
             own
             precept
             ;
             or
             both
             ,
             November
             26.
             1668.
             
             Daughters
             of
             Mo●●oun
             supplicants
             .
          
        
         
           
             IN
             A
             SVSPENSION
             a
             reason
             of
             payment
             by
             another
             Co-principal
             ,
             was
             not
             found
             requisite
             to
             be
             instantly
             verified
             ,
             nor
             the
             Defender
             put
             to
             find
             better
             Caution
             ,
             though
             it
             was
             alleadged
             he
             was
             in
             hazard
             of
             breaking
             ,
             but
             only
             to
             give
             his
             oath
             
               de
               calumnia
               ,
               Iuly
               15.
               1665.
               
               Vrquhart
            
             contra
             Blair
             .
          
           
             Suspension
             of
             a
             Minister
             was
             found
             not
             to
             take
             away
             his
             stipend
             he
             not
             being
             deposed
             ,
             
               Iuly
               26.
               1661.
               
               Ker
               contra
            
             Minister
             and
             Parochioners
             of
             Carrin
             .
          
           
             Suspension
             granted
             on
             supplication
             of
             all
             Hornings
             that
             should
             be
             condescended
             on
             ,
             for
             Relaxation
             only
             and
             to
             give
             
               personam
               standi
            
             in
             judgement
             ,
             without
             stoping
             any
             other
             execution
             ,
             
               December
               7.
               1669.
               
               Vrquhart
            
             supplicant
             .
          
           
             TACIT
             RELOCATION
             was
             found
             to
             indure
             for
             more
             years
             ,
             during
             which
             it
             was
             not
             quarrelled
             ,
             not
             the
             beneficed
             person
             could
             expre●ly
             set
             together
             ,
             Ianuary
             16.
             1663.
             
             Earl
             of
             
               Errol
               c●ntra
            
             parochioners
             of
             Vry
             .
          
           
             Tacit
             Relocation
             of
             a
             Tennent
             warned
             ,
             cannot
             defend
             ●he
             sub-tennent
             against
             singular
             successors
             ,
             who
             would
             only
             warn
             natural
             Possessors
             ,
             
               Ianuary
               30.
               1663.
               
               Rickart
               contra
            
             Here
             the
             sub-tennent
             had
             required
             th●
             Tennent
             to
             give
             his
             Tack
             for
             his
             defense
             .
          
           
             Tacit
             Relocation
             after
             an
             expyred
             Tack
             of
             Teinds
             was
             sound
             interrupted
             by
             inhibition
             ,
             though
             not
             used
             by
             the
             setter
             of
             the
             Tack
             ,
             but
             by
             a
             third
             party
             on
             a
             distinct
             Right
             ,
             unless
             the
             alleadger
             of
             the
             tacit
             relocation
             could
             condescend
             upon
             a
             right
             in
             the
             setter
             of
             the
             Tack
             ,
             that
             might
             exclude
             this
             pursuit
             ,
             and
             he
             condescending
             that
             the
             ●etter
             of
             the
             Tack
             was
             presented
             as
             parson
             ,
             and
             had
             seven
             years
             peaceable
             possession
             thereby
             ,
             the
             same
             was
             ●ound
             sufficient
             to
             maintain
             his
             Tennent
             by
             tacit
             relocation
             ,
             until
             the
             Parson
             took
             assignation
             from
             the
             pursuer
             ,
             and
             so
             acknowledged
             his
             right
             ,
             which
             was
             found
             to
             take
             away
             the
             Tacit
             Relocation
             of
             the
             De●ender
             from
             that
             time
             ,
             though
             it
             could
             not
             have
             taken
             away
             an
             unexpyred
             Tack
             ,
             Iuly
             18.
             1671.
             
             Earl
             of
             
               Hume
               contra
            
             Laird
             of
             Riselaw
             .
          
           
             A
             TACK
             set
             by
             a
             debitor
             to
             his
             creditor
             for
             seven
             years
             for
             such
             a
             Tack-duty
             exprest
             ,
             with
             a
             clause
             to
             retain
             his
             annualrent
             in
             the
             first
             end
             ,
             and
             not
             to
             be
             removed
             til
             the
             principal
             were
             payed
             ,
             was
             found
             valide
             against
             an
             appryzer
             subsequent
             as
             to
             the
             endurance
             of
             the
             Tack
             ,
             having
             a
             definite
             Ish
             ,
             and
             not
             during
             the
             non-redemption
             ,
             and
             that
             there
             was
             a
             superplus
             of
             the
             Tack-duty
             above
             the
             annualrent
             ,
             for
             which
             superplus
             alone
             the
             Heretor
             might
             have
             set
             it
             ,
             but
             was
             not
             sustained
             as
             to
             the
             clause
             not
             to
             remove
             ,
             which
             was
             found
             personal
             not
             effectual
             against
             a
             singular
             Successor
             ,
             
               Iune
               15.
               1664.
               
               Thomson
            
             contra
             Reid
             .
          
           
             A
             Tack
             was
             found
             to
             be
             no
             such
             real
             Right
             ,
             as
             the
             Back-bond
             of
             the
             receiver
             thereof
             did
             not
             oblige
             his
             singular
             Successor
             ,
             but
             that
             the
             Back-bond
             being
             of
             the
             same
             date
             ,
             was
             relevant
             to
             qualifie
             the
             Tack
             against
             the
             singular
             successor
             ,
             which
             Back-bond
             bear
             a
             Reversion
             ,
             which
             was
             not
             found
             needful
             to
             be
             Registrate
             ,
             neither
             was
             it
             intimate
             before
             to
             that
             singular
             successor
             ,
             
               Ianuary
               8.
               
               1●68
               .
               Forbes
               contra
            
          
           
             A
             Tack
             of
             Land
             was
             found
             to
             give
             the
             Tennent
             no
             right
             to
             any
             Minerals
             under
             the
             ground
             ,
             as
             to
             Clay
             for
             making
             of
             Pipes
             ,
             and
             that
             the
             Tennent
             could
             give
             no
             Licence
             to
             any
             to
             dig
             the
             same
             ,
             but
             
               de
               natura
               rei
            
             ,
             it
             was
             reserved
             to
             the
             Heretor
             ,
             with
             a
             power
             to
             open
             the
             same
             ,
             satisfying
             the
             Tennents
             damnage
             ,
             
               February
               15.
               1668.
               
               Colquhoun
            
             contra
             Watson
             .
          
           
             A
             Tack
             of
             Teinds
             set
             without
             consent
             of
             the
             Patron
             for
             more
             than
             three
             years
             ,
             was
             not
             found
             null
             simply
             by
             the
             Act
             1621
             ,
             but
             was
             valide
             as
             to
             the
             three
             years
             ,
             Iuly
             1●
             .
             1668.
             
             
               Iohnstoun
               contra
            
             Parochioners
             of
             H●●●oun
             .
          
           
             A
             Tack
             for
             four
             years
             ,
             and
             ay
             and
             whi●e
             sum
             were
             payed
             ,
             was
             found
             valide
             against
             the
             Liferenters
             Assigney
             ,
             
               December
               18.
               1668.
               
               Swintoun
            
             contra
             Brown
             ;
             Here
             the
             Assigney
             was
             not
             found
             as
             a
             singular
             successor
             ▪
             as
             in
             Rights
             passing
             by
             Infeftment
             .
          
           
             A
             Tack
             of
             Teinds
             set
             for
             more
             than
             three
             years
             without
             consent
             of
             the
             Patron
             ,
             was
             found
             valide
             by
             his
             tacite
             consent
             and
             homologation
             ,
             by
             taking
             Right
             to
             the
             Tack
             ,
             and
             obtaining
             prorogation
             thereon
             ,
             Ianuary
             19.
             1669.
             
             Earl
             of
             Ath●l
             contra
             Robertson
             of
             Strowan
             .
          
           
             A
             Tack
             of
             Teinds
             for
             several
             nineteen
             years
             and
             several
             lifes
             ,
             was
             found
             not
             to
             be
             past
             from
             by
             the
             Tacks-mans
             taking
             Assignation
             to
             another
             posterior
             Tack
             for
             a
             greater
             duty
             ,
             or
             for
             greater
             endurance
             ,
             seing
             he
             did
             not
             take
             the
             second
             Tack
             originally
             himself
             ,
             but
             purchased
             it
             from
             a
             powerful
             party
             to
             prevent
             his
             trouble
             ,
             and
             did
             not
             brook
             by
             it
             ,
             nor
             pay
             a
             greater
             duty
             than
             was
             in
             his
             first
             Tack
             ,
             Iune
             24.
             1669.
             
             Kenn●dy
             and
             More
             contra
             Iaffray
             .
          
           
             A
             Tack
             of
             Teinds
             set
             by
             an
             Vniversity
             for
             a
             definite
             space
             ,
             with
             an
             obligement
             to
             renew
             the
             same
             in
             all
             time
             thereafter
             ,
             was
             found
             not
             effectual
             after
             the
             said
             definite
             time
             ,
             nor
             obligatory
             upon
             the
             Vniversity
             ,
             unless
             it
             had
             proceeded
             upon
             a
             sufficient
             cause
             onerous
             ,
             and
             albeit
             the
             same
             duty
             was
             received
             by
             the
             Vniversity
             after
             the
             〈◊〉
             time
             ,
             It
             was
             found
             no
             homologation
             of
             the
             obligement
             ,
             but
             as
             brooking
             
               per
               racitam
               
               relocationem
               ,
               Iuly
            
             13.
             1669.
             
             Old
             Colledge
             of
             
               Aberden●
               contra
            
             the
             Town
             of
             Aberdene
             .
          
           
             A
             Tack
             of
             a
             House
             by
             word
             for
             a
             year
             being
             fourteen
             dayes
             before
             the
             Term
             ,
             was
             found
             not
             to
             admit
             
               locum
               penitentia
            
             by
             giving
             over
             within
             fourty
             eight
             houres
             after
             the
             taking
             ,
             but
             that
             the
             Setter
             setting
             again
             to
             another
             ,
             imported
             acceptance
             of
             the
             overgiving
             ,
             though
             that
             other
             possessed
             not
             ,
             and
             the
             possessor
             not
             removing
             precisely
             at
             the
             Term
             ,
             did
             not
             liberate
             the
             Taker
             ,
             in
             respect
             of
             the
             custome
             of
             Edinb●rgh
             not
             to
             remove
             till
             six
             weeks
             after
             the
             Term
             ,
             
               Ianuary
               7.
               1670.
               
               Ker
            
             contra
             Dawnie
             .
          
           
             A
             Tack
             g●anted
             by
             a
             Tutor
             in
             secur●ty
             of
             a
             sum
             borrowed
             for
             the
             Pupils
             use
             ,
             having
             no
             special
             Ish
             ,
             but
             to
             endure
             while
             the
             Money
             〈◊〉
             payed
             ,
             was
             sus●ained
             ,
             
               February
               21
               1671.
               
               Armor
            
             contra
             Lands
             .
          
           
             A
             Tack
             ●o
             the
             Tack●
             man
             during
             his
             le●e
             and
             the
             life
             of
             his
             first
             Heir
             ,
             was
             not
             understood
             to
             be
             his
             Heir
             entered
             ,
             but
             that
             his
             eldest
             son
             having
             survived
             him
             who
             might
             have
             been
             Heir
             ,
             he
             needed
             no
             service
             for
             the
             benefite
             of
             a
             Tack
             ,
             but
             that
             part
             thereof
             was
             fulfilled
             ,
             though
             he
             never
             possessed
             conform
             ,
             Iune
             17.
             1671.
             
             Lord
             Lovat
             contra
             Lord
             M●donald
             .
          
           
             Tack
             Vid●
             Clause
             ,
             
               December
               10.
               1661.
               
               K●nrosi
               contra
            
             Laird
             
               Hunthil
               .
               November
               23.
               1664.
               
               Scot
               contra
            
             Laird
             
               Barefoot
               ,
               &c.
            
             
          
           
             TAXATION
             1633.
             was
             ●ound
             sufficiently
             discharged
             by
             the
             discharge
             of
             one
             who
             was
             held
             and
             repute
             Collector
             ,
             without
             shewing
             any
             commission
             ,
             or
             being
             a
             person
             in
             Office
             ,
             December
             14.
             1665.
             
             Duke
             of
             
               Hamiltoun
               contra
            
             Laird
             of
             Clackmannan
             .
          
           
             Taxation
             by
             a
             stent
             Roll
             ,
             was
             found
             only
             valide
             as
             to
             the
             Taxation
             it self
             imposed
             ,
             but
             without
             power
             to
             add
             any
             thing
             for
             future
             expences
             by
             the
             stent
             ,
             but
             that
             the
             Taxation
             behoved
             to
             be
             ●ifted
             gratis
             ,
             if
             payed
             without
             a
             charge
             ,
             and
             if
             there
             were
             a
             charge
             ,
             the
             Lords
             would
             modifie
             competent
             Expences
             ,
             but
             did
             not
             allow
             an
             Imposition
             to
             be
             added
             to
             the
             Taxation
             ,
             December
             15.
             1666.
             
             Lord
             
               Colvil
               contra
            
             Feuers
             of
             C●●lross
             .
          
           
             Taxation
             1633.
             was
             found
             discharged
             by
             a
             general
             discharge
             to
             the
             Sheriff
             in
             the
             Clerk
             of
             Taxations
             Books
             ,
             without
             showing
             the
             Sheriffs
             Discharge
             to
             the
             particular
             Heretors
             ,
             December
             6.
             1667.
             
             Duke
             of
             
               Hamiltoun
               contra
            
          
           
             Taxation
             was
             found
             to
             affect
             these
             contained
             in
             the
             stent
             Roll
             ,
             seing
             they
             conveened
             not
             and
             were
             stented
             ,
             albeit
             if
             they
             had
             conveened
             they
             could
             have
             freed
             themselves
             ,
             their
             interest
             being
             Teinds
             wholly
             allocat
             to
             the
             Kirk
             ,
             〈◊〉
             17.
             1668.
             
             Steuart
             contra
             A●cheson
             .
          
           
             Taxation
             was
             found
             not
             to
             be
             due
             for
             ●nclosed
             ground
             conform
             to
             the
             Act
             of
             Parliament
             ,
             1661.
             and
             that
             the
             Act
             of
             Convention
             could
             not
             derogate
             therefrom
             ,
             February
             29.
             1668.
             
             Duke
             of
             Hamiltoun
             contra
             Maxwel
             of
             Mur●ith
             .
          
           
             Taxation
             and
             l●an
             burden
             not
             singular
             successors
             ,
             Iune
             25.
             1668.
             
             Inglis
             contra
             Balfour
             .
          
           
             Taxation
             was
             ●ound
             not
             to
             be
             due
             by
             the
             Director
             and
             Writers
             in
             the
             Chancellary
             as
             Depen●ents
             on
             and
             Members
             of
             the
             Colledge
             of
             Iustice
             ,
             Ianuary
             22.
             1669.
             
             Collector
             general
             of
             the
             Taxations
             contra
             the
             Director
             of
             the
             Chancellary
             .
             The
             Officers
             of
             the
             Mint
             were
             also
             found
             free
             by
             a
             late
             exemption
             
               eodem
               di●
            
             .
          
           
             Taxation
             appointed
             to
             be
             uplifted
             by
             Magistrates
             of
             Burglis
             was
             found
             only
             to
             oblige
             these
             who
             were
             Magistrates
             of
             the
             Burgh
             for
             the
             time
             personally
             by
             their
             office
             ,
             and
             that
             the
             Town
             nor
             subsequent
             Magistrates
             were
             not
             lyable
             for
             what
             they
             uplifted
             and
             made
             not
             compt
             for
             ▪
             Iune
             2●
             .
             1669.
             
             Pearson
             of
             
               Balmadie
               contra
            
             Town
             of
             Mountress
             .
          
           
             Taxation
             imposed
             Ann●
             1665.
             giving
             abatement
             of
             a
             third
             to
             the
             temporality
             of
             the
             Westeth
             Shires
             ,
             was
             found
             to
             extend
             to
             the
             Kings
             Property
             there
             ,
             Iuly
             14.
             1669.
             
             Duke
             
               Hamiltoun
               contra
            
             the
             Feuers
             of
             the
             Kings
             property
             .
          
           
             TEINDS
             though
             valide
             were
             found
             not
             to
             be
             
               debitum
               fundi
            
             affecting
             singular
             successors
             ,
             〈◊〉
             20.
             1662.
             
             Earl
             of
             Callander
             contra
             Monro
             .
          
           
             Teinds
             were
             found
             not
             to
             affect
             the
             Heretor
             where
             there
             was
             a
             Liferenter
             ,
             Iune
             24.
             1663.
             
             〈◊〉
             contra
             Laird
             of
             Glenrchie
             .
          
           
             The
             priviledge
             of
             being
             Teind
             free
             competent
             to
             the
             Cyst●rtian
             order
             ,
             and
             the
             like
             to
             Templers
             and
             Hospitallers
             as
             to
             Lands
             in
             their
             own
             Labourage
             ,
             was
             ●ound
             competent
             not
             only
             to
             the
             Temporal
             Lords
             of
             Erection
             ;
             but
             to
             their
             Vassals
             ,
             
               Iuly
               15.
               1664.
               
               Crawfoord
               contra
            
             Laird
             of
             Prestoungrange
             .
          
           
             Teind
             fish
             was
             found
             due
             by
             the
             Merchants
             who
             bought
             the
             fish
             immediatly
             as
             they
             were
             taken
             in
             whole
             Boatfuls
             ,
             in
             the
             same
             way
             as
             if
             they
             had
             intrometted
             with
             the
             whole
             cropt
             upon
             the
             ground
             ,
             they
             would
             be
             lyable
             for
             the
             Teind
             ,
             December
             13.
             1664.
             
             Bishop
             of
             the
             
               Is●es
               contra
            
             Merchants
             of
             Edinburgh
             .
          
           
             Teinds
             were
             found
             due
             paroch●
             notwithstanding
             of
             the
             Kings
             Gift
             ,
             unless
             Mortification
             or
             Possession
             thereof
             were
             proven
             ,
             
               Iune
               27.
               1665.
               
               Ferguson
            
             contra
             Steuart
             of
             A●heog
             .
          
           
             Teinds
             may
             not
             be
             drawn
             summa●y
             upon
             Inhibition
             ,
             where
             they
             were
             in
             Tack
             ,
             and
             not
             drawn
             immediatly
             before
             ,
             but
             a
             Decreet
             must
             preceed
             the
             drawing
             ,
             and
             therefore
             parties
             having
             a
             colourable
             Title
             ,
             the
             Teinds
             being
             so
             drawn
             ,
             obtained
             ed
             Restitution
             ,
             Ianuary
             21.
             1665.
             
             Lairds
             of
             Bairfoot
             and
             
               Bei●stoun
               contra
            
             Visco●nt
             of
             Kingstoun
             .
          
        
         
           
             Teind
             being
             by
             long
             custom
             payed
             only
             as
             to
             the
             half
             Teind
             ,
             Viz.
             the
             20t●
             .
             Lamb
             ,
             the
             Heretor
             or
             Possessor
             was
             not
             found
             lyable
             ●s
             to
             bygones
             for
             any
             more
             ,
             
               February
               11.
               1665.
               
               Scot
            
             of
             Thirlestoun
             contra
             Scot
             of
             ●roadmeadow
             .
          
           
             Teind
             of
             Herring
             ,
             Killings
             and
             Ling
             taken
             in
             and
             about
             the
             Isles
             ,
             as
             the
             patrimony
             of
             the
             Bishop
             of
             the
             Isles
             ,
             was
             ●ound
             not
             to
             extend
             to
             Killing
             and
             Ling
             ,
             taken
             by
             the
             inhabitants
             betwixt
             Arran
             and
             Hesay
             ,
             they
             proving
             immemorial
             possession
             free
             of
             any
             Teind
             ,
             November
             24.
             1665.
             
             Bishop
             of
             the
             Isles
             contra
             fishers
             of
             Greenock
             .
          
           
             Teinds
             were
             found
             not
             taken
             away
             by
             a
             Decreet
             of
             Parliament
             ,
             ordaining
             the
             Titular
             to
             ●ell
             upon
             payment
             of
             such
             a
             price
             ,
             it
             never
             being
             offered
             ,
             so
             that
             the
             Teinds
             remained
             due
             till
             it
             were
             payed
             or
             offered
             ,
             and
             upon
             refusal
             consigned
             ,
             February
             2●
             .
             1669.
             
             Earl
             of
             
               Kin●ardin
               contra
            
             Laird
             of
             Ros●yth
             .
          
           
             Teinds
             of
             a
             Paroch
             were
             found
             to
             belong
             to
             the
             Prebendats
             of
             the
             Chappel-Royal
             ,
             without
             any
             other
             Title
             but
             the
             Books
             of
             assumption
             ,
             and
             three
             Presentations
             by
             the
             King
             ,
             and
             that
             fourty
             years
             possession
             by
             the
             Minister
             did
             not
             infer
             Prescription
             against
             the
             Kings
             Chappel
             in
             respect
             of
             the
             Kings
             interest
             and
             Act
             of
             Parliament
             ,
             declaring
             the
             Kings
             interest
             not
             to
             be
             prejudged
             by
             the
             neglect
             of
             His
             Officers
             ,
             but
             the
             said
             long
             possession
             was
             found
             sufficient
             to
             the
             Minister
             for
             all
             years
             preceeding
             the
             citation
             ,
             
               February
               1.
               1671.
               
               Ferguson
               contra
            
             Parochioners
             of
             Kingarth
             .
          
           
             THE
             TENOR
             of
             an
             interdiction
             being
             pursued
             ,
             the
             production
             of
             the
             Letters
             of
             Publication
             was
             found
             a
             sufficient
             adminicle
             ,
             seing
             such
             Writs
             use
             not
             to
             be
             retired
             as
             Bonds
             ,
             Iuly
             26.
             
             166●
             .
             Laird
             of
             
               Milntoun
               contra
            
             Lady
             Milntoun
             .
          
           
             Tenors
             of
             Writs
             proven
             before
             inferiour
             Iudges
             was
             found
             null
             ,
             Ianuary
             28.
             1663.
             
             Laird
             of
             Balnagoun
             contra
             Mackenzie
             .
          
           
             Tenor
             of
             a
             Registrate
             Bond
             admitted
             to
             be
             proved
             by
             reply
             ,
             was
             not
             found
             sufficiently
             instructed
             ,
             by
             an
             Extract
             under
             the
             English
             hands
             that
             keeped
             the
             Registers
             at
             London
             ,
             though
             his
             Oath
             was
             taken
             Anno
             1658.
             
             That
             it
             was
             a
             true
             Extract
             ,
             Iuly
             27.
             1665.
             
             Captain
             Muire
             contra
             Frazer
             .
          
           
             Tenor
             of
             a
             Contract
             of
             Marriage
             containing
             Clauses
             extraordinary
             ,
             as
             that
             the
             half
             of
             the
             Mans
             money
             should
             befall
             to
             the
             Wife
             in
             case
             there
             were
             no
             Heirs
             betwixt
             them
             ,
             was
             not
             sustained
             without
             Adminicles
             in
             Writ
             ,
             albeit
             the
             Tenor
             of
             it
             was
             insert
             in
             the
             stile
             Book
             of
             him
             that
             Wrote
             it
             ,
             and
             the
             Tenor
             was
             offered
             to
             be
             proven
             by
             the
             Writer
             and
             Witnesses
             insert
             ,
             and
             though
             it
             was
             offered
             to
             be
             proven
             that
             the
             Husbands
             whole
             means
             came
             by
             the
             Wife
             ,
             Iune
             13.
             1667.
             
             ●arrower
             contra
             Hartlay
             .
          
           
             TERCE
             was
             found
             not
             to
             extend
             to
             a
             Bond
             bearing
             a
             clause
             of
             Annualrent
             without
             Infeftment
             had
             followed
             ,
             
               Iune
               24.
               1663.
               
               Scrymzeor
            
             contra
             Murrayes
             .
          
           
             A
             Terce
             was
             not
             found
             taken
             away
             by
             an
             Infeftment
             in
             Lifer●nt
             ,
             not
             bea●ing
             in
             satisfaction
             of
             the
             Terce
             ,
             albeit
             the
             Liferent
             was
             competent
             and
             suitable
             to
             the
             parties
             condition
             ,
             and
             there
             was
             never
             a
             Contract
             extended
             betwixt
             them
             but
             a
             Minute
             ▪
             
               Ianuary
               27.
               1666.
               
               Cri●●toun
            
             and
             Eleis
             her
             Spouse
             
               contra
               Maxwel
            
             of
             Kirkhouse
             .
          
           
             A
             Terce
             was
             found
             not
             to
             extend
             to
             Teinds
             not
             constitute
             by
             Infeftment
             ,
             but
             was
             found
             to
             extend
             to
             a
             grass
             yeard
             let
             to
             Tennents
             ,
             it
             not
             being
             a
             Garden
             or
             Orchyard
             ,
             as
             pertinent
             of
             a
             Tower
             or
             Fortalice
             ,
             
               February
               9.
               1667
               
               ▪
               Moncreif
               contra
            
             Tennents
             of
             N●wtoun
             and
             
               Zeaman
               .
               Vide
            
             base
             Infeftment
             ,
             Bell
             of
             
               Belfoord
               contra
            
          
           
             A
             Terce
             was
             found
             to
             be
             excluded
             by
             a
             Wifes
             acceptance
             of
             Land
             in
             satisfaction
             of
             her
             Terce
             ,
             albeit
             a
             part
             of
             the
             Lands
             accepted
             proved
             ineffectual
             to
             her
             ,
             her
             ●nfeftment
             by
             her
             Husband
             ,
             not
             having
             been
             confirmed
             by
             the
             Superiour
             ,
             who
             was
             preferr●d
             to
             her
             ,
             and
             the
             acceptance
             was
             found
             a
             simple
             Renunciation
             ,
             competent
             to
             the
             Superiour
             to
             exclude
             the
             Terce
             ,
             and
             that
             she
             could
             brook
             no
             part
             ●f
             the
             Land
             by
             vertue
             of
             her
             Terce
             ,
             and
             that
             the
             Superiours
             founding
             upon
             the
             clause
             accepting
             Lands
             in
             satisfaction
             of
             the
             Terce
             ,
             did
             not
             import
             his
             approbation
             of
             her
             Right
             to
             the
             Lands
             accepted
             ,
             seing
             she
             wanted
             the
             Superiours
             consent
             ,
             as
             being
             an
             essenti●l
             requisite
             to
             her
             Infeftment
             of
             Ward
             Lands
             ,
             and
             so
             could
             admit
             of
             no
             Homologation
             more
             than
             if
             she
             had
             only
             the
             contract
             without
             any
             Infeftment
             ▪
             This
             was
             stopped
             to
             be
             farder
             heard
             ,
             whether
             the
             Relict
             might
             brook
             ,
             at
             least
             a
             third
             of
             the
             Ward
             Lands
             accepted
             as
             a
             Ter●e
             of
             these
             Lands
             ,
             though
             she
             could
             not
             brook
             the
             whole
             Ward
             Lands
             accepted
             ,
             being
             within
             a
             Terce
             of
             all
             her
             Husbands
             Ward
             Lands
             especially
             since
             the
             Clause
             bear
             that
             she
             accepted
             the
             Li●erent
             Lands
             in
             satisfaction
             of
             all
             farder
             Conjunct
             fees
             ,
             but
             should
             be
             repu●●ed
             a
             Terce
             as
             being
             in
             lieu
             of
             all
             farder
             Terce
             ▪
             whether
             in
             that
             case
             she
             renunced
             only
             the
             Terce
             of
             any
             other
             Lands
             ,
             bu●
             not
             the
             Terce
             of
             the
             Lands
             accepted
             ,
             Iune
             23.
             1671.
             
             Lady
             
               Ba●●●agan
               contra
            
             Lord
             Drumlanrig
             .
          
           
             THE
             TERM
             OF
             PAYMENT
             of
             Bairn●
             p●rtions
             〈◊〉
             at
             such
             a●●
             age
             ,
             the
             same
             was
             found
             as
             
               dies
               〈◊〉
               qui
               
               pro
               conditione
               habetur
               ,
            
             and
             they
             not
             attaining
             that
             ●ge
             thei●
             nearest
             of
             Kin
             had
             no
             right
             ,
             
               Ianuary
               17.
               1665.
               
               Edgar
            
             contra
             Edgar
             .
          
           
             A
             TESAMENT
             Nuncupative
             by
             a
             Scotsman
             made
             in
             England
             or
             abroad
             where
             he
             resided
             ,
             was
             found
             null
             as
             to
             the
             nomination
             of
             Succession
             ,
             notwithstanding
             the
             Law
             of
             the
             place
             ,
             which
             rules
             only
             as
             to
             the
             Solemnities
             of
             Writs
             ,
             but
             not
             to
             Substantials
             or
             appoynting
             of
             Successors
             ,
             Ianuary
             19
             ▪
             1665.
             
             Schaw
             contra
             Lennox
             .
          
           
             A
             Testament
             containing
             a
             Legacy
             of
             a
             Wodset
             was
             sound
             void
             ,
             though
             it
             was
             done
             
               〈◊〉
               pr●●inctu
               bel●i
               ,
               February
            
             21.
             1663.
             
             Wardlaw
             contra
             Frazer
             of
             Kilmundy
             .
          
           
             A
             Testament
             confirmed
             ,
             bea●ing
             persons
             to
             be
             nominate
             Tutors
             ,
             and
             that
             they
             compeared
             judicially
             ,
             accepted
             ,
             made
             Faith
             ,
             and
             found
             Caution
             ,
             was
             found
             not
             sufficient
             to
             defend
             against
             a
             Reduction
             ,
             without
             production
             of
             the
             Tutors
             Subscription
             ,
             as
             the
             warrand
             to
             make
             the
             Tutor
             lyable
             for
             the
             Pupils
             means
             conform
             to
             the
             Inventary
             ,
             unless
             there
             were
             other
             adminicles
             to
             astruct
             the
             same
             ,
             albeit
             the
             confirmation
             was
             thirty
             seven
             years
             since
             ,
             seing
             the
             acceptance
             was
             no
             ordinary
             act
             of
             process
             ,
             nor
             no
             process
             was
             moved
             upon
             the
             confirmation
             till
             of
             late
             ,
             Ia●uary
             last
             1665.
             
             
               Kirktoun
               contra
            
             Laird
             of
             Hunthil
             .
          
           
             A
             Testament
             confirmed
             was
             found
             to
             be
             execute
             at
             the
             Executors
             instance
             by
             a
             Decreet
             ,
             though
             he
             had
             not
             obtained
             payment
             ,
             an●
             though
             he
             was
             Executor
             dative
             and
             a
             mee●
             stranger
             ,
             so
             that
             after
             the
             Executors
             death
             ,
             the
             sums
             in
             the
             Decreet
             could
             not
             be
             confirmed
             by
             an
             Executo●
             
               ad
               non
               executa
            
             of
             the
             first
             Defunct
             ,
             
               November
               17
               ,
               1666.
               
               Doun●e
            
             contra
             Young.
             
          
           
             A
             Testament
             was
             reduced
             because
             the
             Testator
             being
             alleadged
             not
             to
             be
             
               compos
               ment●s
            
             ,
             the
             Nottar
             ,
             Write●
             and
             Wi●nesses
             insert
             ,
             and
             other
             extra●eous
             Witnesses
             deponed
             ,
             that
             about
             the
             time
             of
             the
             Testament
             and
             thereafter
             the
             Testator
             was
             not
             ▪
             in
             his
             right
             mind
             ,
             and
             to
             every
             question
             that
             was
             proposed
             ,
             answered
             alwayes
             yea
             ,
             yea
             ,
             although
             they
             were
             not
             present
             at
             the
             making
             of
             the
             Testament
             ,
             and
             were
             contrary
             to
             the
             Witnesses
             insert
             ,
             this
             was
             stoped
             to
             be
             further
             heard
             ,
             Iune
             9
             ▪
             1668.
             
             Meall●xander
             contra
             Dalrymple
             .
          
           
             A
             Testament
             beginning
             in
             the
             ordinary
             stile
             of
             a
             Testament
             ,
             and
             then
             disponing
             Land
             ,
             thereafter
             containing
             a
             blank
             ,
             wherein
             by
             another
             ink
             and
             hand
             ▪
             the
             Defuncts
             eldest
             daughter
             was
             named
             universal
             Legatrix
             and
             Executrix
             ,
             but
             after
             all
             the
             moveables
             were
             dispon●d
             to
             the
             eldest
             Daughter
             ,
             which
             Testament
             being
             quarrelled
             by
             reduction
             ,
             was
             found
             null
             as
             to
             the
             disposition
             of
             the
             Lands
             ,
             and
             as
             to
             the
             nomination
             of
             the
             Executor
             and
             Legatar
             ,
             the
             same
             was
             not
             sustained
             though
             filled
             up
             before
             the
             Defuncts
             death
             ,
             albeit
             it
             was
             offered
             to
             be
             proven
             by
             the
             Nottar
             and
             W●tnesses
             insert
             ,
             that
             the
             Defunct
             gave
             warrand
             so
             to
             fill
             it
             up
             ,
             but
             it
             was
             sustained
             as
             to
             the
             disposition
             of
             the
             moveables
             as
             a
             Legacy
             ,
             in
             so
             far
             as
             the
             Defunct
             could
             Legat
             ,
             which
             may
             subsist
             though
             the
             nomination
             of
             the
             Executor
             be
             wanting
             or
             void
             ,
             Iuly
             13.
             1670.
             
             Daughters
             of
             
               So●ityay
               contra
            
             the
             eldest
             daughter
             .
          
           
             Testament
             Vide
             clause
             
               December
               15
               ,
               1668.
               
               Windrham
            
             contra
             
               El●is
               ▪
            
          
           
             THIRLAGE
             was
             found
             constitute
             by
             long
             custom
             of
             payment
             of
             Intown
             Multure
             
               in
               mollendino
               reg●o
            
             ,
             but
             was
             not
             extended
             to
             the
             Te●nds
             of
             that
             Barony
             though
             possest
             promiscu●
             far
             above
             fou●ty
             yea●s
             ,
             without
             more
             then
             custom
             ,
             and
             was
             not
             excluded
             by
             the
             Feuers
             of
             the
             Barony
             their
             Feus
             granted
             by
             the
             King
             
               cum
               mollendini●
               &
               mul●uri●
            
             in
             the
             tene●das
             only
             ,
             which
             was
             thought
             but
             past
             in
             the
             Exchequer
             of
             course
             without
             observation
             ▪
             
               Ianuary
               8.
               1662.
               
               Steuart
               contra
            
             the
             Feua●s
             of
             Aberledno
             ;
             The
             like
             without
             allowing
             any
             part
             of
             the
             cropt
             multure
             free
             for
             expences
             of
             labour
             ,
             and
             Hinds-corn
             ,
             but
             only
             the
             Seed
             ,
             Horse-corn
             and
             Teind
             ,
             
               Ianuary
               14.
               1662.
               
               Nicolson
               contra
            
             F●uars
             of
             Tillicutrie
             .
          
           
             Thirlage
             was
             sound
             constitute
             by
             an
             old
             Decreet
             against
             the
             Tennents
             possessors
             ,
             without
             a
             calling
             their
             Master
             ,
             and
             long
             possession
             conform
             thereupon
             ,
             albeit
             the
             Heret●r
             was
             Infe●t
             
               cum
               mollendi●●●●
               ▪
            
             and
             that
             Witnesses
             being
             examined
             
               hinc
               inde
            
             conce●ning
             the
             possession
             and
             interruption
             ,
             by
             going
             sometimes
             to
             other
             Mi●ns
             were
             proven
             ,
             yet
             not
             so
             frequently
             as
             might
             not
             be
             Olandestine
             ,
             Iune
             24
             ▪
             1665.
             
             Collonel
             Montgomerie
             contra
             W●lla●e
             and
             R●ie
             .
          
           
             Thirlage
             was
             inferred
             where
             the
             Feuer
             of
             the
             Miln
             was
             Infeft
             in
             the
             Miln
             with
             the
             mul●ures
             of
             the
             Lands
             in
             question
             
               per
               expressum
            
             ,
             and
             was
             in
             possession
             of
             insuck●n
             Multure
             thereof
             fourty
             years
             ,
             albeit
             the
             Defende●
             was
             infeft
             before
             ,
             without
             the
             burden
             of
             astriction
             ,
             and
             did
             sometimes
             go
             to
             other
             m●●ns
             ,
             which
             being
             frequent
             in
             all
             astrictions
             ,
             was
             found
             not
             to
             be
             a
             competent
             interruption
             
             Iune
             ●9
             ,
             1665.
             
             Hereto●
             of
             the
             Miln
             of
             
               K●thick
               contra
            
             Feuars
             .
          
           
             Thirlage
             was
             infe●red
             by
             infeftment
             of
             a
             miln
             with
             the
             multures
             &c.
             generally
             ,
             with
             a
             precept
             from
             a
             Bishop
             then
             Heretor
             of
             the
             Lands
             in
             question
             ,
             ordaining
             his
             Tennents
             to
             pay
             their
             multu●es
             to
             that
             miln
             ,
             which
             with
             long
             possession
             was
             found
             sufficient
             ▪
             albeit
             it
             had
             no
             consent
             of
             a
             Chapter
             ,
             December
             7
             ▪
             166●
             ,
             V●●tch
             contra
             Duncan
             .
          
           
             Thirlage
             being
             constitute
             by
             an
             infeftment
             from
             him
             who
             〈◊〉
             〈◊〉
             of
             Land
             and
             Miln
             ,
             was
             found
             no
             to
             be
             prejudgeed
             upon
             the
             alleadged
             insu●●●ciency
             of
             the
             Miln
             ,
             unless
             the
             insufficiency
             were
             alleadged
             to
             be
             through
             the
             fault
             of
             the
             Hereto●
             of
             the
             Miln
             ,
             February
             9
             ,
             1666.
             
             Heretors
             of
             
               〈◊〉
               contra
            
             Fe●ars
             .
          
        
         
           
             Thirlage
             was
             not
             Inferre●
             by
             an
             infef●ment
             of
             ●ands
             with
             such
             a
             miln
             and
             the
             multures
             used
             and
             wo●t
             ,
             which
             was
             not
             extended
             to
             L●nds
             of
             another
             Barony
             ●olden
             of
             another
             Superiour
             ,
             though
             they
             then
             belonged
             to
             the
             Dispone●
             ,
             and
             were
             in
             use
             to
             come
             to
             that
             miln
             ,
             December
             11
             ▪
             1666.
             
             Earl
             of
             
               Cassils
               contra
            
             Tennents
             of
             Dalmortoun
             .
          
           
             Thirlage
             though
             constitute
             by
             a
             Vassal
             ,
             hath
             no
             e●●ect
             against
             the
             Superiour
             during
             the
             Vassals
             Ward
             ,
             unless
             the
             superiour
             consented
             ,
             neither
             is
             his
             consent
             inferred
             by
             his
             receiving
             an
             Assignay
             to
             the
             Appryzing
             with
             reservation
             of
             the
             multures
             in
             the
             assignation
             ,
             unless
             that
             reservation
             had
             been
             in
             the
             Charter
             ,
             Ibidem
             .
          
           
             Thirlage
             in
             a
             Vassals
             Charter
             to
             the
             Supe●iours
             miln
             ,
             was
             ●ound
             not
             to
             infer
             multures
             upon
             the
             Vassal
             ,
             though
             he
             mov●d
             his
             Tennents
             to
             come
             to
             his
             own
             miln
             ,
             and
             got
             a
             g●ea●er
             duty
             therefore
             ,
             but
             that
             the
             Tennents
             were
             only
             lyable
             personally
             for
             abs●racting
             ,
             December
             10
             ,
             1667.
             
             Earl
             of
             
               Cassils
               contra
            
             sheriff
             of
             ●alloway
             and
             Tennents
             of
             A●●hn●troch
             .
          
           
             Thirlage
             constitute
             by
             infeftment
             bea●ing
             mult●res
             and
             sequels
             ,
             was
             found
             that
             the
             ordinary
             miln-se●vices
             to
             the
             miln
             damn
             and
             miln
             sto●●es
             was
             included
             in
             the
             right
             ,
             unless
             by
             paction
             or
             pres●ription
             the
             same
             was
             taken
             away
             ,
             February
             27
             ▪
             1668.
             
             
               Mai●land
               contra
               L●●●y
            
             .
          
           
             TOCHER
             being
             proportionable
             and
             suteable
             to
             the
             parties
             ,
             was
             ●ound
             a
             cause
             o●erous
             
               ad
               〈…〉
               December
               23
               ▪
               1665.
               
               Burnet
            
             contra
             Lepers
             .
          
           
             TRADS-MEN
             in
             Suburbs
             were
             ●ound
             not
             to
             be
             simply
             excluded
             from
             working
             in
             Subu●bs
             of
             Burg●●s
             by
             the
             ●54
             ▪
             
               Act
               Par.
            
             1592
             ,
             but
             that
             they
             should
             not
             work
             to
             the
             ●nhabitan●s
             of
             the
             Burgh
             ▪
             December
             4.
             1669.
             
             Weavers
             of
             
               Pearth
               contra
            
             Weavers
             of
             the
             Bridgend
             of
             Pearth
             .
          
           
             TRANSACTON
             was
             not
             inferred
             by
             giving
             a
             Bond
             for
             the
             same
             sum
             in
             the
             Decreet
             and
             Chap●●on
             thereupon
             ,
             se●ng
             there
             was
             no
             abatement
             obtained
             ,
             
               Iuly
               3.
               1668.
               
               Row
            
             contra
             Houstoun
             .
          
           
             TRANSFERRENCE
             of
             an
             old
             Summons
             w●s
             stoped
             ,
             where
             the
             first
             Executions
             were
             new
             and
             not
             abidden
             by
             ,
             Ianuary
             12
             ▪
             1665.
             
             Wilson
             a●d
             Chalmers
             contra
          
           
             Transferrence
             of
             a
             Cau●e
             that
             had
             lien
             long
             over
             ,
             was
             found
             sufficient
             to
             give
             Processe
             in
             the
             principal
             Cause
             and
             not
             to
             require
             any
             other
             Walkning
             ,
             February
             20.
             1666.
             
             Lord
             Saltoun
             contra
             Saltoun
             and
             Rothimay
             .
          
           
             TRVST
             of
             an
             assignation
             to
             the
             Cedents
             behove
             ,
             was
             found
             proven
             by
             Witnesses
             
               ex
               officio
            
             upon
             presumptions
             ,
             the
             matter
             having
             lien
             long
             over
             ,
             and
             it
             being
             instructed
             that
             the
             assignation
             was
             never
             delivered
             to
             the
             Assigney
             ,
             but
             in
             the
             hands
             of
             the
             Writer
             ,
             and
             some
             missives
             were
             adduced
             to
             instruct
             the
             Trust
             ,
             though
             not
             proven
             holograph
             but
             by
             comparison
             of
             some
             o●her
             writs
             ,
             February
             22
             ▪
             1665.
             
             Viscount
             of
             
               King
               ●toun
               contra
            
             Collonel
             
               Eull●rtoun
               ▪
            
          
           
             Trust
             inst●●cting
             a
             Bond
             to
             be
             to
             another
             ●arties
             behove
             by
             presumption
             was
             sustained
             ,
             Ianuary
             12
             ,
             1666.
             
             Executors
             of
             Stevinson
             contra
             Crawfo●rd
             .
          
           
             Trust
             in
             a
             di●position
             of
             Lands
             being
             to
             prevent
             the
             rigor
             of
             Creditors
             ,
             the
             person
             intrusted
             was
             found
             to
             have
             no
             power
             to
             receive
             more
             of
             the
             debts
             componed
             for
             than
             he
             truely
             payed
             ,
             albeit
             there
             was
             no
             express
             Trust
             as
             to
             componing
             or
             paying
             of
             su●s
             ,
             
               November
               15.
               1667.
               
               Maxwel
            
             contra
             Maxwell
             .
          
           
             Trust
             of
             an
             Assignation
             to
             the
             behove
             of
             a
             third
             party
             ,
             was
             found
             where
             the
             assignay
             acknowledged
             that
             he
             received
             the
             assignation
             from
             that
             party
             on
             thir
             Terms
             ,
             that
             what
             ●●e
             should
             get
             by
             it
             should
             be
             allowed
             in
             a
             Decreet
             due
             to
             him
             by
             that
             party
             ,
             which
             therefore
             was
             found
             to
             make
             the
             assignation
             to
             the
             parties
             behove
             ,
             though
             ●t
             was
             not
             acknowledged
             that
             that
             party
             had
             the
             Assignation
             blank
             ,
             and
             therefore
             an
             obligement
             by
             that
             party
             to
             relieve
             the
             Debitor
             of
             the
             deb●
             ,
             was
             found
             equivalent
             to
             a
             Discharge
             and
             to
             exclude
             the
             Assignay
             ,
             December
             7
             ▪
             1666.
             
             
               Mont●●●th
               ●ontr●
            
             Laird
             of
             Glorre●
             .
          
           
             Trust
             Vide
             Diligence
             ,
             
               December
               18.
               1666.
               
               Casse
            
             contra
             Wa●t
             .
          
           
             Trust
             was
             found
             probable
             not
             only
             by
             Writ
             or
             Oath
             of
             party
             ,
             but
             also
             by
             Evidences
             and
             Adminicles
             ,
             whereupon
             Witnesses
             
               ex
               officio
            
             were
             Examined
             ,
             
               February
               6.
               1669.
               
               Ru●e
            
             contra
             Rule
             .
          
           
             Vpon
             Trust
             of
             an
             Assignation
             to
             an
             Appryzing
             ,
             Witnesses
             ,
             
               ex
               officio
            
             were
             Examined
             on
             all
             Circumstances
             ,
             February
             24.
             1669.
             
             Earl
             of
             Annanda●l
             contra
             Hume
             and
             other
             Creditors
             of
             Hume
             .
          
           
             Trust
             in
             Bonds
             and
             personal
             Righ●s
             were
             found
             not
             ●o
             constitute
             the
             sums
             
               in
               bonis
               defuncti
            
             in
             the
             intrusted
             perso●
             ,
             but
             that
             the
             Trust
             might
             be
             proven
             by
             Writ
             against
             the
             nearest
             of
             kin
             of
             the
             intrusted
             person
             ,
             and
             against
             the
             debitor
             for
             making
             payment
             ,
             without
             necessity
             of
             confirming
             th●
             Bond
             that
             was
             in
             the
             name
             of
             the
             intrusted
             person
             ,
             Iu●e
             9
             ▪
             1669
             ▪
             Street
             contra
             Hume
             of
             Br●●●field
             .
          
           
             Trust
             of
             a
             Gift
             of
             Escheat
             to
             be
             to
             the
             behove
             of
             the
             Vassal
             ,
             was
             ●ound
             probable
             by
             the
             Witnesse●
             inser●
             in
             the
             Gift
             and
             the
             Superiours
             o●th
             
               Iune
               19.
               1669.
               
               Scot
            
             contra
             Langt●●n
             .
          
           
             
             Trust
             of
             a
             Disposition
             of
             Land
             for
             payment
             of
             the
             instrusted
             person
             ,
             and
             then
             of
             the
             intruste●s
             Creditors
             ,
             some
             of
             whom
             had
             appryzed
             from
             him
             and
             were
             infeft
             ,
             the
             person
             intrusted
             was
             not
             found
             in
             capacity
             to
             pay
             other
             Cieditors
             ,
             and
             prefer
             them
             to
             these
             who
             had
             done
             more
             timely
             Diligence
             ,
             though
             the
             Inhibition
             and
             Appryzing
             was
             not
             against
             the
             Intrusted
             person
             ,
             
               Iuly
               24.
               1669.
               
               Crawfoord
            
             contra
             Anderson
             .
          
           
             A
             TVTORS
             oath
             was
             found
             not
             relevant
             to
             prove
             a
             condi●ion
             or
             agreement
             with
             the
             Defunct
             against
             the
             Pupil
             ,
             though
             there
             were
             concurring
             probabilities
             and
             Testifica●es
             
               December
               7.
               
               166●
               .
               Ecles
            
             contra
             Ecles
             .
          
           
             Tutor
             Vide
             Assignay
             ,
             
               Ramsay
               contra
            
             Earl
             of
             Wintoun
             .
          
           
             A
             Tutor
             or
             his
             Assignay
             was
             found
             to
             have
             no
             process
             against
             his
             Pupil
             〈◊〉
             his
             Tutor
             compts
             were
             ended
             ,
             
               ex
               presumptione
               juris
            
             ,
             that
             the
             Assignation
             was
             procured
             by
             the
             Pupils
             means
             and
             to
             his
             behove
             ,
             
               Iu●y
               24.
               1662.
               
               Cranstoun
               contra
            
             Earl
             of
             Wintoun
             .
          
           
             A
             Tut●ix
             her
             Assignation
             though
             not
             formal
             ,
             bearing
             the
             Tutrix
             as
             taking
             burden
             for
             the
             Pupil
             and
             not
             the
             Pupils
             name
             also
             Assigning
             ,
             yet
             was
             sustained
             ,
             
               Iune
               17.
               1664.
               
               Iustice
               contra
            
             Earl
             of
             Queen●berry
             .
          
           
             A
             Tutor
             was
             not
             found
             lyable
             for
             annualrent
             of
             his
             Pupils
             annua●rent
             of
             considerable
             sums
             from
             the
             several
             years
             they
             were
             due
             ,
             but
             that
             once
             in
             his
             Tutory
             he
             was
             obliged
             to
             uplift
             the
             same
             ,
             though
             in
             secure
             Creditors
             and
             great
             mens
             hands
             ,
             and
             that
             he
             was
             obliged
             to
             pay
             or
             reimploy
             them
             at
             the
             end
             of
             his
             Tutory
             ,
             and
             so
             was
             found
             lyable
             for
             the
             annualrent
             of
             the
             annualrent
             a
             
               finita
               tutela
            
             ,
             though
             it
             was
             not
             uplifted
             ,
             
               Ianuary
               21.
               1665.
               
               Kintor
            
             contra
             Boyd
             .
          
           
             A
             Tutory
             was
             found
             not
             to
             be
             instructed
             by
             a
             confirmation
             bearing
             ,
             that
             the
             Tutor
             accepted
             and
             made
             Faith
             ,
             without
             Warrand
             under
             his
             hand
             ,
             or
             some
             Adminicles
             to
             astruct
             it
             ,
             though
             the
             Confirmation
             was
             thirty
             seven
             years
             since
             ,
             
               Ianuary
               31.
               1665.
               
               Kirktoun
               contra
            
             Laird
             of
             Hunthill
             .
          
           
             A
             Tutor
             was
             not
             found
             proven
             by
             his
             discharging
             as
             Tutor
             Testamentar
             ,
             where
             by
             the
             Testament
             it
             was
             evident
             he
             was
             but
             Overseer
             ,
             
               Iune
               10.
               1665.
               
               Swintoun
            
             contra
             Notman
             .
          
           
             A
             Tutors
             oath
             was
             found
             valide
             against
             the
             Pupil
             ,
             as
             to
             the
             Tutors
             intromission
             in
             name
             of
             the
             Pupil
             ,
             yet
             so
             that
             the
             Tutor
             deponing
             that
             he
             did
             not
             remember
             the
             quantity
             and
             price
             ,
             he
             was
             not
             holden
             as
             con●est
             as
             if
             he
             were
             a
             party
             ,
             but
             might
             be
             compelled
             by
             Horning
             and
             Caption
             to
             Depone
             as
             a
             Witness
             ,
             
               Iune
               27.
               1665.
               
               Cant
            
             contra
             Lock
             .
          
           
             A
             Tutor
             was
             found
             lyable
             to
             uplift
             his
             Pupils
             annua●rents
             ,
             and
             to
             re-imploy
             them
             somtime
             during
             the
             Tutory
             ,
             and
             therefore
             was
             sound
             lyable
             for
             annualrent
             of
             the
             same
             
               post
               〈◊〉
               tutelam
            
             ,
             but
             if
             he
             dyed
             within
             the
             Tutory
             ,
             he
             was
             not
             found
             lyable
             for
             annualrents
             of
             annu●lrents
             ,
             being
             in
             secure
             hands
             but
             not
             uplifted
             ,
             
               Iuly
               4.
               1665.
               
               Boyd
               contra
               Kintore
            
          
           
             A
             Tutor
             pursuing
             a
             Mother
             for
             delivery
             of
             her
             Daughter
             his
             Pupil
             to
             be
             Educate
             with
             some
             of
             her
             Fathers
             Friends
             ,
             having
             a
             great
             portion
             out
             of
             his
             Estate
             ,
             that
             she
             might
             not
             be
             abused
             in
             her
             Marriage
             by
             her
             Mother
             or
             her
             Freinds
             ;
             the
             same
             was
             sustained
             after
             the
             Pupils
             age
             of
             eleven
             years
             ,
             though
             the
             Mother
             was
             unmarried
             and
             the
             Daughter
             vali●udinary
             ,
             February
             6.
             1666.
             
             Laird
             of
             
               Dury
               contra
            
             Lady
             Dury
             .
          
           
             A
             Tutor
             was
             found
             to
             have
             a
             year
             to
             imploy
             sums
             not
             bearing
             annualrent
             ,
             and
             not
             to
             be
             obliged
             to
             uplift
             sums
             where
             the
             Pupil
             was
             fully
             secured
             ,
             or
             where
             on
             a
             sudden
             the
             Debitor
             break
             ,
             but
             was
             found
             lyable
             for
             all
             Diligence
             according
             to
             the
             Debitors
             condition
             by
             Horning
             ,
             Caption
             ,
             Arrestment
             ,
             Poinding
             and
             Appryzing
             of
             the
             Debitors
             Estate
             ,
             which
             should
             be
             known
             to
             him
             ,
             and
             not
             for
             Horning
             only
             ,
             Iuly
             9.
             1667.
             
             Ste●in
             contra
             Boyd
             .
          
           
             In
             a
             Tutor
             compt
             the
             Tutor
             was
             not
             found
             lyable
             for
             the
             Services
             he
             got
             to
             the
             Pupils
             Tennents
             in
             kind
             ,
             and
             that
             where
             he
             was
             super-expended
             ,
             a
             Decreet
             might
             be
             at
             his
             instance
             against
             the
             Pupil
             on
             the
             Pupils
             own
             Process
             ,
             Ianuary
             11
             1668.
             
             Grant
             contra
             Grant.
             
          
           
             A
             Tutor
             was
             found
             lyable
             to
             compt
             as
             Tutor
             and
             not
             as
             Pro-Tutor
             ,
             on
             production
             of
             a
             Writ
             under
             his
             hand
             ,
             designing
             himself
             and
             acting
             as
             Tutor
             Testamentar
             ,
             without
             necessity
             to
             the
             Pursuer
             to
             produce
             the
             Testament
             ,
             December
             2.
             1668.
             
             S●atoun
             contra
             S●atoun
             .
          
           
             A
             Tutor
             was
             found
             lyable
             for
             the
             Annualrent
             of
             his
             Pupils
             sums
             ,
             which
             were
             in
             responsal
             Debitors
             hands
             ,
             but
             not
             to
             re-imploy
             the
             same
             upon
             annualrent
             ,
             in
             respect
             the
             Tutor
             dyed
             
               durante
               tutela
            
             ,
             and
             that
             what
             annualrents
             he
             had
             received
             ,
             his
             Successors
             were
             only
             lyable
             for
             the
             same
             ,
             and
             the
             annualrent
             thereof
             from
             the
             time
             the
             Pupil
             past
             pupillarity
             ,
             it
             being
             sufficient
             to
             lift
             and
             imploy
             the
             annualrents
             of
             Pupils
             sums
             at
             any
             time
             during
             the
             ordinary
             course
             of
             the
             Tutory
             ,
             af●er
             the
             Pupils
             passing
             pupillarity
             ,
             
               Iuly
               9
               ,
               1669.
               
               Kintor
               contra
            
             the
             Heirs
             and
             Successors
             of
             Logan
             of
             
               Coatfi●ld
               ▪
            
             This
             was
             stopped
             on
             the
             Pur●uers
             Bill
             ,
             till
             it
             were
             furder
             heard
             upon
             the
             grounds
             of
             the
             first
             Decision
             .
          
           
             A
             Tutor
             having
             cited
             his
             Pupils
             Friends
             on
             both
             sides
             ,
             that
             ●t
             might
             be
             declared
             by
             the
             Lords
             that
             the
             Pupils
             Lands
             were
             ●racked
             above
             the
             true
             value
             ,
             and
             that
             they
             w●re
             not
             able
             to
             pay
             their
             Rents
             without
             casting
             the
             Land
             waste
             ,
             no
             party
             appearing
             ,
             the
             Process
             being
             considered
             by
             the
             Lords
             ,
             they
             granted
             Commission
             to
             Gentlemen
             in
             the
             Countrey
             to
             try
             the
             matter
             of
             Fact
             and
             report
             ,
             February
             5.
             1670.
             
             Tutor
             of
             
               colz●an
               contra
            
             nearest
             of
             kin
             of
             the
             Pupil
             .
          
        
         
           
             A
             Tutory
             granted
             to
             two
             ,
             and
             bearing
             them
             to
             be
             joyntly
             ,
             was
             found
             void
             by
             the
             death
             of
             either
             ,
             Ianuary
             17.
             1671.
             
             Drummond
             of
             
               Riccartoun
               contra
            
             Feuars
             of
             Bothkenneth
             .
          
           
             TVTOR
             DATIVE
             of
             a
             furious
             person
             was
             found
             not
             to
             exclude
             the
             nearest
             Agnat
             as
             Tutor
             of
             Law
             to
             be
             served
             quandocunque
             ,
             though
             the
             Idiot
             was
             necessitate
             to
             pay
             upon
             the
             Tutors
             citation
             to
             make
             forthcoming
             ,
             Ianuary
             21.
             1663.
             
             Mr.
             
               Iames
               Steuart
            
             and
             Robert
             his
             Tutor
             Dative
             contra
             Spreul
             .
          
           
             
               V●●●MUS
               HAERES
            
             being
             gifted
             ,
             was
             found
             to
             have
             no
             effect
             till
             there
             be
             be
             a
             declarator
             thereupon
             in
             the
             same
             way
             as
             in
             Bastardy
             ,
             Iuly
             30.
             1662.
             
             Laird
             of
             Balnagoun
             contra
             Dingwall
             ,
             The
             like
             
               Iuly
               31.
               1666.
               
               Crawfoord
               contra
            
             Town
             of
             Edinb
             .
          
           
             VSE
             OF
             PAYMENT
             of
             a
             duty
             to
             a
             Minister
             for
             Teinds
             ,
             and
             his
             discharge
             for
             the
             whole
             Teinds
             for
             a
             long
             time
             ,
             was
             found
             sufficient
             against
             him
             who
             had
             the
             Tack
             and
             Prorogation
             of
             these
             Teinds
             ,
             until
             interruption
             by
             Citation
             or
             Inhibition
             ,
             thogh
             the
             duty
             was
             very
             smal
             ,
             &
             the
             Minister
             was
             but
             stipendia●
             having
             that
             quantity
             allocat
             out
             of
             these
             Teinds
             ,
             Ianuary
             19.
             1669.
             
             Earl
             of
             Athol
             co●tra
             Robertson
             of
             Strowan
             .
          
           
             VSVRY
             was
             not
             inferred
             by
             a
             Creditors
             taking
             a
             Tack
             for
             his
             furder
             ,
             security
             ,
             for
             so
             much
             Victual
             ,
             or
             20.
             shilling
             less
             than
             the
             〈◊〉
             ,
             at
             the
             setters
             option
             ,
             that
             abatement
             being
             for
             the
             setters
             pains
             and
             hazard
             in
             getting
             in
             the
             price
             ,
             
               November
               23.
               1664.
               
               Scot
               contra
            
             Laird
             of
             Barefoord
             .
          
           
             VICCARAGE
             was
             not
             found
             due
             out
             of
             Yeards
             which
             were
             apar●
             of
             the
             Chanons
             Portions
             ,
             which
             had
             never
             paid
             Viccarage
             ,
             Iune
             30.
             1668.
             
             Minister
             of
             
               Elgin
               contra
            
             his
             Pa●ochioners
             .
          
           
             THE
             VIOLENT
             PROFITES
             of
             an
             Ox
             Sp●ilzied
             in
             Labouring
             time
             ,
             was
             found
             to
             be
             5.
             shilling
             every
             day
             during
             the
             Labouring
             time
             ,
             February
             28.
             1668.
             
             Lord
             Iustice
             Cle●k
             
               contra
               Hume
            
             of
             Linthil
             .
          
           
             VITIATION
             of
             a
             Contract
             of
             Marriage
             diminishing
             the
             Tocher
             and
             Ioyntu●e
             by
             the
             Husband
             and
             Father
             after
             the
             marriage
             ,
             was
             found
             not
             to
             prejudge
             the
             Wife
             who
             consented
             not
             ,
             but
             her
             Right
             was
             extended
             as
             before
             the
             Vitiation
             ,
             in
             prejudice
             of
             the
             Husbands
             Creditors
             infeft
             by
             him
             ,
             albeit
             the
             Contract
             being
             Registrate
             ,
             the
             Vi●●ation
             could
             not
             not
             appear
             to
             the
             Creditors
             when
             they
             lent
             their
             Money
             ,
             
               Iune
               11.
               1670.
               
               Hunter
               contra
            
             The
             Creditors
             of
             Peter
             .
          
           
             VITIOVS
             INTROMISSION
             was
             not
             ●lided
             because
             the
             Defunct
             dyed
             Rebel
             at
             the
             Horn
             ,
             and
             so
             there
             was
             nothing
             
               in
               bonis
               defuncti
            
             ,
             unless
             the
             Defender
             alleadged
             he
             had
             the
             gift
             of
             Escheat
             
               ante
               motam
               litem
               ,
               February
               17.
               1662.
               
               Gray
            
             contra
             Dalgarno
             .
          
           
             Vitious
             Intromission
             was
             retrinched
             to
             single
             avail
             ,
             because
             the
             Defender
             entered
             in
             possession
             by
             a
             disposition
             of
             the
             moveables
             ,
             though
             no
             delivery
             or
             possession
             was
             in
             the
             Defuncts
             life
             ,
             
               February
               27.
               1662.
               
               Chalmers
            
             contra
             Dalga●no
             .
          
           
             Vitious
             Intromission
             was
             purged
             by
             the
             Intrometters
             confirming
             within
             year
             and
             day
             after
             the
             Defuncts
             death
             ,
             the
             Executry
             being
             his
             Wifes
             ,
             albeit
             after
             intenting
             of
             the
             pursuers
             cause
             ,
             
               Ianuary
               28.
               1663.
               
               Stevinson
            
             contra
             Ker
             and
             others
             .
          
           
             Vitious
             Intromission
             was
             purged
             by
             a
             Disposition
             and
             Instrument
             of
             Possession
             in
             the
             Disponers
             Lifetime
             ,
             though
             the
             Defender
             judicially
             acknowledged
             there
             was
             no
             natural
             possession
             ,
             Iuly
             6.
             1664.
             
             Brown
             contra
             Lawson
             .
          
           
             Vitious
             Intromission
             was
             not
             sustained
             after
             the
             Intrometters
             death
             ,
             against
             any
             representing
             him
             ,
             where
             there
             was
             nothing
             done
             to
             instruct
             it
             in
             his
             Life
             ,
             further
             than
             
               Quo
               ad
               val●rem
            
             ,
             but
             not
             as
             an
             universal
             passive
             Title
             ,
             
               Iuly
               10.
               1666.
               
               Cranstoun
            
             contra
             Wilkison
             .
          
           
             Vitious
             Intromission
             was
             elided
             ,
             because
             the
             Intrometter
             had
             warrand
             from
             the
             Donator
             of
             the
             Defuncts
             Escheat
             ▪
             thogh
             there
             was
             no
             Declarator
             ,
             seing
             the
             Warrand
             and
             Intromission
             was
             ante
             
               notam
               litem
            
             .
             Iuly
             4.
             1665.
             
             Innes
             contra
             Watson
             .
          
           
             Vitious
             Intromission
             was
             not
             inferred
             by
             intrometting
             with
             50.
             pound
             ,
             the
             Intrometter
             having
             after
             his
             Intromission
             confirmed
             himself
             Executor
             ,
             and
             omited
             that
             sum
             ,
             but
             was
             only
             found
             lyable
             for
             the
             sum
             it self
             ,
             
               February
               26.
               1668.
               
               R●oth
            
             contra
             Cowan
             .
          
           
             Vitious
             Intromission
             was
             found
             not
             receivable
             by
             Defense
             against
             an
             Assignay
             ,
             viz.
             That
             the
             Cedent
             who
             was
             Creditor
             to
             a
             Defunct
             ,
             was
             vitious
             Intrometter
             with
             his
             goods
             and
             so
             Debitor
             ,
             the
             Assignation
             being
             for
             an
             onerous
             cause
             ,
             Ianuary
             20.
             1671.
             
             Captain
             Ramsoy
             contra
             Henrison
             .
          
           
             WARD
             was
             found
             not
             to
             fall
             by
             the
             death
             of
             an
             Appryzer
             who
             had
             Charged
             ,
             unless
             he
             had
             put
             the
             Superiour
             in
             culpa
             ,
             by
             prese●ting
             a
             Charter
             to
             be
             subscribed
             by
             him
             ,
             and
             offering
             a
             Sum
             with
             a
             Bond
             ,
             and
             Caution
             for
             what
             more
             the
             Lords
             should
             modifie
             for
             that
             years
             Rent
             ,
             and
             that
             therefore
             the
             Ward
             fell
             by
             the
             death
             of
             him
             against
             whom
             the
             appryzing
             was
             led
             ,
             
               February
               9.
               1669.
               
               Black
            
             contra
             French.
             
          
           
             Ward
             being
             gifted
             by
             the
             King
             ,
             the
             Donat●r
             was
             found
             to
             have
             interest
             to
             call
             for
             production
             of
             the
             Defender
             her
             Sister
             ●●d
             Fathers
             Retoures
             only
             ,
             for
             instructing
             of
             what
             was
             Ward
             ,
             and
             not
             their
             other
             Evidents
             ,
             December
             20.
             1669.
             
             Earl
             of
             
               Rothes
               contra
            
             Tutors
             of
             Buccle●gh
             .
          
           
             
             Ward
             was
             found
             to
             take
             no
             place
             where
             the
             Defunct
             was
             denuded
             by
             an
             Appryzing
             and
             the
             Appryzer
             infeit
             ,
             albeit
             the
             appryzing
             was
             on
             a
             Bond
             granted
             to
             his
             Mother
             ,
             to
             the
             be●ove
             of
             her
             Son
             ,
             which
             was
             not
             found
             to
             be
             a
             fraudulent
             precipitation
             to
             exclude
             Ward
             ,
             it
             being
             granted
             in
             the
             Defuncts
             
               leige
               pouftie
            
             ,
             but
             so
             soon
             as
             the
             Appryzing
             was
             satisfied
             either
             in
             the
             Defuncts
             time
             or
             after
             his
             death
             ,
             the
             Ward
             of
             the
             Defunct's
             Heir
             took
             effect
             ,
             
               Iuly
               20.
               1671.
               
               Lindsay
            
             of
             Mo●nt
             contra
             Maxwel
             of
             Kirkonnel
             .
          
           
             A
             Ward
             was
             not
             found
             to
             give
             Right
             to
             the
             Donatar
             ,
             to
             cause
             an
             Appryzer
             Restrict
             to
             as
             much
             of
             the
             Rent
             as
             will
             satisfie
             his
             ann●alrent
             ,
             that
             the
             Donator
             might
             have
             the
             superplus
             ,
             by
             the
             Clause
             in
             the
             Act
             of
             Parliament
             1661.
             betwixt
             Debitor
             and
             Creditor
             ,
             which
             was
             only
             found
             proper
             and
             personal
             to
             the
             Creditor
             and
             his
             Heir
             ,
             
               Inter
               eosdem
            
             .
          
           
             Ward
             and
             Marriage
             of
             a
             party
             killed
             in
             the
             late
             War
             ,
             was
             found
             not
             to
             be
             taken
             off
             by
             the
             Act
             of
             Parliament
             1640.
             
             Declaring
             the
             Ward
             and
             Marriages
             of
             these
             that
             should
             die
             in
             that
             Service
             not
             to
             fall
             ,
             which
             Service
             was
             found
             to
             terminate
             by
             the
             next
             Pacification
             Ann●
             1641.
             here
             parties
             were
             agreed
             ,
             so
             that
             it
             was
             not
             acuratly
             debated
             ,
             or
             determined
             whether
             the
             salvo
             in
             the
             Act
             resc●nding
             these
             Parliaments
             during
             the
             Troubles
             ,
             except
             as
             to
             private
             Rights
             acquired
             thereby
             ,
             would
             reach
             to
             the
             exemption
             of
             Ward
             and
             Marriage
             by
             the
             Act
             1640.
             being
             held
             an
             exemption
             during
             all
             the
             Troubles
             ,
             should
             be
             so
             interprete
             now
             ,
             which
             was
             not
             proposed
             ,
             
               Iuly
               28.
               1671.
               
               Hadden
               contra
            
             Laird
             of
             Glenegi●s
             .
          
           
             WAKNING
             was
             not
             ●ound
             necessary
             ,
             where
             upon
             hearing
             parties
             Decre●ts
             were
             pronunced
             ,
             though
             it
             was
             sto●ed
             upon
             a
             Bill
             ,
             and
             lay
             several
             years
             over
             ▪
             which
             stop
             imports
             not
             a
             recalling
             of
             the
             D●creet
             ,
             but
             a
             stoping
             the
             Extracting
             of
             it
             till
             the
             parties
             might
             be
             heard
             upon
             the
             grounds
             of
             the
             Bill
             ,
             
               Iuly
               1.
               1671.
               
               Brodit
            
             of
             L●th●m
             and
             the
             La●
             of
             
               Ri●cartoun
               contra
            
             the
             Lord
             Kenmuire
             .
          
           
             WARNING
             was
             sustained
             at
             an
             old
             Kirk
             ,
             albeit
             Divine
             Worship
             was
             at
             a
             new
             Kirk
             not
             Erected
             by
             Parliament
             ,
             or
             though
             Erected
             ,
             if
             Hornings
             and
             Inhibitions
             used
             to
             be
             at
             the
             old
             Kitk
             ,
             Ianuary
             24
             ▪
             1667.
             
             Earl
             of
             Arg●le
             contra
             Campbel
             .
          
           
             Warning
             not
             bearing
             that
             it
             was
             read
             at
             the
             Kirk
             door
             in
             ordinary
             time
             of
             Divine
             Service
             ,
             was
             admitted
             to
             be
             so
             mended
             at
             the
             Bar
             ,
             
               Ianuary
               25.
               1667.
               
               Inter
               eosdem
               .
            
          
           
             Warning
             at
             the
             Kirk
             and
             House
             was
             sustained
             on
             fourly
             days
             ,
             though
             the
             party
             warned
             was
             out
             of
             ●he
             Countrey
             ,
             the
             Act
             of
             Parliament
             anent
             Warning
             requiring
             no
             further
             ,
             February
             20.
             1666.
             
             
               Mcbrair
               contra
            
             .
          
           
             WARRANDICE
             was
             ●ound
             implyed
             of
             a
             Legacy
             
               in
               realiena
               scienter
               legata
               ,
               Iune
               18.
               1664.
               
               Murray
               contra
            
             Executors
             of
             Rutherfoord
             .
          
           
             Absolute
             Warrandice
             was
             ordained
             to
             be
             contained
             in
             assignations
             of
             Bonds
             for
             an
             equivalent
             Cause
             ,
             as
             the
             price
             of
             goods
             ,
             and
             that
             it
             should
             bear
             expresly
             ,
             not
             only
             that
             the
             debts
             were
             due
             ,
             but
             that
             the
             debitor
             was
             
               solvendo
               ,
               Iune
            
             24.
             1664.
             
             Moffat
             contra
             Black.
             
          
           
             Warrandice
             being
             absol●te
             in
             an
             Assignation
             by
             a
             Creditor
             to
             a
             Cautioner
             ,
             that
             he
             might
             get
             his
             relief
             ,
             bearing
             (
             against
             all
             deadly
             as
             Law
             will
             )
             was
             found
             not
             to
             extend
             to
             the
             Debitors
             being
             
               solvendo
               ,
               Iune
               26.
               1664.
               
               Hajcontra
               Nicols●n
               .
            
          
           
             Absolute
             Warrandice
             was
             found
             implyed
             in
             a
             Contract
             of
             Marriage
             ,
             wherein
             a
             Mother
             as
             Executor
             gave
             such
             a
             sum
             in
             full
             satisfaction
             of
             a
             Daughters
             interest
             ,
             and
             that
             only
             to
             warrand
             against
             the
             Defuncts
             seperveening
             Debt
             ,
             as
             to
             the
             superplus
             above
             the
             sum
             accepted
             by
             the
             Daughter
             ,
             but
             simply
             for
             all
             the
             portion
             ,
             unless
             the
             Mother
             would
             compt
             for
             all
             her
             Daughters
             share
             ,
             
               November
               16.
               1664.
               
               Fleming
            
             contra
             Fleming
             and
             her
             Spouse
             .
          
           
             Warrandice
             was
             found
             to
             give
             recourse
             ,
             though
             th●re
             could
             be
             no
             present
             distress
             ,
             seing
             there
             was
             a
             clear
             ground
             of
             further
             distress
             by
             the
             warranders
             own
             deed
             ,
             granting
             double
             dispositions
             ,
             Iuly
             1●
             .
             1666.
             
             Bur●et
             contra
             Iohnsto●●
             .
          
           
             Warrandice
             absolute
             in
             a
             disposition
             of
             Lands
             ,
             was
             found
             to
             extend
             to
             warrand
             Lands
             designed
             for
             a
             Horse
             and
             Cows
             Grass
             by
             a
             subsequent
             Law
             ,
             albeit
             the
             Law
             extended
             in
             self
             as
             if
             it
             had
             been
             of
             a
             former
             date
             with
             another
             abroga●
             Law
             ,
             seing
             these
             Laws
             did
             differ
             from
             the
             former
             ▪
             and
             did
             not
             revive
             it
             ,
             
               Iuly
               12.
               1667.
               
               Watson
            
             contra
             Law.
             
          
           
             Warrandice
             being
             special
             by
             Infe●tment
             ,
             though
             base
             and
             
               ex
               intervallo
            
             ,
             and
             after
             the
             principal
             In●eftment
             ,
             is
             effectual
             for
             recourse
             ,
             without
             declarator
             ,
             and
             being
             cled
             with
             possession
             of
             the
             principal
             Lands
             ,
             and
             can
             only
             be
             excluded
             by
             a
             possessory
             judgement
             upon
             7
             ▪
             years
             after
             the
             eviction
             ,
             but
             by
             no
             possession
             how
             long
             soever
             before
             the
             eviction
             ,
             
               February
               20
               ,
               1668.
               
               Forbes
            
             contra
             Innes
             .
          
           
             Warrandice
             in
             a
             Disposition
             bearing
             the
             seller
             holds
             Ward
             ,
             that
             therefore
             he
             should
             warrand
             the
             buyers
             ,
             who
             were
             to
             ●old
             Few
             of
             him
             ,
             and
             to
             relieve
             them
             of
             any
             Ward
             that
             should
             thereafter
             fall
             ,
             which
             was
             ●ound
             to
             be
             effectual
             against
             the
             Sellers
             Heir
             ,
             tho●gh
             denuded
             of
             the
             Superiority
             ,
             and
             not
             to
             burden
             the
             present
             Superiour
             ,
             
               Iuly
               18.
               1668.
               
               Colquhoun
            
             contra
             St●uart
             of
             Bars●ub
             .
          
           
             Warrandice
             in
             whatsoever
             Terms
             conceived
             ,
             was
             found
             to
             extend
             no
             furt●er
             than
             t●e
             sums
             paid
             out
             ,
             and
             the
             expences
             of
             the
             party
             ▪
             
               Ianuary
               26.
               1669.
               
               Boyl
            
             of
             Kelburn
             contra
             Wilkie
             .
          
        
         
           
             A
             WIF'S
             Contract
             of
             marriage
             was
             found
             a
             debt
             〈◊〉
             to
             other
             personal
             Credi●ors
             of
             the
             Defunct
             ,
             Febru●ry
             8.
             1662.
             
             
               Crawfoord
               contra
            
             Earl
             of
             Murray
             .
          
           
             A
             Wi●e
             and
             her
             freinds
             at
             whose
             instance
             execution
             of
             her
             Contract
             was
             provided
             ,
             was
             admitted
             to
             pursue
             a
             Reduction
             of
             a
             deed
             done
             by
             the
             Husband
             in
             prejudice
             thereof
             du●ing
             ●is
             life
             ,
             
               February
               12.
               
               166●
               .
               Leck●●
            
             contra
             〈◊〉
             .
          
           
             A
             Wife
             was
             found
             conveenable
             without
             calling
             the
             Husband
             ,
             he
             being
             20.
             years
             out
             of
             the
             Countrey
             ,
             and
             she
             repute
             widow
             ,
             
               Iune
               19.
               1663.
               
               Hay
            
             contra
             Corstorphin
             .
          
           
             A
             wifes
             oath
             was
             found
             to
             prove
             against
             the
             Husband
             ,
             where
             the
             matter
             was
             litigious
             ,
             by
             a
             process
             against
             the
             Wife
             before
             her
             marriage
             ,
             
               Iuly
               19.
               1663
               ,
               Edgar
            
             contra
             Murray
             .
          
           
             A
             Wifes
             infeftment
             was
             found
             valide
             till
             her
             Tocher
             were
             repaid
             ,
             albeit
             the
             Marriage
             was
             disolved
             w●thin
             year
             and
             day
             ,
             
               Iu●y
               20.
               1664.
               
               Petrie
            
             contra
             Paul.
             
          
           
             A
             wifes
             furnishings
             even
             for
             her
             mournings
             for
             her
             husbands
             funerals
             ,
             being
             of
             that
             quality
             that
             should
             have
             mourning
             ,
             was
             found
             not
             to
             be
             the
             wifes
             debt
             but
             the
             husbands
             executors
             ,
             
               November
               2.
               1664.
               
               Murray
            
             contra
             Ne●lson
             .
          
           
             A
             wifes
             infeftment
             
               Stant●
               martrimonio
            
             being
             〈◊〉
             and
             beside
             her
             Contract
             ,
             was
             found
             not
             to
             be
             validat
             by
             her
             husband
             possession
             ,
             that
             his
             Creditors
             might
             not
             quarrel
             it
             by
             exception
             ,
             it
             being
             anterior
             to
             the
             infeftment
             ,
             December
             7.
             1664.
             
             Lady
             Craigie
             and
             
               Greenhead
               contra
            
             Lord
             
               Lour
               ,
               Vide
            
             Clause
             ,
             
               December
               20.
               1664.
               
               Young
            
             contra
             Buchannan
             .
          
           
             A
             wife
             having
             her
             husbands
             bond
             in
             her
             hand
             ,
             and
             impignora●ing
             in
             〈◊〉
             100.
             pound
             ,
             it
             was
             sustained
             against
             the
             husband
             ,
             upon
             presumption
             of
             her
             having
             warrand
             by
             having
             the
             bond
             ,
             
               February
               4.
               1665.
               
               Paterson
            
             contra
             Pringle
             .
          
           
             A
             w●●es
             infeftment
             in
             liferent
             was
             sustained
             by
             her
             Seasine
             ,
             adminiculat
             by
             her
             Contract
             of
             Marriage
             ,
             albeit
             the
             sealine
             was
             not
             immedia●ly
             on
             the
             Contract
             but
             related
             a
             bond
             granted
             for
             the
             same
             cause
             ,
             which
             was
             not
             produced
             ,
             I●ne
             29.
             1665.
             
             Norvel
             contra
             Steuart
             .
          
           
             A
             wi●e
             was
             ●ound
             not
             to
             be
             excluded
             from
             her
             liferent
             ,
             because
             her
             To●lier
             was
             not
             payed
             ,
             she
             not
             being
             obliged
             therefore
             ,
             albeit
             the
             Contract
             bear
             ,
             that
             the
             Tocher
             being
             payed
             it
             should
             be
             so
             applyed
             upon
             security
             ,
             
               Iuly
               5.
               1665.
               
               Mack●●
            
             contra
             Steuart
             .
          
           
             A
             wife
             was
             not
             found
             lyable
             to
             her
             husbands
             creditors
             appryzing
             his
             
               j●s
               meri●●
            
             ,
             for
             the
             Rent
             of
             Houses
             possessed
             by
             her self
             for
             their
             aliment
             ,
             as
             to
             years
             preceeding
             the
             intenting
             of
             the
             Ca●se
             ,
             
               December
               7.
               1665.
               
               Smith
            
             and
             
               Duncan
               c●ntra
               Robertson
            
             .
             Here
             the
             Creditors
             had
             access
             to
             the
             wife
             's
             other
             Tenements
             ,
             though
             the
             husband
             shortly
             after
             his
             marriage
             left
             the
             Countrey
             ,
             and
             the
             wife
             had
             obtained
             D●●reet
             of
             adherence
             and
             was
             proceeding
             to
             divorce
             .
          
           
             A
             wifes
             obligation
             with
             her
             husband
             for
             a
             firm
             obliging
             them
             to
             pay
             conjunctly
             and
             severaly
             ,
             and
             also
             obliging
             to
             〈◊〉
             an
             annualrent
             out
             of
             either
             of
             their
             Lands
             ▪
             was
             found
             null
             as
             to
             the
             obligement
             to
             infeft
             even
             as
             to
             the
             wife
             ,
             De●●mber
             15.
             1665.
             
             Bleis
             contra
             Keith
             .
          
           
             A
             wifes
             renunciation
             of
             a
             part
             of
             her
             joynture
             after
             her
             contract
             of
             marriage
             and
             first
             proclamation
             ,
             was
             reduced
             as
             being
             done
             without
             consent
             of
             her
             husband
             ,
             albeit
             the
             husband
             knew
             of
             the
             〈◊〉
             and
             yet
             went
             on
             in
             the
             marriage
             ,
             and
             albeit
             he
             was
             an
             unsuitable
             match
             to
             her
             ,
             and
             that
             not
             only
             as
             to
             t●e
             husbands
             interest
             and
             during
             his
             life
             ,
             but
             also
             simply
             as
             to
             the
             wife
             ,
             Ia●●ary
             5.
             1666.
             
             Lady
             Bu●e
             and
             her
             husband
             contra
             Sheriff
             of
             〈◊〉
             .
          
           
             A
             wife
             was
             found
             not
             to
             have
             interest
             to
             pursue
             the
             Defuncts
             Debi●ors
             for
             her
             half
             ,
             but
             only
             the
             Executors
             ▪
             December
             15.
             1667.
             
             Lady
             
               Cranburn
               contra
            
             Lord
             Bu●ley
             and
             others
             .
          
           
             A
             wifes
             accompt
             of
             furniture
             for
             her
             person
             subscribed
             by
             her
             ,
             was
             found
             valid●
             ,
             albe●t
             she
             was
             then
             married
             and
             a
             ●●i●●or
             ,
             without
             instructing
             the
             goods
             received
             and
             just
             price
             ,
             she
             being
             
               p●rsona
               illustris
            
             ,
             and
             the
             accompt
             not
             great
             for
             her
             own
             furniture
             ,
             
               February
               20.
               1667.
               
               〈◊〉
               contra
            
             Dutches
             of
             Monmouth
             .
          
           
             A
             wi●e
             cled
             with
             a
             husband
             was
             found
             lyable
             for
             drugs
             furnished
             to
             her
             and
             her
             children
             at
             her
             command
             ,
             ●he
             having
             a
             peculiar
             Estate
             ,
             wherefrom
             her
             husband
             was
             excluded
             ,
             a●d
             he
             be●ng
             ou●
             of
             the
             countrey
             ,
             
               December
               19.
               1667.
               
               Gairn●
            
             contra
             Arthur
             .
          
           
             A
             wife
             acquiring
             Lands
             ,
             was
             found
             not
             to
             presume
             that
             the
             same
             were
             acquired
             by
             the
             husbands
             money
             ,
             and
             to
             belong
             to
             him
             and
             his
             heirs
             ,
             unless
             it
             were
             instructed
             that
             she
             had
             heretables
             or
             other
             sum●
             exempted
             a
             commun●one
             〈◊〉
             ,
             especially
             seing
             the
             wi●e
             dispo●ed
             her
             Lands
             to
             another
             ,
             and
             her
             husband
             as
             Baillie
             of
             the
             Burgh
             gave
             Seasine
             thereon
             ,
             Ianuary
             29.
             1668.
             
             
               Brown
               contra
               Nappi●land
            
             .
          
           
             A
             wife
             predeceassing
             ,
             her
             third
             of
             her
             husbands
             moveables
             was
             found
             not
             ●o
             comprehend
             the
             best
             of
             ilk
             kind
             ,
             but
             that
             it
             ●el●oved
             to
             be
             l●●
             aside
             as
             heirship
             moveable
             ,
             wherein
             the
             wife
             had
             no
             interest
             ,
             
               December
               8.
               1668.
               
               Go●●●et
               contra
               N●ir●
               ,
            
             though
             the
             husband
             was
             al●ve
             and
             could
             then
             have
             no
             heir
             .
          
           
             A
             wife
             in
             he●
             cont●act
             of
             marriage
             having
             discharged
             and
             renu●ced
             〈◊〉
             here●able
             sum
             due
             to
             her
             in
             favours
             of
             her
             debitors
             ,
             who
             gave
             a
             new
             heretable
             security
             of
             the
             same
             date
             to
             her
             ●uture
             spo●se
             ,
             the
             wif●
             having
             made
             her
             husband
             her
             Executor
             and
             Lega●ar
             ,
             a●d
             dying
             within
             year
             and
             day
             ,
             the
             discharge
             and
             renunciation
             g●anted
             in
             favours
             o●
             a
             third
             party
             ,
             was
             found
             not
             ●o
             be
             〈◊〉
             by
             the
             dissolu●ion
             of
             the
             marriage
             ,
             but
             that
             the
             old
             security
             continued
             i●●ovar
             by
             the
             new
             ●ecurity
             
             granted
             to
             the
             husband
             ,
             who
             was
             only
             obliged
             to
             restore
             the
             ●um
             in
             that
             security
             to
             his
             wifes
             Ex●u●ors
             ,
             as
             a
             moveable
             obligation
             ▪
             and
             not
             to
             her
             heir
             ,
             and
             that
             so
             it
             belonged
             to
             the
             husband
             himself
             as
             Executor
             ,
             
               Dec.
               11.
               1668.
               
               Scot
               con
               .
               Ai●on
               .
            
          
           
             A
             wi●e
             was
             found
             to
             be
             burdened
             with
             her
             husband●
             her●table
             deb●s
             ,
             
               December
               23.
               1668.
            
             
             Mckenz●e
             ●ontra
             Rober●son
             .
          
           
             A
             wi●e
             purs●ing
             for
             her
             provision
             by
             her
             con●ract
             of
             marriage
             ▪
             which
             bear
             ,
             her
             to
             be
             provided
             to
             the
             annualrent
             of
             her
             Tocher
             and
             as
             much
             more
             ,
             the
             same
             was
             sound
             effectual
             ,
             and
             that
             the
             wife
             was
             not
             obliged
             to
             instruct
             that
             her
             Tocher
             was
             payed
             ,
             seing
             she
             was
             no●
             obliged
             for
             payment
             thereo●
             in
             the
             contract
             ,
             an●
             the
             husband
             having
             only
             a
             ●um
             provided
             to
             himself
             and
             his
             wi●e
             in
             life●ent
             ,
             and
             after
             their
             deceasses
             to
             the
             mans
             〈◊〉
             daughters
             by
             a
             former
             marriage
             ,
             the
             wife
             having
             confirmed
             the
             same
             for
             implement
             of
             her
             contract
             ,
             was
             pr●●erred
             to
             the
             daughters
             ,
             and
             their
             substi●u●ion
             was
             ●ound
             nu●l
             by
             the
             Act
             of
             Parliament
             1621.
             without
             ▪
             reduction
             ,
             
               Ianuary
               5.
               
               166●
               .
               Syms
               contra
               Brown.
            
             The
             like
             before
             ,
             February
             22.
             1665.
             
             
               Campbel
               contra
               Campbel
            
             .
          
           
             A
             ●ifes
             infe●●ment
             upon
             her
             contract
             of
             marriage
             was
             sustained
             ,
             though
             it
             bear
             that
             the
             husband
             should
             imploy
             the
             Tocher
             &
             an
             equivalent
             sum
             for
             the
             wife
             in
             li●erent
             ,
             albei●
             the
             Tocher
             was
             never
             paid
             by
             the
             Father
             ,
             not
             by
             the
             husbands
             neglect
             ,
             but
             by
             the
             fathers
             insolvency
             from
             the
             time
             of
             the
             con●ract
             ,
             seing
             the
             husband
             did
             not
             object
             t●●
             same
             ,
             but
             granted
             infeftment
             ,
             
               Ian
               ,
               11.
               1670.
               
               Hunter
               c●ntra
            
             Credi●ors
             of
             Pet●r
             .
          
           
             WITNESSE●
             were
             admitted
             to
             prove
             setting
             down
             of
             Marches
             by
             Arbiters
             ,
             February
             8.
             1662.
             
             Lord
             Torph●hen
             cont●a
             .
          
           
             Witnesses
             were
             admitted
             to
             prove
             a
             Warrand
             and
             Command
             ,
             being
             the
             Messengers
             Domesticks
             and
             so
             〈◊〉
             persons
             ,
             
               Ianuary
               ,
               4.
               1663.
               
               Ma●●o●n
            
             contra
             Hunter
             .
          
           
             Witnesses
             were
             admitted
             to
             prove
             the
             Loan
             of
             Books
             ,
             ●hough
             far
             above
             100.
             pound
             ,
             
               Ianuary
               21.
               1665.
               
               Scots
            
             contra
             Fl●●cher
             .
          
           
             Witnesses
             were
             ●ound
             to
             prove
             a
             bargain
             of
             Victual
             a●●er
             1●
             .
             years
             time
             ,
             
               Iuly
               14.
               1665.
               
               Ma●●h●son
            
             contra
             Gib
             .
          
           
             Witnesses
             Testimonies
             taken
             by
             the
             Commissars
             in
             a
             Divorce
             cr●ved
             ●o
             be
             Reduced
             ,
             was
             found
             not
             to
             be
             published
             ,
             but
             the
             Clerk
             was
             ordained
             to
             give
             a
             Note
             of
             their
             Names
             ,
             Design●tion
             ,
             Age
             and
             purging
             of
             partial
             Council
             and
             the
             like
             ,
             b●t
             not
             of
             the
             particulars
             in
             the
             cause
             ,
             Ianuary
             4.
             1666.
             
             Laird
             of
             
               Mil●toun
               contra
            
             Lady
             Mil●toun
             .
          
           
             Witnesses
             were
             not
             admitted
             to
             prove
             a
             Bond
             blank
             in
             the
             Creditors
             Name
             ,
             delivered
             to
             a
             Desender
             ,
             to
             infer
             an
             obligement
             to
             re-deliver
             the
             same
             ,
             
               February
               ●0
               .
               1667.
               
               Iohnstoun
            
             contra
             Iohnstoun
             .
          
           
             Witnesses
             were
             found
             to
             prove
             Adultery
             ,
             albeit
             their
             Testimonies
             were
             not
             of
             the
             same
             individual
             Act
             at
             the
             same
             time
             and
             place
             ,
             Adultery
             being
             
               crimen
               genericum
            
             inferred
             by
             re●●erable
             Acts
             ,
             and
             though
             neither
             of
             the
             Witnesses
             knew
             the
             Woman
             with
             whom
             the
             Adultery
             was
             committed
             ,
             but
             heard
             her
             named
             at
             the
             time
             they
             saw
             the
             Acts
             by
             the
             Adulterers
             servant
             ,
             and
             that
             some
             other
             Witnesses
             knew
             that
             she
             was
             not
             the
             Adulterers
             Wife
             ,
             February
             25.
             1667.
             
             Lady
             
               Milntoun
               contra
            
             Laird
             of
             
               Milntoun
               ▪
            
          
           
             Witnesses
             Testimonies
             were
             found
             not
             to
             be
             in●ringed
             upon
             theirown
             re-examinaton
             in
             a
             second
             instance
             ,
             as
             being
             suborned
             or
             corrupted
             
               post
               ●us
            
             acquisi●un●
             by
             the
             first
             sentence
             ▪
             albeit
             in
             the
             first
             Testimonies
             they
             were
             not
             purged
             of
             partial
             Council
             ,
             Ibidem
             .
          
           
             Witnesses
             were
             found
             sufficient
             to
             prove
             a
             ●argain
             to
             have
             been
             anterio●
             to
             a
             Writ
             ,
             and
             that
             Writ
             was
             reduced
             upon
             that
             Sentence
             as
             posterior
             and
             prejudicial
             to
             the
             bargain
             ,
             Ianuary
             21.
             1669.
             
             Creditors
             of
             Pollock
             contra
             Pollock
             .
          
           
             Witnesses
             were
             admitted
             to
             prove
             a
             Merchant
             compt
             as
             to
             Articles
             more
             then
             three
             years
             preceeding
             the
             Citation
             ,
             it
             being
             a
             cur●ent
             accompt
             ,
             though
             begun
             by
             the
             Defunct
             and
             continued
             af●er
             h●●
             deceass
             by
             his
             Funeral
             provision
             ,
             and
             by
             the
             Chamber●●●●
             of
             his
             Heir
             then
             a
             Pupil
             ,
             seing
             three
             years
             interv●e●ed
             not
             in
             any
             part
             of
             the
             accompt
             ,
             
               February
               26.
               1670.
               
               Grahame
               contra
            
             Laird
             of
             Stan●byres
             .
          
           
             Witnesses
             were
             admitted
             to
             prove
             the
             v●●iation
             of
             a
             Contract
             of
             Marriage
             ,
             and
             not
             to
             annul
             it
             but
             to
             extend
             it
             as
             it
             was
             before
             the
             vi●iation
             ,
             
               Iune
               11.
               1670.
               
               Hunter
               contra
            
             Creditors
             of
             Peter
             .
          
           
             Witnesses
             were
             admitted
             to
             prove
             intromission
             with
             Mails
             and
             Duties
             of
             Tennents
             ,
             though
             silver
             Rent
             ,
             intrometted
             by
             one
             who
             was
             infe●t
             in
             an
             annualrent
             out
             of
             the
             Tenements
             ,
             albeit
             by
             the
             intromission
             ,
             the
             principal
             sum
             for
             which
             the
             annualrent
             was
             constitute
             ,
             would
             be
             satisfied
             ,
             and
             the
             infe●tment
             extinct
             ,
             
               February
               4.
               1671.
               
               Wishart
            
             contra
             Arthur
             .
          
           
             Witnesses
             were
             admitted
             to
             prove
             an
             appryzing
             to
             be
             to
             the
             behove
             of
             the
             apparent
             Heir
             ,
             in
             respect
             of
             this
             concurrent
             presump●ion
             ,
             that
             the
             appryzing
             was
             assigned
             to
             the
             appear
             and
             Heirs
             brother
             ,
             
               February
               22
               ,
               1671.
               
               Gordo●n
            
             contra
             Mcculloch
             .
          
           
             Witnesses
             were
             admitted
             to
             prove●
             Ministers
             possession
             of
             ●ands
             to
             be
             by
             tollerance
             of
             an
             Her●●or
             ,
             and
             ●o
             not
             ●o
             be
             a
             Gl●ib
             belonging
             to
             the
             Kirk
             ,
             where
             the
             Ministers
             possession
             was
             
               decen●●lis
               &
               trien●alis
            
             ,
             but
             that
             writ
             was
             necessary
             (
             if
             his
             possession
             ha●t
             been
             for
             40.
             years
             )
             to
             prove
             the
             tollerance
             ,
             Iune
             22.
             1671.
             
             Minister
             of
             contra
             Duke
             of
             ●al●leugh
             .
          
           
             WITNESSES
             
               EX
               OFFICIO
            
             were
             received
             for
             proving
             the
             delivery
             of
             a
             Bond
             blank
             in
             the
             Creditors
             name
             ▪
             the
             matter
             being
             betwixt
             brother
             and
             sister
             where
             Trust
             was
             very
             presum●able
             ,
             
               February
               21.
               1667.
               
               Iohnstoun
            
             contra
             Iohnstoun
             .
          
        
         
           
             Witnesses
             were
             examined
             
               ●x
               officio
            
             to
             prove
             Warrant
             or
             Command
             to
             a
             deed
             done
             in
             prejudice
             of
             him
             ,
             who
             had
             the
             Commission
             to
             do
             the
             same
             deed
             ,
             and
             could
             have
             ●indered
             others
             ,
             February
             21.
             1667.
             
             Lord
             
               R●●toun
               contra
            
             Laird
             of
             Lambertoun
             .
          
           
             Witnesses
             and
             the
             writer
             of
             a
             disposition
             were
             examined
             
               ex
               officio
            
             on
             th●
             Terms
             of
             the
             Treaty
             ,
             and
             whether
             when
             th●
             writ
             was
             read
             ,
             being
             an
             absolute
             disposition
             ,
             it
             was
             not
             read
             as
             being
             redeemable
             ,
             
               Iuly
               2.
               1667.
               
               Allan
            
             contra
             Fairie
             .
          
           
             Witnesses
             
               ex
               officio
            
             being
             admitted
             
               hinc
               inde
            
             ,
             not
             the
             greatest
             quant●ty
             proven
             by
             two
             ,
             but
             the
             quantity
             proven
             most
             pregnantly
             ,
             was
             followed
             ,
             November
             23.
             1667.
             
             Lord
             Iustice
             Clerk
             contra
             Laird
             of
             Lambertoun
             .
          
           
             Witnesses
             
               ex
               officio
            
             were
             examined
             to
             instruct
             the
             cause
             of
             a
             Bond
             to
             be
             by
             arbitriment
             and
             exorbitant
             ,
             it
             being
             37.
             years
             dorment
             without
             annualrent
             ,
             and
             the
             sum
             filled
             up
             with
             a
             different
             hand
             ,
             
               February
               6.
               1668.
               
               Chis●holm
               contra
            
          
           
             Witnesses
             taken
             
               ex
               officio
            
             proving
             the
             imploying
             of
             a
             Wright
             in
             his
             wo●●
             in
             a
             Lodging
             possest
             by
             the
             ●mployer
             ,
             and
             his
             frequent
             direction
             anent
             the
             work
             ,
             were
             found
             to
             prove
             against
             his
             Heir
             ,
             though
             above
             100.
             pound
             ,
             and
             though
             direction
             alone
             without
             sensible
             acts
             is
             only
             probable
             by
             writ
             or
             oath
             ,
             
               Iuly
               21.
               1668.
               
               Thomson
               contra
            
             Earl
             of
             Glencairn
             .
          
           
             Witnesses
             
               ex
               officio
               〈◊〉
            
             ●●de
             examined
             in
             a
             Reduction
             on
             death
             bed
             ,
             albeit
             the
             day
             of
             compearance
             was
             not
             come
             ,
             to
             prevent
             the
             death
             or
             collusion
             of
             the
             most
             necessary
             Witnesses
             ,
             February
             16.
             1669.
             
             Creditors
             of
             my
             Lord
             Balmerino
             and
             
               Cowper
               contra
            
             Lady
             Cowper
             .
          
           
             Witnesses
             
               ex
               officio
            
             were
             ordained
             to
             be
             examined
             before
             answer
             ▪
             for
             clearing
             a
             Trust
             of
             the
             right
             of
             ●n
             appryzing
             ▪
             upon
             divers
             probabilities
             
               hinc
               inde
            
             alleadged
             ,
             February
             24.
             1669.
             
             Earl
             of
             Annandail
             contra
             〈◊〉
             and
             Credi●ors
             of
             Hume
             .
          
           
             A
             Witness
             examined
             
               ex
               officio
            
             prevaricating
             in
             his
             oath
             ,
             first
             denying
             and
             then
             acknowledging
             the
             same
             thing
             ,
             was
             declared
             in
             famous
             and
             set
             on
             the
             Pillory
             with
             a
             Paper
             on
             his
             ●ace
             ,
             signifying
             his
             Fault
             ,
             
               Iu●y
               6.
               1669.
               
               Barclay
               contra
               B●rclay
               .
            
          
           
             Witnesses
             
               ex
               officio
            
             being
             examined
             were
             admitted
             to
             take
             away
             a
             Bond
             wholly
             blank
             ,
             or
             blank
             in
             the
             Creditors
             name
             ,
             F●bruary
             2
             ,
             &
             3.
             1670.
             
             
               Iack
               contra
               Boyd
            
             of
             ●●nkil
             ,
             and
             the
             Earl
             of
             
               K●ng●orn
               con●ra
            
             Laird
             of
             P●●arro
             .
          
           
             Witnesses
             
               ex
               officio
            
             were
             examined
             anent
             the
             being
             of
             a
             Bond
             amongst
             the
             Writs
             of
             a
             Creditor
             or
             his
             Factor
             ,
             that
             thereby
             the
             debitor
             might
             be
             liberat
             of
             the
             Bond
             as
             being
             retired
             ,
             but
             was
             not
             admitted
             to
             prove
             payment
             or
             sa●isfaction
             thereof
             ,
             though
             it
             was
             an
             old
             Bond
             ,
             without
             any
             diligence
             or
             payment
             of
             annualrent
             for
             a
             long
             time
             ,
             
               February
               14.
               1671.
               
               N●●peir
               contra
            
             Earl
             of
             Eg●●toun
             .
          
           
             Witnesses
             
               ex
               officio
            
             were
             examined
             in
             a
             circumvention
             for
             annulling
             a
             disposition
             made
             by
             a
             simple
             per●on
             of
             his
             whole
             Esta●e
             ,
             without
             reservation
             ,
             on
             these
             points
             ,
             whether
             the
             writ
             was
             read
             to
             him
             when
             he
             subscribed
             ,
             whether
             he
             was
             drunk
             ,
             so
             that
             rea●on
             and
             judgement
             was
             disordered
             ,
             and
             what
             motives
             were
             used
             to
             make
             him
             subscribe
             ,
             
               Iuly
               11.
               1671.
               
               Stev●ns
            
             contra
             Ne●lson
             .
          
           
             WITNESSES
             INSERT
             in
             a
             writ
             and
             the
             Writer
             were
             ●ound
             to
             have
             ●ccession
             as
             users
             of
             that
             writ
             as
             false
             ,
             yet
             was
             examined
             ,
             though
             they
             were
             socij
             crimin●s
             ,
             and
             Forgers
             by
             their
             own
             confession
             ,
             being
             in
             an
             imporbation
             ▪
             Ianuary
             26.
             1670.
             
             Lady
             
               To●vi●
               contra
            
             Cap●ain
             Barclay
             .
          
           
             A
             WODSETTER
             was
             found
             to
             comp●
             for
             the
             superplus
             above
             his
             ●en●
             ,
             though
             the
             Wo●set
             wa●
             before
             the
             Act
             of
             Parliament
             ,
             1661.
             betwixt
             Debitor
             and
             Creditor
             ,
             albeit
             therein
             the
             Vsurpers
             Act
             ,
             and
             all
             such
             Acts
             made
             or
             to
             be
             made
             were
             ●enunced
             ,
             Ianuary
             29.
             1662.
             
             Laird
             of
             Laming●oun
             con●ra
             Che●slie
             .
          
           
             A
             wodset
             bearing
             in
             the
             Reversion
             a
             Tack
             ●a●
             within
             the
             worth
             of
             the
             Land
             to
             be
             given
             after
             Redemption
             ,
             was
             sustained
             as
             not
             Vsur●ry
             ,
             but
             the
             Wod●etter
             was
             at
             a
             great
             loss
             by
             a
             Liferent
             med●o
             ●●mpore
             ,
             Iune
             21.
             1662.
             
             Laird
             of
             Polwar●
             contra
             Hu●●
             .
          
           
             A
             Wodsetter
             pursuing
             for
             his
             money
             ,
             was
             found
             not
             to
             have
             access
             thereto
             tilll
             he
             recovered
             the
             Possession
             taken
             from
             him
             by
             a
             third
             party
             intruding
             ,
             seing
             he
             did
             not
             
               de
               recenti
            
             intimate
             the
             in●rusion
             ,
             and
             demand
             his
             money
             ,
             
               February
               17.
               1665.
               
               Hopringle
            
             of
             Torsonce
             contra
             Ker
             of
             S●nderland-hill
             .
          
           
             A
             Wodset
             being
             redeemed●
             upon
             an
             Order
             used
             ,
             though
             without
             citation
             of
             all
             parties
             having
             interest
             at
             the
             Mercat
             Cross
             on
             the
             declara●or
             ,
             albeit
             thereby
             the
             Wodsetters
             Wi●e
             ,
             who
             had
             a
             base
             subaltern
             infeftment
             from
             him
             in
             Liferent
             ,
             was
             excluded
             ,
             and
             the
             Redeemer
             was
             not
             found
             obliged
             to
             know
             the
             same
             ,
             albeit
             registrate
             in
             the
             Register
             of
             Seasines
             ,
             
               Iuly
               ●7
               .
               1665.
               
               Hamiltoun
               contra
            
             her
             Tennents
             .
          
           
             A
             Wodset
             by
             a
             Father
             to
             a
             Son
             redeemable
             by
             the
             Father
             during
             his
             Li●e
             from
             his
             Son
             on
             a
             Rosenoble
             ,
             be●ng
             craved
             to
             be
             declared
             ,
             the
             Son
             having
             appryzed
             ,
             and
             thereupon
             alleadging
             that
             he
             had
             right
             to
             the
             Reversion
             a●
             and
             while
             his
             A●pri●ing
             were
             Redeemed
             ,
             and
             till
             that
             ,
             his
             Father
             could
             not
             Redeem
             .
             which
             at
             first
             was
             susta●ned
             ,
             the
             case
             of
             the
             Son
             being
             favourable
             ,
             the
             Father
             having
             disponed
             the
             whole
             right
             to
             a
             second
             Wi●e
             ,
             but
             being
             thereafter
             deba●ed
             in
             presentia
             ,
             the
             Lords
             were
             of
             different
             judgements
             and
             decided
             not
             ,
             in
             respect
             the
             case
             seemed
             to
             hinder
             Debitors
             to
             Redeem
             a●terior
             Compryzings
             ,
             till
             they
             Redeemed
             all
             pestelor
             Compryzings
             ,
             
               December
               5.
               1665.
               
               Reg
            
             contra
             ●eg
             .
          
           
             A
             Wodset
             containing
             a
             Clause
             of
             Reversion
             for
             granting
             a
             Tack
             for
             certain
             years
             after
             the
             Redemption
             ,
             was
             found
             not
             
             to
             be
             derogat
             from
             by
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             but
             that
             it
             might
             be
             quarrelable
             by
             the
             Act
             19.
             
             Parliament
             1449.
             
             If
             the
             Tack
             were
             set
             but
             about
             the
             half
             of
             the
             true
             Rent
             as
             it
             was
             worth
             the
             time
             of
             granting
             the
             Wods●t
             ,
             and
             so
             being
             Vsu●ary
             ,
             ●
             February
             15.
             1666.
             
             Lord
             L●y
             contra
             Porteo●s
             .
          
           
             Wodsetters
             having
             Wodset
             before
             the
             Act
             of
             Parliament
             1661.
             were
             found
             comptable
             for
             the
             super●lus
             more
             than
             pays
             their
             Annualrent
             ,
             not
             from
             the
             date
             of
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             but
             from
             the
             o●●er
             made
             to
             give
             them
             security
             upon
             quiting
             their
             Wodsets
             ,
             and
             that
             notwithstanding
             there
             was
             in
             the
             Wodset
             a
             Clause
             Renuncing
             the
             Vsurpets
             Act
             ,
             suspending
             the
             payment
             of
             principal
             sums
             ,
             and
             ordaining
             Lands
             to
             be
             taken
             in
             satisfaction
             thereof
             ,
             and
             all
             Acts
             of
             that
             nature
             ,
             and
             albeit
             there
             be
             an
             exception
             in
             the
             said
             Act
             ,
             when
             the
             benefite
             of
             such
             Acts
             are
             Renunced
             ,
             which
             was
             not
             found
             to
             relate
             to
             the
             Clause
             anent
             Wodsets
             ,
             which
             is
             posterior
             to
             that
             exception
             ,
             February
             21.
             1666.
             
             Lord
             
               Borthwick
               contra
            
             his
             Wodse●ters
             .
          
           
             Wodsetters
             before
             the
             Act
             1661.
             choosing
             to
             retain
             the
             possession
             ,
             were
             found
             comptable
             for
             the
             superplus
             ,
             not
             from
             the
             Summons
             ,
             but
             from
             the
             date
             of
             the
             offer
             to
             find
             Caution
             ,
             which
             was
             admitted
             after
             the
             Citation
             ,
             but
             it
             was
             found
             that
             the
             Wodsetters
             were
             not
             bound
             to
             declare
             their
             option
             ,
             whether
             to
             quite
             the
             Wodset
             or
             restrict
             till
             Caution
             were
             offered
             ,
             
               February
               12.
               1666.
               
               Ogilbie
               contra
            
          
           
             A
             Wodsetter
             by
             his
             Wodset
             being
             obliged
             upon
             payment
             to
             Renunce
             ,
             and
             by
             his
             missive
             Letter
             acknowledging
             payment
             ,
             his
             Son
             and
             apparent
             Heir
             having
             received
             a
             disposition
             of
             his
             other
             Estate
             without
             a
             Cause
             on●rous
             after
             the
             Wodset
             ,
             but
             before
             the
             missive
             Letter
             ,
             was
             found
             lyable
             as
             l●crative
             Successor
             to
             enter
             to
             the
             Wodset
             Right
             and
             to
             Renunce
             ,
             Ianuary
             15.
             1668.
             
             Earl
             of
             
               Kinghorn
               contra
            
             Laird
             of
             Vdn●y
             .
          
           
             A
             Wodsetter
             was
             found
             comptable
             for
             the
             superplus
             after
             o●●er
             to
             find
             Caution
             ,
             though
             he
             had
             a
             posterior
             Ratification
             and
             ●ik
             after
             the
             Act
             1661.
             
             
               Iune
               19.
               1669.
               
               Scot
            
             contra
             Langton
             .
          
           
             A
             WRIT
             
               ●iz
               ▪
            
             a
             Bill
             of
             Exchange
             by
             a
             Drover
             sub●cribed
             only
             by
             a
             mark
             ,
             and
             another
             hand
             writing
             such
             a
             mans
             mark
             ,
             The
             Lords
             did
             not
             allow
             it
             as
             probative
             ,
             but
             before
             answer
             ordained
             the
             writer
             and
             witnesses
             to
             be
             examined
             
               ex
               officio
               ,
               February
               26.
               1662.
               
               Brown
            
             contra
             Iohnstoun
             of
             Clacharie
             .
          
           
             A
             Writ
             was
             sustained
             though
             subscribed
             but
             by
             one
             Nottar
             ,
             being
             a
             Contract
             of
             Marr●age
             ,
             whereon
             Marriage
             followed
             ,
             
               Iuly
               19.
               1662.
               
               Breadi●
            
             contra
             Breadie
             and
             Murie
             .
          
           
             A
             writ
             was
             found
             not
             to
             prove
             ,
             being
             the
             Act
             of
             a
             Town
             Council
             without
             Citation
             or
             Subscription
             of
             the
             party
             ,
             bearing
             consent
             to
             a
             penalty
             imposed
             upon
             unfree-men
             .
             February
             13.
             1663.
             
             Town
             of
             
               Linli●hg●w
               contra
            
             unfree-men
             of
             Borrowstownness
             .
          
           
             A
             writ
             was
             sustained
             though
             not
             delivered
             being
             in
             ●avours
             of
             the
             granters
             Son
             though
             a
             Bastard
             ,
             
               February
               25.
               1663.
               
               Aik●nhead
            
             contra
             Aik●nhead
             .
          
           
             A
             writ
             wanting
             w●tnesses
             designed
             ,
             was
             not
             sustained
             simply
             on
             designation
             being
             a
             very
             old
             writ
             without
             other
             adminic●es
             to
             astruct
             ,
             seing
             the
             improbation
             by
             such
             witnesses
             being
             dead
             ,
             was
             not
             competent
             as
             
               in
               recenti
               ,
               Iuly
               15.
               1664.
               
               Colvil
               contra
            
             Executors
             of
             the
             Lord
             Colvil
             .
          
           
             A
             writ
             viz.
             a
             Bond
             was
             found
             not
             taken
             away
             by
             witnesses
             offering
             to
             prove
             payment
             ▪
             though
             the
             Bond
             was
             made
             in
             England
             to
             English-men
             ,
             where
             that
             probation
             is
             competent
             ,
             being
             made
             by
             Scots-men
             residing
             in
             Scotland
             and
             registrate
             here
             ,
             and
             so
             to
             be
             regulat
             by
             the
             Law
             of
             
               Scotland
               ,
               December
               8.
               1664.
               
               Scot
            
             contra
             Anderson
             and
             Neilson
             .
          
           
             A
             writ
             was
             not
             found
             null
             as
             wanting
             Writer
             and
             Witnesses
             insert
             ,
             being
             made
             
               secundum
               consuetudinem
            
             loc●
             in
             
               Ireland
               ,
               Fe●uary
               1.
               1665.
               
               Elphing
               stoun
            
             of
             
               S●lmes
               contra
            
             Lord
             Rollo
             .
          
           
             A
             writ
             quarre●●ed
             as
             null
             ▪
             the
             witnesses
             not
             being
             designed
             ,
             was
             not
             sustained
             ,
             unless
             living
             witnesses
             were
             condescended
             on
             ,
             or
             adminicles
             to
             astruct
             the
             verity
             of
             the
             debt
             ,
             February
             3.
             1665.
             
             
               Falco●er
               contra
            
             Earl
             of
             King●orn
             .
          
           
             A
             writ
             alleadged
             null
             because
             the
             writer
             was
             not
             designed
             ▪
             was
             sustained
             upon
             designing
             the
             ●riter
             ,
             albeit
             the
             writ
             was
             old
             and
             appeared
             to
             have
             been
             blank
             in
             the
             sum
             ,
             Creditor
             ,
             and
             Debitor
             
               Decem.
               5.
               1665.
               
               Cunninghame
               contra
            
             Duke
             of
             Hamiltoun
             .
          
           
             A
             writ
             viz.
             a
             Bond
             was
             taken
             away
             by
             this
             manner
             of
             probation
             by
             oath
             that
             it
             was
             for
             a
             Prentice-see
             ,
             and
             by
             witnesses
             that
             the
             Prentice
             was
             put
             away
             within
             a
             year
             and
             an
             half
             after
             the
             entry
             ,
             as
             to
             a
             proportional
             part
             of
             the
             Prentice-see
             to
             the
             time
             thereafter
             ,
             
               Iune
               15.
               1665.
               
               Aikman
               contra
            
          
           
             A
             writ
             being
             no
             compt
             Book
             but
             some
             louse
             Scheduls
             ,
             was
             found
             not
             probable
             to
             instruct
             a
             debt
             against
             the
             writer
             of
             it
             ,
             who
             deponed
             that
             he
             wrot
             the
             same
             ,
             but
             declared
             also
             that
             he
             had
             payed
             the
             sum
             ,
             
               Iuly
               1.
               1665.
               
               Nasmith
            
             contra
             Bower
             .
          
           
             A
             writ
             wanting
             witnesses
             being
             offered
             to
             be
             proven
             holograph
             ,
             albeit
             it
             cannot
             instruct
             its
             own
             date
             ,
             or
             that
             it
             was
             subscribed
             before
             the
             Defunct
             was
             on
             death-bed
             ,
             yet
             the
             alleadgance
             on
             death-bed
             was
             not
             sustained
             by
             way
             of
             exception
             or
             duply
             ,
             
               Ianuary
               11.
               1666.
               
               Sea●on
            
             and
             the
             Laird
             of
             Touch
             contra
             Dunda●
             .
          
           
             A
             writ
             being
             an
             assignation
             to
             an
             appryzing
             ,
             was
             taken
             away
             partly
             by
             the
             assigneys
             oath
             ,
             and
             partly
             by
             witnesses
             
               ex
               officio
            
             ,
             proving
             that
             the
             appryzing
             with
             the
             assignation
             blank
             in
             the
             assigneys
             name
             was
             retired
             ,
             and
             lying
             by
             the
             assigneys
             father
             who
             was
             debitor
             in
             the
             sums
             and
             amongst
             his
             writs
             the
             time
             of
             his
             death
             ,
             February
             27.
             
             166●
             .
             Creditors
             of
             the
             Lord
             
               Gray
               contra
            
             Lord
             Gray
             .
          
        
         
           
             A
             writ
             was
             not
             sustained
             as
             having
             but
             one
             witne●s
             to
             that
             subscription
             ,
             though
             another
             witness
             generally
             designed
             ,
             deponed
             he
             saw
             not
             that
             party
             subscrib●
             ,
             but
             that
             the
             subscription
             was
             his
             hand-writ
             to
             the
             best
             of
             his
             knowledge
             .
             and
             several
             other
             subscriptions
             were
             adduced
             to
             as●ruct
             the
             same
             
               comparatione
               l●terarum
            
             ,
             seing
             there
             were
             not
             two
             witnesses
             insert
             to
             this
             subscription
             ,
             
               Ianuary
               4.
               1667
               ,
               Dow
            
             of
             Ar●ho
             contra
             Ca●pbel
             of
             Calder
             .
          
           
             A
             writ
             being
             a
             discharge
             by
             a
             Master
             to
             his
             Tennents
             was
             sustained
             ,
             though
             without
             witnesses
             and
             not
             holograph
             ,
             and
             without
             necessity
             to
             prove
             the
             truth
             of
             the
             Subscription
             in
             respect
             of
             the
             common
             custom
             to
             take
             such
             discharges
             ,
             Iuly
             4.
             1667.
             
             
               S●haw
               contra
            
             Tennents
             .
          
           
             A
             writ
             being
             a
             bond
             was
             found
             not
             probative
             ,
             having
             only
             the
             clause
             of
             Registration
             and
             Subscription
             on
             the
             one
             side
             ▪
             and
             all
             the
             rest
             on
             the
             other
             side
             with
             another
             hand
             ,
             unless
             it
             were
             astructed
             with
             other
             evidences
             and
             adminicles
             ,
             
               Iuly
               16.
               1667.
               
               Hamil●oun
            
             contra
             Symontoun
             .
          
           
             A
             writ
             subscribed
             by
             Nottars
             was
             sound
             null
             because
             the
             Nottars
             subscription
             said
             that
             he
             subscribed
             for
             the
             party
             ,
             but
             bear
             not
             at
             his
             command
             ,
             which
             was
             not
             allowed
             to
             be
             astructed
             by
             the
             witnesses
             insert
             ,
             
               Iuly
               26.
               1667.
               
               Philip
            
             contra
             Cheap
             .
          
           
             A
             writ
             being
             a
             Bond
             subscribed
             with
             initial
             Letters
             was
             sustained
             ,
             it
             being
             found
             proven
             the
             debitor
             was
             accustomed
             so
             to
             subscribe
             ,
             and
             there
             being
             three
             Witnesses
             and
             the
             Writer
             examined
             ,
             whether
             
               de
               facto
            
             he
             subscribed
             the
             Bond
             ,
             two
             affirmed
             ,
             and
             two
             denyed
             their
             subscriptions
             ,
             the
             Creditor●
             oath
             being
             taken
             
               ex
               officio
            
             ,
             affirmed
             the
             truth
             of
             the
             debitors
             subscription
             ,
             who
             being
             a
             person
             of
             good
             fame
             and
             credit
             ,
             and
             no
             improbation
             insisted
             in
             ,
             the
             Bond
             was
             sustained
             ,
             Novomber
             16.
             1667.
             
             Laird
             Cult●ra●
             contra
             Chapman
             .
          
           
             A
             writ
             having
             lyen
             33.
             years
             dormi●nt
             ,
             witnesses
             and
             arbiters
             were
             examined
             
               ●x
               officio
            
             ,
             whether
             or
             not
             the
             writ
             was
             put
             blank
             in
             the
             arbiters
             hands
             ,
             and
             being
             found
             by
             the
             party
             filled
             up
             with
             five
             times
             so
             much
             as
             was
             their
             mind
             ,
             though
             there
             was
             no
             adminicle
             in
             writ
             to
             evidence
             the
             cause
             thereof
             ,
             upon
             consideration
             of
             the
             long
             latency
             of
             it
             and
             the
             necessity
             of
             money
             the
             party
             was
             in
             who
             had
             it
             ,
             
               Ianuary
               6.
               1668.
               
               Chis●h●lme
               contra
               Rennies
               .
            
          
           
             A
             writ
             subscribed
             by
             a
             principal
             party
             and
             certain
             cautioners
             ,
             bearing
             the
             day
             ,
             place
             and
             witnesses
             of
             their
             subscription
             ,
             and
             af●er
             the
             witnesses
             names
             bearing
             as
             subscribed
             by
             another
             party
             as
             Cautioner
             at
             blank
             ,
             without
             any
             thing
             following
             either
             of
             the
             date
             or
             witnesses
             ;
             The
             Bond
             was
             not
             sustained
             against
             that
             Caut●oner
             upon
             the
             Creditors
             condescending
             on
             the
             date
             and
             witnesses
             to
             be
             the
             same
             with
             these
             of
             the
             principal
             and
             the
             other
             Cautioners
             ,
             but
             the
             Lords
             
               ex
               officio
            
             ordained
             the
             witnesses
             to
             be
             examined
             whether
             they
             saw
             the
             Cautioner
             in
             question
             subscribe
             with
             the
             principal
             and
             other
             Cautioners
             ,
             reserving
             to
             their
             own
             consideration
             what
             the
             Testimonies
             ●hould
             operat
             ,
             Ianuary
             24.
             1668.
             
             Magistrates
             of
             contra
             Earl
             of
             Findlator
             .
          
           
             A
             Writ
             wanting
             witnesses
             being
             pursued
             on
             against
             the
             subscribers
             Heir
             ,
             and
             being
             offered
             to
             be
             proven
             holograph
             ,
             he
             was
             admitted
             to
             alleadge
             that
             though
             holograph
             it
             could
             not
             prove
             it self
             to
             be
             of
             the
             da●●
             it
             bear
             ,
             but
             was
             presumed
             to
             be
             subscribed
             
               in
               l●cto
            
             ,
             which
             was
             sustained
             being
             thus
             proposed
             without
             a
             Reduction
             ,
             seing
             the
             Bond
             was
             not
             sufficient
             of
             it self
             but
             needed
             probation
             ,
             and
             the
             alleadgeance
             of
             death-bed
             was
             instantly
             verified
             by
             the
             presumption
             of
             Law
             ,
             that
             the
             writ
             instructed
             not
             it self
             to
             be
             before
             the
             Defuncts
             sickness
             ,
             
               November
               14.
               1668.
               
               Calderwood
            
             contra
             Iohnstoun
             .
          
           
             A
             writ
             requiring
             two
             Nottars
             ,
             subscribed
             but
             by
             one
             was
             found
             to
             be
             valide
             ,
             if
             the
             verity
             of
             the
             subscription
             were
             proven
             by
             the
             subscribers
             oath
             ,
             and
             that
             it
             might
             not
             be
             res●led
             from
             ,
             but
             that
             the
             oath
             might
             not
             be
             taken
             in
             prejudice
             of
             an
             Assignay
             for
             an
             onerous
             cause
             ,
             
               December
               18.
               1668.
               
               Swintoun
            
             contra
             Brown.
             
          
           
             Writ
             cannat
             be
             taken
             away
             by
             witnesses
             ,
             was
             ●ound
             not
             to
             infer
             that
             witnesses
             cannot
             be
             admitted
             to
             prove
             a
             Bargain
             anteriour
             to
             the
             writ
             ,
             upon
             which
             bargain
             the
             writ
             may
             be
             reduced
             as
             posterior
             in
             prejudice
             of
             Creditors
             ,
             seing
             the
             payment
             or
             discharge
             of
             the
             writ
             is
             not
             proven
             by
             the
             Witnesses
             ,
             Ianuary
             21.
             1669.
             
             Creditors
             of
             Pollo●k
             contra
             
               Pollock
               ▪
            
          
           
             A
             writ
             being
             a
             Bill
             of
             Exchange
             subscribed
             only
             by
             a
             mark
             and
             not
             initial
             Letters
             was
             found
             to
             prove
             ,
             there
             being
             some
             witnesses
             who
             deponed
             they
             saw
             the
             mark
             put
             to
             ,
             and
             others
             that
             the
             party
             being
             a
             Merchant
             Drover
             was
             accustomed
             so
             to
             subscribe
             Bills
             of
             considerable
             sums
             ,
             which
             were
             ordinarly
             accepted
             ,
             and
             answered
             by
             him
             ,
             but
             this
             being
             the
             first
             writ
             sustained
             by
             a
             mark
             ,
             was
             only
             approven
             by
             all
             the
             circumstances
             and
             not
             to
             be
             drawen
             in
             example
             ,
             many
             of
             the
             Lords
             being
             contrary
             to
             the
             allowing
             this
             or
             any
             such
             ,
             February
             1.
             1669.
             
             Brown
             contra
             Iohnstoun
             of
             Clacharie
             .
          
           
             A
             writ
             being
             a
             Tac●●
             was
             found
             null
             ,
             as
             not
             being
             subscribed
             by
             two
             Nottars
             ,
             though
             it
             was
             subscribed
             by
             one
             and
             a
             judicial
             act
             of
             Ratification
             thereof
             in
             a
             Baron
             Cou●t
             ,
             which
             was
             not
             found
             to
             supply
             the
             want
             of
             the
             other
             Nottar
             ,
             seing
             the
             first
             Nottar
             was
             Clerk
             of
             the
             sam●
             Court
             ,
             and
             all
             was
             but
             one
             assertion
             ,
             
               December
               18.
               1668.
               
               Swintoun
            
             contra
             Brown.
             
          
        
         
           FINIS
           .